 Good morning and welcome to the 19th meeting in 2017 of the Finance and Constitution Committee. A couple of matters. First of all, Willie Coffey is not attending today and in his place we have Gordon Macdonald as a substitute. Gordon, do you want to make any declaration? I have no declarable interests, convener, and I also apologise to members of the committee I need to attend to make a move the advisory board at 11 o'clock. I will need to leave early. Gordon MacDonald's first attendance to meeting in the meeting on the necessity for declaration. On the beginning of the meeting, I can also say to Liam Kerr, who is the last finance and constitution committee meeting, that Liam will value your contribution in the time that you have been on that committee. We will look obviously forward to Alexander coming in your place after the summer. I thank you very much for your contributions gofyn. The first item on agenda is to decide whether to take item 3 in private and members agreed. The second item on our agenda is to take evidence on Brexit from the Minister for UK Negotiations in Scotland's place in Europe, Michael Russell. The minister is joined by Scottish Government officials, Gerard Burn from the Constitutional Policy Unit and Ellen Lever from the European I don't, I think that there'll be plenty of questions, so that would be a bit superfluous. Okay. Let's get straight down to the questions. In the run-up to article 50, I understand that both the Scottish Government and the Welsh Government were unhappy with the way that they were treated. In the Brexit process, do you believe that the UK Government has so far conformed to its constitutional obligations gyda'r cymdeithasol yng Nghymru? No, I don't. It's a point that I made in a lecture in Cork in April and I've continued to make it and I think the situation is worsening. If I may explain what I mean by that, the actual terms of article 50 require due constitutional process from the country that is withdrawing to be observed. That's difficult to define within the context of the UK because there is no written constitution, but there would be an expectation of following what was the current constitutional practice. There does exist a joint ministerial structure and as a result of Brexit the new part of that structure was put in place, the JMCEN, with a written terms of reference which are available for all to see. Two parts of it are particularly important. The first part was seeking to agree a common UK approach to article 50. It could be that that process could not produce such an approach—that's perfectly feasible—but it was the obligation of the UK Government to try and do that. At no time did the JMCEN see a draft of an article 50 letter. At no time was a discussion held about what should be in that article 50 letter and indeed the article 50 letter when it was published, the first time I saw it, was half an hour after it was published when the Prime Minister was on her feet. But that is passed. One of the purposes that I hope today is to see what lies ahead because we are in a very serious and difficult circumstances. The second part of the remit of the JMCEN is to attempt to have oversight of the insuffars that is possible—there's a caveat, I accept that—insuffars possible of the negotiations with regard to the devolved competencies. The JMCEN was meant to meet monthly. It last met in February. There is no plan that we know of for a future meeting. None of my officials have been approached about a meeting and we have urged a meeting. Mark Drakeford, my Welsh counterpart and I have worked closely on this. We've made positive suggestions to the UK Government about reforming the JMC, focusing it more closely. We're very willing to participate in that way, but we don't know if it's going to happen. Going forward, there is the potential also that there will not be this discussion. If you also look at what an expectation would be at this moment in the negotiations, I was in Brussels last week. I spoke to a wide range of people, some of whom had been briefed by Barnier immediately after the talks. I've had no briefing from the UK Government about what took place in those talks. I had an informal discussion with Tim Barrow last Tuesday night, which touched on one or two issues, particularly the budget issue. David Davis has not rung me to say that this is what took place. We were meant to have a conversation on Friday, which didn't happen because he was unwell. I'm sorry about this. I spoke to Robin Walker, the Undersecretary, who had a very pleasant conversation, but he told me that I would receive a phone call and a briefing. I've had nothing. Neither has the Welsh Minister. I really think that if we're serious about this, if we're serious about the process of the JMCEN, if we're serious about engagement, then we need to get on with it. It has to observe constitutional due process, and it isn't. Thank you, convener. Good morning. I just wanted to explore for a moment the implications of yesterday's statement. Obviously, there are very substantial aspects of that, which are out with the direct discussion about Brexit, which is your remit in the purpose of today's meeting. There is clearly a sense of a change of approach to Brexit specifically in some parts of that statement. Can you say what that change is? I think that everybody would accept—I won't go into the details of it, and I'm happy to do so if people want me to, but I suspect that that would probably just lead to a political ding-dong. I think that everybody would accept that the election on June 8 produced some changes, particularly that it produced a set of circumstances in which the UK Government does not command, in my view, a majority for the type of hard Brexit that appeared to be inevitable before 8 June. It would be an opportunity for a new approach to this very difficult subject. Indeed, it's not just me that's saying it. I would call the Archbishop of Canterbury, in evidence, who at the weekend said that there needs to be a cross-party, much more inclusive view of that. I was speaking yesterday in place of the First Minister at the annual meeting of the Association of British Insurers—their Brexit meeting. Again, the president was calling for exactly that. Wherever I go, I hear people talking about the need for change. I think that the First Minister reflected the seriousness of purpose of the Scottish Government of saying that we want to engage in discussions about Brexit, because it's very, very problematic now. The consequences of Brexit are so great, so that's a space that has opened up to allow that to happen again, and we should allow that to happen. I'm addressing this, Mr Harvey, in the context of Brexit, that that's the changes that I think have taken place. The opportunity now exists to re-engage in a serious and purposeful manner to try and get some progress on this very difficult issue. One of the feelings I've had most frequently over recent months, and I suspect many people in the 48 per cent throughout the UK who voted remain, and 62 per cent throughout Scotland who voted remain. I suspect some who voted leave and have realised that they couldn't believe what was printed on sides of buses during that campaign. One of the feelings that I've had most frequently is in hearing politicians who know that this is wrong going along with it and simply accepting that something that they know will