 Good morning, and a warm welcome to the eighth meeting of the Constitution, Europe, External Affairs and Culture Committee in 2023. Her first agenda item is a decision in taking business in private. Our members could attempt to take agenda item three in private. Thank you very much. Our second agenda item is to continue to take evidence on our inquiry on how devolution is changing post-EU and how devolution should evolve to respond to the challenges and opportunities of the new constitutional landscape. Today, we will be hearing from a panel of former senior civil servants, and we are joined this morning by Professor Hugh Rawlings, Dr Andrew McCormick, Professor Jim McAllister, CBFRSE, Paul Cackett and Philip Rykofft, who is joining us remotely. A warm welcome to you all. If I could begin by asking an opening question, and then I will move to questions from the committee. Following the internal market act, there has been impact on devolution. I would like to examine how a regulatory divergence can work within the new constitutional landscape, and how devolution has been impacted by the internal market act. If I could, I will go to Professor Rawlings first please. Diolch yn ddweud. It is a pleasure to be here on my first visit to the Parliament. I think that the internal market act had a profound impact because, as I can remind the committee, a couple of years before it was introduced, there had been a commitment on the part of the four administrations to enter into common frameworks, which were designed explicitly to manage the possibility of regulatory divergence, providing machinery for discussion of prospective divergence, mechanisms for dealing with possible disputes, and so forth. This was designed or envisaged as a mechanism for joint regulation or joint management of the internal market by the four administrations working together in a collaborative way. The internal market act cut straight across that in its original form. It did not acknowledge the existence of the common frameworks at all. It was only as a result of amendments in the House of Lords that consideration was given to the impact of the internal market act on the common frameworks. Of course, the internal market act reflected a different conception of how the internal market should be used. It was agreed on all sides that there needed to be regulation of the internal market, but whereas the common frameworks proceeded on the basis of a collaborative understanding of how the internal market should be managed, the internal market act was a directive approach from the centre as to how internal markets could work, and the amendments in the House of Lords were an attempt to mitigate the full rigor of that. I think the question really is the extent to which the common frameworks can survive as a mechanism to provide for regulatory divergence. I take the opportunity to remind the committee that the office of the internal market, which was set up by the internal market act, has an obligation to produce periodic reports on the impact or the development of the internal market and how common frameworks have impacted on it. The first report is due this month. It has to be published by the end of this month and will be laid in front of the Parliament in front of the Senate and Westminster. I think that it will only be then that we will be able to see with that comprehensive assessment by the office of the internal market how exactly the flexibility provided by the common frameworks for regulatory divergence has survived the Blunderbus approach, if I might put it in those terms, of the internal market act. Again, thank you for the welcome. Again, my first time in this Parliament, I appreciate the opportunity to engage with you. Some quite different and complicated considerations in relation to Northern Ireland, the issues around regulatory divergence had surfaced, of course, back at the very early stages of the process, including in the joint report of the negotiators in December 2017. That was the whole nature of what the May Administration agreed. At that point, the hard question, and it remains the hard question, is how to reconcile Northern Ireland's place in the UK internal market with the absence of a land border. As Michelle Barnier put it back in April 2018, if the land border is open, he said, then everything in Northern Ireland has to be single market compliant. Obviously, a lot of water has passed on to the bridge since then. That has been the focus of both internal debate, including in the context, as I agree with everything that she has said, applies in some respects in Northern Ireland, so nothing to take away from all of that, but some very, very different considerations. Just getting to the present day and Windsor Framework context, that takes us to a place where the relevance of that is how we'd cope with divergence in a different context to divergence between the different component parts of the United Kingdom, but how to cope with the complexities that could arise either through new EU regulations or ways in which the UK might diverge from EU standards. Those present potential challenges, and the unevenness of risk in a certain sense. Let me put it this way. What the Government has consistently guaranteed is that there will be, there's nothing in the way of the access of Northern Ireland produce into the UK internal market. That's so unfettered access that critically important term has always been clear and committed on an NITGB context, and the internal market act versions affect that. What is not possible simply is the inverse, and that's where the complexities of the Windsor Framework, the Green Lane, Red Lane idea, all of those things come into play, and where then the storming break becomes relevant, because that's where, if the effect of some change was to make the, that more complicated, and that's possibly significant, then what's the right thing to do, and the power, there is the power, in the original protocol, there was a power for the UK Government to deal with new EU legislation through the joint committee, the new provisions, the amendment that is actually going into the protocol means that there will be a, a, the same check or a similar check can be applied, if necessary, to amending regulations, but it's important to consider possible effect of that. If, if not accepting an amended EU regulation is such that the EU needs to take action in relation to the integrity of the single market, that's, it becomes a very uneven risk. At that moment, Norway, Switzerland are in exactly the same position. They continually have to choose dynamic alignment, and they've chosen to do so. Indeed, they pay for the privilege, because they regard that as in their economic interests. You could say that the same applies to Northern Ireland, and maybe under the original protocol that did apply, but if the difference, and the important difference, is that we're part of the UK, and if the UK chooses to go a separate way, then there's, or diverge materially, in some way that would actually affect something significant, then there could be a great issue, and in that scenario things become really quite complicated. So that's quite a different set of issues. Indeed, this part of the Internal Market Act was not the focus for us in the autumn of 2020. There were not the standing clauses to be thought about, which were a whole different set of issues, but the principles, as you said, everything that you said and principle is relevant, but we have all those different and quite complicated factors as well. Thank you, Professor Gallacher. Thank you, convener. I'm happy that this is not my first time in front of a committee here, but it's always nice to be back. I don't want to repeat points that my colleagues have made, but broadly speaking, I would adopt what Hugh Rowling said as a description. I think myself that the internal market legislation was an error and that it would have been possible, and actually, in practice, it will be possible to deal with questions of regulatory divergence if there is the political will to do so between the respective Governments. It's important from a purely Scottish perspective to remember that the internal market of the UK does matter for Scotland and that regulatory divergence for its own sake isn't something to be sought out just because you can do it. The question is what you're seeking to achieve. What's quite interesting for me in that context is that it is actually possible to run an effective market with well-managed regulatory divergence. We managed it for approximately 300 years. That was the whole point. The economic union nevertheless managed to sustain, for example, a separate Scottish legal system. I can imagine that if the proposition of this Parliament to its colleagues and Westminster was that there should be a Scottish legal system, there would be the most awful shout of, my goodness, you can't possibly do that. So divergence can be managed, but it needs to be managed carefully and properly. A constant focus on the principles on standing on one's dignity is not the way to do that. One has to look at actual practical issues as they emerge. If this is about the content of sausages, let's negotiate about the content of sausages, not about abstract constitutional principles. If we do that and in the way in which Hugh described, which is collaboratively, that these issues are entirely manageable. The more people standing on high horses, the harder they will be to manage. However, there is one area where I would stand on my high horse. That is that this intervention by the UK Government at the time of the internal market legislation was, as the committee will well understand, a breach of the Sule Convention. That was, in my view, an error and it is of constitutional significance. I won't repeat the history of the Sule Convention and the significance of it. However, the consequence, in my view, of this particular and a couple of other interventions by recent UK Governments, I think leaves the argument for strengthening the Sule Convention unanswerable. You may or may not want to go into that issue in this committee, but it is one that needs to be registered in this debate. I have given you a short note that explains precisely how that should be done, and I hope that that will be the policy of an incoming administration in Westminster. It is something that we have done to consider what we will work on in this committee and, in conjunction with our colleagues in the other devolved legislatures as well, which are equally affected by what has happened with Sule. Thank you for that. Mr Tackett, am I pronouncing that properly? Cackett, sorry about that. I also, like Jim, have appeared before committees of this nature a number