 A Llywodraeth, 잘不 i'n gwelio'n ddechrau bod nhw'n ddechrau ddigwydiaethol dros y dechrau ddechrau a Llywodraeth. Alisyn Harris reïn eich plaig ei mynd i gynnwys. Mae blygau iddor i efallai unrhyw o'r ffordd o bobl. A wnaeth oedd eich ddweud i eich gweithreddor lleol ac mae'n ymddwn i ddechrau ddweud iawn first, and that's a decision on taking business in private. It's proposed that the committee takes item 3 in private, and that's consideration of the evidence that we're about to hear. Do we agree to take that in private? Okay, so we'll move on to agenda item 2, which is the European Union Withdraw Bill, supplementary legislative consent memorandum. We have before us David Mundell, Secretary of State for Scotland, and Chloe Smith, Minister for the Constitution in the Cabinet Office. Can I welcome you both? I realise you've already been through a grueling session. I sat at the back, so I'm a bit of a glutton for punishment today, but thanks for coming. You'll appreciate the tight timescale in which the committee has to consider and report on the supplementary LCM. We're really grateful that you've come along. In terms of the committee's approach, our role is to ensure that appropriate powers are delegated to Scottish ministers and that there is effective scrutiny of secondary legislation. Our questions today will stem from that. As I said, I did sit in on the earlier session. I just wanted to ask one question around that. I wasn't clear from some of the answers you gave, Mr Mundell, but you were describing discussions, negotiations between yourself and Mr Russell and the Welsh Government. In relation to Mr Russell, was it your view that you had an agreement with Mr Russell that he then had to go and get cleared, but did you think that you had an agreement with him? No. Mr Russell has always made it clear that he wasn't the decision maker in the process, so we didn't have an expectation that the arrangement that had been discussed with Mr Russell could be agreed by Mr Russell, and he never led us to believe that. We knew that when he took the arrangement back from the discussions that he had with Mark Drakeford and David Lidington and the officials that he had, that arrangement would require the agreement of the First Minister, so we were always clear about that. I'd never ever suggested that we had an agreement with Mr Russell, and he reneged on that. That is not the case. Mr Russell was always absolutely clear as to where the lines of authority lay. That's very useful. We're going to get into the questions straight away that this committee has to deal with so that we have a different nature to the ones that you dealt with earlier. We're considering the delegated powers proposed in the EU withdrawal bill as amended, and there were amendments that last night, and whether the bill provides for effective scrutiny of those powers by the Scottish Parliament. The bill provides for the concurrent exercise of powers by UK and Scottish ministers to fix deficiencies in retained EU law. Can you tell us what co-ordination and co-operation exists between the Government in relation to delivering the proposed programme of legislation by exit day, and is it indeed deliverable in the 10 months remaining? I'll be happy to begin our answers. Yes, we do think that it's deliverable. It will be challenging without a doubt. I think that you've probably heard some of the figures discussed openly already. We are talking about many hundreds of pieces of secondary legislation that need to be done. That's a UK figure rather than specifically a Scottish Parliament figure, but that's just to give a sense of scale. Many of those without doubt will of course need to be properly co-ordinated across devolved administrations. Obviously, that is administration's plural. We are extremely keen to continue the strong level of co-operation that we've had at official level. I will say that between the administrations at every level to be able to do what needs to be done. Obviously, the context in which we come here today is that, unfortunately, we don't at this point have the agreement of the Scottish Government to the full package of what we're talking about here. Underpinning that situation is a lot of good quality work, which I am confident will allow us to get the necessary work done. You'd see reference to that through some of the paper and the correspondence on the subject. We do see the leaders in the fields saying that we recognise the amount of what needs to be done and that we'll work together to do so. I would certainly convene a like to give the committee a reassurance. Although we're all familiar with what might appear in the media and what politicians say, there are really strong and good working relations between UK Government officials and Scottish Government officials. On a whole range of issues, there are detailed discussions. I've also sought to ensure that there was also detailed engagement with parliamentary officials here and to ensure that this Parliament and the Presiding Officer were also updated in relation to how arrangements would impact on them. Where there's an agreement reached between UK and the Scottish Government that the UK ministers should make regulations to correct efficiencies, what opportunities will there be for this Parliament to scrutinise any resultant legislation that comes from that process? Well, as the convener would hear, I said that whether or not, Mr Findlay, we reach agreement, we will abide by the agreement that we've reached with the Welsh Government, and that is that where regulations are brought forward in relation to clause 11 of the EU withdrawal bill, we would seek the consent of this Parliament to those regulations that Parliament would have the opportunity to