cause huge social and economic damage to the country, to Scotland and to the UK, simply accepting and going along with it. For many of them, I had to accept that they were representing people who voted leave. The Scottish Government, I thought, was taking a different position so far, recognising that it represents and that we all represent people who, by majority, by clear majority, voted remain. I thought that the Scottish Government's view was to say that Scotland has not consented to this. Is it still your view that Scotland has not consented to this? Are you willing to fight for membership of the European Union, not just the single market? It is still my view that Scotland hasn't consented to this. My position and the position of the Scottish Government has not changed in terms of full membership of the EU. However, what the Scottish Government did in this paper was endeavour to seek a compromise in difficult times. I suppose that what we're continuing to say is that if we require to seek that compromise, if that compromise is the best that we can make of a bad job at the moment, and I still wish us to be a full member of the EU, it is quite obvious that the EU is a changed one over the last 12 months, the EU is stronger, it is making greater progress, it is in actual fact in much better health than people thought it was, whereas the UK appears to be much worse health than people thought it could be, in all those circumstances could we find a way forward? Perhaps a transitionary way forward is membership of the single market at this stage. That is, of course, traditionally a way into the EU, and it might well work in that way for Scotland. It could be seen as a way out for the rest of the EU, but I am not in doubt that if I could find a way for Scotland to stay in the EU, I would find that way, and I continue to look for that way, but I am also trying to make sense of what is the most astonishingly complicated and difficult political situation that any of us will have faced. We have to be realistic about that, too. It is astonishingly difficult. You have indicated the comments from the First Minister yesterday, saying that we will redouble our efforts and put our shoulder to the wheel in seeking to influence the Brexit talks in a way that protects Scotland's interests. She specifically cited that paper and then was clear that that meant staying in the single market. Later, she called on other political parties to back the Scottish Government's demand to be at the table and to be able to influence the UK's negotiating strategy and for Scotland and the UK to stay in the European single market. Do you detect and bear in mind your comments to the convener about the lack of any sign of willingness to treat the negotiations seriously with the devolved administration so far? Do you detect any sign, either from the current Prime Minister or from her potential successors, that there is the hint of openness to staying inside the single market? I have not heard any such hint. It is a very good question. The answer is how you would interpret what you see. It is like watching the Kremlin wall, really. There is no statement that they have made that says that they are going to stay or considering staying in the single market. You look at, for example, the front of the times today, which seems to be a well-informed story about major difficulties between the key players within this. You are looking at a very unstable political situation in which I think we do not know what the end game will be from it. I think that it is therefore important to see if there is common ground amongst the majority of people who are engaged in this discussion and debate about the way forward. I think that the common ground that I detect and others detect is a willingness among those people to reconsider the single market issue. Many of them have never come off that issue. Whether or not the UK Government will in the end find itself in that position is a moot point. I will tell you one way in which that may happen. This question of transition is becoming quite crucial in discussion. Transition is an issue that started off with the UK Government saying no transition. I remember hearing a senior member of the UK Government saying that transition would only encourage civil servants to think that we were not leaving, so transition was forbidden. We are now in a situation where people are quite openly talking about transition over a two to five-year period. Transition is not a third state. Transition is the continuation of what exists until it stops existing. That is also clear from everything that you hear from Brussels. Maybe transition is membership of the single market through the FTA route, while other things change. That is an opportunity. I cannot be more firm than that, but I think that there is an opportunity and a continuing opportunity to try and get this into a better position. I noted that the leader of the Conservative Party in Scotland was talking about Brexit in different terms after 8 June. She was talking about Brexit before 8 June. I am not criticising her for that. I think that is a positive thing. Maybe we could find a way to allow this to happen. Charles Grant of the Centre of European Research published something yesterday, and I saw him on Tuesday in London. He published something yesterday that talked about the way in which you might see a gradual shift taking place, because politically it was very difficult for the Prime Minister to move in a precipitant way on this matter. I think that we have to be open to it. I think that we have to discuss it. We have to put principles up on the table. We also have to find a structure to do so. I go back to my response to convener. The structure has to be at present through the JMCEN, because there is not another structure. Adam, because he was interested in the transitional arrangements, and obviously that has become a feature of this discussion. Thank you convener. Can I ask to start with you, minister? Does the Scottish Government now accept that the whole of the United Kingdom is leaving the European Union? I do not want to be awkward upon this, Mr Tomkins, because I am not trying to avoid that issue. I think that the certainty of that that existed before the 8th of June no longer exists in quite the same way. The trajectory would still appear to be in that direction, but this is the most unpredictable set of circumstances that I have ever seen in politics. I think that any of us will ever have seen in politics. That is still a trajectory. I am working on the assumption that those negotiations have started will continue and may come to a conclusion. I think that it is like having lots of parallel universes. I think that there are lots of other possibilities still, some of which are very limited likelihood and some of which are much greater likelihood. I cannot be absolutely certain that that is the case, but I am working on the basis that that present trajectory is where it is going. I will come to the single market in a minute, but I am just talking about membership of the European Union. The Scottish Government still has some reluctance, it seems, from your answer, minister, to accept that the whole of the United Kingdom is leaving its current status as a member state of the European Union. It still seems to the Scottish Government and it seems to many other people, and even more so after 12 