 Welcome to the 26 meeting in 2017 of the Finance and Constitution Committee. I'd have looked to opportunity to have thanked Audrey Todd in person for our contribution to the committee's proceedings...but that's not to be the case, obviously, but we wish her well and a new role. In I would like to refer members to my register of interests in that I am a partner in a bed and breakfast business. As far as the normal process is concerned, remember to switch our phones at least into a process. I can't hear them. That would be very helpful. The first item on our agenda this morning is to take evidence as part of our consideration of the Scottish Government's LCM on the EU withdrawal bill. We are joined for this item by two UK Government ministers, David Mundell, the Secretary of State for Scotland, Robin Walker, the Permanent Undersecretary of State for the Department of Exiting the European Union. I welcome both ministers to the meeting. We are running a fairly tight timetable this morning. We need to conclude this session by 11am at the latest to allow Mr Walker to go off and appear before our delegated powers and law reform committee, you lucky man. I am keen to get questions, but before we do so I would like to give the two ministers the opportunity to make any short statements. Thank you, convener, and it will be very short. I am pleased to be here today with the Parliamentary Undersecretary to support the committee's scrutiny of the EU withdrawal bill. This is an essential bill that will ensure that the statute book across the UK is ready on the day we leave the European Union. The UK Government wants all parts of the UK to back this essential bill. We have been clear from the bill's introduction that important elements of this legislation engage legislative consent process and I very much welcome the scrutiny that this committee is undertaking as part of that process. I acknowledge the current position that the Scottish Government has taken regarding the LCM for this bill. However, there has not yet been a vote in the Scottish Parliament and I remain confident that we will reach a position that the Scottish Government and this Parliament can support. While the timing of any vote is, of course, a matter for the Scottish Government and Parliament, the UK Government is proceeding on the basis that a legislative consent motion will be tabled before the third reading of this bill in the House of Lords. In that vein, we are pressing on with our engagement with the Scottish Government. The First Secretary of State and I have had bilateral discussions with the Deputy First Minister and Mike Russell to drive forward this work. In tandem, UK and Scottish Government officials will be meeting for technical discussions on the amendments that the Scottish and Welsh Governments have proposed to the bill. I have always made clear the importance that I place on the scrutiny of the Scottish Parliament and the value that it brings to our legislative process. I therefore look forward to hearing the committee's views on the EU withdrawal bill and will do our best to answer any questions today that you might have. As Parliamentary Undersecretary for Exiting the European Union with responsibility for devolution in my department, I am part of the team that will be taking this essential piece of legislation through the UK Parliament over the coming weeks. I appreciate its very detailed piece of legislation and I am very pleased to be here to support the committee's scrutiny. We are still in the early stages of the parliamentary process, as you will recognise, and the committee stage for the Commons begins next week. I look forward to that debate and to addressing in that debate the detail of the various amendments that have been put forward. Of course, the committee will understand that we cannot pre-empt too much of that debate today, but one of the main functions of the bill is to prepare the ground for the great deal of technical detail work that needs to be done to prepare our statute books in every part of the United Kingdom for EU exit. That means essential work for the Scottish Parliament to help prepare for exit. It is in all our interests that we work together pragmatically to allow the Scottish Parliament to manage this. I am very pleased to also have the opportunity, as you have mentioned, to discuss this work with the Delegated Powers and Law Reform Committee this afternoon. This bill and the work surrounding it on frameworks and to prepare our statute book are of vital importance to deliver an orderly exit from the European Union. I greatly welcome the committee's contribution to that task. I want to begin with what remains to be the main stumbling block. That is the approval of the LCM, and it remains to be around clause 11. I am confident that the Welsh Parliament and its committees want to see an early solution to the impasse that currently exists around clause 11. As such on my letter to Mr Walker on 24 October, I said that I would welcome your views on what amendments to the bill the UK Government intends to bring forward that respects the devolution settlement. Given that both the Scottish Governments and the Welsh Governments have tabled amendments to the bill that removes clause 11 as an obstacle to progress, the ball is patently in the court of the UK Government and has been for some time to lay out what it sees as an acceptable way forward. I sincerely hope that you are in a position to do that today, because that would respect the role and recognise this committee in its properly respected role. More important times are clearly running out, and you may leave this committee with no alternative but to recommend that we cannot support the passing of an LCM in our report that we intend to produce before the end of the year. On that basis, do you accept that clause 11, as it is currently drafted, is unsustainable? I will allow, convener, if I may, Robin, to comment on the technical aspects of the bill, because he will be taking that part of the bill through Parliament. We accept that we are in a discussion with the Scottish Government that we are here today as part of the parliamentary process. As Robin has said and indicated in his letter to you, amendments have been lodged. I think that it would be wrong to pre-empt those amendments ahead of the committee stage in the House of Commons. However, what is happening today and on-going is that there is a very detailed discussion between officials from the UK Government, Scottish Government and Welsh Government to look at those amendments. The First Secretary and I made very clear to Mr Swinney and Mr Russell when we last met them that those amendments put forward by the Welsh Government would be looked at very seriously. Indeed, because we want to take that issue forward, we want to be in a position that when the Parliament finally comes to vote on this issue, the committee, the Scottish Government and members across the Parliament are able to support the bill for the essential reasons that the bill facilitates in terms of the statute book. I think that we will inevitably therefore disappoint you today if you anticipate that we would give you a definitive position in relation to particular amendments. We are not going to be able to do that, but what we can and will do is to set out our commitment to work to resolve the issues that you highlight. I do not expect you to lay out what your view is on the amendments, because that is a process that is still to come. However, did you think that clause 11, as it currently is, is sustainable? That is the nub of what this is all about. The quicker we understand what the UK Government's position is on that, the better. That was the question that I actually asked. I think that the nub is in fact what is to happen in relation to the 111 areas of responsibility that are returning from Brussels and how those areas are to be dealt with once the United Kingdom has left the EU. I think that that is an essential part of taking forward these issues. If we are very clear in relation to what is to happen to those 111 areas, that puts the debate around clause 11 in a context. That is why I am keen to ensure that we take forward that discussion as expeditiously as we possibly can. When this committee and indeed Scottish Parliament, UK Parliament and others are considering the bill, it is in the full understanding as to what is the view in relation to those areas of responsibility, because I think that that gives a context to clause 11. Mr Walker. It might be helpful for me to set out some of the justification for drafting on clause 11 in terms of where it is now, accepting absolutely the fact that we will be debating in detail the proposed amendments, including those which have been backed by the Scottish Government in the coming weeks. As we leave the European Union, we want to respect and strengthen the devolution settlement in Scotland, and we expect significantly more powers for devolved institutions as a result of this process. I think that it is important to recognise that clause 11, as it is currently drafted, contains the orders in council procedure for releasing those powers where common frameworks are agreed not to be required. Therefore, it is, if you like, a clause that starts from the premise of the existing devolution settlement, but allows for further devolution as powers return from the European Union. I think that it is in that context that we should discuss it. It is something that the frameworks discussion is absolutely essential, therefore, to seeing how this will work in practice, because we have already seen agreement in principle on the frameworks that respect for devolution settlement and which focuses on the principle that both the Scottish Government and the Welsh Government have accepted, that there will be a need for common frameworks in some places. I think that moving forward on the detail of that, then, is very important to ensure that we have an appropriate working for that clause. You put that a different way. Do you recognise that if clause 11 remains as it is currently drafted, you are potentially creating a constitutional crisis if we cannot get this resolved? I am determined to get agreement so that we can get a legislative consent motion agreed by this Parliament. That is