 Good morning, and welcome to the ninth meeting in 2018 of the Culture, Tourism, Europe and External Relations Committee. I'd like to remind members and the public to turn off mobile phones and any members using electronic devices to access committee papers should please ensure that they are turned to silent. Apologies have been received from Richard Lockhead MSP, Jackson Carlaw MSP and Rachel Hamilton MSP and I'd like to welcome Dean Lockhart MSP to the committee as a substitute for Rachel Hamilton. Our first item of business today is a decision on taking item 4 in private. Are members agreed? Our second item of business today is the second evidence session of our inquiry into Scotland's screen sector and it will focus on the role of partner agencies in the delivery of the screen unit. Before we move to questions, I'd like to make those in the industry and others aware that, although last week's session on finance, investment and support had to be cancelled due to the adverse weather conditions, we will be rescheduling this meeting for the 19th of April. We appreciate that this is not ideal and we had hoped to use this evidence from last week to inform today's session but, unfortunately, we do not have any control over the snow. Have I pleased to be reassured that any issues raised in future evidence sessions will be used to inform the committee's report and the intention is to hear from Creative Scotland again on 31 May. Before I welcome the witnesses, we had hoped to have Janet Archer, the chief executive of Creative Scotland, here today but, unfortunately, she has been taken ill and Ian Munro, the deputy chief executive of Creative Scotland, was coming in her place and he has been held up by traffic and may arrive some time later in the session. Therefore, I'd like to welcome David Smith, sector director of digital technology and sector delivery at Scottish Enterprise, David Martin, sector manager of creative industries at Skills Development Scotland, David Oxley, director of business and sector development, Highlands and Islands Enterprise and Michael Cross, the interim director of access skills and outcome agreement at the Scottish Funding Council. I'd like to remind members and witnesses that time is short and we have a lot of ground to cover so I would be grateful if we could keep questions and answers as succinct as possible. I'd like to open by perhaps addressing the initial questions to David Smith that the Scottish Enterprise is the other lead partner with Creative Scotland. The screening proposal states that partners have agreed the right leadership role and remit for success. I wondered if you could explain how you came to this decision and I'd also like you to address the SSLG report's recommendation that a close working partnership agreement should be established between the public bodies. I wondered if you could provide more information about the partnership agreements. Are they in place yet and can you share them with the committee? Sure, thank you. Thank you for the opportunity to be here this morning. To try and cover your initial question as succinctly as possible, there has been a great deal of work undertaken across the partners in helping to formulate proposals for the new screening and then put together the implementation plan for the new screening. In particular, as I'm sure you will appreciate, we did look very carefully at the evidence around the sector. The Scottish Enterprise led a particular work stream that resulted in a report from Oldsburg consultants that looked at the major opportunities for the sector. What were some of the barriers and challenges, but that report highlighted our particular strong opportunities both in the attraction of high-end TV mobile film productions and also the opportunity to leverage or utilise the increased public sector broadcaster spend going forward to try and drive and stimulate even more growth opportunities for companies in the sector. As a result of that, we discussed what needed to happen to develop the business support landscape to help the screen companies in Scotland to take advantage of and capitalise on those market opportunities. One of the key things that we work towards is to reach an agreement that is covered in the proposal to have the screening lead on a one-door approach to join that business development support for the screen sector. A few things that the convener recognises are that, as we have been learning and going through a process of continuous improvement, a number of agencies have been involved in the provision of support, particularly to early-stage companies in the screen sector, including Business Gateway, the support that Crive Scotland provides through its programmes such as Slate funding programmes and some of the products and services that we and Highlands and Islands Enterprise provide and which are delivered through Business Gateway partners. We felt strongly that recognising the needs of the screen sector companies, particularly early-stage companies, was important to move towards more of a one-door approach in the screening and going forward will take responsibility for the delivery of that one-door approach, making it easier for companies to access the support that is on offer but also through the provision of some of the extra funding and additional support services that we have been working on. There will be the opportunity now for those companies to benefit from a broader range of services. Can I just intervene there? You mentioned the one-door approach. That is obviously something that the sector has asked for. Can you tell me the timeframes for that? Will it be up and running at the same time as the screen unit? Can you also tell me when the online single portal will be available because that was promised some time ago and it has not been delivered yet? In relation to the timings for those, that will be a question for Ian when he comes in because Creative Scotland is leading on the precise launch date for that but we anticipate that that will be some time in the first quarter of the operation of the new screen unit. In terms of the portal, we led on the first stage of that work which was to amass and map all the different support services on offer from different agencies, the enterprise agencies in Carrive Scotland. We assembled that information and that mapping and Creative Scotland are leading on the actual development and launch of the portal. Again, Ian will be able to confirm the precise timings of when that is due to launch but I would anticipate that being some time early in the first quarter of operations. We have taken written and oral evidence from the industry. One of the things that they highlighted as I said earlier in my first question was leadership and the need for autonomy in the unit. One particular concern was the seniority of the people on the screen committee from each agency. Can you tell me what the seniority of the people is likely to be on the screen committee? I assume that you are referring to the overall senior governance group of committee from the Scottish Enterprise point of view. It has been and will continue to be Linda Hannah, her managing director for the sector in strategy from the other agencies at a similar level at senior executive representatives. I will pass on now to Claire Baker. Thank you, convener. The screen unit is a partnership organisation and it is welcome. There is the level of collaboration but it has read to some questions around decision making to follow on from the convener's question. When we took evidence from John McCormack a few weeks ago, he did say that we need to make it clear in the governance setup. It is not clear from the paper where decisions will be taken and what level of discretion the screen units leadership team will be able to make. The committee has concerns that it is not clear where the decision making will lie and we recognise that it is important that the screen unit is able to make decisions on appropriate timescales that suit the needs of that particular industry. Are you able to provide some assurances around those concerns? Let me try to start by addressing that and others in the panel may wish to come in. I guess to try to be succinct because the majority of the decisions will rest with the screen unit and with the executive leaders of the screen unit within Cudiff Scotland. That is probably a short response to your question. Having said that, each of us will have particular roles to play as we contribute to the support that is on offer to screen businesses. For example, when it comes to utilising our account management services and some of the other support services we have to support the scaling of businesses in the screen sector, we will obviously continue to have decisions leading in decisions about the nature and type of support that those scaling businesses will receive. Largely in all other respects in relation to business support then the primary lead for the decisions will rest with the screen unit with Cudiff Scotland in terms of the support that is offered to those companies. We feel that it is appropriate to scale the nature of the challenges that businesses and their growth journey will face. That is difficult because we do not have anyone from Cudiff Scotland here but the screen unit does sit within Cudiff Scotland. I suppose there are some questions to be answered around does decision making rest in the screen unit or does that have to refer back? Does it ultimately rest with Creadiff Scotland? I appreciate that. I suppose it has been interesting of what your understanding of the autonomy of the screen unit would be. My understanding is that most of the decisions would rest within the executive, but Ian will be able to clarify. That is my understanding as well. The role of the screen committee is a scrutiny board to make sure that partnership working is working well that all agencies are contributing in their right role and that is why we have senior representation for high. It is Charlotte Wright, our chief executive who is on the screen committee. To that, that is my understanding. I think that our role as partner agencies is to offer that scrutiny that David describes. I confirm that I am from the Scottish funding council. I am currently an interim director so I report directly to the chief executive whoever takes my post in the future would similarly attend this group and would have that level of authority. Just to complete the set, the portet, skilled development Scotland is represented by Gordon MacGizness who is director of industry, enterprises and networks. He reports clearly to the chief executive that the representation within the screen committee of the agencies is at a very high level. Finally, the screen unit proposal includes 12 action plans that cover a range of things including a lead for a studio. Are the partner agencies that there has been some concerns that 12 action plans are not focused enough that it might be not clear enough what we are setting out to achieve here? That it is too broad and too many aims within there. As the partner agencies are you clear on what the strategic priorities of the screen unit are going to be and what roles you have to play within that? I would say that we are clear on the overall priorities and we all share and support the vision and the objectives and targets, the strategies and targets that have been set out to both double increase, achieve a 100 per cent increase in production spend and to increase the number of scale companies, the companies that are able to generate more than a £10 million turnover from two to six companies by 2023. That is the overall ambition objectives. Obviously, there are some caveats in relation to some of the key things that need to fall into place to enable those outcomes to be achieved. On the 12 actions, I am clear on the contribution that we are being asked to make and will make to those actions. There are 12 actions beneath those actions. We are starting to develop an action plan for each one of those. We are setting a timescale for various things in the community. We know how to monitor and to judge performance against that or clean up things that are not going to happen overnight where there is a process being followed. Thank you. Just to follow on from Claire Baker's question, I would hud some suggestions that the screen unit should be a standalone unit rather than being part of Creative Scotland and it was really just to get your thoughts on that and what do you think would be the most beneficial model? The screen is just one part of Creative Industries' landscape. For the Highlands and Islands we have found that getting businesses to work