scrutinise and debate those regulations to deliver a decision. If that decision was not to agree, then under the agreement, a report would be laid before Parliament setting out the position of the Scottish Parliament in relation to that matter. Are you aware that there's a protocol being developed in the Parliament for that scenario? Do you anticipate there being ample time for this Parliament to scrutinise anything that comes forward? I think that there will be. I don't think that we're going to pretend that there isn't going to be a heavy workload. That wouldn't be correct, but I think that it will be a manageable workload. One other thing, I think that we would say, isn't necessarily the case that all of the issues, for example, on the list of 24 issues that would be subject to UK wide famous, would necessarily be dealt with in that regulatory way. Some might be the subject of primary legislation, which would then follow exactly the same route as it does just now, where legislative consent motion would come forward in the usual way. The view might be that it would be better for example in some areas to have primary legislation rather than regulation. Did you note the protocol that officials have worked up? I was aware of it, but I'm aware of it in the general sense, convener. I wouldn't be able to be questioned on the detail of it, I'm afraid. It's probably worth having a look at some point. Tom Arthur. Thank you, convener, and good morning, Secretary of State. Good morning, minister. I would like to know, with regard to deficiencies that need to be remedied, what's the UK's Government view as to how many of those remedies will have to be through UK regulations, as opposed to regulations made in the Scottish Parliament? In what circumstances specifically do you envision that? The short answer is that I can't give you a numerical answer that we're not at the position to be able to give you that. I can only answer the principal part of your question in quite a general way as well, which is to say that the very reason why those powers are concurrent powers is so that there can be a sensible and co-operative way of working, a way of deciding where such things need to be done. I fully hope that, within that, there is a sensible and suitably speedy procedure for doing what needs to be done. Can you give examples of specific areas where you think regulations will be required are preferable at a UK level as opposed to a Scottish level? Well, I can refer, of course, to the frameworks analysis, which has been done and obviously very much public, and which also, I should say, and Mr Simpson will have heard that I said this upstairs in the committee, to have arrived at that analysis actually represents a considerable body of work by all of the administrations and by officials, which I think should be commended. That analysis comes from stems from principles which have clearly been agreed, which explain why you might need to do something at the level of the UK, whereas other things might not need that. I read out actually at the other committee this morning, I read into the record that, of course, those principles were agreed in October at the JMCEN and the list of examples that I gave began with those circumstances where you would want to be able to protect the UK internal market, and that's obviously a thing where you would want to be able to act UK wide rather than necessarily separately. I would expect that some of those principles would be serviceable to the question you're asking, but, as I say, the way ahead, I think, is framed by the bill as amended, as amended by the Lords last night. It is underpinned by that frameworks analysis, but there is, of course, still plenty to do to, I mean, just quite simply get our sleeves rolled up and get stuck into the amount of secondary legislation that that will require. Thank you. Good morning, Secretary of State and Minister. In the event that the Scottish Parliament actually refuses consent to the bill, which is a possibility. First of all, we do respect that decision, but also there's a possibility that partial consent is provided. It's been suggested to the committee that it would be possible to provide for the continuity of retained EU law and the correction of efficiencies by relying on a mix of powers in the Scottish continuity bill and also the EU withdrawal bill. In your view, is this mix of powers workable? In my view, the best outcome is that we can still, at this late hour, reach agreement with the Scottish Government in relation to the approach to the EU withdrawal bill, and that this committee and the Finance and Constitution Committee feel able to recommend to Parliament that they grant consent and that Parliament does grant consent. That's how we are approaching this matter at this time. I'm not going to speculate on other outcomes. I didn't in the other committee. We hope that our appearance today at this committee and at the other committee will play a positive part in allowing the committees to take an approach of recommending that a legislative consent motion be granted and that the members of the Scottish Parliament—and Mr Russell has also always been very clear that this is a decision for the Scottish Parliament and it's not a decision for the Scottish Government as to whether consent will be granted and that that consent will be granted. That's where the focus of our attention lies. I was in another committee this morning, so I'm not aware of what was actually discussed. I've repeated what I've said upstairs. I think that Mr Simpson needs. I think that we all accept that the best outcome is for an agreement to be reached. It's quite similar to the Scotland bill when that was going through its process right up to the wire. Do