what I am working to achieve. You and I, convener, have been round the houses on a number of issues where it has been suggested that legislative consent would not be given for various reasons in relation to processes in previous Scotland bills. It has always been possible to find a way through. I believe that it will be possible to find a way through in relation to the EU withdrawal bill, because both Governments certainly are coming from the same place where we recognise that there are areas where responsibility will be directly and as soon as practical operated through from the Scottish Parliament. There will be areas that will be the subject of common framework. In that process, there will be areas where there will be some discussion. There will be areas where it might be a view that a framework is not necessary, but some other form of agreement is necessary. We both have a common objective. If we can focus on achieving that objective, if we can make significant progress in relation to the discussions around the framework, I am confident that we can get to a position where we can reach agreement. That is what I am working towards. That is the objective. The committee will have to produce a report before the end of the year. Will the matter be resolved in terms of the way in which you have laid it out in time for our report being published? I could not give that undertaking. I am hoping that we have made significant progress by the next meeting of the GMCEN, which is scheduled before Christmas. I do not think that there is a definitive date. We are keen to expedite the process for obvious reasons, because I think that clarity and context will be vital to taking consideration of the bill forward. Finally, in close 11, in terms of its broader sense, why do you think that it is required in terms of achieving the objectives of the Government and the bill? The primary objective that the Government has set out for the bill is providing certainty and stability at the point of exit. As you will appreciate, we currently operate under common frameworks under EU law. What clause 11 ensures is that there is certainty and stability that those common frameworks remain in place, except in those areas where we have agreed that they will not be required going forward. That provides for certainty and stability that businesses and investors are looking for. It also underpins for certainty with which we can negotiate with our European Union partners. If the bill did not have the capability to provide on these issues a degree of common frameworks, we would not necessarily be able to achieve the market access that all parts of the United Kingdom want us to achieve in terms of our future partnership. Why is clause 11 required for any of that? Where common frameworks currently exist in terms of the action of EU frameworks, they need to be able to be preserved in some form. As the Secretary of State has said, there are discussions going on between the Governments about where common frameworks are required to be maintained and where they are not required to be maintained. It is quite possible for the scope of clause 11 to be substantially reduced through agreement between the Governments, but it is important to recognise that we need to provide that certainty that we are able to keep those frameworks in place. There is a slight change of emphasis on the scope of clause 11 to be substantially reduced. That is exciting that the existing clause 11 is not going to stand the test of time. I think that what clause 11 makes very clear is that the orders in council procedure can be used to release powers from the shared frameworks. That is written into clause 11, so the point of putting that into action will reduce the scope of its impact. I do not think that that is a controversial thing to say. Thank you, convener. Good morning. Thank you very much for being with us today. I think that it is incredibly important that UK ministers regularly attend committees in the Scottish Parliament to help us with these issues. I share the Secretary of State's optimism that this bill can be legislated by Westminster with the consent of the devolved Administrations. I also share his determination to do everything that we can do to ensure that that does happen. We talked a lot already this morning about the problems with clause 11 in particular. I wonder if we could turn to some of the solutions. The Secretary of State said in evidence to the House of Commons Scottish Affairs Committee a couple of weeks ago that powers will either be with the Scottish Parliament here, or they will be subject to a UK-wide framework to which the Scottish Government is a party. That is what will happen, that is what you said. Can you expand on that and help us to understand whether that is your interpretation of what clause 11 currently says, or whether that is your interpretation of where clause 11 will have to move to in order to obtain the consent that we both want to achieve? I think that I said in response to the convener that what is important is to make progress in relation to the framework issues in order to put clause 11 into context, and as Mr Walker has said, in order to fully understand its scope. Clearly, the maximum amount of agreement that can be reached as soon as possible in relation to which areas there would be frameworks, and in some areas in which there might be some looser arrangements, MOUs, concordats, would be very important. One of the things that I am very clear about in relation to achieving legislative consent, achieving agreement from the Scottish Government, is that that will not be possible unless we have agreed the process by which those frameworks will be agreed. That is a very important thing that needs to be done, we need to have. We will not be able, obviously, within the timescale to agree the content of those frameworks, but we will be able to agree how frameworks should be agreed. I want to put back on the record, which I did at the Scottish First Committee and at Scottish Questions, that a UK framework is not a framework that is imposed by the UK Government on devolved administrations in the United Kingdom. It is a framework that is agreed. We have to have mechanisms by which we reach that agreement. There are different views that have been put forward. I believe that the GMC, for example, operating effectively is one possible route, but we will be seeking not just to get agreement on what areas fall within frameworks, but how frameworks are agreed. Clearly, this Parliament would want to know that before considering giving consent. That is very helpful, and it is very important to underscore the point that the UK Government's understanding that those frameworks will be agreed across the Government of the United Kingdom or across the Government of Great Britain, as the case may be, and not imposed top-down from Westminster. That is very helpful, and thank you for putting that back on the record. I think that it is fair to say that I feel a little bit in the dark in terms of how discussions about how we agree that those common frameworks are progressing. Where are those discussions taking place? Are they taking place at the official level or at ministerial level or both? How can the two Governments in your view, Secretary of State, ensure that committees such as this and the Parliament generally are kept fully informed of the progress of those discussions? It seems to me that we have been talking about agreements for quite a long time, and it might now be the time to advance that a bit more rapidly. I agree with you, and I think that we have made progress lately. I do not think that it serves any useful purpose at this point to go over why we have not made as much progress before we got to here. I think that both sides are committed now to going forward. What is happening right now in the next few days is something that has been called a deep dive. That is three areas that have been agreed with the Scottish and Welsh Governments. Three areas have been identified as requiring investigation as to what frameworks and direct devolution might look like. The three areas that were taken as examples was in Scotland, in particular, justice at one end, where, given that Scotland has its own distinct legal system, the anticipation, and I should emphasise that word, would be that there would be very few issues with frameworks in relation to the justice system in Scotland, and those powers listed in 111, which impact on justice. On the other hand, agriculture, where there are a large number of areas that might have a UK-wide application. In order that justice and legal issues are not separate in Wales, it was agreed that public health would also be considered because of that request of the worst. Officials from all three Governments at this moment are looking in detail at what the implications of frameworks, non-frameworks, the structure of taking those issues forward, with the hope that they will be able to come back to the GMCEN at its next meeting to report back how that process has gone and how we can take that forward in the context of the other area. That is where we are in relation to the frameworks. I want us to get to the position that I outlined in my initial response to the convener, which is a fairly reasonable one, where everyone is in agreement that there would be no frameworks and that the powers would return as expeditiously as possible. There would be an area where everybody agrees that there should be frameworks and, inevitably, there will be some to-ing and fro-ing. In some areas, the Governments may have different views and there will have to be a discussion in that regard. Ash Denil. Good morning. I don't know if you've been able to see any of the previous evidence sessions that this committee has undertaken. Last week, for instance, we had some academic experts in to give us their opinion. We spent, as you might imagine, quite a bit of time talking about clause 11. I'll just give you a flavour of some of the comments that were made. Professor Keating said that the UK Government had gone about it in the wrong way and he said that he felt, in his view, the UK Government could and should dispense with it. The feeling was that it wasn't ultimately necessary. Mr Walker, you've just said this morning that