collaboratively within a network of screen or music or arts or whatever it is is useful but increasingly that is becoming a case where collaboration across those is more important so you may get a musician that is working with a film producer so it is the networking thing so I think from my point of view that being part of the wider Creative Scotland seems to be right because it is easy to make those connections when it is all part of one agency. Just to add to that it is fair to emphasise that the sector is relatively small in terms of screen. You will know from the Osberg SPI report that they are indicating just under 500 businesses so essentially what that means is that the interrelationships that the screen unit will provide those businesses will lead to greater clarity and greater joint endeavour across the four growth opportunities. That is much more significant in terms of the purpose and function of the screen unit as opposed to where it sits right now. I certainly have not had compelling evidence presented about the idea of it being outwith Creative Scotland at this time. There are networking opportunities that you are talking about there that would not be possible if it was a stand-alone agency. Clearly, Scottish Screen did exist as a stand-alone agency and did work to a certain extent but obviously things have moved on since the emergence of Creative Scotland with that compound coverage in terms of development activity for creative industries performing arts and indeed screen. We are looking at a different beast. The request in terms of examining the establishment of the unit was to do so within Creative Scotland. That is very clear as a joint statement and very plainly laid out in the collaborative proposal. Another question that I would like to put to you all is really about the knowledge and expertise and how you will ensure that the screen unit has the right knowledge and expertise to properly support the sector. As some of the written evidence we have received that has been a concern from some organisations that expertise might not necessarily be there and how will you ensure that that keeps pace as well as it progresses? I could maybe initiate the conversation around that. I have been looking at 5D7, which are primarily the talent and skills development functions of the organisation and I think what has been very significant about the approach and the processes behind that has been the very clear consensus across the industry. Looking at key intermediaries such as the association of film TV practitioners in Scotland, back to the TV working group Pact in Scotland, those are all very key agencies, key structures for the sector and they are working together with myself and my colleague at Creative Scotland actually out the detail behind those specific actions. What I would say is that what is emerging is a very close partnership between the industry, the industry agencies, the industry organisations, the businesses, the broadcasters around these actions one by one. Access to intelligence and expertise is built in within the entire process and will be continued to hone as the staffing plan is detailed out and has begun to be completed. Would anybody else like to comment on that? I would be happy to comment. Clearly we all bring to the new screening expertise and knowledge in different aspects of economic development, understanding the cultural and social benefits and aspects of the screen sector. I think we would all concur and agree that the critical mass of that knowledge and expertise has rested and will continue to rest within Creative Scotland and within the screen unit and clearly there are plans as part of the implementation to add to that, to increase the number of people knowledge and resources and expertise in the screen unit. We all bring knowledge and expertise from our different organisations in our case in relation to economic development and how to support the scaling of businesses but by interacting with industry this is a critical point for all of us and particularly for the screen unit going forward. The interaction with industry helps us to understand the challenges the opportunities in the needs going forward and to stay current and critically going forward with the screen unit it will be really important to maintain that and to grow and develop that interaction with industry. I also have particular questions for Scottish Enterprise because unfortunately as the convener mentioned at the start of the meeting we had to cancel one of the previous evidence sessions we were due to take where we received evidence from the likes of Caledonia TV among a few others where they were critical of Scottish Enterprise because they felt that there was a lack of, a general lack of understanding of the industry and even in terms of the general support they were saying how Scottish Enterprise did have a couple of successful funding programmes which were then discontinued there's also the focus on the high growth companies where they talked about well they say how the leadership group called for increased and appropriate business development support for screen businesses and Scottish Enterprise is failing to provide that and I think that Caledonia TV in particular said our companies are being told by SEW that we cannot even be account managed by them unless our turn over is four million or upwards and I think that there's only a couple of companies that are able to achieve that and so how would you address some of those criticisms that have been raised by others who provided evidence? First of all specifically with regard to Caledonia TV they have been for some time although we did work with them a number of years ago directly they have been for the last few years a client or a customer of Business Gateway Glasgow so I've been in touch since they gave that evidence with Business Gateway Glasgow and asked them to reach out again to Caledonia TV they have done that made contact reached out to them and are waiting to hear back from them about their plans and their aspirations going forward and once we have more feedback from Business Gateway Glasgow on their discussions with Caledonia TV we'll be happy to look at the particular position with them and what more we can offer or provide alongside Business Gateway to support their business but to your broader question in terms of the particular ideas of support that we offer we currently can manage 15 companies in the screen sector we support 21 different companies who are being supported to do different business gateways around the country and we provide a wider set of support to about 70 different companies currently in the screen sector as you pointed to and as the role that we're being asked to take on the role that the screen sector leadership group endorsed that we should take on a lot of our support is very much targeted towards supporting the scaling of companies' businesses in the screen sector and one of the companies that couldn't make it to your session last Thursday because it was cancelled for whether it's blazing and griffing a company we work very closely with their post-production studios and operations are terrific anything that is on offer in London and the US we've been working with blazing and griffing now for a good couple of years most recently we provided them with an RSA award for around £200,000 which is going to help them to support and put in place 15 new jobs and their post-production facilities and studios work on a number of leading productions that I'm sure you're familiar with with Outlander a number of other series let me just look up to check again my facts right on this including Outland on Shetland as well so those programmes so with companies like Blazing and griffing we're really helping them to scale up not a good example of that is Axis Animation and the team that Richard Scott leads in Skypark in Glasgow took over a whole new floor of one of the buildings in Skypark to develop and expand their operations and we supported them as part of that with our £250,000 RSA grant to support the creation of 20 new jobs and they've got terrific animation capabilities and facilities to support programmes features like Dr Who called on my wife Shetland and they're also moving into development of full length animated feature films so we're supporting those kind of organisations and doing a lot more in terms of trying to provide a wider range of support through the programmes that we majority fund with TRC media to help the development of business skills and leadership skills across a much wider range of companies in the screen sector all with a view married towards growing and increasing the amount of capacity and capability in a broader range of companies to help them to invest in scaling up I'm just wondering are the companies that you're working with at the moment are they the ones that meet that high growth criteria because that was a concern that the leadership group had raised about the support provided to companies who don't meet that high growth criteria and they said that uptake of the support is low and there's a perception from the sector that as well as being difficult to understand what's available many of the products are not going to be useful so how would you respond to that I suppose a couple of brief points in response to that the account managed companies the 15 companies that we work with I give a couple of examples that are the ones that have most appropriate meet the criteria that are appropriate for us to work with them in that way however there's another 21 companies that are clients of business gateway that benefit from a wider range of the business gateway offer but also get some of the grants and products that are delivered through business gateway but provided by us and in terms of wider support so the focus programme and the TRC media digital economy expansion programme we are currently supporting through those programmes that we fund a broader range of companies the reason we're doing that is to try to help them to grow the skills and capabilities the business development skills and capabilities that will help them over time to go through that growth journey and hopefully in a relatively short space of time be able to to get to the point where account management support is the most appropriate intervention for them that's very much I'd like to welcome Ian Monroe to the meeting I'm glad you were able to make it, Ian the discussion so far has been focused on how the screen that is going to work and some issues around governance and leadership and delivery and how it's going to tackle some of the systemic problems that have been identified by the screen sector leadership group in particular I know that Tavish Scott has some questions about governance so rather than repeat my questions I'll hand over to Tavish. My apologies for being late this morning and if I ask something that's all been dealt with before, well you and Ian at least know it wasn't asked before. Can I just ask a couple of questions on governance? The report that we're basing our analysis on today makes some recommendations in terms of partnership working and what kind of change will happen. I suppose I could start with who will be, how senior will the people be from the different organisations on this unit? Probably Ian, we have covered that question, but Ian might want to just... The unit as a partnership in terms of the governance arrangements behind it, there are different component parts to make sure that the partnership works effectively. I think the starting point that we shouldn't forget to recognise is that it's built on film foundations already from a screen team within Creative Scotland and indeed the partnership that you see today. That's been the starting point. The arrangements are being put in place to make sure that not only there is senior level representation from across the partnership, but there is industry representation feeding directly into that as part of it and we recognise that that has been an important point that the sector have made to ensure the success of the unit. It's a combination of partnership structures and industry representation and the skills and expertise of the staff that currently exist and that we will be scaling up on the recruitment of new and additional staff to be able to make sure that we can deliver the step change particularly in relation to the funding expectations that would naturally are at the heart of many much of the interests that exist. So there will be a unit with staff but there will be a board over viewing that, correct? How big will the board be? The screen committee which is a combination of Creative