of times in the past, so it's good to be packed. My response in this would be to look at this from the perspective of intergovernmental relations, which is an interesting mine in this context. I would agree with what Hugh MacDonald said about the impact on common frameworks. You have received evidence and papers from Michael Keating about the intergovernmental relations and the purpose of it. In answer to your question, I would add a little bit to what Professor Keating said. He talked in terms of intergovernmental relations needing a proper structure to support joint working and to ensure dispute resolution. I would add a third to that and that would be complementary policymaking, because not all policies are jointly agreed, not all policies are intended to work the same way throughout the UK. In some ways, the concept of joint policymaking had a resonance, particularly when the UK was part of the EU, when the UK with a member state and Scottish civil servant group contributed to a unified UK line. I draw that distinction, because it is important to recognise that it was part of the issue of recognising the respect that different administrations should have for each other's discretion and the discretion of parliaments to make their own decisions in their own geographical area and within their own competencies, is that intergovernmental relations should be developed in such a way that leaves a space for complementary policymaking, whereby we recognise that, in our respective geographical areas, we can make our own policies but that the benefits of consistency within the UK can be achieved through that level of joint working. That is where I think probably my comment specifically on the internal market act is that that is an area of work that still has not worked as effectively as it could be. I know that there are systems put in place for ministerial disagreements but, to me, there is a bit of consideration of work to be done in terms of civil service co-operation and, indeed, scrutiny by respect to parliaments and assemblies. Indeed, again, scrutiny is something that has been of concern for the committee, as well. Finally, Mr Rycroft, please. Good morning. Thank you, convener, and sorry not to be with you this morning, however, in the west of Scotland today. Not a huge amount to add. I think there's been a good coverage of the question already, much of which I agree with. Maybe just a couple of reflections. First off, management of an internal market is important. Divergence can be expensive and it can be expensive for businesses and it can disrupt supply chains and ultimately reduce choice for consumers. If you want any evidence of that, just look at what's happening at the moment vis-à-vis the UK and the wider EU. Just one small example of that, the UK setting up its own regime on chemicals and the suppliers of chemicals ultimately having to retest their product for the UK market. There will be some suppliers from the continent who will say that that is simply not worth our while. We are no longer going to supply that market. Divergence matters, it matters for the flow of business and ultimately for prosperity. The question is, how do you manage an internal market? In this context, in the UK, was the UK Internal Market Act to deal with those issues. The UK Internal Market Act, in this context, I think was a step too far, but if you would allow me just to give rise to one slightly broader issue, why did the UK Government feel that it was necessary to go down this track? Just one reflection on the process that we are going through post Brexit. Brexit, of course, was ultimately about returning sovereignty to the UK from Brussels, the rehoming of that sovereignty. If that's what you've been driving at, if that's what is, in a sense, the motivating purpose of your administration, getting that sovereignty back doesn't put in a frame of mind then to want to share that sovereignty further within the United Kingdom. You see that tension still in UK Government policy between those who are saying, this is our opportunity to reassert the sovereignty of the UK Parliament, to assert the concept of a unitary state on the one hand and others who are saying, no, no, no, we still need to manage devolution in the way that we've got used to, we need good intergovernmental relations and the rest of it. I think that tension is still very evident in the approach of the UK Government to these issues, and I think that it was the assertive side of that that was responsible ultimately for the UK internal market act. Thank you. I'm going to move to questions from the committee. Thank you very much, convener. I'm good to see you all. I'm so glad you're such an enthusiasm for appearing in front of Scottish Parliamentary committees. You obviously haven't been given a hard enough time by MSPs. I've got a couple of questions. I'm very interested just on that last point by Philip Rycroft. I acknowledge that, but there is, especially around the internal market, there were commercial economic reasons that I think it is easy to downplay. I just wondered if you had any view or observation on the kind of economic reasoning behind the internal market act, because I think that it shouldn't be ignored, notwithstanding the very compelling points that you've just made. I'll bring in Mr Rycroft first. I think that he's having problems with the mic. No, I'm here. I'm very happy to respond to that. As I said at the start of my remarks, absolutely understanding the commercial reality, how internal markets function, how business can flow through that internal market with a minimum of hindrance to delivering goods and products across that market and, ultimately, the prosperity for everybody in that market. How you achieve that clearly requires management, and it requires a deep understanding of the needs of business. Therefore, when you look at possible divergence, part of the equation has to be what will that mean for the effective delivery of business on both sides of that board. One solution to that would be one Government saying, well, we'd quite like to legislate in order to require producers to do a certain thing or label their products in a particular way, deal, shall I say, with the chain of waste in a particular way, whatever it may be, then if you then have different rules either side of the board, that clearly adds cost to business. If you have to run a separate labelling line to supply a small market, there comes a point where it's simply not worth doing that because the cost of putting that extra label on your bottle of jam or whatever it may be is too great for the size of the market you're supplying. One solution to that, of course, is agreement that everybody changes. That's ultimately what the EU single market was about. It was about reducing 28 sets of laws to one set of laws, which would then allow those businesses to function. The same clearly applies within the UK context as well. When Governments are thinking about changes, whether it's for public health, environmental reasons or whatever it may be, part of the consideration must be the impact on the cost of doing business. There will be occasions where Governments decide and underdevelop powers rightly so that the benefit of that change outweighs the cost. In many other circumstances, the answer, if there is a public good to be derived from that legislation, is to do it in common. How do you do that successfully? You negotiate as through the common frameworks or what we experienced a couple of years ago through negotiations, the single market context in the EU. We know how to do this the best way forward is through negotiation and collaboration to deliver ultimately the public good. I absolutely agree with Philip's analysis. I think that it's very important to distinguish the need to sustain a market for the benefit of the people who get the services and the products and the question of who has the authority to make the rules. The danger, and Philip's description was absolutely correct in his first answer, is that one confuses the two and thinks that since it is a UK market, only a UK Government can make the decisions. Philip said the magic S word, so I shall repeat it. That goes back to this question and obsession with the idea of sovereignty. Sovereignty is a concept that should be put in the bin. It is not a useful way of allocating powers and responsibilities across multilevel Governments. It is a mistaken confusion of the correct assertion that there is a UK single or domestic market, as I would rather call it, which requires to be preserved, and the notion that sovereign power must therefore reside at a particular level. We need to disentangle those two things, separate the politics and the economics. I am very glad that you made that point, because it also emphasises that we look at this sometimes just in terms of the UK and Scotland, but there are issues between Wales and Scotland, Northern Ireland and Scotland, and I think that often that analysis gets lost within this discussion. Can I move on to a different issue that you have touched on, Sue already, Jim? I think that my question is this. Our inquiry is about the effects of Brexit on devolution, and we are all aware of some very high-profile cases where this Parliament has not given consent to post-Brexit legislation. Does the panel think that it is the political tensions and pressures that we are all aware of that occurred before, during and after Brexit that has led to these problems? Or have we been incubating these issues since 1999? I ask that question in the knowledge that all of you have a very strong track record in working in civil service throughout devolution. I would be very grateful for your views. Can I start with Paul Cackette, please? I think that that point about the incubation of the problem is absolutely right. One of the reflections that I have is that Brexit has in many ways changed everything in the way that we look at these issues. We are in a very different environment, partly political, but also partly in terms of the culture exhibited by civil servants and politicians in the early days of devolution. There is very much a drive at that point, as the Scottish Parliament was established, to help it to bed in and to make it work. There is very much a culture—I remember going back to days of Donald Dure and Tony Blair—that was keen to ensure that, at that stage, the Parliament was made to be a success. Of course, the political synergy between the Administrations in Edinburgh and London certainly helped in that respect. What is very different now is that devolution has bedded in, and we are now at a stage in which that desire to make it work and to look at things in that way has changed a lot. The wider angle