you believe that clause 11 is necessary in order to meet the bill's objectives. In my view, I just don't think that it is necessary because the bill's objectives could be met using the existing conventions that are already in place, such as the steel convention, concordats, agreements. These are tried and tested. They are already being used at the moment quite successfully. So I'd like to ask you why is it that at this point these mechanisms are now not enough? I think that what we're talking about, let's not forget, is the approach that we're taking to exiting the European Union here. To coming out from under a set of common laws, common frameworks, which we've had from the European Union. We think that there is going to be a need in some areas to establish common legislative frameworks across the UK. Clause 11 gives the scope for that, but it also gives the scope, importantly, and through the Orders and Council mechanism, which is actually modelled on, the approach taken in the Scotland Act for the release of further powers. For ensuring that, as powers return, where there is an agreement that common frameworks aren't required, those powers can be handed on to the devolved administrations in those areas. So it is the aim of the Government to establish common frameworks only where they are needed. It remains our expectation, but the outcome of this process will be a significant increase in the decision making power of each devolved administration. Of course, you've pointed to some of the evidence that you've received, and we'll certainly take that on board and look at that and make sure that that's taken into account and that the committee stays to the bill when we debate these things. Of course, there's been a range of evidence on these things, and I know that Stephen Law's QC has given evidence to be exiting the European Union Select Committee, which argues very much that this is a framework which is required, but that conversations between the Governments, the JMC process and the discussions around frameworks, ought to be able to make its approach limited. I believe that recently the UK Government and the devolved nations have signed up to a number of principles in the form of a letter. Part of that was that the UK Government has agreed that common frameworks and so on will respect the devolution settlement. I would say to you that I feel that this doesn't respect the devolution settlement and that the UK Government has been aware for quite some time now that with clause 11, as it's drafted at the moment, the Scottish Government certainly will not be able to sign up to it. I have to say to you that I find it quite startling that you've come here today, this morning, knowing that, and you seem to be telling me, that the UK Government still has no plan as to how to resolve this impasse. I don't think that you were listening with due respect to the evidence that I've given over the last half an hour. I've been listening quite carefully. Where I've said that we're absolutely committed to finding a way forward in relation to this issue, we fully respect this Parliament, the contribution, this committee, we'll make the discussions, the detailed discussions that we've sought with the Scottish Government. Those discussions are on-going. We're looking in detail at the amendments that have been brought forward and that we have committed to do that. We're looking to expedite the process in relation to the frameworks, which I believe is actually the nub of the issue, so that there is a context to this process, so that people understand exactly in relation to the powers and responsibilities that are being brought forward. Which of those powers and responsibilities will come direct to the Scottish Parliament? Which will be the subject of frameworks and which might be the subject of some other agreements? That's what we're looking to do. We're looking to ensure that there's clarity on how those frameworks will be agreed, that those frameworks are not where there are UK frameworks to be imposed. They are to be agreed. I don't see how you can deliver more respect than to say that the frameworks must be agreed in areas where there are not frameworks. The Scottish Parliament will have responsibility. I'm still going to stick to clause 11, where we'll get into the specifics of frameworks. Clause 11, Patrick, you still want to go in that area? When you go. Thanks very much. Good morning. You said that you don't see how more respect could be shown to the devolution settlement. I'm not sure if those were precisely a word, but I think that that was the meaning of it. The consent that you're asking us to give to the bill as it stands, to clause 11 as it stands, is to consent to constrain the ability of the Scottish Parliament to legislate in devolved matters. As you know, the tradition is that what is not reserved is devolved. Is there any reason in principle why matters that are not reserved and are currently not UK competencies should become UK competencies? Do you want to say that out loud? I mean, I think what we're talking about here is specifically where powers are held in common at a European level currently. And what we're saying is that clause 11 is a temporary measure while decisions are taken on where common approaches are or are not needed. I think it's important to look at some of the wording that has been agreed in terms of the actual outcome on frameworks principles from the JMC, which talks about the fact that frameworks will respect the devolution settlements on the ability of devolved legislatures and will be based on established conventions and practices, including the competence of devolved institutions would not normally be adjusted without their consent, maintain as a minimum equivalent flexibility for tailoring policies for specific needs of each territory, as is afforded by the current EU rules. So we're not talking about anything here which impinges on the current decision-making power of the devolved legislatures or the devolved administrations. We're talking about areas where this is either a new level and we're talking about a temporary measure whilst we agree between ourselves, between the Governments on the appropriate places for common frameworks. I think that's a reasonable approach which does reflect the devolution settlements as they stand and it's clearly our intention and we're very happy to repeat our intention but the outcome of this whole process should be an increase in the decision-making powers of each of the devolved legislatures. You both keep using the word agreed that what comes out of this at UK-wide level, including in some devolved areas, will only be agreed never imposed. Surely the way to express the greatest respect for the devolution settlement, as Mr Mundell says he wants to do, is to ensure that this bill doesn't grant you the ability to impose anything. How can a negotiation take place in good faith between the different Governments within the UK? If the UK Government ultimately has the legal power to impose a settlement on a common framework where there is no agreement, isn't the only way to do it to ensure that you don't have the power to do that and agreement is required? I understand the point that you make but I've set out clearly the basis on which I understand that consent would only be forthcoming if it was clear how frameworks were going to be agreed. I don't think in any way that consent is a demonstration of respect, but the fact that the legislative consent of this Parliament is a vital component of the legislation, in my view, is a clear demonstration of respect, as well as the commitments that we've given in relation to how frameworks will be agreed. I hope that we can continue to move forward in a mature way in terms of the discussion and dialogue that takes place between the UK and Scottish Governments. The convener has, over time, taken a great deal of interest in intergovernmental relations. I'm quite happy to put my hands up to say that we haven't quite still got that right in terms of process but we need to work towards continuing to improve the operation of intergovernmental relations. The process is taking place with respect both for the Scottish Government and for the Scottish Parliament. I don't mean to be ungrateful for the warm words. The warm words are nice, but I'm still not hearing a clear argument as to why this Parliament should give consent to a piece of legislation that constrains our ability to act in devolved matters or matters that are not reserved and thereby give the UK Government the ability to do something. It doesn't want to do of imposing a UK-wide settlement in a common framework when there's no agreement. If you're not going to do that, shouldn't this legislation prevent you from having the power to do it? What I've said that we want to achieve before this Parliament considers whether it should give consent is to give context to the clause by demonstrating what has been agreed in relation to the framework. As Mr Walker put it, the scope of the clause is fully understood at the time that this Parliament has to consider it. I think that there is a broader point here with regard to consent, if I may, which is that we are obviously seeking consent for the bill. The bill enables all parts of the United Kingdom, including each of the devolved issues, to take the necessary steps to ensure that the statute books are functioning properly at the time of exit. That's hugely in the interests of all parts of the United Kingdom, and that's something that we need to be able to do. Of course, it is the case that the Scottish Government and the Welsh Government have signed up to principles, which accept that there is going to be a need for common frameworks in some areas. I think that this is a question of how we move forward from here, and some of the concerns that have been raised. We will engage with those concerns around the Clause 11, of course, in the upcoming committee stage in the Commons. I can't make commitments at this stage with regard to specific amendments as you wouldn't expect me to, but I think that it's very important that we look at the fact that Clause 11 is not just something that works in one direction. It has the Orders in Council procedure there to enable those powers to be released where there is