Scotland and the partners with industry representatives I think that that's being built at the moment the foundations for that are a combination of the partners plus three representatives from Creative Scotland board So it will be somewhere around 8 to 10 and all the sort of four agencies, five agencies here they'll all be on it on the screen committee, yes and that screen committee has accountability to the Creative Scotland board as well as the partners to the individual organisations Okay, and how senior will the people be from Scottish Enterprise, Skills Development Scotland etc etc Are we talking to Chief Executive? In the case of Scottish Enterprise it will be Linda Hannah, our managing director for strategy and sectors who reports directly to our interim chief executive Paul Lewis Chief Executive and for the SFC it's me, I'm the director of Active Skills and Outcome Agreements I report to John Kemp Director of industry enterprises and network reporting to Chief Executive in years But they all do different jobs at the same time all the people you've mentioned Michael as well you all do many jobs as well How important is this job going to be amongst everything else you do? It is important I should anchor my reply really to the leadership guidance that we get from Scottish ministers and the minister has made plain her expectations of the SFC in supporting the establishment of the screen unit and we'll work to that end, it is important we have other important elements to our jobs I'm sure but it is important And how will we judge that if you're all back here in a year's time and all suddenly sat on this committee and so on and so forth and you all sit on numerous other committees and that kind of thing how are we going to be assured that and you'll bring a lot of focus to this and not just First of all I would say because we're all bought into and signed off on the ambition and the stress targets that have been set for the screen unit proposal so the target to achieve by 2023 the 100% increase in production spending to grow the number of businesses in Scotland that are turning over more than £10 million a year in screen production so that's ultimately how you'll judge us but you'll also judge us on the progress that we're making towards that and the implementation of the plan That's very true Ian, do you have confidence that that structure is going to actually work? Yes I think that we should recognise that it is a relatively new and innovative model so of course it will be carefully monitored and kept under review to make sure that in relation to what David has just said which is ultimately the delivery of the objectives of the plan and those targets that we've got governance structures around us to make it work as best we can and if that requires adjustment along the way then we'll be clear to understand, recognise that and communicate that and move on as when it's necessary The other question that I want to ask I think that clear care in the evidence in the previous session which I thought was a very thoughtful one about what I think they have in Denmark which is a revolving door recruitment policy in relation to their board so that, particularly for the and I presume this is about industry people as opposed to representatives of the sector of the organisations that government have clang or something that such a person would only be in place for three years to get into industry and carry on I think that sounds pretty compelling argument Have you given that some thought? Yes, it's part of the consideration as I said we're looking at industry representation directly into that screen governance structure and of course that will be down to the availability of the individuals but it will be on an annual basis we'll be looking to understand what the future needs to be and if that industry representation changes or adapts then that's what will take place Who will chair the committee? Has it been decided who's going to chair the committee? It will be chaired by a member of the Creative Scotland board Right, so that will be someone by definition from with an arts background Not necessarily In fact we in terms of the Creative Scotland board have got a recruitment process about to undertake we've just recently appointed our new chairman last two weeks ago but now we're about to move into recruitment for board members and one of the identified specialist needs and requirements for the board is around industry expertise Who will decide who is going to chair the unit? Sorry, the committee in charge of the unit whose decision is that Creative Scotland board but in discussion with the partners the current chair is Barclay Price who stands down at the end of his board term in June so that's partly one of the spaces for the recruitment process that we're about to get underway but ultimately we recognise that the screen there has to be confidence to the industry around the not just the governance arrangements but actually the people who are there and taking part and of course the aim would be and ambition would be to recruit somebody with skills expertise to chair that committee I understand that the root of accountability for this committee will be the Creative Scotland board Ultimately and then two ministers Indeed If I can just come in with a supplementary just to clarify the Creative Scotland board doesn't currently have anyone with screen sector experience on it Not as evidently as we think is required and of course The view from the association of film and television practitioners in Scotland they've made a late submission to us based on their recent meeting with the cabinet secretary and one of the things that they've said is that we understand from Fiona Hyslop's office the recruitment for the screen unit team has begun as the senior management of Creative Scotland and the current board have no screen industry experience who is guiding the process to appoint staff of calibre because if you don't have expertise in the industry how can you appoint staff of calibre if you don't know the industry? There's two things there aren't there there's one around the kind of board level and the governance and those appointments are of course made by the by the Scottish Government I've identified that there is a distinct need in relation to screen expertise for the Creative Scotland board and we'll be addressing that in terms of the recruitment of staff I'll go back to the earlier point about I don't think we should forget that we have a screen team there of excellent people who are respected knowledgeable and have great expertise and they will be part of informing these next steps and helping to deliver them So they're going to be recruiting their own boss then? No, no They will have an interest in making sure of course that the incoming incumbents at a senior level work for them to We've been told privately and obviously Fiona Hyslop's office appears to have been told that the leader of this unit the recruitment process has started for the leader of this unit Yes, behind the scenes we've been working because this will be the most senior role I presume that you're referring to So the process for that has been to because it's a position of global interest has been to commission an external expert recruitment consultant to work with us on that global search and the preparations for that role have been under way based on a job description that's been under discussion and it's been tested with external industry representatives as part of that process, not just within the Creative Scotland staff team or board or indeed with the partners so we're making sure that we've got industry oversight of that job description before we go live with it The unit's boss will be up and running in the 1st of April clearly the leadership of the unit's not going to be in place for the 1st of April at any level? Not in terms of that senior most senior post but I think the decision to green like this was at the end of last year I think we've all been very realistic that we want to get this right that takes time and it's never going to be possible to be 100% fully formed, 100% fully in place and operational from the 1st of April what we're very focused on at the moment are four things to make sure that there is an evident step change beginning to happen one is around funding as I've said before that's essentially important to many in the industry the second is around the resourcing point that you've made and the move on the recruitment to increase capacity the third is around the identity the brand the portal the entry point for this screen unit given that it's a partnership project so that people can have a single point of entry so that they can see and understand what the unit is offering and the fourth one is behind the scenes point that Tavish Scott has just asked about in terms of governance making sure that we've got the mechanisms and arrangements in place to make sure that the partnership works to best effect When is the single frontier going to be in place? We've yet to nail an absolute date but it will be in the first quarter of this next year as soon as possible as I've said we're aiming to get this absolutely right but the partnership haven't agreed so that means by the end of April it will be in place by the end of April potentially but we're not able to confirm that yet right okay Ross Greer This has been useful in getting a bit more clarity on the governance arrangements but I still think that we need to drill down on it a bit more I still have questions over the relationship between this committee and the creative Scotland board and in fact it goes back to questions before you arrive Mr Monroe around some concern from the sector about why this unit has been set up within creative Scotland rather than as an independent body a lot of that concern related to the fact that ultimately the committee here would be accountable to the creative Scotland board which has been mentioned is not and obviously will not be majority screen sector experienced Could you outline a bit more clearly what the executive ability of this committee is and where they would need to go to the board of creative Scotland for sign-off Is this going to be a relationship where they're simply reporting after the fact on their actions because the concern from the sector is that on the most significant decisions they will ultimately have to defer to a board that does not have the relevant industry experience that this committee will have So the absolute details of that are what are being worked through at the moment in terms of not just a simple kind of reference but the financial parameters of decision making the issues of policy and so on and so forth So that is what's being worked through in order to make sure that it can be put in place as soon as possible Over the course of March there are on-going discussions with the operational project board the screen committee and with indeed the creative Scotland board and we shouldn't forget that this also involves the Scottish Government in understanding what those arrangements are Do you recognise the concerns from the industry that on the most significant decisions they potentially have to defer to a board that is not of the industry? Well the way the customer practice in terms of how our organisation works is that it has levels of delegation that delegation and relationship to the screen committee and indeed to the screen team and the screen unit is what's being worked out in practical terms at the moment. I don't anticipate that anything other than the very highest level of policy or financial decision making would rest with our creative Scotland board it would be delegated to screen committee and indeed the screen team as I say And who signs off ultimately on the terms of reference once a draft is being agreed? Is that for the creative Scotland board? Yes, technically but it won't be done unless there's agreement across the part. Thank you. Stuart McMillan. Thank you, good morning everyone. Sit on this committee has already heard from previous witnesses and it's been touched upon this morning as well regarding the leadership the autonomy and also the agility of this new unit and also each of the bodies that are going to be involved in this new unit they've all got their own different funding schemes that they'll be bringing into the table. Will the money actually be if there's a particular proposal that comes forward and say for talking to creative Scotland they don't have enough of that resource could they then request some of that that any shortfall to come from some of our partners to then make sure that that particular project is then fulfilled and