months, that this is an exercise that is extremely difficult, incredibly expensive and will not produce anything like the boasted advantages that were claimed for it during the campaign. In fact, can I just finish that answer? It does seem that over the last 12 months that argument has gained a great deal of currency. I am just trying to understand yesterday that the First Minister said that she wanted her Government to play a role in the negotiations. I am just trying to understand what the First Minister and her Government think that these negotiations are designed to achieve. The UK Government has made it perfectly clear that it wants these negotiations to achieve the United Kingdom leaving the European Union. Unless the First Minister and her Government are able to accept that and to voice that in forums such as this, it seems to me difficult to understand how the Scottish Government can play a meaningful role in those negotiations. Let me ask a question again. Do you accept that the United Kingdom is leaving the European Union? I am trying to be helpful, Mr Tomkins, because the reality is that the trajectory is in that direction. However, you do not have to be a cheerleader for Brexit to say, we need to be part of these negotiations to avoid the damage—well, for two reasons—to avoid the damage that we think that process will cause, because we do not believe that it is a good idea, but it appears to be an idea that will presently take place. I say presently, because everybody must accept that this changes almost daily in terms of its dynamic. In the present circumstances, our job, which we are very willing to undertake, is to be involved in that process, not least because those negotiations involve devolved competencies. If we were to step back from those negotiations and to take a purest view on this, then we would not be able to do our day job of defending Scottish interests, which is what we will do. It is by no means inconsistent—indeed, it is probably helpful for us to be a sceptical but helpful voice in trying to find a way through this. That is what we are providing. To say that you have to pass a loyalty test before you can take part in the negotiations is not, in my view, helpful. Minister, do not put words in my mouth. I did not talk about loyalty. If I wanted to talk about loyalty, I could very easily talk about that. That is not what I am talking about at all. We all accept that there is a degree of fluidity around the nature of the deal that the United Kingdom has just started to negotiate with the EU 27th. We all accept that, but I am asking a more fundamental question. It seems to me that nobody on either side of those negotiations accepts that there is any doubt about what those negotiations are designed to achieve. What those negotiations are designed to achieve is the United Kingdom's exit from its current membership of the European Union. I am asking you whether the Scottish Government now accepts that the United Kingdom is going to leave the European Union. With the greatest respect, I am not trying to be difficult, Mr Tomkins, and I am sorry that you have taken this in that way. I am not trying to be difficult at all, but when you have the chief negotiator on the EU side saying that other possibilities out of this are possible, very foolish for me not to agree to him, there are lots of possibilities out of this. What I am saying—I do not think that there is a great deal of difference between us, so let us not try and exaggerate it—what I am saying is that there is a set of negotiators under way whose purpose is—the purpose of those negotiations is to allow that exit to take place. It is important that we participate in a way that helps to protect Scotland's interests, but I am not 100 per cent convinced that the exit will happen. I think that the political instability at the present time indicates that it is getting worse rather than better. I think that many, many options remain there, but the purpose of the negotiations is to leave. Our purpose of our involvement in those is to ensure that Scotland's interests are protected in that regard, and that is what we should be doing and are trying to do. Can I ask you about the phrase that you used in your answer to the community's question? You used the phrase constitutional due process. Do you accept that, in the miller judgment, the United Kingdom Supreme Court unanimously ruled that it is a feature of our constitutional law that the United Kingdom's membership of the European Union is a reserved matter for the anti-kingdom government and not a devolved matter for the Scottish Government? I accept that, but I also believe that there is a wider issue of constitutional due process, which, for example, the European Parliament will be concerned with, which is the willingness to ensure that this is an exercise entered into by the United Kingdom in full consultation with all its parts, and that has not been the case. Consultation with? And I think consultation in the UK sense means participation and involvement. So you don't mean consultation, you mean participation? What I want to see is... This is quite important, this distinction. This distinction is quite important. Kavina, shall I answer? Let's try and keep this and asking questions and answering the questions. Very happy to be helpful as helpful as I possibly can in answering questions, and let me do so. I'm pretty sure some of the evidence that you've taken is very interesting on this regard, because if we get locked into that, that there is a line there, and that line is the only line that you can have, that we're not going to make any progress. I think the obsession with process has perhaps not allowed us to look at the way in which we could make some progress. We can make some progress if we understand that, in the constitutional terms, the present UK government has done its best to exclude the devolved administrations and has not honoured the promises and the commitments that it made by entering into the new part of the JMC structure. That is germane and is understood by ourselves, by the Welsh, by many in Northern Ireland, and increasingly by members of the EU. It would be better to move on now, given the situation, and to find a way to make that work again. I would hope that the UK government is thinking of that, that we are constructively, as I say with the Welsh, putting forward ideas how that could happen. JMC, I know that Ash was interested in that area. I'm not sure if it's all been unpicked the way you want. I think that it has an extent, but I think that it's worth. This is the way that I see it. Obviously, I'm interested in what you see as the future being for the JMC process, as it is at the moment. You have alluded to the fact that you don't think that the terms of reference, in this case, are being met. Obviously, in the UK, we've got a current set of intergovernmental relations, which I suppose, well, I would characterise it as being quite asymmetric in terms of the power balance. So, if we've got the JMC system and potentially the two Governments are looking for something quite different from that, so you could say that maybe the UK Government is looking for maybe a sort of a light form of consultation, and the UK Government is probably looking for more meaningful engagement in that. Do you think that this process really is up to the job, even taking into account some of the things