you anticipate that, first of all, a deal will be done? Secondly, what are your contingency plans in terms of if consent is withheld from this Parliament? My experience is that things go to the wire however hard you try to reach agreement. That isn't just in relation to matters that affect the Scottish Parliament and the Scottish Government. Agreements across the piece appear to require to go to the wire. Indeed, our friends in the EU used to stop the clock in order to extend the wire. The third reading of the bill is currently scheduled for 16 May. Clearly, within that timescale, we would be looking for agreement to be achieved if it can be achieved. At the moment, we've set out clearly—I hope that the minister and I did again today—the UK Government position. Mr Russell set out the Scottish Government's position, as has the First Minister. We had a very productive discussion yesterday on a range of issues at the JMCEN. We agreed that our doors were open for continued dialogue, and that's where we are. Anything that the committee or others can do to add some momentum to that. We would need to see something that hasn't previously been suggested to take things forward. I'm quite sure that Secretary of State used to be a member of this Parliament. You will understand in terms of how important members view this Parliament and the devolved powers that the Parliament has. When it came to the amendments for Clause 11 and parts B and C, I'm sure that you can understand why the Scottish Government would be concerned about that, but many members in this Parliament would be concerned. The very reason that we've made significant changes to Clause 11 is the issues that have been raised by members of this Parliament, committees of this Parliament, by members of the House of Commons, the House of Lords, and we have made very significant changes to our bill. I'm satisfied as the Welsh Government is satisfied that the clause that has been put forward respects the devolution settlement and doesn't in any way threaten that. Last night in the debate, Jim Wallace, who I think everybody would recognise, is one of the leading advocates, proponents for the creation of this Parliament and served with distinction as Deputy First Minister, was very clear that the arrangements that had come forward were fair and reasonable in relation to the specific issues and didn't in any way prejudice the devolution settlement. Obviously, that's the view that I take. Bill Bowman, you convener and thank you Secretary of State for that useful summary. I have a couple of longish questions, which hopefully will have short answers. The committee previously recommended that further consideration be given to basing the powers in the bill on a test of necessity rather than of appropriateness. We understand that a non-government amendment that makes such a change for the exercise of UK ministers' powers under the bill has been made at report stage in the House of Lords. Would the Government look to amend the bill, making equivalent change to the Scottish ministers' powers under the bill for the reasons of consistency? That was a change that was made in the continuity bill here as a result of our recommendation. Thank you, Mr Bowman. Unfortunately, I don't think that it is a short answer to that question, try as I might. The Government's position on what has taken place in the Lords in that instance of vote that, unfortunately, we did not win. Our position on the set of those instances is that, if we find that disappointing, we will reflect on the debate that took place in the Lords. As you say, there is some sort of a double question of consistency here, isn't there? As you say, Mr Simpson, there is the question of consistency about what you had asked for in that context, but also about what should be true between UK Government ministers and Scottish ministers. As the bill moves from the House of Lords back to the House of Commons for what is known as ping pong, we have to finish off the work in the UK Parliament. Obviously, that position will be considered and the Government will have to consider what it will offer at report stage and offer back to the House of Commons. I can certainly say here to this committee that we will certainly give careful consideration to your views and the arguments that you have put forward for why that change is a sensible one. I think that the arguments that we have made against that change are also quite clear in that, legally speaking, there can be occasions where you might have to make a choice between two things that could either be seen as necessary and, therefore, the word appropriate is the simplest way to allow for the right judgment to be made in those cases. Those are arguments that have been well rehearsed and, as I say, I will certainly undertake to give more consideration to that, given your question here today. That sort of sounds to me like a maybe but veering towards no. As I say, unfortunately, it is not possible to give you a short answer to that question. I am sorry. The second question then is, the committee also recommended a change to the parliamentary procedure for the power in schedule 4 to create or increase fees and charges in connection with functions that public bodies in the UK take on exit day. The recommendation was that the power be subject to the affirmative procedure, not just for new fees but also for significant increases to existing fees. Does the Government propose to table amendments to achieve that change? I believe not as things stand, but, as I said in answer to the previous question, I am very happy to take that to give it some thought, given that you have raised that question here today. I would be happy to come back to you with that thinking. That is