delivered? Can I answer part then and see if others want to contribute? The starting point is the distinct set of funds that are currently on offer from creative Scotland being enhanced through the additional £10 million resource annually from the Scottish Government. The detail of that is being worked through many of them are already in place and will be scaling up in terms of the resources available. The distinct specific one which is new is around the content fund and all of those funds, particularly the content fund, we will be wanting to make sure that we've had not just discussion across the partnership but discussion with industry about the terms of that funding and the process might take and what the criteria may be and so on and so forth. I think that what the partnership will be discussing is the levels of resources that are currently available in terms of those funds so that we've got a solid foundation to those who wish to pursue those opportunities. In terms of in the moment when you get different ideas and approaches I think that the intention is that we are fleet of foot, as you've said that we need to be to understand what the request is and if it doesn't singularly fit within any of the existing offer to understand what may or indeed may not be possible it's not always going to be possible to respond to everything but I think that the partnership working will be endeavouring to make sure that we've got a solid offer in the first place that will catch most things and if there is anything beyond that we will have open conversations about what may or may not be possible. A minute example that I'll provide you with is say there was another organisation wanting to set up a new studio somewhere in Scotland but with the funding through this unit there might not be enough funding there to actually help get that particular project over the line but because of the resources that the ASE and HI may actually have they may be able to bring additional resources in to help deal with that. Is that something that this new unit will be able to call upon to try to deliver this type of project? Yes, in principle I think that if there's a compelling business idea of any form that comes through you've given a studio example of course we're always open to receive those with interest and to explore them seriously. If there is something sufficiently compelling of course we want to take that across the partnership and understand what the response may be how possible it may be to support that particular proposition and what form that might take. Yes, I mean I would agree with that but just to add to that though if there were to be something of really substantial in between us we felt it was a really exciting opportunity and we wanted to support it and back it and even between us we were unable to marshal all the necessary funding we would of course see to have some dialogue with the Scottish Government about that opportunity as well. In small cases where I and Creative Scotland have worked together on the same project obviously within the stated limits in terms of that but yes it's something that's already happening and if a great fantastic project comes forward of of course we'll look at it. My next question is regarding it's for Scottish Enterprise Mary Gougeon quoted something that's from the evidence that they're on but also it's on to suggest that the work to develop on the portal mapping support available and the provision of specific business support through the proposed shared resource facility may address some of these concerns regarding the portal. Surely it should be will address some of these concerns as compared to still having that question mark of it may address some of the concerns. I think if I'm recalling correctly and forgive me if I'm not I think that that particular language has come from the screen set of leadership report referring to that. I would actually be a bit more assertive and confident to say that we expect it will address the concerns and needs now. We have as a task analyst spent a lot of time working on mapping out the existing support landscape and through KF Scotland getting close to being in a position where the portal can be launched and we'll be able to then act as a kind of route map for that one door approach. On top of that though we expect and we will be adding to you through the work of the screen some of the support that's on offer particularly to those early stage businesses and really importantly is the development of a supplier development programme some strategic partnerships with broadcasters on that front which will really help to add to and give them more give a lot of companies and screen set to more insight into the approach that the commissioners within the broadcasters particularly the broadcasters are taking help them to figure out what actions they need to take to win more of the business from the public sector broadcasters and I think crucially really importantly alongside that is the additional growth in the marketplace particularly through the planned increase in spending that the BBC are going to make for new commissions in the coming years that will provide a bigger local market for those companies to go after and give them more confidence to invest in their own business growth as well so if there's anything more you want to add to that. Clearly we all want this to succeed and also with new money going in with it being this unique way of delivering this particular type of service and this portal is going to be absolutely crucial so this portal needs to be in that facility that one-stop shop as compared to May be able to provide in that assistance. We're committed to the point that you're making excuse me as a kind of similar point to an earlier response we will be up and running as soon as we can, as confidently as we can with as comprehensive an offer as we can but of course that will be kept under review and it's going to grow and build as the unit grows and builds over time but we recognise that we've got to be able to land something confidently that works and we will of course receive feedback, seek feedback and try to respond to that as best we can as and when we can throughout the course of the implementation period. Excuse me. My final question just to Mr Munro, just regarding the submission from Creaders Scotland it's under the festivals part of the submission speaks about the £60,000 which supports Creaders Scotland's presence under the festivals under the we are UK film banner can you provide any examples of how that money has actually taken in productions into Scotland, please? So I'm not as familiar as my colleagues would be in this regard and I'll give you as best an answer as I can but of course I'm happy to take that away and give you a fuller answer in due course. But we make sure that we have strong representation from the experts from Creative Scotland having a presence selling Scotland in Scotland's screen sectors and do that in partnership with industry representatives who go alongside with us. We will host industry events we will take part in industry events and beyond a sort of physical stand presence at some of these festivals and these receptions and events that we host we should also remember that we have the screen commission which is a major part of the offer and the global offer that we promote at these industry events. So that's all I can say for now but I'll take that away and give you a fuller answer and probably be able to illustrate with firm examples how we can translate from those early interventions into a business return for Scotland be that for the indigenous sector or indeed for incoming production. Okay thank you. Is that supplementary? It does kind of fall on from Mr Macmillan's question I mean to go back to the focus on this the interest from the committee comes from a feeling that Scotland has fallen behind not just in the UK but in terms of European competition that we're not able to compete in the global market like we should be and the whole point of this work is to raise the profile of Scotland and to make sure we are able to get advantage of what there is out there and when we met with the industry experts a few weeks ago again the film studio comes up that we don't have the capacity I think one of them described as Scotland needs a proper film studio do you have confidence that the screen unit is the key priority of the screen unit and do you have confidence that it's going to deliver that? Can I maybe start and just about the screen unit per se and maybe David might want to pick up on the studio point but we absolutely reckon there's a confident plan there that's got vision and ambition and we want to translate that into reality there's a step change but I don't think forget the growth in recent years that we've seen in terms of the screen industry through the work that's been possible so far the upscaling of financial and human resources is part of this equation and the new very senior post which the convener was asking about earlier which will be advertising shortly is absolutely globally important it's intended to be out there actively in the marketplace positioning Creative Scotland the partnership on the screen unit industry in Scotland in a very confident international way to offer Scotland's opportunities out to the world and bring opportunities back in and it's a key part of that role to be out in the world selling Scotland for Scotland to bring the business back in It's a bit concerning I appreciate the early stage of the recruitment but you're trying to recruit a high profile senior role and you're trying to recruit internationally and it's still not clear what level of decision making that person is going to have what kind of autonomy they're going to have the descriptions of how decisions are made going through the Creative Scotland board that seems like that would be difficult to sell that to someone who's coming in expecting a senior role where they have a level of decision making that would be expected Just to be absolutely clear they're going to lead to the screen unit so they will have accountability to the partners and Creative Scotland board beyond to ministers and the industry interest for the delivery of the objectives and targets and business growth in the plan set out in the plan I'm not sure how other members feel I think there are still concerns around that it doesn't sound like there's quite a lot of it's getting the balance between the necessary public accountability and over bureaucracy and it's where this person if they're coming in feels that they have the authority that I think is required for the leader of the screen unit Here the point that you're making I'm happy to take this away if it would benefit from further conversation we'll be happy to do that I think what we want to do is make sure that when we advertise for this role that it's understood exactly what it is why it's necessary what it's intended to achieve and how it is intended to work across the partnership in the unit and on behalf of industry so that's our aim and intention but if there's further that we can do to provide assurance to the committee on that then we'll be happy to take that further beyond this meeting Dean Lockhart I wanted to follow up on some of the conclusions of the screen sector leadership group because one of the findings was that the screen sector in Scotland suffers from fragmentation and divisions across the agencies Following the Enterprise and Skills review last year the strategic board was set up to achieve more alignment between the agencies and the strategic board has been looking at how to achieve this Given the importance of the strategic board going forward can I ask the agencies what discussions you've had with the strategic board in terms of the screen unit and what the plans will be to involve the strategic board going forward in relation to the implementation of the screen unit I'm sorry, forgive me I'm not clear about the strategic board reference Let's see what it is The strategic board is a board that is set up to oversee the enterprise agencies I guess it's more a question for the agencies in terms of their policy and the implementation of their strategy going forward Absolutely As part of the the work that we and the other agencies are contributing to the work of the strategic board and all the different work streams one of the areas of focus is to work on further streamlining continuous improvement on the overall support system for businesses and companies that is joined up and is aligned as possible So through the development of the screen unit we've been undertaking to ensure a one-door approach for