that you put in your letter, your joint letter to David Davis? Do you think that it's up to the job, especially at a time such as this with Brexit? There's been a lot of analysis of JMC process over many years, and nobody has examined it in any way. I mean, the House of Commons Justice Committee, the House of Commons Welsh Affairs Committee, the House of Commons Scottish Affairs Committee, the Coleman Commission, the Silk Commission, the Smith Commission, the Institute for Government, the House of Lords Constitution Committee, just to name a few, have all examined the JMC process and all have said that it's not fit for purpose. So, we've got something that doesn't really work and has never worked. Nonetheless, it's all we've got at the present moment. We think that it could be improved in the particular circumstances in which we find ourselves because it's so important that there is a mechanism. The terms of reference are really clear for the JMCEN, and it's not us that has breached them. We've not had a willingness from the UK Government to live up to this. Indeed, the Prime Minister has described the JMCEN in terms that don't appear in the terms of reference. You talked about the devolved administrations, I think, having the opportunity to make representations to the UK Government, which is not what we're talking about. We need to work out whether that can still operate effectively. If it can't, and I think that the view of all those involved is a huge difficulty with it, how would we move to something else? That's actually a little like some of the issues that might come onto in a minute of frameworks. You can do so by negotiation and discussion, accepting that all parties are equal and we're going to find a way forward, or you can just tell people what you're going to do. We have a structure. That structure should be used to see if we can find a better structure. In other words, the first task is to bring the JMCEN back together, to look at, for example, the proposals that Mark Drakeford and I have made, to look at other proposals that exist, and then to say, let's take this forward. That's what we should be doing. I am absolutely ready to take part in those discussions. And so, the Welsh, there is the issue of the Northern Irish situation. We will know tomorrow, I think, at four o'clock, is a deadline, whether there will be an administration set up in Northern Ireland, if there is one, then we move forward with that. And then we talk about the weaknesses of it and how we can make it work. It is unbalanced. I mean, I think asymmetrical is a very generous way to look at it. You know, there's a very large UK presence and the rest of us sit around. The arrangements were shambolic in terms of meetings and agendas. There needs to be a recognition that we need to make progress in individual items. And now negotiations are underway. It needs to slot into the four-weekly negotiating cycle. I think that we can all see ways in which that could happen. If you look at the negotiating cycle as described by both sides now, Barnier and Davis, there are specific purposes for each of the weeks. We inject ourselves into the four-week negotiating cycle at a point of most relevance. And then we meet every week. There's the opening round is the 19th of June, 2nd, 17th of July, 4th, 28th of August, 5th, 18th of September, 6th, 5th, 9th of October. So we have those. We know what each week is meant to produce, so we could fit into that slot. You're saying that this is the process we have, the JMCEN. You think that it could be made to work with some kind of tweaks to the system, maybe being more efficient, meeting more often. But have you been given any indication of willingness on the side of the UK Government to make it to work? We've not been given any indication of anything. Both Mark and I received a letter on Friday from David Davis about the citizenship proposals. It wasn't any more than the Prime Minister had made public on Thursday night. But at the end of that, there was a line in the letter, which I think more or less said that they were still thinking about things. They need to come to the table and talk. We can't make progress on this unless we sit down to make progress on this. I mean that's the basic message. We need to get that meeting. The latest minister here, Neil, you were interested in all the transparency around this. I think that I raised issues of transparency with me last time. You were here. The terms of reference for the article 15 negotiations say that both the EU commission and the UK Government, for them both, the default is transparency. Will the Scottish Government's default position in relation to its inter-governmental discussions on Brexit be transparency? What documents will the Scottish Government publish in relation to any inter-governmental negotiations on the withdrawal agreement and the new relationship with the EU? I mean, it will be. I think that transparency is the right way to do this. We will publish our documentation providing we're part of it, I should say, because we've got no guarantee we'll be part of it. But if we become part of it and this process moves on, we will do so. We've taken an open approach to this in any case. The difficulty that arose some months ago about the publication of letters was part of the convention under FII that we don't release other people's letters. They release them because we've got nothing that we don't want people to know is taking part here. I'm keen that we publish our approach to each of the major issues as they arise within the negotiating process so that that is clear. They will be, in many cases, supportive of the UK's position, where they are different from the UK's position, and that is a useful debate that we can have in the discussion. The process can only improve by transparency from all sides, so we'll publish what we have and we'll be open about it. We already report on meetings of the JMC, are reported on through a formal process in the Parliament. I'm happy to look at that again if it's helpful to do so, and I am happy to discuss cross-party. I did write to all the other parties two weeks ago offering to sit down and talk about things. I'm awaiting a response when I have that response. I'm very happy to sit down and talk on a cross-party basis with individual spokespeople about where we are with this, and I think that that would be helpful. I think that that's welcome because there's obviously been concerns about the Scottish Government in relation to freedom of information requests recently. I know that it's not necessarily affected yourself, but there are concerns about transparency. It shouldn't take freedom of information requests to get this. I'm not going to enter into that debate. That's a debate for another place and another time. There are lots of issues within it. My approach to this is, I believe, entirely consistent with the approach that is being taken by the EU and by the European Parliament, and the UK Government has committed itself to the same process quite rightly, and that will be helpful. I feel a bit of time in this area, but there are a couple of issues that I want to tease out just before we finish this particular area of discussion. There are a couple of letters. First of all, the Secretary of State's letter 2 of 29 March, which referred to the interministerial official level biolateral engagement when it talked about