to all that beyond Brexit is the increasing complexity of administration throughout the UK. We are not only half of the three devolved administrations, but of London administration, the metropolitan mayors, the areas of England that do not have metropolitan mayors, and, in my experience, I latterly was a director with various Covid responsibilities, so I was closely involved in some of the development of work there. The ways in which different responses were necessary, and Andy Burnham, for example, was a very prominent speaker about the interests of Greater Manchester. That, too, has added to the complexity of how we have to face those issues. Yes, it brings it, but it is also the fact that it is maturing and bedding in or bedded in a Parliament here and assemblies elsewhere, changing those times gone by over time in other places. I think that it is important when looking at the wider issues as to the future of devolution to recognise that various solutions that have been adopted and the solution that has been adopted most frequently in trying to address concerns of the right balance in devolution is increasing powers and more powers have been given over time. A question in my mind, particularly in a post-Brexit environment, is whether that is the right model going forward, or whether it needs to think differently, which might be around questions of shared competency. The eternal markets act might not be the best example of successful shared competence, but I was interested in Tracey McEwen's report that she prepared for the revolution committee back in 2015, in which she noted that the UK sits quite far down compared to many other states in the extent to which regional assemblies and parliaments have shared competencies with the national parliaments, and it may well be that there is some scope that they are to be thinking in terms of a genuine shared competency as a way forward. That is a really interesting and important question, inevitably, because I am a civil servant still. I am going to tell you that it is a bit one and a bit the other. It is quite an important issue. That takes us into the nature of the UK's constitution and the extent to which it is hard written down in black-letter law or not. The UK's constitution has traditionally relied very substantially on conventions and expectations and norms, which can be unkindly called the good-chat theory of government, and that has had to face up to the enormous eruption of Brexit, which is anything but normal and has been noted in the sole context. It has been stretched to and, in my view, beyond breaking point by that. A result of that is that we are going to have to crystallise in law more things than we found it necessary to crystallise in law in the past. When we reach the stage when the Supreme Court twice overturns the actions of a UK Government in its relationship with Parliament, clearly something has gone wrong in our constitutional set-up. Similarly, when we reach the stage when the civil convention is unnecessarily breached in the context of Brexit, it is perhaps not surprised, but it does say that something needs to be done, and more of our constitutional arrangements need to be crystallised and more explicit explanation of the relative balance of power and the management of their relationships between the different levels of government. The UK has, for a century or more, seen itself as a unitary state. Even while it has acted as a quasi-federal state in respect of Scotland, Wales and Northern Ireland, we need to shift that. More of our roles need to be put into forms where the courts can, if necessary, adjudicate on them. Good fences make good neighbours. Dr McCormick? I can say that the devolution settlement in Northern Ireland was far from comfortable or settled or resolved before Brexit came along, but Brexit has changed things fundamentally. Some obvious points from a Northern Ireland point of view, good Friday agreement, is not just a devolution settlement, it is a constitutional settlement relating to an international agreement with Ireland. It settled for the first time the constitutional status of Northern Ireland on a basis that could be supported across the island. That was part of a resolution and an accommodation between traditions that overturned, and you can trace it back to the 1918 general election. I can give you that lots of history if you want it, but certainly it is a different status. What that means is that the nature of the relationships between Northern Ireland as a continuing member state and the rest of the UK were thrown into unique tensions that have not been resolved, which is why we do not have devolution up and running. That links to promises made or alleged to have been made when the minister's last came back in January 2020 through what was called New Decade, New Approach, but yet what we have now and what was in the protocol bill, which I find quite astounding, was a reference to the active union, which it has a provision about trade, but was part of the unification of the United Kingdom, which the Good Friday Agreement was resolving the tension that had been there between the active union of 1800 and the Home Real Campaign, the Government of Ireland Act, all of that very complicated unresolved history was resolved constitutionally and received overwhelming support in 1998, and Brexit disturbed that balance. The reason it did that is because there was an assertion of constitutional sovereignty by the UK as a unit, where the Good Friday Agreement said that the constitutional future of Northern Ireland is a matter for the people of Northern Ireland. Indeed, that is clear in the very first page of the Good Friday Agreement, which also commits the UK Government to behaving with rigorous impartiality between the two main traditions in Northern Ireland. Very different contexts and circumstances, very disturbing to the settlement. The important thing and the positive thing that might be emerging from rapprochement between UK and EU is the chance to return to the fundamentals of that settlement, which are power sharing. Again, this is different but relevant, different because it affects how these things work. Power sharing, North South relations, equality, consent—those fundamentals stand. The Northern Ireland relationship in trade and goods has to be unique and it affects the balance of relationships with the other parts of the UK. It is complicated. As Jim has said, the question is quite a fundamental one. It seems to me that Brexit is both the cause but also the context of your inquiry. I think one of the things that we've learned from Brexit—I freely confess that I hadn't appreciated it before, even though I was doing devolution from 1999 onwards—was the extent to which we assumed, without thinking any further, membership of the EU as a framework within which devolution could work. That external mechanism for holding devolution together was then withdrawn. But what I think we're now also realising is that devolution depends at a fundamental level on understandings of trust between Governments. There was a reference earlier to shared Governments. Well, shared Governments has been a theme, or was a theme, certainly when I was there. I think it has continued of the Welsh Government fairly soon after the Brexit referendum took place. In fact, we'd published a document—I'm going to wave it for the camera—called reforming our union, shared Governments in the UK. That was published in early 2018, and there has been a second version of it. Certainly, the view that the Welsh Government took at that time was—and this of course was consistent with the idea of common frameworks—that we had to reinforce the collaborative possibilities of devolution to compensate in a way for the fact that the external framework of the EU had been withdrawn. The problem, of course, is that Brexit has dissolved many of the bounds of trust between the administrations. That is the context of this inquiry. Where do we go if we have limited trust and commitment to shared Governments as a matter of political reality, then perhaps it has—and the question is, to the extent that this is possible—how far it can be mandated? That means replacing understanding, conventions, good chap theory of Governments with a measure of juridification, the replacement of political norms by legal norms. From a small jurisdiction standpoint, conceptually, a system based on—or a rules-based system—is going to be preferable to a system based on discretion, because the discretion tends to be exercised by the largest and most powerful party in the system. From that point of view, a rules-based system, greater juridification of the constitution, the replacement of political norms by legal norms, would be beneficial certainly to some of the smaller jurisdictions within the UK. Of course, it would come at a cost, and it brings questions of the extent to which you want the courts involved in regulating relations between Governments. Finally, Philip. Hi, thank you. I used to come back to your original question. Was there something incubating pre-2016? Was there something lurking in the system that would, if you like, have emerged, whether it had Brexit or not? All I can say is that it didn't feel like that at the time. I was running the UK Governance Group in the Cabinet Office in 2015-16 and had those responsibilities through the last three years of the coalition government as well. It's just worth remembering what we were doing before the EU referendum. My team was partly designing the bill to allow the referendum to happen, but that was decided by the by. We were completing what became the Scotland Act 2016 at that point. That act did, as we all know, further fiscal powers, welfare powers to the Scottish Parliament and put in stool on the face of statute, even though it was not justiciable. We were also in the midst of a review of intergovernmental relations. It had come out of the learnings, if you like, of the Scottish referendum campaign, how that had impacted, why it all had impacted relations between the UK Government and the devolved Governments. There was a lot going on to try and firm up the devolution settlements to extend them. A sense that there was a job there to be done to complete what had been set off in 1999, particularly in relation to fiscal powers and welfare powers for Scotland. That was very much the tenor of the Government that I was working for at the time. It was the Cameron Government of the Sea of 2015. Amongst the ministers, there was no hint at all of the more assertive muscular unism, if I could characterise it like that, that has emerged since then. That was the departure point, if you like, for the handling, the dealing with Brexit. The wash-out of that into