screen companies going forward we've tried to ensure that there's as much alignment and learning from the work that's taken place through the work streams and enterprise and skills review, looking at that streamlining of business support services and that's fed into the operation of the one-door approach and delivery of services to screen companies If I can just come in on top of that As you'll know one of the key requirements of the enterprise skills review is to ensure that there's clear evidence of demand across the sector and that's why ourselves in partnership with Creative Scotland have funded and commissioned a research programme to look exactly what's going on within the company base of the screen sector and much more significantly what's going on within the freelance workforce of Scotland There hasn't been a review of the Scottish freelance workforce since the early 90s so whilst there's an expectation there's a demand for growth we don't really genuinely know where Scotland's strengths are across the entire skills base so we will have established that through that process and one of the key outcomes from that research will clearly tell us where are the priorities and demands for action which will then allow us to coordinate and co-hear together in partnership with the screen unit on that through our planning processes and through our investment processes Michael, you might want to add a bit more to that supplement what David said there and that in a sense in microcosm is part of a wider effort under way to align better the services of Skills Development Scotland and the Scottish funding council and the Government's phase 2 report on the skills enterprise review includes a section on skills alignment and essentially it asks us to adopt a joint model of provision of skills demand assessment and that's essentially what David is talking about there and ensure that the provision suggested by that skills demand assessment is provided by in our case Scotland's colleges and universities so that is a good example that David sets out of work that is under way anyway on a wider front across the economy I've got to say that the whole reason for the strategy board is to get collaboration amongst the agencies and that is pretty much what the screen unit is trying to do for that particular sector so I suspect that the strategy board has not done a deep dive into any individual sector in detail at this stage they've only met a couple of times but I think the principles of what we're all trying to do working with the screen sector would very much accord with their views on that and any other sector that we would deal with OK, thank you just to very brief follow-up on what Mr Oxon said about the strategic board going forward I would suggest that the screen unit gets on to the agenda quite soon of the strategic board because it will, as you said, prioritise resources going forward so if this is going to get the full attention of the agencies I would suggest that it's cleared and discussed at the strategic board sooner rather than later Before Mr Monroe arrived and it's in this particular area I asked Mr Smith about the partnership agreements that were recommended in the SSLG report I wondered if you could give us information on where we are with partnership agreements and whether you can share them with the committee between various agencies The agency partnership agreements I'm not as close to this so my understanding is that there was a discussion at a recent meeting about the partnership agreements or information at this point in time A recent board meeting? No, a recent screen committee Right, okay so you're not able to answer any questions about the partnership agreements I'm not here today right now but I can happily take that away and provide an answer back to you If you were able to share them with the committee I think that would be very useful Perhaps Pamela, I can add to that because of the recent discussion that I was present in that conversation and work is under way to develop an MOU between all the bodies that we will surely be in a position hopefully to finalise and share the team's point once that is done So we don't actually have an MOU yet? The work is under development at this point Right, okay, I think many people would be very concerned about that The 1st of April is not very far away The whole basis of this is simply partnership between all these agencies and we don't actually have an MOU Do you understand why the sector would be very concerned to hear that? You can be assured that all of the partners who are fully signed off on the screen proposal at that screen committee level are fully committed to supporting the proposal supporting the implementation plan and that would be very much reflected in the final memorandum of understandings Okay I wanted to go back to the letter that we received from the Association of Film and Television Practitioners in Scotland The last point in their letter is that they were very concerned about what they said was the lack of engagement with key industry stakeholders in developing the screen unit proposal I wondered if you could respond to that and tell us in terms of going forward with the industry It's taking a number of forms I mean we have offered a meeting with the FTPS the door is always open and we can understand their particular points in a wee bit more detail The SSLG under the chair of John McCormack was one of those measures to make sure that there is an industry grouping with a voice that can have a representation to the partnership and the screen unit development of proposals at the time and now the implementation plan There is further discussion taking place about what form industry advice can have the most effective input what form that should take into the on-going work of the unit when it's up and running So that's under consideration at the moment but on a very practical level As we are developing these funds I mentioned earlier the content funding particular it's absolutely a commitment within the implementation plan that we would share those in draft with industry representatives to test them get their input and advice around how they might be refined further before we actually go live with them to make sure that they have had that input in advance so that when they go live they've got the most impact when they do land and are open for business and we're seeking to do that as soon as we can Can you give us a timescale? The content fund is under development now it's the biggest newest one I think we've got capacity challenges that we've been very honest about and it's not moved as quickly as we might have wanted at this point but we are seeking to move it forward as fast as we can and with partnership help I can't give you an absolute date but what we are clear about is that when we go live with the portal as I've said the four things that we're focused on one of them is absolutely funding and the funding offer is in place and confident and the content fund has much attention around it so we want to make sure that we take the time to get that right we're just not in a position to launch it quite yet but we're endeavouring to do that as soon as we can in April Under the A5TA-7 the skills and talent actions we have directly consulted with most of the associations involved in Scottish screen business asking them to comment and assist in refinement of the tools that we're going to be using for the survey work in addition to that we will undertake 70 structured interviews the value chain of screen and television which will mean that we will necessarily be directly talking again to those associations and others in respect to the interim findings we have an item on the agenda of the upcoming sector screen leadership group to discuss the research in terms of its interim stage and we will also be pulling at the final stage a wider grouping to look at the recommendations and detailing out the actions so in this particular area there is very deep, live and vital engagement with the sector That's very encouraging so how do you think the screen unit will take that forward how will it improve on it given that Creative Scotland doesn't actually have a specific sector skills development recently I think there's going to be two or three ways in which that will be directly achieved one is the fact that the data sets for the first time will be a unique Scottish owns and Scottish held set of data which is live and real and robust that will ensure that there's an on-going engagement with the sector we're building in survey panels which will allow on-going review and testing of themes and actions but much more strategically and structurally the evidence from the survey work will lead to the formation of the skills strategy for the screen unit and that in itself will ensure that there's a very direct partnership around how we construct that but more importantly how we respond to that and in that sense we will again be bringing the industry to that table in partnership with further and higher education and indeed the private sector industry training provision such as the national filming TV in Scotland so we will follow it through and the screen unit will activate that unfortunately we're out of time now I'd like to thank all our witnesses for coming along today and I'll have a brief suspension before we move to our next evidence session thank you very much evidence session on the UK withdrawal from the European Union legal continuity Scotland Bill the Parliament agreed to designate the finance and constitution committee as the lead committee and the culture tourism Europe and external relations committee as the secondary committee in consideration of the Bill and I'd like to welcome our two witnesses today Dr Tobias Locke senior lecturer in EU law and co-director of Europa Institute and Professor Nicola McEwen the research leader at UK in a changing Europe I'd like to perhaps start by going back to the statement to Parliament that was made by the Lord Advocate James Wolfe on the 28th of January when he confirmed that he cleared the certificate of competence in relation to the Bill which is of course required and he said that the Bill falls within the legislative competence of the Scottish Parliament in a statement Mr Wolfe said that the Bill had been carefully framed to ensure that nothing will be done that's incompatible with EU law before withdrawing from the EU and he said that the Bill does nothing which will alter European law and EU law while the United Kingdom remains a member of the EU and he said that the same principle that the EU withdrawal Bill is based upon he said that if contrary to the view of the Scottish Government this Bill is incompatible with EU law then the same reasoning would apply equally to the UK Government's Bill and I just wondered what your view was on that position I don't know if you want to start Dr Locke OK I will start thank you very much I think that the test is set out in section 29 of the Scotland Act and it says there that the Scottish Parliament does not have competence to legislate in a way that it is incompatible with EU law so that's the wording it must not be incompatible with EU law so the question we have to ask ourselves is would this Bill be incompatible with EU law I think it does two main things it retains EU law as it is or as it will be on Brexit Day so it puts it on a new legislative footing compared with the current one the current legislative footing is the European Communities Act 1972 but that will be repealed in all likelihood by the European Union withdrawal Bill that is going through the Westminster Parliament and the Bill also gives powers to amend that retained EU law to Scottish ministers both of these things from an EU law perspective are not per se incompatible with EU law EU law does not care very much about what basis EU law has in a particular legal order as long as it continues to apply or as long as it applies and the powers to amend even if they existed before Brexit would in and of themselves not be contrary to EU law they would only be contrary to EU law if they were used so I think from an EU law perspective and if that is the test set in section 29 there is I don't see an incompatibility with EU law in the in the Bill as such the argument from maybe I should quickly comment on the argument made in relation to the EU withdrawal Bill of course the question whether the EU withdrawal Bill would be incompatible with EU law or not is not really a question of UK constitutional law because the Westminster Parliament can as a matter of principle under the UK's constitutional settlement legislate contrary to EU law it does not