agreement when the UK Government is good and ready. Where is agreement that common frameworks aren't required? Just finally, convener, it does sound as though you're not ultimately going to ask us to consent to the bill as it stands. Presumably, once we know what you are asking us to consent to, you'll come and try and persuade us again. I'm always happy, Mr Harvey, to come to this committee or indeed any other committee of this Parliament. Thank you, convener. Secretary of State, you were telling us earlier that you're working very hard to secure legislative consent from the Scottish Parliament. Is, in your view, unthinkable that the bill would proceed without legislative consent? I think it's very difficult to envisage such circumstances and unhelpful to do so. We are committed to achieving legislative consent. I've been, as I was alluded to in my remarks to the convener, I've been around the houses a few times in relation to the first Scotland bill, in relation to the 2016 Scotland bill, in relation to the fiscal framework, where, throughout much of the period of the discussion of those pieces of legislation and the framework, we were told that legislative consent wouldn't be forthcoming. We were able to find a way through. They were all significant. They all had very significant impacts on this Parliament. Indeed, the Scotland Act 2016, as you know, was passed unanimously by this Parliament ultimately. That's the backdrop on which I proceed. There's a lot of noise. There are a lot of legitimate concerns. Listen to the legitimate concerns that are being raised. My endeavour, rather than contemplating negative outcomes, is on achieving the result. Since the summer, we've made significant progress. As I said when I appeared before the European Committee last week, I do very much welcome the direct involvement in the matter of the Deputy First Minister. I think that he's brought his experience of previous involvements in the Smith commission and the fiscal framework to the negotiation process and that has been very helpful. You'll be aware from what's been said previously and what's been said at the committee this morning that, as it stands, clause 11 is a barrier to legislative consent being granted. Are you and the UK Government prepared to do what is necessary to secure legislative consent of this Parliament, including looking at amending clause 11? As Mr Walk has indicated, obviously I think it's the fourth and there are eight days set aside for the consideration of this bill in the House of Commons with eight guaranteed eight-hour sessions and days four and five I think are devoted around clauses 10 and 11 so there will be a very significant debate obviously on the floor of the Commons in relation to the bill. What I am so without prejudicing what might be said about the clause in that process the commitment I will give you is that I am prepared to do whatever is necessary to achieve consent from Parliament within what you would understand to be reasonable parameters. Thank you. Do you want to ask a question on that, James? Before we move on to Alexander and common frameworks. Sure, okay. Just briefly, convener. I think you've been left in no doubt about the anxieties of the committee in terms of clause 11 and we need for you to make some movement in order to get the support of the parties that will be required in order to achieve legislative consent. You outlined this deep dive exercise such a strange name for it and you also, just in your answer there, you spoke about there being eight days set aside including days for clause 10 and 11. What kind of timescale are you operating to in terms of this exercise, deep dive exercise work to resolve the issues around clause 11 and when that will be finally considered in the House of Commons? Robin can say more about the timetable in the House of Commons. What I can describe is that I can write to the committee in a little bit more detail as to what officials have done but basically it was agreed at the JMCN that officials would go from both the Scottish Government, UK Government and the Welsh Government as well and they would look in detail at all elements of these particular areas one area being justice one area being agriculture and another public health reference to Wales so that they had a full understanding of what actually would if there were frameworks what sort of form they would take perhaps that there would be other mechanisms like concordats or other agreements and that they will report back essentially to the JMCN so that we have a feel for what the exercise will involve in parallel the position that I want to get to is that we have an idea of which areas nobody is in any doubt would be devolved immediately or within an agreed timescale what areas everybody agrees should be subject to frameworks and it's clear that that's not that difficult a discussion obviously but there will be an area where there is a selection of issues where there are different views and they will have to be discussed and negotiated but that's sort of happening in parallel to the parliamentary process because neither Mr Walkon nor I control the timetable of the parliamentary process as I was alluding to the convener just before we started tabling in the House of Lords so that we can't we could never give a clear idea of what the timescale for progression in the House of Lords would be so I think what I want to try and achieve is that we expedite our processes as quickly as possible so that we're able to fit in with the parliamentary process but we don't control the timescale of it I mean if I just fill out a little bit in terms of the detail of the timing of reading of the bill took place on 11 September after a two day debate it returns to the commons on 14 November for the day one of committee stage day two will be on 15 November the programme motion which the House of Commons has approved will be eight days of committee as the Secretary of State said and with eight hours guaranteed for each day the latest days of the committee haven't yet been announced and the process for that is that the leader of the House will come in weeks and the next opportunity to do that will be November 16 and so I think that that will be something that we would expect to be progressing with those crucial four from fifth days with regard to the debates on the devolution elements of the bill within weeks but I can't give you more precise detail than that at this stage Neil has got a supplementary on that but I do want to get on to the common framework specific issues that I know that Alexander wants to ask the question Neil on the time scales but you mentioned previously that the GMC would be discussing the areas of overlap the 111 areas of overlap when is that meeting going to take place at the moment it will take place before Christmas but we haven't got a scheduled date but it will definitely be a process to arrange that to take place so within the period between now and Christmas that meeting will take place I understand that Emma has also got a supplementary in this area as well sorry Alexander we'll get to you in a minute it's related to timetables and the passage of the bill and then the creation of secondary legislation the whole process is taking time conversations with the national farmers union they're starting to get really nervous because the time to exit is looming so can you comment on the secondary legislation and how would that impact as the transition period is a bonus I mean I think that it is right of course that part of the point of passing this bill and creating the powers for secondary legislation is to make sure that we have time for secondary corrections into the statute book in time for our exit and that of course is one of the reasons why we want to make sure that it progresses why we think it to be in the interests of each of the devolved legislatures to give consent to the bill because there are powers there for the legislatures themselves to get the secondary legislation process right and to have the correct scrutiny of that so we want to move forward with this as quickly as possible in that process and that's why a balance has been struck which means that we are getting on with the bill we are getting on with the debate on that as quickly as we can but recognising we couldn't cut short the committee stage of such an important bill particularly when we have 400 I think it is amendments to respond to and so that's why we have struck that balance in terms of giving it eight full days on the floor of the house and making sure that the government is able to respond to those amendments in time but I think your basic point is right is that what we also need to make sure is that there is the time for adequate scrutiny in each of the legislatures of the secondary legislation that will follow and of course as you will know that delegated legislation is not legislation without scrutiny it has to go through proper scrutiny processes and that does take time so the sooner we can move forward with the whole process I think the better for the degree of scrutiny that can take effect depending on the powers in the bill there are some powers which are sunsetted on exit day but there are other powers that are sunsetted beyond exit day recognising that there may be some areas where we will need to take action after exit day itself and you touched on mentioned the issue of transition and implementation that is a slightly separate issue it requires negotiation to move forward on that front and on the implementation period which is a clear part of the UK Government's position and as we have said to the committee in the House of Commons if it is necessary to bring forward further legislation for that we would I think just as a brief point there will be a separate agriculture bill there are certain aspects of leaving obviously the common agriculture policy which can't be dealt with by secondary legislation but there will be an agricultural bill and it would be anticipated that that bill would obviously require the consent of this Parliament Alexander Thank you very much obviously good to hear that many of these 111 issues are going to be resolved through common frameworks and also good to hear from Secretary of State but he feels that discussion on those will be