the early time of Brexit was an endeavour to seek to manage the Brexit process in a way that sustained an optimal level of collaboration across the four Governments of the UK. We set up something called the Joint Ministerial Committee subgroup to look at European negotiations with quite an expansive remit, which was a very deliberate attempt to ensure that, through what was going to be an enormously difficult passage, at least the relationships between the two Governments could be effectively managed. It simply didn't work out as intended. That fractured and frayed more and more as time went on. From my perspective, you have to see Brexit as a breakpoint in all sorts of ways, including in the management of relations between the four Governments of the United Kingdom. I agree that what has been said has been so significant that I do not think that there is no going back to the status quo. It does require a reconfiguration, a reconceptualisation of how those relations are managed. Dr Allan? If I may turn to the retained EU law bill, if that is not too drastic a gear change, I am interested to know opinions, perhaps starting with Mr Rhycroff, but others too, about how that bill is going to impact on Government time. We have talked a bit in this committee about how it will affect us as a legislature and some of the issues of principle, but that does not sound like I am on a high horse. How will it affect what planning is being done to cope with the enormous task that seems to be envisaged in that piece of legislation over the next few months? Clearly, I am no longer in the house, so I cannot give you a direct answer to that. What I can say is from what I know about the challenge of managing the transition post Brexit in terms of the UK statute book, that the EU retained law bill seems to me is seeking to do the impossible. I cannot see how the UK Government has the time, the space to work through this great body of law in good order to allow sensible decision making on what should apply and what should not apply. Ultimately, you can abstract this, it seems to me, from the ideological question as to whether there should be a residue of EU law on the UK statute book. If you think what so much of this law is doing, it is governing how businesses function, how the law works in 101 fairly humdrum areas, some more important than others, but it impacts on a myriad of businesses, organisations, us as individuals, consumers, as employers and all the rest of it. The way that you make good regulation, good legislation, is that you do that through a process of engagement, consultation, understanding the interests of different parties in relation to that regulation. There is simply not time and space to do that. Frankly, words almost failed me for respect of this bill. It seems to me that it is seeking to do the impossible. Amongst its impacts, of course, is the impact on devolved competencies in Scotland, Wales and Northern Ireland. Untangling all that in the time that is available again seems to me to be asking too much. It is an extraordinary piece of legislation that is embarked on and one that I see very little benefit in. That was pretty comprehensive, the other wish to come in. Professor Rowling's first looking at the convener here, but Professor Rowling's? Sorry. It is, as Philip said, an extraordinary piece of legislation and he said he's lost for words. I'm well retired from the civil service now, so I can speak frankly. This is an exercise in performative government. It is a perfectly reasonable policy aim to review EU-derived law as policies come up for re-examination and reconsideration and the extent to which you need to maintain rules which in their origin came from membership of the EU. What we're faced with here is to complete all this work in theory by the end of 2023. I don't think we need to be mealy-mouthed about why the end of 2023. There's going to be a general election in 2024 and the existing UK Government will want to be able to say we have got Brexit done, look, we dealt with all this legislation. It is a wholly unworkable timetable. One of the Whitehall departments most impacted by this, probably the one most impacted, is DEFRA. It was very interesting to see, of course, the House of Lords is taking committee stage on this bill at the moment and it was very interesting to read some of the debates. The DEFRA Minister in the House of Lords last week appeared to say that DEFRA's default position is that the existing regulations should stay and that he expected that to be the outcome of the reviews. The DEFRA has well over a thousand regulations to examine and that this would be a process, apparently, in which they would all be reviewed and then the bulk of them would be retained. This doesn't seem to be the most sensible way of conducting government and, of course, the problem with it is that the bill's position is that the default position is that the regulations fall away. They have to be saved if they're going to be saved. So to answer directly your question, like Philip, I'm no longer involved in the Government and I don't know what planning work is being done. I understand that you had Hugh Irranka Davis as one of your witnesses last week. I imagine that Hugh was pretty clear about the horrors which are faced by the Senate in dealing with this legislation. Of course, there is scope in the bill in clause 2 to extend the deadline from 2023 in respect of certain categories of regulation or, indeed, individual regulations to give them more time to review them. The date chosen for the possible extension is the 23rd of June, 2026, and it was pointed out in the House of Lords. What account, when this provision was drafted, what consultation was there had with the devolved administrations and the devolved legislatures? You are aware, are you not, Minister, that there will be elections in May 2026, that the Senate and the Scottish Parliament will rise at the end of March 2026 and that, therefore, they can't possibly be undertaking work up until June 23, 2026. Why was that date chosen? Well, the Minister said in an admission of this is performative government, it just happens to be 10 years from the date of the referendum and, by implication, no, we didn't give a moment's thought to the devolved institutions, their elections and how they might do this. I'm sorry if I have overstepped the mark, but it's something I feel really quite strongly about. This is an appalling piece of legislation and, certainly, I think in terms of what I have said and in terms of the powers that it confers on ministers to change the law in respect of a category of regulation that the government is incapable of defining, it simply doesn't know how far this goes. This makes a mockery of taking back control and asserting parliamentary sovereignty. This is about ministerial lawmaking of an extraordinary scale and it's constitutionally, wholly, utterly inappropriate. Thank you, Professor Rawls. Does anyone else wish to come in? I'm just going through the committee and going through the convener as well. Andrew McCormack wants to come in. Just very briefly because, again, I'm retired and I'm not on top of these issues in detail. I think that, thinking of it from the point of view of principle, what my colleagues, former colleagues in the Northern Ireland Service, need to be focusing on is the implications of how evolving EU law will affect Northern Ireland under the Windsor framework and how that work works out. That's going to be a new and very demanding task because Whitehall did all that while we were a member state and will no longer be, they'll be not only not interested but probably under instruction, not to be interested because that's the old way and this is the new way. That's where the implications for Northern Ireland will lie and where difficult issues will lie. Alongside that, having to both understand both the implications of existing law, what does retained EU law mean now and which of those remain under the protocol Windsor framework and which of them are separate from that area of other aspects of the economy and then saying what is going to be the impact if this bill goes through. Those are three enormous tasks combined together. For me, the most important one for our people will be the future rather than anything to do with this which I have to say I agree with everything Philip and Hugh have said about the nonsensical nature of it as a process. I won't let off steam but I agree with my colleagues. However, the question is what is to be done about it. It seems quite likely that this law will be pursued by the present administration in London. There are three possibilities it seems to me. The first is that it's time for the House of Lords to earn their corn. The House of Lords can delay legislation. The last time they got so excited about delaying legislation was in relation to fox hunting. This matters a bit more. So two years would be fine thank you. Even one year would help. That's the first possibility. The second possibility is that—this is a much more political one—the opposition should set out its position on what it will do if it becomes a Government and this law has passed. That position might well be that a set of retrospective legislations should be prepared to give persons certainty of what happens on one electoral outcome. The third possibility, which relates to this institution and indeed to the Senate in Wales, is that two can play at that game. What we've seen is a piece of legislation that disciplines all sorts of laws. You could have one that reapplies them, holis bolis. It's time for a bit of imagination because there's a piece of nonsense. I, too, am no longer privy to recent thinking in dealing with those issues. Are we going to make two points, thinking back to my time as director of legal services in the Scottish Government, at the pre-transition period when there was a significant amount of work that required to be done in legislation put before the Parliament to bring the Scottish Devolve statute book into as much alignment as was necessary at that particular point? My two points are, first of all—I know that there was a protocol agreed between the Scottish Government and the Parliament in terms of change committee procedures and processes for addressing those. I would not really commend that system as being a particularly desirable way to scrutinise those matters. I'm reluctant to speak from a half of parliamentarians to speak for themselves, but it didn't seem to me that the time and the processes that were initiated there gave enough opportunities for proper scrutiny. It felt, from a governmental point of view, looking in to parliamentary scrutiny as if parliamentarians were really faced with little