invalidate its legislation and the contrast is of course that we've got section 29 of the Scotland Act which limits the powers of this parliament so it is a question that has to be asked with regard to legislation introduced into this parliament whereas it is not a question that has to be asked with regard to legislation introduced into the Westminster Parliament that is all I can say to this at this moment Fforsig anything at all I should confirm that we are here with the consent of our union despite the industrial action I'm not qualified as a humble political scientist to give a legal ruling so I'm not going to to try to do that clearly there are different legal opinions I appreciate the difficult situation that that puts members of this parliament in and there's every possibility that this ends up with the Supreme Court determining the legality or otherwise or the competence or otherwise of the legislation but I don't want to say anything more on that There have as you've just indicated Professor McEwen suggestions that the UK Government would seek to challenge both the Scottish and Welsh bills in the Supreme Court now I know that the Welsh Government has been taken to the Supreme Court on several occasions but a joint referral would mark the first time that an act of the Scottish Parliament was challenged by the UK Attorney General what are the implications for devolution if that happened It is clearly a high risk strategy whoever does it so you're right that Welsh legislation has previously been referred and sometimes the Supreme Court rulings have been more devolution friendly than the UK Government might have liked them to be and then other times less so so I think it would be extremely risky for whichever Government chose to do it because therefore then it sets a precedent which could determine I suppose the scope of devolution I think for me one of the key fundamental issues here is that there are differences of view on what the devolution settlement is I think the UK Government genuinely thinks that it is enhancing the powers of the devolved institutions and because they don't consider those areas that have previously been EU competences to have effectively been devolved despite their inclusion within the devolution settlements so I think they do think that any additional powers is an enhancement of devolution now clearly that is not the view shared by the devolved Governments and it's not the prevalent view within the devolved legislatures either who consider that those are powers that are already devolved and therefore any alterations through the withdrawal bill to in a sense recentralise authority here would be a weakening of the devolution settlement so you're starting from quite different places and I think the fact that there is a lack of a shared understanding of what devolution means and what its scope is is a part of the problem here Can I maybe just add it may be a risky thing to do in political terms to challenge this act and obviously one side will have to lose as a matter of this is an either or outcome but it would also be very risky not to put it before the Supreme Court this is a very important constitutional bill and imagine that two years after Brexit somebody comes along and challenges it in the Supreme Court as an individual claimant and then the Supreme Court says that there is no bill and then we've got a big gap in the law so I think there is a public interest almost in getting this confirmed It has been widely suggested that if there aren't changes then the European Union withdrawal bill wouldn't get the legislative consent of this Parliament and in the explanatory notes for the European withdrawal bill would seek the legislative consent of the Scottish Parliament and other devolved legislators in relation to certain aspects of the bill There has been some suggestions particularly in the chamber yesterday that there may be a change of position on that and they may not seek legislative consent What do you think of those suggestions? There is a commitment to seek legislative consent but not a compulsion to act on the outcome of that As I understand it the convention suggests that then those aspects of the withdrawal bill would be removed leaving space for the devolved legislators to fill the gap but I find it difficult to see that being the outcome here so it's entirely possible that the UK Government and the UK Parliament ultimately it's a decision for Parliament will decide to proceed as it sees appropriate while heeding the view of the devolved institutions The explanatory notes that there are the policy memorandum and one of the two had a paragraph that said that if this bill is passed the continuity bill is passed and consent is withheld then certain things would have to happen so the offending sections of the e-withdrawal bill would have to be removed I don't really see the have to necessarily coming into being in the way that is envisaged if you think about it if that were the case then that would be effectively an acceptance of the Scottish and Welsh Government amendments that they have so far failed to get accepted through negotiations so I'm struggling to see that scenario unfold in quite the way that it's set out in the policy memorandum Nothing to add to this I'll pass on to Claire Baker now Thank you, convener I was going to ask about the sections in the policy memorandum paragraph 16 through to 20 that sets out the three options the three like the scenarios either the UK Government changed the bill and we can accept it or there's the one where we merge the two that's the one where I'd like you to comment because I'm struggling to understand how that is done and the final option the one I'm most interested in is the middle option where you rely on a combination of the bill and the EU withdrawal bill if both of them are passed and there's a qualified withholding of legislative consent could you give some detail on explanation that goes beyond the policy memorandum of how this would work if that is I think it's a really good question and I'm afraid I can't answer it because I'm struggling to understand it myself and what was interesting for me when reading this is that it didn't seem to feature certainly and I haven't read everything that's been said but certainly in some of the contributions that the minister has made it didn't seem to be an option that was presented and yet it is possibly I'd like to know more about why it's not apparently the preferred option in the event of a failure to agree an amendment with the UK Government and I don't know perhaps there's a legal reason no, well there's no I'm just guessing and if you I believe somewhere the Scottish Government outlined the provisions it thinks require legislative consent in the EU withdrawal bill and there's a list and I think the UK Government disagrees slightly with the provisions but anyway I think the main bone of contention is clause 11 of the EU withdrawal bill which deals with devolved powers now maybe this paragraph 18 of the policy memorandum refers to a situation where the Scottish Parliament would give consent to every aspect of the EU withdrawal bill save for clause 11 so you could have that situation so maybe in such a scenario both bills would govern the situation here but that is just trying to guess my way through this I'm not quite sure how this would work then but that might be it and then just for clarity I think what you said was that an LCM while it is preferable it's not a requirement the UK Government could proceed with the EU withdrawal bill they could have it passed at UK level they can ignore an LCM even though it's a convention that they wouldn't do that in legal terms they could could they? I think we know from the Supreme Court's ruling last year that it's not a legal requirement it's not a matter of law but as I understand it there is nothing that this Parliament can do that will constrain the room for manoeuvre of the UK Parliament so it is a requirement in the sense that we conventions are an important part of the UK constitution in constitutional practice but it's not a legal requirement so clearly a decision that was taken to ignore or to set aside a refusal to grant consent from the devolved legislatures may well have quite serious political consequences but I'm not sure that they would have legal ones necessarily No, I mean the Supreme Court has been quite clear in the Miller case that came out about a year ago that the SEAL convention even as it is now referred to in the Scotland Act in section 28 at the very end is not justiciable so that means there is no legal remedy against the UK Parliament ignoring a refusal of legislative consent politically there might be a remedy but not legally Yes and I think the politics matters not just for the wider debates that frequently rage around constitutional issues but I don't think the UK Government wants that to be the outcome because it's not just this bill so the e-withdrawal bill is the first bill of a series we've already seen in the trade bill can expect to see I would assume in the agriculture bill and in other Brexit related bills that there will be an interdependence between UK law and devolved competence so they won't want to have this fight every single time so I think that's although it's not a legal matter I think that the convention does matter and I think if constitutional crisis is a term that's banded around a bit to readily perhaps it may not become a crisis but would certainly be a prolonged headache that I think they would rather avoid that. I wonder if I could ask the political scientists of this world about clause 11, sorry clause 13 of the continuity bill this is the, I think what Lucy described is a keep pace bill with European regulations after March sorry 2019, yes indeed what do you make of that bill in the context of ministerial powers? Yeah we were talking about that just before we came in so it seems to me to be quite a broad power I note the minister's contribution to Finance and Culture Committee yesterday where he referred to it as a technical measure rather than the broad power that many have expressed concerns that it may be if it were purely technical then the time-limited nature of it seems difficult to understand so if it were about pure technicalities then I think there would need to be some sort of redrafting and rewriting here I'm also not sure that it's necessary in this bill so is it a matter of continuity is it central to the primary purpose of preparing the statute book for exit day I'm not a lawyer but I'm not sure that it is because it seems to be for what happens afterwards so perhaps you could do it at a different stage and given the emergency nature of all of this legislation that might be a wise thing to do it's more than technical and what isn't technical can be quite a blurry distinction then I would be concerned at the extent to which this affords ministerial powers rather than legislative powers or appropriate scrutiny by the Parliament there may be lots of different reasons why you would want to keep pace with EU law after Brexit some very good reasons for doing that but those may have consequences and it's appropriate for those to be explored properly with proper scrutiny and consultation Maybe just one point on the technical argument if you look at clause 13.1 it says that Scottish ministers may make provision and so on so there is discretion to whether ministers as a collective want to keep Scots law in step with EU law and that of course is a difference to the situation as we find it now under the European Communities Act which has a similar power but there is of course an obligation to keep UK law and Scots law in step with EU law so there is a difference in the nature of the power and therefore it may not be quite as technical it's not an automatic process as it is now so your point is not a technical issue at all it's actually much wider than that because there are major issues of public policy on whatever policy sphere was being considered in the future there is political discretion of course there is discretion and it has to be filled somehow Dr Lot, would you share Professor McEwan's assessment that there is a different way to bring effect to this need if indeed there is a need to full ministers to take powers in post-March 2019 well it's a very if the policy aim is to allow Scotland to keep as much as possible to keep the pace with the development of EU law in devolved areas and if this were to be put into a separate act of the Scottish Parliament it will probably need to be done partly at least by way of secondary legislation because a lot of this stuff especially in devolved areas such as