relatively identifying and relatively straightforward so I just wanted to point to moving things forward any common frameworks have you already been able to identify and in what areas I think that's a variation of the name one power question Mr Burnett which I have been very keen not to do because we are in we're in a discussion about these issues, we're in a discussion with the Scottish Government I hope that we can make clear as I've said in answer to other questions as soon as possible the areas where everyone is in agreement that there's no need going forward for a framework those areas where everybody agrees there is and perhaps an area in the middle where there's to be some discussion and maybe if a framework is agreed some other mechanism is agreed so I want to get to that point as expeditiously as possible but I'm not a declined in front of the European Committee a declined Scottish Affair Select Committee and Scottish Questions to give examples and I'm afraid I'm going to do the same today we've heard evidence here of anything but the number ranging between 6 and 12 would you like to 6 and 12, what? I think it would depend on the nature of the frameworks I know that's a politician's answer from the way that you look at me but if you cut me a little slack if you look at the document then something like 15 areas begin with the word environmental so a framework in relation to environmental might cover all 15 areas there might be 15 frameworks I think there will be some discussion around what the structure is so it's not as straightforward as to say that I like to say the reverse and I've said it before is what it does mean in relation to areas directed to the Scottish Parliament there will be a significant number if you want to ask supplementaries then this is real Ivan thanks for coming along to talk to us this morning before we go into conframes I just wanted to pick on something Mr Walker said earlier he said that we're starting from the existing devolution settlement I think part of the issue and I just want to check your understanding of this part of the issue because the key underpinning of the existing devolution settlement is that what is not reserved is devolved and this clause 11 cuts right across that so I just want to check when is that understood I understand the position but I think our understanding is that the competence of devolved institutions is currently defined in relation to EU law and in each of the existing devolution pieces of legislation the existing rule competence in terms of within the common frameworks provided by EU law and so therefore we are starting from the position of keeping that settlement precisely the same and providing the tools through orders in council of actually making sure that those powers increase so I think I understand the position I understand the concerns of where where people are coming from on this but our position is not the same OK that's clear and talking about the common frameworks you talk about the common frameworks or replicating the EU common frameworks now clearly there's a couple of EU principles in there about subsidiarity and proportionality that aren't included in where we are starting from on a list of principles for the proposed UK common frameworks would you like to comment on that I think the areas where we function currently under a framework of EU law and then there are powers for the devolved legislatures those powers absolutely remain in place and so the power of implementation the power of interpretation in that sense will not be affected in any way by this but it is something that the frameworks that sit over the top are what we're talking about dealing with here and as I've said that will be dealt with through a mixture as clause 11 sets out through the approach set out to orders in council of areas where there's agreement but powers should be released and should be therefore dealt with at the level of the devolved legislatures and those areas where we agree that common frameworks are required and therefore those common frameworks will be dealt with at the UK level but I think it's important to reiterate the Secretary of State's point but where the UK Parliament acts on behalf of the UK that does not mean cutting the devolved administrations and legislatures out of the process and consultation. I suppose moving forward from that you talked about not imposed but agreed in the reference to the common frameworks what happens if we get to the point where there isn't agreement reached given the timescales we're having to work to which clearly are rapidly approaching? Given the timescales we're having to work to I think it's in the interests of all parts of the United Kingdom to actually make sure that we have functioning statute books at the point at which we exit the European Union and in the interests of the deal that I think is in all of our interests to make sure that we have strong market access between ourselves and the European Union and so I think therefore there should be a very strong incentive to reach agreement on these things. I suppose that it doesn't answer the question which is what happens if there isn't? I think I have in the other questions set out that rather than focus on that scenario we have to work to get agreement. I've also said and I'm very clear that I wouldn't expect legislative consent to be forthcoming unless we had an agreed basis on which the frameworks would be agreed. I think that's I fully understand that. I think therefore it's incumbent on us to work through to find a basis. We have come forward as to how that might be achieved and now we need to put a significant effort into reaching a conclusion on that. Okay, thanks. I tease that bit a bit further because effectively what I think you're saying Secretary of State is that's effectively agreement on the procedure. That does not necessarily mean agreement on the content of the frameworks or are you saying clearly today that you want agreement on the content of the frameworks and not to be imposed? No, it was a former, sorry, I thought I'd made that because I don't think that we can, I don't think that within the timescale we're not going to be able to agree the content of the frameworks. What I've said in relation to the frameworks is the frameworks are not going to be imposed. We need to find, by the time that we get to the legislative consent process we need to find the basis on which we all agree that frameworks will be agreed, the process that you go through to agree a framework. That brings you right back to Ivan's question in that case. If there is no agreement on the content how will that be resolved? That, convener, is a very important part of the process of agreement. It's a very important and that has to be resolved. Sorry, just so that I'm clear here. You expect then there to be a process for agreement of the content to be in place before there's an LCM granted by this Parliament? I do. But not in relation to the content of what should be happening in relation to the environment. An agreement in relation to how if there was to be a framework for example, and it is just an example in relation to the environment how that framework would be agreed. Patrick, I'll come to you in a minute and then we want to ask questions in this. It does beg the question if there's so much emphasis on the frameworks being put by the UK Government and probably by the Scottish Government why is there no mention of the frameworks on the face of the bill? The face of the bill obviously does set out the auditing council process for making sure that where we agree common frameworks aren't required those powers can be released so I would say that is an implicit focus on the frameworks. That gives the UK Government power to agree what powers will eventually give back to the UK that come out of the EU. That's not the same as having a framework on the face of the bill. Why aren't they on the face of the bill if they're that important? What the bill is talking about on the face of it is retained EU law where EU law returns and I would argue that the auditing council mechanism provides precisely what we're talking about in terms of where we agree frameworks aren't required for then releasing those powers so that they come down to the appropriate level. That is written into the bill and it is focused on the treatment of retained EU law. Bartric? I appreciate that you're not going to be drawn into what the frameworks will cover specifically or how many there will be. What existing common frameworks have you looked at that serve as a model? Each of the areas is slightly different and that's why we're undertaking for example the deep dive exercise so that you have a comparator of areas where there might be considered to be a relatively light touch. Maybe I wasn't being clear what existing common frameworks within the UK are not in relation to EU. Common frameworks between the Governments of the UK. What examples have you looked at? We're in the process of that discussion but we're not necessarily going to proceed on the basis of existing arrangements. Can I give a suggestion? Marine planning for example largely devolved. Each Government sat down worked together on a memorandum of understanding deciding what their shared goals should be what the process should be then each legislature separately legislated on its own marine act there was no need for constraints on devolved powers as is being proposed in this legislation and in fact the only rebalancing of powers was that UK ministers passed the power for planning in offshore waters further than 12 nautical miles to the Scottish ministers that became devolved when it wasn't before and the result is consistent goals, consistent approach to marine planning a common framework all within the context of existing devolution arrangements. Does that not look like the ideal model? I think that's a very good model and I'm sure that it can apply to some of the areas on the list. The other thing that this approach gives and the potential of what's being made possible under this bill doesn't is that there's nothing about the transparency of the process of negotiation between two Governments to come up with a common framework the ability for stakeholders civil society to contribute to that in a transparent, open