choices to what to do because of the pressure of time. It didn't look to me as if that was a very effective way of scrutinising matters. From the governmental point of view and specifically, as I say, of the legal directorate, it put intense pressure in that period and led to a dilemma for me having to manage limited resources. We did get some extra resources at the time, but inexperienced lawyers coming in who don't know the Government legal service is effectively an impossible task to ask them to be going in with no background experience to be drafting legislation of this sort of nature. The dilemma there for me was, while I'd say to ministers who were trying to advance their own programme for government and legislation that they can't have that delivered because I'm having to reassign staff to do other work in relation to a policy that the current elected administration does not support and is not in favour of. I sympathise with my successors at office if they have to face those similar difficulties, but that was the acuteness of the dilemma. What do you do with your experienced staff who have the skills to do those things? Even if you use all efforts that you can get and we brought people in from private firms to deal with some of the business of government at that time, but they didn't have the experience in legislation, so it put acute pressure certainly on the legal team at that time and it certainly is something that I guess is under anxious and careful scrutiny by those with responsibility for those matters right now. It's been really insightful hearing the collective experience and the different perspectives that you've all given us this morning, so that's very much welcome. I want to go back to the opening comments about the impact of Brexit and devolution and what needs to be fixed. I'm just thinking through from Jim Gallacher, your paper, there's a really interesting phrase, constitutional carelessness. William Rag, a committee convener last week, said that it's politics, and Phillip Ryecroft said this morning that it's the way we've got used to working, but in a sense, how do we move from here where we feel it's not working to a system that will work? I was keen to get your perspectives on what would be your priority and the evidence that we've had, we've had change in how the Governments work together, should they have to work together, dispute resolution, what would that look like, entrenched soul, that's been suggested, inter-parliamentary work. What would be your kind of priorities? How do you incentivise respect to make devolution work? You've been on the inside from the civil service, but if it's too difficult you don't need to answer my question, but I'm thinking of practically how do we move on from here, what are the solutions that we should be looking at as a committee to actually generate a bit of progress here, and I'm not sure who I want to come in first two looks most nervous about this. I'm trying to be constructive here, get solutions, so who would like to kick off? Andrew, do you want to kick off? I would kick off, because this is really, really important, and we won't get devolution back without restoration of some kind of effect of working relationships, rebuilding of trust. I think the word carelessness is a word that I've used in commenting on how the Brexit settlement for Northern Ireland was developed. What happened in October 2019 and even right through to 2020 did not have serious regard for the impact of the decisions that were being taken by the Johnson administration for Northern Ireland's constitutional position. That's very, very evident, so how do you deal with that? In our context, the paragraph that I keep going back to is paragraph 1.5 in the Good Friday Agreement, which involves commitment by the parties to work together acknowledging their differences, acknowledging their totally divergent worldviews between Irish republicanism and unionism, but yet committing to make the institution's work. A commitment to work together, a commitment that, yes, we have massive political differences, but making the institution's work. The Good Friday Agreement was both solving a constitutional problem and working out how to run a place, how to make decisions, and it wasn't about making better decisions or having slick and smooth government. It was about legitimacy and confidence, and that's still the issue in the Northern Ireland context. It sounds from all I'm hearing this morning that there are issues of legitimacy and confidence that apply, and there are different possible constitutional solutions to that, but actually saying that if we've got something that the people have voted for, if we've got something that is fixed, then let there be a commitment to make it work and engage together, that means honesty. We don't have a Government because there were serious issues of dishonesty around the explanation of what was agreed in 2019. That's right of the heart of why we have a problem. Dealing with that, facing up to those issues, getting into a rebuilding of trust, a recognition of different points of view, and saying, well, let's move forward together. That's idealistic, but without some motivation like that, how do you go forward? Professor Rowling is your command. I can see that in the Northern Ireland case that a requirement that the various parties must commit to working together might have an important part to play in the restoration of devolution. At a more general level, however, and with all respect to Jim Gallacher, I have considerable doubts about mandating a duty of proper collaboration as a matter of law. So is there an alternative way? My view on this has actually changed 180 degrees when we were doing intergovernmental relations in the early years. It was clear there was a problem, but my view was that what you had to do was to improve the political culture around the operation of intergovernmental relations. Then, once that had been done, if you wanted to reinforce that or buttress that with some form of legislation, then perhaps, okay, you could do that. But the key thing was culture. But over the years, I came to the view that the culture wasn't going to change, that there was, and Philip referred to it in an earlier answer, profound ambivalence on the part of the UK Government as to the extent to which the other administrations had a legitimate part to play in the governance of the UK. Without that shared understanding of what the roles of the various administrations could be, then you were not likely to get productive intergovernmental relations, and indeed they seemed to depend on the goodwill or absence of it of individual players within the UK Government. I think it's been a matter of record that when Damien Green and then Sir David Lidington came into the relevant jobs in Whitehall, there was a significant improvement in the nature of the relationships between the UK Government and the devolved administrations just because of the approach that they took and their attitudes to it. But then, of course, in what became the political shambles of last summer, the whole IGR system went into deep freeze because the UK Government of the day simply refused to engage at all. You all remember the case of when Prime Minister Truss refused to talk to the administrations and, of course, throughout his three years, Mr Johnson refused to chair a meeting of the Joint Ministerial Council, which had previously been central part of the intergovernmental relations arrangements. So this has led me to think now that at least at some level, you do need to have a legal framework requiring the establishment of machinery for intergovernmental relations. Now that doesn't have to be a sort of a detailed framework, but I think having an obligation on the four administrations to participate in regular intergovernmental meetings may be a useful starting point. One hopes that, if meetings became part of business as usual in the conduct of government, the political culture of collaboration might develop from that. So that's why I say I'm now starting about, you may need law first and the culture will follow rather than change the culture and then maybe do law. So I'm now in the place of you may need to legislate for a system of intergovernmental relations because, sorry, no, I've finished at this point, devolution implies the possibility of divergence. For divergence, if you're going to have divergence, you need reconciliation of different standpoints. That requires effective intergovernmental relations. Intergovernmental relations cannot depend on the goodwill or otherwise of the relevant actors at a given time. They have to be, they have to recognise that this is part of the job which they have to do. It's business as usual to work with the other administrations. Very clear views on the personalities and politicians involved, good and bad. To what extent is culture an issue in terms of civil servants, especially in Whitehall and relations between civil servants in Whitehall and devolved administrations? It was an issue and Philip Rycross will be able to talk a lot about attitudes in Whitehall because it was part of his job to improve them. My job title was director of constitutional affairs and intergovernmental relations. We saw intergovernmental relations as central to the conduct of constitutional affairs. That's where the Welsh Government was. At the expense of being slightly controversial, what I would say about intergovernmental relations was that within the UK, the Welsh Government was the only administration which was wholeheartedly in favour of them working effectively. For perfectly understandable reasons, colleagues in Northern Ireland were divergences of view within the executive as to what the relation should be within the UK. Within the Scottish Government, clearly the long-term constitutional aspirations of the Scottish Government would have meant that good intergovernmental relations would have been less of a priority perhaps than a different view. As Philip has said, there was profound ambivalence within the UK Government as to what should be the legitimate role of the devolved administrations in the governance of the UK. Those differing political attitudes were bound to feed into civil service relationships. Although too much of commentary about IGR tended to focus on the political actors, there hasn't been enough recognition of the day-to-day business exchange between civil servants, which for a long time worked perfectly well under the counter, as it were. My impression is that the impact of recent years' developments has made those relationships professionally rather difficult than they used to be. I would start by recognising that the issues and the challenges are formidable