intensive discussions between officials on Scotland's place in Europe, including a substance of work programme and a good deal of resource being applied to that. Is there been any reality to that letter? Well, this is a very difficult and contentious area. There are no doubt that there have been lots and lots of meetings of officials. My official's view of that has been that they have produced virtually nothing because there has been no information comeback. And when we get on to talking about the Great Repeal Bill, as I hope we will, I think it's a useful illustration of this. We have not seen anything that is contained in the Great Repeal Bill. The normal process for a major piece of legislation that has implications for the Scottish Parliament would be intensive engagement by officials in the construction of that legislation. So there's a full understanding of what's taking place, and particularly between lawyers. That simply has not been happening. These channels have essentially closed down. So I've heard David Davis talk about 100 meetings between the Scottish Government and the UK Government. There may have been, but the content of those meetings has not produced any results, because no policy options, for example, have come back to us. And you can't actually make decisions unless you know what the policy options being considered are. So I think the answer was a good try, but I don't think that that tells you the truth of what's taking place. I want to come to the Great Repeal Bill through Ivan in a minute, but I know Patrick wants to talk about the joint letter. Thank you. Just a couple of quick follow-up points. Ash mentioned the joint letter from himself and Mr Drakeford from the Welsh Administration. One of the issues that you're seeking to put on the agenda for the GMC is analysis of the economic impact of various scenarios, including no deal and of reverting to WTO rules, leaving the single market and withdrawing from the customs union. Can I take it from your earlier comments that you're also seeking to put on the agenda the analysis of the economic impact or remain in the single market and are the other options that the Scottish and Welsh administrations are pursuing, including the transitional arrangements that you discussed? Yes, and some of that material we published already in Scotland's place in Europe. Some of that material was published in the Welsh Government securing Wales's future document that came out a month later, which still remain the most substantive contributions to this debate. However, we were also driven there by David Davis's admission that there had been no analysis of the no deal scenario, which we thought was very concerning. If the GMCEN gets up and running again, it's a requirement from your point of view that it conducts an analysis of the options of staying inside the single market. There is no doubt that that has to be a serious option and that there's a cost-adoption. Finally, a couple of paragraphs later you make the suggestion of significantly reducing the number of attendees from the UK Government. I just wonder if you could explain that. I remember stacking the rumours a tactic in student politics, but I'm slightly surprised if that's what's going on in the UK Government. I would, of course, not use those terms to discuss it. It's important to realise that there isn't the sort of equity of arms that the GMCEN never has been. I recall a meeting of the GMC Europe when I was the last member, I think, in 2009, some stage in which there were 21 UK ministers present, myself and Rodri Morgan. So it wasn't exactly a meeting between the devolved administration and the UK Government. Now, GMC Europe tends to be used because it's a meeting before European Council as a briefing for a minister, so a lot of UK ministers turn up. GMCEN, however, has brought to the table not just Deksu, who have been running it, at the Department for Exiting the EU, but also the Foreign Office, Alan Duncan, is usually attending. You can understand that with a foreign office responsibility. Sometimes somebody from trade, from time to time, Chancellor has been and the chief secretary is usually there. Cabinet Office, Ben Gummer was there, when, of course, he's no longer there, but I would presume now that the first secretary will attend. The territorial secretaries of state, all three of them, come along, and then, from time to time, other ministers are added. Now, from the devolved administrations, it would be myself, plus if a special subject was being discussed, you can bring an additional minister. Michael Masyn came to discuss justice on one occasion. Mark Drakeford, and again, any supplementary he would have, but normally not, and normally not for me, and then two ministers from Northern Ireland, which, at the start of the process, were Martin McGinnis and Arlene Foster, because Martin particularly wanted to be there, and I think that he was right at that level of representation. After Martin's very sad demise, then it has been two ministers from the administration, but without the power to do anything other really than listen or make representation, it can't take anything away for action. We would envisage, Mark and I would certainly envisage, and we've discussed it a lot, a much more flexible arrangement at which there would be probably dexu on one other representative, the devolved administrations, and additional ministers as required. We would hope that it would move around country a bit. We're always meeting London. There's only once been a meeting of the GMC of any part of the GMC outside London. I think that I'm right about that, and that was Cardiff at the end of January this year where the GMC plenary was there. And it is not inconceivable that we could have clearly agreed agendas in time, action points, and some dedicated resource to taking things forward. I think that we'll be on this for a bit of time in this area, so I'm going to move on to the great repeal stuff. Ivan. Thanks, convener, and thanks minister for coming along this morning. You've already kind of touched on this to some extent, but I just want to explore and get a bit more clarity around about the great repeal bill and the other associated pieces of legislation from the Queen's speech. And it's round about the extent to which initially the UK Government has kept the Scottish Government informed. And you've obviously given some indication on that and what have you seen there, and I suppose to compare and contrast that to what would normally be the process at this stage of a bill. Yeah, I mean, I have indicated pretty strongly where we are with this, but let me start by saying this. We've known about the great repeal bill since it was announced at the Tory party conference actually last year. We had the First Minister a phone call from David Davis on, I think, a Saturday night before the start of the conference to say that he was going to announce this the day after, or the Prime Minister was going to announce this the day after. So we've known about its existence and the idea of it since last October. When the GMC-EN started to get under way in the first meeting was in November, then clearly it featured and has continued to feature. At the start there was a discussion about its drafting, so we say it would be in draft and it would be discussed later. We understood that there was, and we only understood because we haven't