and democratic way what space do you envisage for that in this process of negotiating common frameworks? If I may, I think both the Scotland office and our own department have been doing a huge amount of stakeholder engagement around these things to listen to the views from civil society from business groups and from a huge range of groups up and down the country and in a number of those areas people are pointing towards solutions that may require common frameworks in a number of other areas they are not and we will certainly take that on board as we develop our thinking on this and as we go into discussions around the JMC process but I think it's important to recognise that actually the current drafting of clause 11 would allow for if there was an agreement but a common framework was not required in an area that was returning from the EU exactly the approach you set out with regard to marine planning it would allow for an agreement between the Governments to move forward on that and for the orders in council process to then be applied to say that there was no need for a legislative common framework in this space it would allow for that approach it would not require that approach and the advantage of having separate legislation in the separate Parliament is that external organisations individual constituents can give evidence on the record in public that parliamentarians can debate the various amendments and different approaches that might be taken and the whole process is open and democratic a deal between two Governments which is potentially somewhat open but potentially not I absolutely understand that I think that's something we very much do take on board but to return to the whole purpose of this bill in the first place this is not about making changes this bill is about providing continuity and certainty as we exit the European Union it's very clear there will be a number of areas going forward where devolved legislatures and Parliament may want to make changes but that's not what this bill is focused on doing this bill is actually about making sure that the statute book functions on the day that we exit that things continue to work and where there are deficiencies they are put right with regard to those future issues where we may want to make changes it will absolutely be right for that stakeholder engagement to take effect for policy to be formed and for most of that to be delivered where there are changes in policy through primary legislation if the bill is about ensuring consistency and no change then some things that would look potentially like things that at the moment seem to be discussed under some future common frameworks would be in the face of the bill things like the precautionary principle the polluter pays principle some of the environmental principles of EU law in the way that it's developed would be on the face of the bill so that they act as constraints on ministers in their use they are very powerful use of secondary legislation if you want to ensure consistency and no change when the bill is passed and when the UK withdraws from the European Union wouldn't those be on the faces of the bill as well as some answers to Michael Gove's questions about governance in the absence of the EU commission's enforcement role in relation to environmental law I mean there's a number of different questions there I think with regard to the jurisprudence and the development of EU law we're absolutely making sure that the bill takes the existing jurisprudence of the EU and writes that in so that there will be in the approach to the preservation of the EU law our courts will have regard to those judgments and indeed the seniority of those judgments with regard to the EU institution so that is in the bill with regard to the point you make about the environment this is something that we look at very closely clearly there are within the UK structure existing mechanisms in that respect but if there's a need for something that I know that the Deputy Secretary is considering Does that include placing those environmental principles onto the face of the bill? As I say I think all the jurisprudence of the ECJ and the approach is absolutely taken into account in the bill it's written into the bill that we will be writing that in as we exit so that is there for our courts to pay heed to clearly what we are doing is ending the jurisdiction of the European Court of Justice as we exit the European Union because the European Court of Justice is the senior court of the European Union Adam Thank you convener I just want to go back to the exchange a few minutes ago between yourself and the convener because I think you made a very important point and I just want to try and ensure that I've understood it and what I think you said is that you would not expect this place to give its consent to the bill until and unless there was agreement about how common frameworks will be negotiated, agreed and policed in the event of disagreement and then there was then a follow-up question about if that is the case why does the bill say nothing expressly about common frameworks? It seems to me that practically everybody is agreed and certainly the two Governments are agreed that common frameworks are going to be absolutely central to the repatriation of powers from the European Union to the United Kingdom so just piecing all of that together if I've got it right we have a very simple and limited job in both in this committee and in this Parliament with regard to this bill we have to give consent to this bill or not we can't give consent to a general theory of common frameworks we can't give consent to a policy that there should be common frameworks we have to give consent to this bill so just pulling all of that together would I be right in in reading you as saying that in your view this bill will have to make express reference to common frameworks before you can legitimately expect us to consent to it I didn't say that I know you didn't I did say what you said at the beginning of your remarks I'm trying to understand the consequences of what you said I would also say that as other bills of this nature have been dealt with constitutional bills there's a reason why the legislative consent process within this Parliament takes place before the final amending stage of a bill that is the convention so and that's the basis on which I'm proceeding that that's the point at which at which the bill will be considered by Parliament for consent neither Mr Walker nor myself would show complete contempt for our own Parliament if at this moment we were to suggest that the bill would be exactly the same as it appears now when it got to that process because we have to respect Parliament and how it might apply itself to the bill so that's why I've made such emphasis on the agreeing of the process around the frameworks and the areas for frameworks because they will provide much greater context and as Mr Walker says scope when we get to the stage at which this Parliament is actually considering the legislative consent motion let's just finish this last bit on the frameworks and I'll get on to issues of deficiencies in the EU law which Willie Coffey wants to raise but thank you for making it very clear that as far as any process for agreement of the frameworks is concerned they'll have to be an agreement between the Scottish Government and the UK Government in that regard I understand that and it was very clear I'm not so clear though what will happen if the content of a framework cannot be agreed and what the process will be that will have to be agreed as part of that process I understand that but I think that's something specifically because that's something that's emerged a bit more in discussion today than previously had been clear to me certainly something specific to this committee I think we'll want to address we'll probably be writing to you following this meeting but you can be sure that that specific point will be in because we need to be confident over what that process is that it is an agreement process that can be shown to be an agreement process for what of a better way to describe it but I think that puts it in a nutshell Willie Coffey In the area of correcting deficiencies in EU law the Law Society of Scotland has expressed some concern about this conferment of power to ministers in fact these could be used to make more wide-ranging changes to policy perhaps impacting on Scotland significantly Parliament to make surely not ministers as the bill proposes at the moment what's the justification for that Power on deficiencies Clause 7 power is very strictly limited to only correcting deficiencies where they arise as a result of our withdrawal from the European Union we expect most of those to be very technical indeed this is things like references to other member states references to specific EU institutions and so on and so forth and this is a process which a number of people who have given evidence to various committees in Westminster have suggested that it is certainly appropriate for secondary legislation and where they are purely technical we think that that would be through the negative procedure but clearly where there is a policy decision involved that would be through an affirmative procedure so that there would be a debate on that but I don't think we see this considering the number of areas that require for attention it's not an area where we would want the process to be one of making policy changes it is very much about correcting deficiencies it is very much about ensuring that the law continues to work in the way that it was intended previously and so it's certainly not our intention and I don't think it would be actually physically possible for a Government to seek to make sweeping policy changes across all those areas in the time we have available the deficiencies power will only really work if it is very much applied to correcting deficiencies and nothing more than that but it's still ministerial power it's not power it's a power to bring forward delegated legislation which of course then has to have parliamentary approval and where there is legislation required at a devolved level it would obviously go through the appropriate scrutiny processes of the devolved legislature Who's actually involved in