difficult to address, both from the civil service point of view but also with enhanced scrutiny by the Parliament. The amount of effort and endeavour that would require to go in to having an effective system is enormous. Civil servants can only act within the authority that their ministers give them, but both within the Scottish Government and I suspect Whitehall as well, there are different parameters and pressures that create difficulties in making for effective intergovernmental relations. They can probably all be summed up effectively in the concept of bandwidth. I have mentioned the challenges that I see for Whitehall civil servants coping with a number of different devolution settlements, but even for Scottish civil servants as well, the pressure that is under, whether it be legislative or otherwise, to put legislation through the focus is always on this place, rightly so, and on stakeholder engagement. It is Scottish devolution that we are delivering, so wider implications and the extent to which there is an ability to look beyond to think of the implications elsewhere or even to think of how implementation is going to work, which can be certain issues that can arise in certain bills as to make that effective once the bill leaves here can be extremely challenging. Philip will know more, and my experience is now slightly earnlily, but I have to say that my experience of dealing with Whitehall civil servants is very mixed in many ways, but sometimes I have heard circumstances where they are extraordinarily sensitive and respectful for the different devolution settlements and understanding of the pressures and circumstances that are under, but it can be very difficult for them to fully understand the nuances of the different settlements. My experience, and I better not think of giving you examples, is that sometimes the hostility that I have seen between UK Government apartments to each other is way in excess of any feelings of atypathy that I had in my dealings. Again, we need to recognise that Whitehall is a beast. It is a large set of different organisations all working together in a way that the Scottish Welsh and the previous Northern Ireland administrations did not have to deal with. My personal experience has been positive, although, as I say, I cannot speak for more recent times. I certainly was a believer, and Philip can tell me whether he agrees that this is still the case. Both Scotland, Wales and Northern Ireland actually did better out of dealings with the UK Government than the English Regions did. There was more of a recognition of the separate nature of the administrations, and sometimes we actually did better than they did. The challenges are undoubtedly there. Going back to Sarah Boyack's first question, on recognising the difficulties that there are, what can we do about it? Observing, again, Professor McEwen's evidence of the number of times that the dispute resolution processes through ministerial interventions have been triggered is relatively few. Indeed, in my time, it was fewer still, and the only real engagement was GMCE because of EU membership. The referral to dispute resolution does not seem to provide an incentive for several servants to work more closely together. It leads me to the question of whether parliamentary scrutiny, the prospect, if they do not cooperate, of having to come and answer to parliamentarians to explain why things have gone wrong and have not worked as well as they ought to be. That may, as much as anything, provide a cultural incentive to get it right in the first place. It may be that the parliamentary committees do not end up having to ask a huge number of questions, it depends on the circumstances, but the fact that you could be called to committee in a much more structured and developed way to explain why you have allowed certain things to happen and why intergovernmental co-operation has not worked may end up providing an incentive. It seems to me that there is not really an incentive just now to make this work, and it is the question of whether the backdrop of potentials to do so could encourage better behaviours because trust and culture are very hard to develop. The trust thing is very difficult for civil servants. There is an institutional inertia and some very legitimate reasons why information cannot be shared. I, as a lawyer, had that issue in knowing what I could share in terms of legal advice, not least for fear of breaching legal professional privilege in those discussions. Again, civil servants need clear guidance as to what they can share, but the transparency and trust issue, the reason why it is so important, is not only in relation to the discussion between civil servants, but it seems to me that if there isn't what is described as a controlled measure of scrutiny saved by a Parliament of information within government, the risk is that you get a less controlled examination. I give the example of the Covid WhatsApp leaks of the past week into an environment that, in a good sense, in a less good sense, is not a controlled way in which information gets out to the public. It seems to me that it is all the more important that the Parliament thinks about ways in which, in a more controlled environment, proper scrutiny to take place, because the alternative is a less controlled environment in which those matters can be dealt with and looked at in ways in which they can create their own challenges, if they could put it like that. I am very conscious of times if we could try to be a bit more concise. That would be really helpful. I was expecting you to say that, in the paper, you have given us some really practical examples of how to do that parliamentary scrutiny. I think that it is very much worth us looking at that potentially after the day. I will be brief, or at least concise. First, I think that it is now necessary for us to make some substantial statutory changes to constitutionalise the relationships that have not gone well. It seems to me that, and Hugh and I are not absolutely on the same page here, but I do agree that intergovernmental relations need to be statutory. They need to be an obligation. They should, in my view, be within the framework of an obligation of co-operation, as they were in the EU, in the obligation of sincere co-operation, which is aspirational, but nevertheless important. Second, the intergovernmental structures should be supported by the Secretary of State of the Air, which has a degree of agency of its own, which is independent of the Governments, which can set agendas and call meetings and, in extremis, do something about unresolved issues. Third, all of this ought to be overseen properly by Parliament and, in particular, by a reformed second chamber of the Westminster Parliament, whose job that will be. That bundle of changes, alongside some others, seems to me to address the structural questions that we have to address. I think that Hugh is right, however, to talk about the cultural questions that need to be addressed. One of my looks at the changing cultures is very difficult, and changing cultures is all, as Paul hinted, about incentives. Part of the reason, leaving aside the politics, which are pretty poisonous at times, leaving aside the personalities of which I will say nothing, nevertheless one of the structural reasons that the IGR was to devolved has been difficult is that 85 per cent of the UK does not participate in them. England is very, very centralised, and Whitehall seeks to be the micromanager of 85 per cent of the country, and funnily enough it finds it quite difficult to be hands-off for the remaining 15. So a change in the governance of England is an essential precondition for effective IGR for the rest of the UK, and that is why I have certainly been working on proposals for a precisely that. That is the structural and the cultural. Just a word or two about the civil service, very quickly. I am old enough to remember the transition, as indeed Philip is, and I think Hugh too, from the pre-evolution civil service to the post-evolution civil service. And there was much talk at the time of the civil service as part of the glue that was going to help the machinery stick together that was going to make it work. And that was true, it was the case. And to a substantial degree, those bits of IGR which have worked have been part of that inheritance of cross-departmental, cross-governmental working among civil servants. GMCE was a very good example of that, which Paul mentioned. However, people change, personalities change, and we have failed managerially, I think, to do what we always used to do, which is substantial interchange between the London Administrations and the Cardiff Edinburgh. Historically, it was different in relation to Belfast. Certainly in Edinburgh, people from the Scottish Office and Scottish Administration expected some of them at least to spend some time in Whitehall learning the ropes. It did not go so much in the opposite direction, to be fair, but we need to reinstate at those of that. That is a managerial thing that we could be doing. This problem is fixable, but it requires something constitutional, change in England, and a managerial effort to make it all work. Thank you very much. That is really good, because it is like things that we can have a look at. Philip Rycroft, you mentioned one or two of those things that you mentioned, regions in England. Do you have any reflections on how you fix where we have got to post-Brexit? Yes, a lot has been said that I agree with. The word that you used in the original question around incentives is absolutely right. If you look at this from a Whitehall perspective, and I will speak now from a Whitehall perspective, if we are honest about it, devolved matters are not high on the list of priorities for most Whitehall departments. There was a reality to devolve and forget. We do not need to worry about that. Ingrained habit of not doing the learning, putting in the necessary effort to understand politics, Scotland, Wales and Northern Ireland, and to understand how you build good, constructive, proactive relationships across the UK. There is a long history of that. It goes back in many ways to pre-devolution and is an inheritance that I, as somebody mentioned, worked hard to try to address with a little bit of success, but not totally. That is buttressed, I think, by the political incentives for most English MPs. What is going on in the State of the Union will not be top of the list of things that they have to deal with in their constituency surgeries. You do not get an upwelling of political voice in Westminster, which then runs through a Whitehall, to say that this ought to be higher up the list of priorities. This ought to be a bigger concern