seen anything, we understood there was a draft bill round about the turn of the year into February because it was discussed at the January and February GMC-ENs, only extent that we were asking to see it. And indeed I raised the timetable of it at the GMC plenary in Cardiff directly with the Prime Minister to make the point that we needed to see, and that we're talking then in late January actually, I made the point that we needed to see the bill and we needed to see the timetable for the bill so that we knew what was going to take place because we had to prepare for it. There had been a trawling exercise right across the UK from the various governments about issues that might require to be included and problems that might occur, but we couldn't really analyse what the issue would be in Scotland until we knew the solutions that they were planning to change particularly subordinate legislation. Now, we haven't seen anything. The normal procedure in a bill that has consequences in terms of the devolved competencies would be that several servants would be involved at a very early stage discussing the issues that should arise, the way in which it should be handled, the normal intergovernmental stuff. If there is a glue of intergovernmental activity, it is through the work of civil servants with each other on an informal basis and occasionally through the official part of the GMC, but there's an informal liaison that takes place. Nothing has been revealed to us. No drafting has been shown to us. Even the lawyers channels have not worked and usually the lawyers channels are active no matter what is happening. Lawyers have a camaraderie in this which helps. Nothing's happened there. We don't know what the policy solutions to be applied are. I had a conversation with David Davis about this in February, in which he talked for the first time about bringing case law into the bill, just as a theoretical issue, and that was that. We understand the bill will be now published within the next fortnight. Sorry, Gerald is shrugging. Let the record show that Gerald is shrugging at this. We believe that it will be published shortly. We do have an arrangement now for our officials to discuss the bill with the UK on Friday. I don't think there's any problem in saying that. That's a piece of transparency. There will be a discussion on Friday for the first time in which we understand that some details of the bill will be safe to them in London on a confidential basis. That will be the first opportunity that we have. If it happens, and I'm not holding my breath, but if it happens, then we will have some understanding of what may be in the bill. Now, that's just that bill. There are a number of other bills announced. The farming bill, we've endeavored to find out what's in it. We understand they don't know. The UK government doesn't know what's going to be in the farming bill. And of course then there is the very vex question of subordinate legislation, which flows from this. I've had one conversation with David Davis about legislative support bill 2, legislative consent, and I'm very pleased that he indicated in the House of Commons on Monday that there would be a legislative consent motion. The Secretary of State for Scotland had indicated that there would be, but he confirmed that on Monday. But we don't know to which parts the legislative consent motion will apply because we don't know what's in the bill. So we are presently flying blind. No, actually, we haven't yet taken off. We hope on Friday to be a little bit wiser. You may not be able to answer this, but do you perceive that this is because the UK government doesn't know what's in these bills or is it because they made a conscious decision to behave differently with respect to these bills as they might normally? I think on many things, to be fair, they haven't really known themselves. On this one, the bill has been, to some extent or other, in draft form for a very considerable period of time. Now, you know, the draft may be sketchy, obviously lots of things will have changed, but I think it would have been possible to share it with us before. Now, the election, of course, intervened, and that sort of does close things down. Although officials' channels normally stay open during election periods, so there can be conversation, but that didn't happen. So, I think it's been there. Ben Gummer and I had a conversation about it, I don't know, January perhaps, January or February, a very brief conversation in which he said he would like to come up to Edinburgh and sit down with me and talk the bill through. That never happened. And in terms of, I mean, what concerns have you got with respect to the timetable going forward in the parliamentary time these bills are going to take up or it's going to run out of time here? Well, I mean, let's be blunt here, we've got to do it. I mean, you know, on a very pragmatic approach to this, we will have to have, you know, arrangements in place for the 29th March 2019 so that there is not, you know, the cliff edge does not crumble underneath us and we fall. So we've got a big job to do to put this in place. You know, now, you know, I noticed that Mr Fraser and Mr Tomkins are nodding vigorously to each other. This appears to be me saying that this will take place. I am planning for all the eventualities, but what I'm trying to do is to make sure that Scotland is not put in an impossible position. So we will have to undertake this legislative task. And presently, I'm unaware of exactly what that task will need. Okay, thank you. Murdo is also interested in this area, Murdo. Thank you, thank you, convener. Just to clarify the position with the great repeal bill, so you haven't seen it. Have you had any briefing from the UK Government on the contents of the great repeal bill? No. Nothing at all? No. We understand the great repeal bill will require a legislative consent motion to be passed by the Scottish Parliament. What's the Scottish Government's current position on that? Well, we would have to see the legislative consent motion. I mean, I haven't seen it because I haven't seen the bill. So I couldn't commit to a position on the bill or a legislative consent motion without seeing it. I've indicated to you, as I've indicated to UK Government ministers, that I recognise the reality of ensuring that there is the legislative framework as in place at the end of March 2019, so that Scotland does not have a whole set of even more intractable and difficult problems to resolve. So that's where I am, but without seeing the bill it would be impossible to say. We will certainly want to ensure that the position is in place, but we're not going to be the midwife for a reduction in the powers of the Parliament, and that's quite clear. But you would accept that the consequence of the Scottish Parliament not passing legislative consent motion would be that, will legally, the Supreme Court judgment in the Miller case determined that that would not prevent the UK Government legislating if it wanted to. However, if it chose not to do that, the consequence would be to create a lacuna in Scots law? Yes, I do accept that. I accept that the commitment that was entered into by the UK Conservative Government to make the Sewell convention legally binding was not honoured. In those circumstances, I accept the Supreme Court judgment, but I also accept that the UK Parliament, the present UK