identifying all these deficiencies and they're asked whether there'd be agreement between the Governments and Parliament about how these are resolved as well so this is an area where across the whole of Government we've been looking at the body of law and there has been a great deal of work done on an official level as you can imagine to go through the statute book and see where deficiencies may have to arise and the estimate at a UK level is for between 800 and 1,000 statutory instruments to be required to deal with that but we haven't yet seen a precise estimate at the level of each of the devolved administrations and that's something we will continue to work closely with the devolved administrations to scope out the needs in each of them Will you seek joint agreement before proceeding with those in the same spirit of the questions that we've previously asked here today? I mean, this is an area where I think we're going to have to work closely together to ensure that we have statute books but work in every part of the United Kingdom but I'll just come back to the fact that the deficiencies power is very much about making things work continuing to maintaining the continuity in the way that the law works rather than trying to make any policy changes, that's not something we would or could try to do under that power You could ask specifically about clause 7 why do the regulations in dealing with those deficiencies in clause 7 exclude the power to amend or repeal the Northern Ireland Act but they don't exclude the power to amend or repeal the Scotland or Wales Act It's a good question I was asked the other day at the EU exiting the EU committee as well and across a whole range of legislation there are references and provisions that wouldn't make sense when we leave the EU unlike in other pieces of legislation that should predominantly be corrected using the powers in the bill through secondary legislation we recognise that the standing of the three devolution acts is very important and that's why the bill corrects as many deficiencies as possible on the face of the bill if you look at the schedule 3 section 2 we go through each of the three key devolution acts and set out where we see those deficiencies right now It does retain a correcting power to the Wales and Scotland Act because it is correcting deficiencies and it's provided as a contingency to prevent creating gaps in the statute book The Northern Ireland Act because it is the main statutory manifestation of the Belfast agreement agreed by the UK Government and the Irish Government any changes to that beyond those that are already set out in the schedule the bill would have to be delivered by primary legislation Neil? Just on the issue of Northern Ireland there's 111 areas of overlap 64 in Wales is there a number for areas affecting Northern Ireland? There is but I'm afraid I don't have it to hand and it is a large number because of the scope of the Northern Ireland Act and the installation there Apologies for not having that in front of me I'm not going to try and remember it off my head I'm very happy to write back to you with that, yes absolutely On the issue of secondary legislation there's one thing that I've beavered away on and that's in regard to the UK Government or a Parliament passes secondary legislation that changes primary legislation in Scotland in terms of the devol settlement there is currently no process available to the Scottish Parliament to be able to consent to that and like where there's a sole process for the primary legislation that might change primary legislation we could see, sorry close 7 we could see significant numbers of amendments come forward that potentially amend primary legislation devolved legislation in Scotland do you not think we should have some sort of process in place that allows us to deal with that that's similar at least to Sule? I'm quite happy to to look at that I understand that the point that you're making in that regard what we have committed to do is to work both with the Scottish Government and with this Parliament in fact as well because of the scale of activity that might be required in a consensual way but I understand the specific point that you make in relation to Parliament and let's take that back and have a look at it we've got a small time in the bank, Patrick you wanted to raise a slightly wider issue in regard to the EU withdrawal bill and the process well certainly it's connected there's been as you'll be aware a great deal of discussion about the impact that this whole process will have on our society and our economy a great many people individuals, families, businesses are experiencing a dearth of information and a great deal of uncertainty and it appears that the UK Government has conducted impact assessments on various sectors of the economy I think the number generally floated is 58 sectoral impact assessments the two of you a DEXU minister and a Secretary of State may be amongst the very very small number of people who actually know what exists and in what level of detail for example David Davis two weeks ago told the Committee of the House of Commons that the Prime Minister had seen the summary outcomes but had not necessarily read every single one they are in excruciating detail and then yesterday I think it was yesterday he said it is not the case that impact assessments exist so was Mr Davis right when he said they are in excruciating detail or was Mr Davis right when he said they don't exist I think I ought to answer that one first I think there is a huge amount of analysis as you will appreciate and what we set out and I set out first in a debate when we were debating opposition day motion about a week and a half ago reiterated to the House yesterday is that this information does not exist in exactly the form which has been requested to which are sexual economic impact assessments but we have done a very broad sexual analysis and as you say that we published to the House Lords EU Committee the headings under which that is done which covers 58 sectors and a number of cross cutting regulatory issues the motion that the House of Commons has approved requires us to share that information with the exiting the EU select committee and as my colleague made clear yesterday we are making sure that the information is in the correct format but it can be shared there we are under a number of different obligations here the House has voted a number of times that we shouldn't be publishing anything which is prejudicial to our negotiating position we also have a legal obligation not to publish anything which isn't in the public interest and we also have legal obligations when it comes to confidentiality but we are working to ensure that information is available and I think the other point which I know David can touch on is we have already been discussing the sexual analysis which has been conducted in the format of the GMC some summaries clearly exist because Mr David said they'd been given to the Prime Minister will they be published the summaries that he was referring to were at an early stage of the analysis when our department was first set up and this information was commissioned what we've said since then is that this has been regularly updated all government departments are engaged in the process of looking at the opportunities the risks through this process and how they can be mitigated and so that analysis will take some time to fully compile but I think what we absolutely will be doing is ensuring that the future relationship with the EU as well as our withdrawal is informed by the best analysis across the board You'll never be at a point where waiting another month and doing some more work would give you more detailed analysis at some point you're going to have to publish when will you publish and what will it be what we've been asked to do at this stage is to provide information to a select committee of the House of Commons we've made clear that that will be done within three weeks within three weeks and will also be available to this Parliament I think we need to agree with the select committee of the House of Commons the terms on which that information is going to be provided we will certainly then be looking at what can be done with regard to our Parliament and we will seek to ensure that whatever information can be provided within our legal constraints is brought forward I think we've gone far enough on that Patrick Can I thank Mr Midell and Mr Walker for coming along today we've covered a lot of ground for that I'm very welcome before the final amending stage of the Lords we'll have to complete our final report therefore I think it's more than likely that we'll be looking for UK Government representatives to appear before us again before that process I hope you'll be able to give us some level of commitment to do that and I think I'll now suspend this meeting for 10 minutes to allow a change over witnesses thank you very much for coming today okay, the second item on today's agenda is to consider the Scottish starting instrument which provides for the 2017 autumn budget revision before we come to the actual motion itself seeking our approval at agenda item 3 we'll have an evidence taken session on the order we are joined for this session by the Cabinet Secretary for Finance and Constitution who is accompanied by two officials, Bill Stitt and Scott Mackay Cabinet Secretary, I ask you if you want to make an opening statement okay, thank you and good morning the autumn budget revision provides the first of two opportunities to formally amend the Scottish budget for 2017-18 in order to assist the committee with the scrutiny of the budget revision prepared by my officials that guide sets out the background to two and the details of the main changes proposed and I hope that the committee has found this guide to be helpful this year's autumn budget revision deals with four different types of amendments to the budget firstly a couple of funding changes secondly a few technical adjustments that have no impact on spending power thirdly a couple of whitehall transfers and finally some budget neutral transfers of resources between portfolio budgets the net impact of all of these changes is an increase in the approved budget of £19 million from £39,300 million to £39,319 million table 1.1 on page 4 of the supporting document shows the approved budgets following the changes sought in the autumn budget revision the supporting document to the autumn budget revision and the brief guide prepared by my officials provide background on the net changes the first set of changes comprise a deployment of financial transactions to support the Scottish growth fund offset by a transfer to central resources from the coastal communities fund to be held until required in total these changes increase the budget by £7.7 million the second set of changes comprise a few technical adjustments to the budget the technical adjustments are non-cash and therefore budget neutral as they cannot be redeployed to support discretionary spend elsewhere and have a net positive impact of £6.3 million on the overall aggregate position it is necessary to reflect these adjustments to ensure the budget is consistent with the accounting requirements and with the final outturn that will be reported in our annual accounts the Scottish budget aligns with the accounting requirements under the Government financial reporting manual and accordingly the budget provision is included within the Scottish budget for the financial year to reflect the recognition of relevant assets with revenue finance infrastructure schemes in accordance with the accounting requirements the adjustment to the budget at this autumn budget revision is £9.9 million the other technical adjustments are a transfer of £1 million to the judicial salaries budget which sits outside the budget proved by the Scottish Parliament a £2 million transfer of non-cash budget from the national records of Scotland to historic environment Scotland and a couple of minor adjustments to allow skills development Scotland and the risk management authority to access cash reserves with regard to the Whitehall transfers and allocations from HM Treasury there's a net positive impact on the budget of £5.2 million in relation to the coastal communities fund and the Edinburgh cultural summit the final part of the budget revision concerns the transfer of funds within and between portfolios to better align the budgets with profiled spend in line with past years there's a number of internal portfolio transfers which have no effect on portfolio totals but ensure that internal budgets are monitored and managed effectively the main transfers between portfolios are noted in the SPR supporting document in the guide to the SPR as we move towards the financial year end we'll continue in line with our normal practice to monitor forecast outturn against budget wherever possible we'll seek to utilise any emerging underspends to ensure we make optimum use of the resources available in 2017-18 and to proactively manage the flexibility provided under the fiscal framework agreement between HM Treasury and the Scottish Government and I shall be providing the committee with a mid-year report on the revenue and spending to date alongside the spring budget revision when published to improve transparency of budget management process and the decisions that take in year in line with the budget process review group recommendations also in response to the recommendations of the budget process review group on transparency of budget information two new tables have been added to this year's supporting documents on page 8 showing the sources of funding that support the changes applied and the movement of available resources and I hope members find these useful Thank you Cabinet Secretary, I know Neil Bibby had a question It was just you mentioned briefly the cash reserves issue allowing bodies to access cash reserves and you mentioned Skills Development Scotland and I think it's also the risk management authority can you tell us a bit more about what you want to expand on that, Scott? This is a technical adjustment and it's about the source of funding the source of cash for these bodies so it's not going to affect the overall spending of the body it's just the split of the cash that they will utilise across the year from Scottish Government and what they're using from their reserves so because they're accessing the reserves we're reducing the amount of funding that we're providing them but their overall spend in the year will be the same Mordo Fleazor Good morning Cabinet Secretary, in the list of portfolio transfers there's a sum of £55 million being transferred from health and sport to education and skill for midwifery education is clearly quite a substantial sum of money this is a transfer that's appeared in the autumn budget revision in every year since 2008-9 and given that this is now happening on an annual basis would it not make more sense for the sum just to be incorporated into the health and sport budget to publish your draft budget for the year rather than doing an annual revision in autumn of every year? I think there's a valid point in that but it comes back to Mr Fleazor's correct there has been a practice that a portfolio ultimately with responsibility can determine that resource indeed by a beneficiary if there's savings in that line as well and that has been the position in terms of the line the portfolio with responsibility transferring to another portfolio and that's certainly a significant example of that but it has been consistent with previous years sometimes of course at the start of the financial year there might not be absolute clarity on what that figure would be and as that figure's developed over the course of time then there's that certainty which allows me to bring it to the autumn budget revision but Mr Fleazor's correct there could be a process where you transfer it all into another portfolio but in essence it's continuing that practice which is not exclusive to that line where the portfolio with responsibility then makes a determination Thanks for that answer the point behind this really is that by doing it in this way you are inflating the size of the health budget and deflating the size of the education and skills budget at the point that your draft budget is produced I just wonder if for the purposes of clarity and transparency it would be better just to permanently put the spending in the education and skills budget I would say again I understand the analysis but there is a principle around a portfolio with responsibility essentially commissioning that from another portfolio when there will be some cross portfolio transactions work both ways but essentially that has been the established practice and I am being consistent with that of course there could be an overall budget re-alignment but to say there are many budget lines where the principle applies that the portfolio with responsibility transfers the resource to another portfolio and ultimately health would be the beneficiary of any savings in this line of work In the list of technical adjustments there are two changes in relation to IFRS account requirements in order to bring them in line with the Scottish year end budget 4.9 million in relation to prisons and 5.5 million relating to motorway and trunk roads so that we have a background as to why that was made Gael, Scotland Account, to come in on that This is about differences in the way that certain examples of these contracts have treated against treasury budgets and are disclosed in our accounts so the treatment is different there in the Scottish budget we need to approve an allocation that aligns with that accounting treatment so we need to make those technical adjustments As Mr Mackay referred to in his opening statement they do not increase our spending power they are only about the way the accounting requirements mean that we need to show show the these contracts in our accounts Why has the change got to be made and that has not been able to be reflected when the budget was drawn up Because there are adjustments in year reflecting the movement on these contracts that aren't precisely clear at the draft budget period so you'll be aware at the budget bill itself there are technical adjustments that are shown that are in line with this this is movements in year against those contracts in the accounting disclosure Does that mean that the values in the contracts have increased during the course of the year It can be a movement in the asset values that are reflected in the accounts so just to take the prisons one as an example which was £4.9 million that you're saying that there's been some increase in relation to asset values linked to prison infrastructure projects It's an adjustment to the carrying value in the accounts so obviously that varies over time the way that asset is reflected in the accounts will be depreciated across the year so the net carrying value in the accounts will change and that adjustment can reflect that Was the adjustment an adjustment because the asset value has increased or an adjustment because of the depreciation policy or the depreciation value has changed It's quite a detailed question We can't find it just now I think it's not a point that would lead to the opposition and the order but I'm keen to understand why those values have increased I think it's important to be clear that it's not a change in the underlying contract this is about the actual payments from the prison service to the contractor or not changing as a result of these it's purely about the accounting disclosure I understand what you're saying and it's to do with a change in the accounting disclosure and that's what we've said in the note that we've provided but I'm still not clear as to what it actually was so maybe the officials could write to us I think about this, we just write to us and let us know what that would come and James would write to us No other questions In that case Agenda item 3 consideration of the motion on the order I invite the cabinet secretary to move motion S5M-08385 that the finance and constitution committee recommends that the budget Scotland act 2017 amendment regulations 2017 draft be approved I move the question is that motion S5M-08385 be agreed to are we agreed we're agreed in that case the committee will publish a short report to the Parliament setting out our decision on the order and I thank the committee and I'll close this meeting of the finance and constitution committee thank you cabinet secretary