environment agriculture is highly technical material that the Parliament doesn't really need to debate fully but it could probably have more robust scrutiny provisions and the other final question is do you think there is a reasonable argument which says in lots of policy spheres that there is an interest in Cardiff, Belfast and indeed London for things that we would be wishing to do in Scotland in keeping pace with European regulations in other words there should be a mechanism to ensure that there's a proper discussion with the other administrations and parliaments of the United Kingdom so as to ensure that in keeping pace we keep also keeping pace consistently across the UK yes and I think that's I suppose part of the maybe unintended consequences that there maybe of keeping of a provision to keep pace with EU law well yes that may be a good thing to do but it might have a knock-on effect for diverging from UK law or law elsewhere in the UK so it may not and the way to avoid that is to do it cooperatively it also seems to me to be highly dependent on the nature of the UK-EU relationship that is negotiated and we simply don't know enough about that yet okay many thanks okay Stuart McMillan thank you, good morning I feel as if it's a bit of groundhog day because some of this came up in the delegated powers committee on Tuesday but I think Dr Locke you made an extremely important point a moment ago regarding section 13.1 of the of the bill with the use of the word May which is there because there have been some assertions that the Scottish Government went to extend up to 15 years that this opportunity it's clear in the bill that it's about May it's not that it will and also about the time-limited nature of this in section 13.7 of up to five years and as we heard in committee on Tuesday this would be done by affirmative resolution as compared to any other mechanism within the Parliament with those aspects do you as your opinion that that this section 13 although it is wide in nature it's also quite measured and that it's not as if the Government are trying to railroad anything through it's actually about a decision that will have to be taken in the Parliament so the extent you're of course right that the power under section 13 section 13 is limited time limited it's five years and this time limit can only be extended with the consent of the Scottish Parliament by way of the affirmative procedure of course the powers conferred under clause 13 are not limitless at all there are a number of conditions that have to be met there are limits first of all there has to be something that comes out of EU law in the first place secondly it has to be within devolved competence obviously thirdly there are limits in paragraph 5 in terms of taxation criminal law and so on and so on but my point was simply that it is still up to the minister to decide whether he or she wishes to keep up with EU law and there doesn't seem to be any involvement of the Parliament at that point so if the minister decides not to bring in I don't know new animal welfare laws coming out of Brussels that's the decision made obviously somebody could bring in a bill into the Scottish Parliament and so on and so on so there are other ways of effecting this so the power is not just a technical power that was my point there is a policy decision that is taking place at this very point should we or should we not and after that it becomes relatively automatic but certainly in that policy decision irrespective of us to which ministers are in position going forward ministers and parties are elected by the population on a manifesto of policies and so it would be a policy decision depending upon which government are in power in that particular time probably yes and I think also one other aspect to this you've both touched upon this a few moments ago and that's regarding the complete lack of clarity certainly from the UK Government in terms of what it actually wants to get out of an agreement with the EU and also what deal will actually be signed post that so in terms of anything that the Scottish Government may or may not want to introduce in terms of mirroring EU legislation much of that will be dependent upon what the final agreement is between the UK and the EU yes I mean you could if we look at yesterday's guidelines that came out of the European Council they said there should be free trade no tariffs, no barriers to trade on all goods and it seemed to include agricultural goods but if that happens there will have to be some basic agreement on standards as well and of course that would impact on these powers very much okay, very long thank you Dean Lockhart just wanted to clarify following the questions on section 13 how it would operate in practice so in the first five years after exit date Scottish ministers could bring into Scots law any piece of European law without the need to get consent of the Scottish Parliament subject to the limitation set out in section 13.5 section 14 contains the scrutiny provisions and there are certain issues that would be subject to the affirmative procedure so you've got the list here I'm not going to read it out I won't bore you but so it mainly to do with functions of public authorities and all others would be subject to the negative procedure and you know better than I do how well that procedure functions in terms of scrutiny that's very helpful thank you perhaps I can move on to another area in terms of the impact of the continuity bill because the Lost Society of Scotland have raised concerns about new concepts being introduced into Scots law for example they say that the new concepts in the continuity bill that talk about retained devolved EU law are the new concept not currently recognised under Scots law and this will make it more difficult to understand the law and create uncertainty if the legal continuity bill is brought into Scots law so perhaps looking at the Lost Society of Scotland's feedback if we have a scenario where both bills are passed the Westminster withdrawal bill and the continuity bill is there a risk that we will have potentially conflicting concepts and provisions of Scots law in the reserved area and devolved areas yes so one of the many criticisms of the EU withdrawal bill but one of them has been the uncertainty surrounding the status of retained EU law and where it sits alongside primary legislation now if we have a scenario where that bill is passed and this bill is passed and you have two new categories of law alongside the existing and recognised categories then inevitably it adds to the complexity this is already an extremely complex process that we are undergoing and this amplifies that somewhat so I think it will be extremely difficult for the courts and for ultimately for citizens and stakeholders to navigate what is a very complex environment I agree with that we will end up with if both bills go through let's assume that we will have from a Scottish perspective devolved EU legislation devolved EU law we will have retained sorry it's a retained devolved EU law we will have retained EU law and then we'll have ordinary acts of the Scottish Parliament and then we'll have ordinary acts of the Westminster Parliament so we'll have a host of different sources of law it's not like I mean it's not impossible to find out which is which but in some cases and especially if the I think a problem arises if the continuity bill will enter into force in an uncoordinated manner because then you could have a situation where both bills claim that a particular say environmental impact assessment regulations brackets Scotland that they are on the one hand the continuity bill will claim it's retained devolved EU law and the EU withdrawal bill will claim it's retained EU law and then somebody brings in changes to them minister goes ahead and says well we have to change a few words in this and so on and so on could be a Scottish minister on the basis of section 2 of the continuity bill but it could be a UK minister on the basis of section 2 of the EU withdrawal bill and then you get a judicial review three years later and somebody challenges these particular changes and then we'll have to unpick these questions so there is an issue. One very quick supplemental on that, thank you. How would a Scottish court approach these conflicting provisions? Is there precedent there in terms of which legislation a court would give precedence to and in reality could, if the two bills do go ahead, could we have examples where there is conflicting law on trade and areas where EU law has a common framework across Europe at the moment but where in the context of the UK we may have conflicting laws that would impact trade in the UK? On the first question normally the situation is avoided because of the legislative consent motions. If the Scottish Parliament agrees to a Westminster bill then normally it won't act legislation that is parallel or contrary to it. That seems to be the understanding, that's why we have the legislative consent motion. I'm not aware of a case where this exact scenario has occurred. As for the second question I suppose you're one of the examples well I mean you're probably referring to trade in agricultural products or food products where we don't have different regulations applying in Scotland to the rest of the UK or to England at least. That's why both I think everyone seems to be quite keen on common frameworks for this in order to avoid different types of standards which I mean and standards don't make much sense unless you also enforce them in some way that certain products can't be sold that do not comply with the standards. I suppose that that seems to be a danger that is out there. Other members need to ask questions and we're almost out of time so I'm going to move it on and bring in Ross Greer. The continuity brings in the general principles of EU law and so far as there have been rulings of the European Court rather than the full extent of principles derived from the treaties. Would you be able to explain what the implications of that are? You've already brought up animal sentins which is covered under the Lisbon Treaty and environmental principles which are in article 191 of the Treaty on the Function in the European Union. What are the implications including what are we missing by transposing general principles on the basis of European court rulings rather than trying to explicitly bring in the face of the bill treaty principles such as environmental principles? Well general principles refers to as far as I understand both bills. I mean it's in both bills actually. The reference to general principles of EU law seems to me to be a technical reference to what EU law understands to be general principles of EU law. Now what I mean by this is that EU law has a number of sources. There are the EU treaties and then there's all sorts of EU legislation but there are also those unwritten general principles of EU law that have been developed by the Court of Justice of the EU to fill certain gaps. These gaps used to be before we had the Charter of Fundamental Rights EU fundamental rights that didn't exist they weren't written down anywhere the principle of proportionality that hadn't been written down anywhere some principles like equality before the law basic procedural rules, fairness and so on and so on you couldn't find them in the treaties or in legislation so that is I think what the bill means by general principles of EU law and that explains why there is a reference to the case law of the Court of Justice because otherwise you can't really determine what these general principles are. It becomes an academic dispute otherwise. So your reference to principles found in the treaties they are actually not in my reading general principles in that sense. Just one thing to add there I think it would be enormously helpful if there was a bit more clarity on what was meant in the bill by the general principles of EU law and it's not they're not named, they may be not named for a reason and I think the way it's drafted is designed to evolve as case law in the EU evolves but I think it would be very helpful both to Parliament and to the wider society to know what we're talking about are we talking about subsidiarity or not so I think these are things that we need to know I'm glad it wasn't just me that was unsure of what was meant by that how practical would it be for us to transpose going back to environmental principles is a good example of the precautionary principle that it pays etc I presume it would be entirely practically possible for us to transpose them to put that into the face of this bill because that is currently an area that's