Government, could simply ignore the position of the Scottish Parliament. That doesn't mean to say that we are going to willingly accept changes to devolution that are undesirable. That is also, as I understand it, the very clear position of the Welsh Government. We've got into secondary legislations at areas that Minister and Liam wanted to pick up some of these issues. Thank you, convener. Yes, just on the secondary legislation, the briefing notes to the Queen's Speech talk about the repeal bill creating and containing temporary powers to make secondary legislation to correct any legislation that doesn't operate appropriately after leaving the EU. Do you have any information on how temporary is temporary, if I can put it that way? No. Right. Anything at all on that? No, we have no information at all. We've seen speculation on the nature of those powers. We have seen speculation that those powers will be, and indeed we would expect that those powers existed, would also be granted to Scottish ministers in specified circumstances. What those specified circumstances are, we do not know. So I'm sorry, I don't know. Staying on secondary legislation, it would appear that much of the work to be done will involve secondary legislation. This committee has looked at, you mentioned the SEAL Convention earlier on, does the Scottish Government have a view on whether the SEAL Convention applies to secondary legislation? Well, that is a very interesting point, and a point that we will need to debate at some length. I'm aware of the evidence that you have taken on this, and I think the straight answer will have to be that the SEAL Convention does not appear to apply to secondary legislation. It was a matter that was raised in the Smith Commission by the Scottish Government. However, there are exceptions to that. If you look at the Public Bodies Act of 2011, that creates circumstances in which the Scottish Parliament has a procedure for dealing with secondary legislation from the UK that has implications for Scotland. I think I would want to reserve our position on what would be possible there. The best way to approach this is to have mutual respect and to say that there would be no attempt to make changes without consultation with the Scottish Parliament. That would be the best way to take it forward. What the legal position is, given that the SEAL Convention is not just accessible, is quite clear that there wouldn't be a legal recourse, but it would be best to show mutual respect. Of course, that's the purpose of the SEAL Convention, too, which is to show respect between the two institutions. That would be, I would hope, how we would proceed. So, finally, just staying on secondary legislation, presumably you would accept that given the scale of Brexit that some of the secondary legislation, regarding devolved matters, may have to be made by the UK Government rather than Scottish Ministers. If so, what is the appropriate level of involvement of the Scottish Government in the making of the secondary legislation? I wouldn't necessarily accept the first point only because we don't know. It could be that somewhere in the legislation that the UK Government is planning is some clever fix which allows things to be done very quickly and in batches rather than individually. We had originally thought this legislation as being targeted towards each circumstance. If this legislation is, as many speculate now, much broader with an additional bill that has a means of dealing with things more broadly and then narrows down elsewhere, then it may well be that there is a way to do things which we can apply as well and therefore there's no need for the UK to do it. If the UK is to do it, then I just make the point that there needs to be mutual respect. For example, an acceptance by us on a case-by-case basis, a resolution of the Scottish Parliament which is a resolution of both houses of the Parliament would seem suitable. This will be about agreeing the way in which we can work together and that sort of winds us back to the very start of this which is this is a incredibly messy and difficult set of circumstances. We need to find that way and we need to put that in place so that we can make some progress on it. We won't find that way if we aren't sitting down and talking about it. Thank you. Can I just unpack that a bit more, minister? Because I've had some very interesting evidence last week from Alan Page in this area. Yes, there will be an LCM associated with the great repeal bill. There will be something between 800 and 1,000 pieces of legislation, secondary legislation, going through Westminster and here. Much of that legislation at Westminster in the secondary sense will be technical and will be meaningless as far as the devolved settlement is concerned. But some of it may impinge significantly on devolved areas. And that process currently doesn't exist through Sule. And you began to explore other potential areas. But one of the areas that Professor Page suggested to us would be an interesting area to look at. It would be to use the exercise of subordinate lawmaking powers in the devolved area subject to parliamentary procedures in both the UK and Scottish Parliament models which are found in schedule 7 of the Scotland Act. Is that something the Scottish Government are looking at? Is it something you've had a discussion with the UK Government about? And if you haven't, are you going to? Well, we haven't because the UK Government has not discussed this with us and not discussed a bill with us. But yes, I mean I've looked at schedule 7 and I mean quite clearly this would rely on as I just indicated to Mr Care resolutions from both houses. And that is a distinct possibility. But I would stress I think the issue here is if we are going to find a way of working together then we can probably make this work pretty well. But if there was an intention that they would simply be imposed then it will become a difficulty. So approach to this is as important as the legality of it. But we will consider, I mean I've seen Professor Page's comment. We've got to remember that the Scottish Parliament does report to the Parliament every six months on transpositions. So you know we're not, this is not an area that's completely unknown and things do happen but they happen with the consent of the Scottish Parliament. And that's where we should stand back and look at this from. Westminster I hope would not wish to legislate in ways that did not have the consent of the Scottish Parliament. If that was understood then this becomes, you know, we can deal with this. You mentioned yourself Minister and one of your previous answers about the importance of frameworks and I know that's what Marie was interested in. Thank you, convener. Having heard about the asymmetric nature of the intergovernmental relationship and also the shambolic nature of that relationship, just how concerned are you that instead of seeking agreement the UK Government will just impose UK-wide frameworks in areas which are currently devolved such as agriculture, fishing and the environment? Yeah we are concerned, very concerned and you know this is a concern that's shared by the other, you know, certainly by the Welsh and shared certainly in part in Northern Ireland I know. There seems to be the language in this is quite interesting. I think we need to unpick it. There seems to be two sets of assumptions in