for the Government of the day. That is the reality that I face when I was advising ministers. What did I say to the ministers that I worked for in terms of improving their incentives to get that right? My argument was that, ultimately, you, as ministers, are interested in the future of this union, the sustainability of this union, in order to achieve that, you have to approach those issues from a position of respect—the word that you use—respect for the devolved Governments, people of Scotland, Wales and Northern Ireland that are interested in the UK. From that, you take an approach of reasonableness into the concepts of intergovernmental relations and all the rest of it. Ultimately, it comes down to political choice as to what substance you put into the form. I agree that we need to change the form. I think that the recent reform of intergovernmental relations takes us in the right direction. I think that we could go further on that. Unless the spirit, if you like, of respect and reasonableness and collaboration infuses those institutions, they will not function. Ultimately, it comes down to political choice. My argument to the ministers that I worked for was that, if you wish to sustain this union, you have to show respect because that is the way to ensure that people in Scotland, Wales and Northern Ireland see value in the union for the future. I think that that view clearly has been a change in that in terms of the political holding of the UK Government since I left. What we were seeking to do through 2016 Scotland there, the 2017 Wales Act and so on, remains valid and true if people are interested in sustaining the union for the future. Thank you, convener. We have touched on some of this, but I just wonder your thoughts on the requirement or otherwise for the role of the civil service to be revised in light of devolution in a post-EU environment. In the context of this, committees and parliamentarians are facing capacity issues, yet we have a duplication of effort. For example, I met with the UK Government Minister around my dog theft bill. The minister said that the department had done extensive work and suggested sending a briefing to me on the issue, which for most people would think is a reasonable course of action. UK civil servants said that that would not be appropriate and they would send it to the Scottish Government who would then pass it on to me, but over a year later I still do not have the briefing. In the context of all of this, is there a way in which we could avoid duplication of effort and utilise the experience and expertise, even to a limited extent, of the civil service via committees, perhaps with redacted or withheld content? I just wonder your thoughts on how we work smarter. Certainly the benefits of smarter working are undoubted and out of the clear. To a certain extent, I wonder whether Jim's point addresses that. It is to look to get a broader experience of civil servants within different administrations. I think that the Brown commission looked at it in looking to ensure that there are different skills of different people who come into the civil service and other opportunities for civil servants to work in private firms and the like to get a broader sense of different perspectives. The drawback, to a certain extent, is just the practical one of how do you operate a civil service in that way if members of a particular apartment are seconded for a sufficiently long period of time to make it worthwhile. It is unfortunate that you had that experience. I hope that that is not too typical. Again, one of the differences that have happened over time with the Scottish Civil Service is that it has moved over time as more operational functions have come to the Scottish Government areas of social security and the like. A larger proportion over time of the Scottish Civil Service time is spent in operation delivery times. That probably has meant with limited resources that there has been a kind of shrinking of the time that is able to be spent dealing with policy developments. It is quite challenging, but I suspect that the best thing that I could say is ensuring that there is better recruitment from a wider range of experience, but to continue the work. I know that a lot of the work has been done to recruit from as much of a diverse range of society as it can be. Obviously, the Scottish Government civil servants are representative of Scotland, so they should be representative of all parts of Scotland and the diverse Scotland as well. I know that work has been done and there has been a strong commitment towards that. That would probably help. There is a degree to which the cultures among civil servants are in some ways not entirely typical or representative of society as a whole, and perhaps a broader intake would encourage a bottom-up approach to better decision-making and better engagement. Thanks, Paul. That is very helpful. Do you have any of the rest of the panel? It is a long time since I was a civil servant in Andrews House more than a decade, but your question reminded me of rather longer ago when the constitutional convention was around which led to the creation of the Parliament. There was some ambiguity in people's minds about the difference between Parliament and Government. It was a bit of a rude shock to many enthusiasts when they found that the civil servants worked really just for the ministers. We have to accept that that is the constitutional position because civil servants do not work for the Parliament. However—there are two elements to that, however—the first is that my recollection, certainly of the early years—I will remember this as well—was of a greater degree of coming and going than perhaps your story illustrates. Partly because it would be mandated and permitted by the ministers, and partly maybe the civil service felt itself a little more self-confident than it does now. I think that the key thing for officials is to understand their boundaries with the ministers, what the ministers have meant them to do, and to have the capacity and the confidence that we are to be able to engage probably informally with parliamentarians, but inside the boundaries of their accountability to ministers. I invite Mr Ruskell, please. Thanks very much. It has been a very insightful and candid session with you all this morning, and I just wanted to go back to retain DU law for a moment. I think that Sir Rycroff talked about the bill seeking to do the impossible, but I guess we are where we are, and Mr Calcher, you were talking about the options and perhaps the imagination that needs to be applied now from administrations and the House of Lords in terms of the way forward. I would just like your brief reflections on what might have been a better way forward in terms of revising and making decisions about retained DU law. I guess that even within the current bill there has been an effective carve-out around financial services. There are issues there around cliff edge and perhaps a phased examination of retained DU law. I would be interested in your brief comments about what would have been a better, more credible way forward on this. Can I start with that, please? Yes, sure. In a way, the answer to your question was we built that into the original withdrawal act. The construct of that, taken on to the UK statute book, EU law, as it then stood, was precisely because we recognised that it was not possible to revise all of that law in the timetable that we were looking out for exit. The concept that has already been alluded to was, ultimately, that the UK Parliament, devolved parliaments, can seek to change that law, but that should be a process that happens over time with due diligence, due process, due consultation. That is what we were anticipating, frankly, civil servants in Whitehall. That is the process that would kick in. Let us take one concrete example. If you look at the Habitat Directive, there has been a lot of criticism that it overprotect some species that are common in the UK, but rare in the rest of the EU. It is a perfectly legitimate issue for parliaments to consider whether that law needed to be adjusted in a way that was better fitted to nature conservation in the UK. However, you can see that that is quite controversial with people, which kicks up lots of different interests and lots of experts out there. A sort of process that, in normal course, you would say, would take two or three years consultation, develop in a proposition and then go through a process. That is good lawmaking. That is good regulation. That is what we envisage would happen. The fact that it has been so accelerated, as we have said already, is not about good regulation, it is not about better regulation, it is not about good lawmaking. It has been driven by other imperatives. We should have some confidence that we know how to make good laws and those are the processes that we should follow. I think that you identified the answer when you put the question, because you have the carve-out of financial services. Why was that carve-out taking place? Because there was a review going on of financial services regulation. It seems to me that historically there is a category of retained EU law, but actually EU law or this retained EU law falls into a whole series of different boxes, as it were. As each box comes up for review, that is when you look at the retained EU law alongside the purely domestic law and then you do the reform. It does not seem to me that there is a category of retained EU law that requires review and reform all at once. It is then no cliff edge date, because you spoke earlier on about the somewhat dubious nature of the significance of particular cliff edge dates. Is it sensible to have a cliff edge or not? I honestly do not think that it is. The question for ministers in any administration is which areas of law do you wish to review, to reform, and they set those task for civil servants to say that we want to legislate on this within the terms of our current Parliament or our current mandate. The civil servants will then review the law from wherever it derives relating to that matter, but ultimately it is a matter for ministers to decide the priorities that they give to the areas of law for which they think reform is appropriate. My view is that it is not necessary. There is almost a fallacy that something has come originally from EU law, meaning that once we are no longer in the EU it has no relevance any more. It changes its relevance because the single market enforcement does not work in the same kind of a way, but if you look at areas of law such as procurement or competition or state aides, although they are derived originally from EU law, there are areas of law that still have irrelevance