been highlighted to us by organisations you would expect as being currently explicitly missing but it would truly be entirely possible to transpose these principles I mean in a way it won't be necessary because these principles because they're written down in EU law largely I would say within devolved competence would be captured by clauses 2, 3 and 4 anyway the question then is in how far you want to make them as susceptible to change by ministerial um decree that is the question but I mean the principles themselves will those principles themselves will become part of Scots law by virtue of the continuity bill the environmental lobby as you will know have also raised numerous concerns about governance gaps so what's the effect of having those principles written into scots law and what's the recourse for action if they feel that they are not upheld and I think that's could be clarified as well thank you I'd just really like to ask a couple of questions in relation to the Frankovitch case and how that differs between the EU withdrawal bill and the continuity bill so if you could explain the differences there and also if you could answer whether or not you think that that'll present any problems if there's a difference in operation across the UK in relation to that so the rule in Frankovitch is Frankovitch is a decision by the European Court of Justice from the early 90s and it introduced a new remedy into EU law that a person who sustained a loss material loss because of a member state breaching acting in contravention to its EU law obligations so if somebody sustained a loss because of that and if that breach was sufficiently serious, that is the condition under EU laws, it's a high hurdle to get over then they can claim damages from the state it is something we don't, ScotSlaw doesn't have an equivalent to state liability law as such we've just got normal the normal law of delay so the both bills say that there is no right to damages under Frankovitch after exit day the difference in the Scottish Bill is that it says that this does not apply in relation to any right of action accruing before exit day so if the material facts had happened before exit day, you can still bring the claim after exit day and introduce it into the Scottish Parliament which can be significant because these breaches might not be detected for many many years or even decades might have happened back in the day and I'm talking about breaches here is wrong transposition of an EU directive that's what often happens it's not transposed correctly or it's applied badly by the authorities because it's a highly technical matter they make a mistake and as a consequence somebody suffers a loss is it in the public interest to keep this rule well I'm a slight sceptic on that front because it really is not the most effective remedy you can imagine it is very very difficult to get a Frankovitch claim through the court successfully the hurdles are very very high you have to show a sufficiently serious breach which means it has to be an obvious breach of EU law that doesn't happen that often mostly these breaches will be small mistakes made sometimes not even not deliberate of course and then there is no chance you will have a remedy also if you look at the I did a study once on the success rate of these kinds of claims it is very low in the UK because simply the access to judicial review is very expensive as a start and if you look at the claimants they will often be corporations or companies so I think if you're concerned with individual rights here it's not going to present the biggest loss to the legal order that you can imagine so I wouldn't that's all I have to say about that so you don't envisage that being too much of an issue then if there are those different both probably not there will be if there will be any cases there will be very very few overall okay thank you section 6 of the bill provides that the principle of supremacy of EU law will cease to apply to legislation made after the UK has left the European Union but at the same time ensures that the supremacy of EU law remains for legislation made before the UK leaves the EU I wonder if you could explain Dr Locke how that's likely to work okay I've asked myself the same question but I think I have an answer it took me a few hours well overnight, last night I came to a conclusion so the principle of supremacy of EU law basically says that at the moment if there is a conflict between a rule of UK legislation even if it is an act of the Westminster Parliament that is normally immune from any judicial review if there is a conflict EU law prevails and this will be carried over in the EU withdrawal bill for all enactments that happened before Brexit and it won't be carried over obviously for enactments that are happening after Brexit now the Scottish continuity bill takes the same approach as copied basically that same provision into clause 6 in the Scottish context of course we have to ask ourselves the question what is the practical application of this because already an act of the Scottish Parliament has to be compliant with EU law and if it isn't it's ultra virus it's not law so where could this come in I think there are two practical situations the first is that we may have an act of the Westminster Parliament preceding a devolution that applies to Scotland which would now be in the competence of the Scottish Parliament and if that conflicted with EU law as retained under this bill so retained devolved EU law then retained devolved EU law would prevail over this the second situation is that it doesn't just apply to enactments but also to a rule of law unfortunately rule of law is not defined in the bill but I assume it means the common law so if there is a conflict between retained devolved EU law and the common law retained devolved EU law would prevail I'm guessing so that's there the practical application it's not very much because as I said any act of the Scottish Parliament has to be compliant with EU law already so there can't actually be a conflict we received a briefing from the law society and they raised some issues around section 10 which is back to interpretation of retained and devolved EU law they make an argument that section 10 doesn't currently reflect what was agreed between the EU and the UK negotiators in December 2017 joint agreement so they make an argument that this section is outdated in light of the agreement do you have any views on that analysis is that something that has been identified by anyone else I think I read that in the Lost Science of Dave as well and I have no reason to to doubt at the ephemeral expertise that I do on that but it does illustrate one of the challenges of this bill in that it will be enormously difficult to keep pace with developments so not just that interim agreement but then the transitional arrangements the further trading agreements between the UK Government and the EU and indeed any changes that are made to the EU withdrawal bill itself as it goes through the Westminster Parliament so it does illustrate one of the difficulties there isn't an answer to that other than provision to ensure that the legislation can be amended appropriately and I think that there are those regulatory provisions at least within the bill I think on that point the minister conceded that amendments could be made in light of but that does not point to the issue for the need for scrutiny and in the context of emergency legislation there may well be things that are missed because there hasn't been enough time to identify them I think it's notable that the Government does seem open to and amenable to suggested amendments but there is just this challenge of time and finally it is the preferred option of the Scottish Government and the Parliament to reach an agreement around the EU withdrawal bill and where over the next few weeks are the opportunities for the Government just so we can be clear for the UK Government to bring forward amendments and get them through Parliament well, we will see today if there is any movement within the joint ministerial committee negotiations the UK Government has suggested that it's not willing to go any further we don't know how far it's gone because we haven't seen the amendments I think I've indicated that they will be published next week the minister that David Liddinson's speech which gave us some clue as to the nature of the concession that they have made does seem to so clearly the stumbling block is this issue of agreement or consent for the Scottish Government and the Welsh Government ministers have both said that they need the word agreement or consent written into the face of the bill and I noted within the speech delivered by David Liddinson that he said that he would expect the new proposal to be through a process of agreement so it doesn't seem that they are a million miles apart but there does seem to be this issue of whether or not consent is written into the face of the bill that goes back to the principled difference in interpretations of devolution that I spoke about at the outset and it also speaks to the lack of trust between the UK Government and the devolved Governments in the UK Government doesn't want to find itself in a situation where it can't do what it thinks it needs to do to preserve the UK internal market or to negotiate and implement trade agreements post Brexit if it feels that it has conceded a veto power to the devolved institutions devolved institutions don't want to seed ground on what they perceive to be already within their competence so it's very difficult to see an impasse here but it does also point to the need to really get to grips with how we operate and govern within a much more complex and interdependent system of multi-level government that Brexit introduces the machinery of intergovernmental relations has long been recognised as not being particularly robust or effective but that is much more of a problem it seems to me in the context of Brexit than it was before there's a supplementary to that I mean, since the Brexit vote the flaws in the JMC process in particular have been highlighted do you think that has contributed to this lack of trust yes I think it probably has there's been an incredible intensification of intergovernmental relations since the Brexit vote and I think that has created a lot of administrative challenges first of all bureaucratic challenges because we don't have the machinery in the processes in place but it's also revealed some of the more I guess cultural or or political small people political and big people political differences that existed that are a barrier to co-operative working they were already there before but they have been highlighted and made more problematic by the Brexit process yes absolutely Stuart McMillan you indicated you had another question where you are actually over time now I'll be very brief if it could be as brief as possible Professor McEwn you spoke a moment ago regarding the time constraints regarding this bill and it's anticipated that there'll be somewhere in the region of 300 pieces of secondary legislation that will actually come only to be passed in Scotland but if this bill wasn't processed through emergency legislation and it went through the normal process then to try to get 300 pieces of secondary legislation through this Parliament in a very short time scale before we leave the EU would be nigh on impossible I'm not saying it shouldn't be done through emergency legislation I understand the rationale that's been presented for that and I'm sympathetic to it but I think it is regrettable all the same and with the benefit of hindsight probably wouldn't start from here continuity legislation or at least documentation could have perhaps been introduced earlier but nobody quite envisaged the situation that we're in now that you are where you are and you have to deal with the context as it stands but I think that's perhaps all the more reason to ensure things that it absolutely has to include and also that there is some mechanism for utilising the Parliament's post legislative scrutiny procedures that become extremely important here but also that there is facility for fixing things that may need to be fixed because there hasn't partly because of the way things develop that we can't foresee but also partly because things may have been missed by the rapid nature of the scrutiny process Thanks very much Did you want to commend Dr Locke on that point? Can I thank both our witnesses for giving evidence at such short notice as well and in their personal capacity so thank you very much for that and we'll now move into private session and suspend the meeting