this. One is that there are a set of frameworks in Brussels that deal with these matters which can be transposed by putting that decision-making into Westminster and then discussing what happens next. These decision-making processes in Brussels are essentially co-decision-making processes by independent members. You know and what the Welsh have said is you know if that is the proposal to create essentially the equivalent of a ministerial council but co-decision-making then they are prepared to discuss this as long as it starts with the devolution of all matters say agricultural back to the devolved administrations and then we can talk about how these are exercised and I've taken the same position. You know absolutely if there's then to be a discussion on the basis of what the process has completed of the promises during the referendum campaign of all these matters being devolved back then that's a feasible thing to do. What is not feasible is to make the decision ex-cathedra by the UK Government that all these matters will come back to Westminster and then an unspecified moment in the future in a process that is not agreed and even the process we have in the GMCN isn't operating to find a way to negotiate discussities that's not acceptable and we'll go forward in that basis. There are sort of hints decisions have already been made I noticed that Charlie Jeffrey in his paper which was a very good paper I have to say and I think very helpful in analysing the two views that exist pointed out that in the Tory manifesto as a reference to UK agricultural policy now you know this is concerning and of course there's been the language of the so-called UK single market has also been used where naturally that shows a very actually erroneous understanding of what actually exists on the ground and how it operates in terms of devolution so we've got some way to go to resolve this but I do hope there will be a willingness to resolve it the wrong way to do this would be to shove these things into pieces of Brexit legislation and say you know like it or lump it and you know we'll talk about it later we would not accept that. Okay do you have any proposals for how these issues could be resolved would there be you know so so some of the people giving us evidence spoke about how these things are arranged in other European countries and I think Belgium was held up as a particularly good example where the regional and the government the intergovernmental relationships between the region and the central government were very effective do you have proposals for how that should work going forward? Yes we start with a GMCEN it's actually working and then we look at a set of proposals for taking these issues back to the devolved administrations and then we sit down and accept a power-sharing arrangement where that is appropriate and necessary and where it's not appropriate and necessary we say well we'll be operating our distinctive policy you know which is the basis of devolution I mean let's look at for example you know issues such as single unit pricing for alcohol you know that's the Scottish government has taken that forward because it was a specific set of specific proposal for specific circumstances you know the logic of the UK position on the so-called single UK market which is you know an internal market it's not a single single market in those circumstances that wouldn't have happened couldn't have happened because it would have been seen as a barrier to trade so I think we need to be very careful there you know Charlie Jeffery does identify quite correctly you know a divergence of view about where we are and where we want to go and it's important that we discuss that through a structure that allows us to resolve it and the GMCEN I go back to it is on this issue where we should be talking about this For clarity are there any circumstances in relation to agriculture and fishing where the Scottish government believe that a UK common framework would be beneficial to the industries? Well there could be when an example is animal health which already is operated as it operates on a collaborative basis because it needs to be so If I remember correctly and I need to go and look at this but from my time as an environment minister there was a single budget for animal health in the UK at the start of the evolution which was eventually devolved so in fact the nations took responsibilities for those parts that weren't done in Europe but they agreed to work very closely together and of course they worked also through the European veterinary framework so that there was a European element to this which helped and enhanced the element in these islands Now we are absolutely ready to sit down and talk about these issues because they are new issues you know this is because of the Brexit process what we're not willing to do is to accept as given that the default position is that everything reverts to Westminster and nothing reverts to the devolved administrations unless Westminster says so and that's where we've got from the start of this process in which the campaign promises from the leave campaign where all these matters would go to the devolved administrations so again this is an area which needs sensitive handling but it starts by accepting the principle of devolution and then we sit and talk about how these things could work The Welsh Government published a paper two weeks ago on their views on this matter and it was very helpful and you know I didn't agree with all of it but I think it's been a helpful contribution to this and we also will bring forward some ideas of our own but we want to sit down and talk about it it's impossible to make progress on this and as we talk about it you mentioned the Welsh situation and the paper they brought forward in that paper they also suggested one of the suggestions they made was a voting procedure through a UK council of ministers framework what did you think of that? Well I mean it's an idea you know I mean I think when you get to we have to start with the principles that are applying here and then move forward there will be many ideas about how you would resolve those things you know there are ideas of you know Europe has been bedeviled by issues such as qualified majority voting and all those sort of things so I think it's too early to talk about those it's a welcome contribution on the table it shows a lot of thought being put into it shows the real concern in Wales about this I mean if you read that paper it's a very strong introduction from the Welsh First Minister Carmen Jones about the reality of the constitutional structure that we have now and the fact of how different it is from the 1970s and he is not prepared to allow that to be rolled back whereas you know his fear and the great fear and the Welsh and I echo that is that if these frameworks operate in a way that presently appear to be proposed they will roll things back James I know James I think you were interested in the areas to do with legislative impact I'm not sure if it's been covered or not it's been covered it's been covered Is MDLs got any remaining questions? No further remaining questions Minister thank you very much for coming along this morning we've covered a lot of ground and a lot of detail and we're very grateful to you at the start of the meeting we agreed to take the next item in private and now close the public part of the meeting