really about the reason that we are in this position, because the reason that we are in this position is because, effectively, commitments that you gave Mr Mundell in the Commons to resolve those issues were reneged on. That has meant that this committee, other committees, this Parliament, ministers themselves, has had to go into extended periods of work and negotiations and scrutiny because that commitment was not delivered. Have you got anything to say in relation to that? I am very clear, Mr Findlay. I gave a commitment that we would bring forward an agreed amendment in the House of Commons. I wanted to do that. I think that it would have been much better to have been able to have reached an agreed position in the House of Commons, but, in the timescale that we were operating, that was not achieved because I placed a great deal of emphasis on agreement. Of course, I could have brought forward our own amendment, but we wanted an amendment that could reach agreement with the Scottish Government and the Welsh Government. We have worked really hard to try and achieve that. We thought that we were very close to achieving that. Your Welsh colleagues ultimately did reach agreement with us. The House of Lords in their deliberations have accepted that we have brought forward something that was fair and reasonable, having made significant movement from where we were originally. We are still not in a position to agree with the Scottish Government. I am disappointed in that, but, as I have indicated to the convener, I have not given up trying on that. I am committed to the extent that it is at all possible to work on the basis of agreement. Therefore, I did not act unilaterally. I continued to work to get agreement. Time is really short, and I want to let Mr Arthur in. Rightly highlighted earlier that the decision of legislative consent will be one for this Parliament to take. As a decision of this Parliament, it is going to have to take within the next two weeks. Do you say categorically that, if this Parliament withholds consent, the UK Government will not impose frameworks on this Parliament, on Scotland against the will of this Parliament? I think that there are a number of issues in there, so let's work backwards. I have been very clear that we are not about imposing frameworks, we are about seeking to agree frameworks. The current piece of legislation is not about the frameworks, it is about freezing the current arrangements. That is the current arrangements that apply right now here in Scotland. That is what that is about. Based on discussions today, we need to get everybody absolutely clear that the legislation that the Parliament is being asked to consent on is not about new frameworks. It is about 24 areas where we are saying that we want things to remain the same as they are now after we leave the EU. I want— The quality of which will be frameworks. If this Parliament does not grant legislative consent, will the UK Parliament overrule? As a member of the UK Government, will you recommend that the UK Government overrules the will of this Parliament? Yes or no? My position is quite clear. No, it is not clear. I am asking a straight yes or no question. No, because my position is clear. I do not want these sort of consultation. I know that you do not want that, Secretary of State. I am asking a question. I want to work to reach agreement. I am going to jump in as the convener. Mr Arthur, please do not interrupt when somebody is answering. I am going to come on to Mr McMillan after you finish your answer. My focus, Mr Arthur, remains on getting agreement with the Scottish Government persuading even you and the Finance and Constitution Committee to come to a view that they can recommend consent and this Parliament granting consent. That is what my focus is on over the next two weeks, and that is what I will continue to do. Mr Arthur, we are coming on to Mr McMillan. We have time for one more question. Thank you. Secretary of State, in your letter on 5 April to Michael Russell on section 3.2 of that, regarding the restrictions on delegated powers, there is a part of this that talks about we would expect to add any gaps found on the list. That has certainly concerned me. That seems to be that the UK Government could then add to the list of 24 at will at some point. Can you explain that, please? With very short time, I did answer, as Mr Simpson will know, that question very extensively upstairs in the Finance and Constitution Committee, so you will be able to get the record of that. I also committed that that would be done on the basis of that intergovernmental agreement, which is on the basis of agreement. If there were to be any changes, either way. That means that, going back to Mr Arthur's point, if there is no consent from this Parliament, how could there then be the agreement for this to then take place? That is an intergovernmental agreement. We have set the list out in an intergovernmental agreement. There was an extensive debate as to whether the list should be set out in primary legislation. I think that all parties, even the Scottish Government, would have viewed that the intergovernmental agreement was the best way because that allowed flexibility. However, what I can commit to you is that we will seek to—any changes, both ways, in terms of taking things out—would be done on the basis of that agreement, which is by seeking agreement. There was a more extensive dialogue, so you will be able to reference that, Mr McMillan. Okay, thank you very much. Right, thank you members and thank you both for coming. Sadly, time is up. We have to finish up, and so do you. So thanks again for attending. I'll suspend the meeting for a couple of minutes to allow you to leave. Thank you very much.