in a post-EU environment. Procurement, for example, there are good policy reasons why you have rules of procurement for sector competitiveness, for transparency. You would have those laws even if it had never been in the EU. The idea that because it is derived from that, it needs necessarily to be reviewed is a false assumption. The laws should be reflected on and considered and amended as a circumstances change. To me, I do not see why the cliff edge is the way that has to go about it. It is all part of a normal process of development and keeping the law up to pace with societal needs. Just imagine, convener, if this Parliament concluded that any legislation on a devolved matter that should have been passed by Westminster was automatically repealed and had to be replaced by legislation here, what would people see to you? This is a crazy idea. I think that looking back and learning is essential to moving forward. You have given us a lot of evidence about your experience in the civil service, which has been fascinating. I was struck by one of the phrases, assertive muscular unionism—I apologise, I did not write down who said it—but I am interested to hear your thoughts on the way that the Windsor framework came about and that it can be learned from with regard to moving forward post-evolution. Is there anything that we can learn from Norway or Switzerland and the way that they are constructed as a way to improve relationships across parliaments and Governments in the United Kingdom? Your observation about international news day yesterday does make me reflect that you have four men in front of you this morning, but I think that echoing what has been said earlier on, I would stress the importance of discussion and negotiation. It is remarkable what can be achieved. It is interesting in looking at the ways in which problems are solved in innovative ways. I am thinking of Sarah Boyack with a planning background, I am thinking of Shiret's and the ways in which, in that local planning sense, one of the ways in which problems can be solved is asking people from a different perspective to imagine that they were pursuing the opposite point. If somebody who is supporting cycling lanes would solve the shortage of houses, so how do you solve each other's problems? Only through that dialogue and discussion is that possible. It certainly can be done if safe environments can be found to allow those discussions. Recent progress on the number of those fronts, which may open doors in other areas that were perhaps either closed or only a jar, may well be opened up and allowed to be progressed. If I could add to that, I think that one of the lessons of the Windsor framework with a strange name is that you fix things when you focus on the practical rather than when you focus on the conflicting principles involved. Lots of institutions have conflicting principles, conflicting objectives. You can either hit each other over the head with your principles or you can sit down and work through in practice what might mean for sausage meat or whatever the policy issue of the day is. The lesson from Mr Sunak's work, and I think that he deserves some credit for this, is that he sat down and worked through the detail on red lanes and green lanes and trusted traders and all that stuff and got to a place where there is still a tension. Of course, there is a tension because you are trying to do contradictory things, being too regulatory at regimes at the same time, but they found a practical way that will probably work with good will. I am not sure that Norway is quite a helpful example, but Switzerland also is in its relationship with the EU. One of the striking things if you go to Brussels—who should go to Brussels—is that the largest delegation from a state in Brussels is the Swiss delegation, because they have to negotiate every wretched thing. They too have to focus on the detail. They have been stuck with a contradictory principle problem and that the Swiss state wanted to join it. The Swiss people wouldn't let them, so they have worked their way through that in a practical kind of a way. In fact, the EU mad, as it happens, is very, very difficult for Brussels. Nevertheless, it works in a practical sort of a way. If one is thinking of the relationships here inside the UK, the more we spend our time grandstanding on issues of principle, the less successful we will be. Instead, we should sit down and work through issues day by day, whether it is in relation to single markets and common frameworks or the whole other series of increasingly shared competencies between the Governments to which Paul referred. Social security would be an obvious example. The more we will be successful if we work together and co-operate, and that is the lesson of all the external exemplars. If we could be really concise, Dr McCormick, thank you. I was about to say most of what Jim said, but just to qualify slightly. The EU drives the Swiss mad as well, because their view of sovereignty also matters. Yes, practicalities matter, but I always think of George Oliver's view of mine camp. People also respond to flags. John Hume famously said in The Llantern, you can't eat a flag, and that's part of our history and part of our peace process. Identity, there are visceral, very deeply held issues of sovereignty and identity that also need to be taken into account. That's part of our journey. It's far from easy, but working those things through it again, it's only achievable by mutual respect and trust and building relationships. It is much better when the focus is on the practicalities, but you have to recognise the significance of identity as well. I wonder if I could ask a final question in relation to inter-governmental relations and those issues. One of the things that has happened recently that hasn't happened in 20 years of devolution was the use of the section 35 order by the UK Government. It was censorily about the impact on the Qualities Act UK, which includes Northern Ireland. I think that it is addressed to the House of Commons that it was about regulation across borders, but we have an open border with Northern Ireland. One of the principles of the market access that they have is free movement from workers. Someone could be moving who has a certificate gained in Ireland or, indeed, now spanned when they've introduced that legislation. So, keeping away from the subject matter of what's happened, do you have a reflection on what that means for devolution, the fact that that section 35 order has been used at this stage? I've alluded to that briefly in my written submission. The reason I did that is that it does seem to me to try carefully to stay away from the politics and views on the policy. If the UK Government has, as it has published its statement of reason on 13 pages, why this hasn't worked, the question that came to my mind is about intergovernmental relations. Is it in due course that questions will end up being asked as to why it was that intergovernmental relations did not secure at least the addressing of some of those problems? Now is not the place to address the detail of them, but it seems likely that at least some would have been capable of resolution with a fully and better functioning intergovernmental arrangements in place. Maybe that's one of the lessons from that that will be drawn. One of the reasons why that's quite important is that the difficulties we've been addressing here about reconciling the future in the Brexit context, you can see why they could be irreconcilable because of the distinctly different political views of the Administrations. However, it doesn't seem to me, if you think of the policy of gender recognition, extraordinarily sensitive and important topic. There shouldn't be the same extent of differences at that fundamental level. It goes back to Jim's question about the detail of all of this. The Brexit and gender recognition contrasts with each other because you can understand why Brexit was so difficult. It's less obvious to me why we've found ourselves in a position where some, if not all, of the problems addressed in the European Government's note should not have been capable of being addressed through proper intergovernmental relations, but I better say no more than that because it is such a sensitive and difficult topic. I'm not going to say anything about gender recognition because I don't know enough about it. However, it was quite interesting that we all had to go scurrying to the statute book to the section 35. What's that? When one reads it, of course, it's a provision that was inserted into the draft legislation probably quite late on in its development, but one can see why it is there. It's easy, this is a terrible thing, and one can see why it's there. It's there because devolved power, devolved legislative power, is writ very wide. The test of devolved competence is wide because it is anything that does not relate to a reserved matter and relate to means something like, is really about, is mostly about, is largely about. That means that there are certainly real possibilities that devolved legislation would have a material effect on the law in relation to reserved matters and still not be reserved. So some safety net was inevitable, whether section 35 is quite the right safety net is a reasonable question to ask. Is this odd that perhaps a minister does it and that's all there is to it, but the reason it was drafted at the time that it was justified in those terms at that time was the recent ballgates. The ability to wave that stick would have been an opportunity to try and resolve the issues in an IGR discussion. And I was working in the Justice Department in St Andrew's house in 2004 when we did the legislation on gender recognition first time round and we thought very carefully about the problems of cross-border and concluded actually it would be better not to have them for everyone's sake. Whether we got the substance of legislation or not is a different question, but the idea that there's a risk that one's gender recognition suddenly stops working when the train crosses at the border is just unacceptable, you can't have that. So a cross-border solution that works for everyone is once again the right way to do this, talk to each other. Right up against time, I'm really sorry, Dr Allen. We're up against a plenary session in the Parliament kicking in a very short number of minutes. I thank you all for your submissions and for your contributions today. I'm sure the committee have all found it fascinating and the candour and the information that we've been able to glean from this has been will help us in our deliberations going forward. So thank you very much again and on that note I suspend this session at the Parliament.