 Good morning, and welcome to the 19th meeting of the Culture, Tourism, Europe and External Relations Committee. Our first item of business today is a decision on taking agenda item 3 in private. Are members content? Good. Thank you. Our main item of business today is an evidence session on the article 50 withdrawal negotiations with the minister for UK negotiations on Scotland's place in Europe. I'd like to welcome the minister and his official, Michael Russell, minister for UK negotiations in Europe, and Ellen Lever, who is the European strategy manager of the Scottish Government. Mr Russell, would you like to make an opening statement? Considering that I met the committee last week in informal session, I suspect you might have heard enough of me in that regard, so I'd be happy just to answer questions. OK, thank you very much. We have read your letter to Mr Davis closely. You are clearly very disappointed with the JMCEN process pointing out that the last meeting of the JMCEN was in February. In your letter, you mentioned that the terms of reference of the JMCEN have been breached. I wonder whether you would go into more details about that. What aspects of the terms of reference have been breached and what comeback do you have on that? There are, I think, two areas of significance in terms of the breach of the terms. One is in the wider JMCEN process, and it is to do with a memorandum of understanding that it governs the JMC, and I am happy to provide chapter and verse on that. On June 14, Mark Drakeford, the Welsh Minister and I triggered the process of calling a JMC by asking formally for one to be held, the JMCEN. The memorandum of understanding says quite clearly that that must be held within a month, or a date for it must be set within that period and agreed. That has not happened and did not happen. There is discussion taking place about a possible meeting in October now, but that is a breach. The second one is that the terms of reference of the JMCEN, which were agreed between all parties, referred to two things in particular. The first of which was to seek to reach agreement on the article 50 letter. Now, that did not happen. The article 50 letter was never tabled, was never discussed during the entire process, and the meeting stopped on 8 February, I think, because there would have been a requirement or pressure during February and into March to talk about the article 50 letter. The second part of those terms of reference says that there should be, insofar as it was possible, to have oversight of the negotiations with regard to the devolved competencies. As the meetings do not take place, there cannot be such oversight and that is not happening. We do believe that the terms of reference have been breached. That is also the position that the Welsh Government takes. It is difficult to have redress. If you have an unwritten constitution, even with written parts that have a memorand of understanding and no means of enforcing it, then the UK Government can simply ignore it, and that is what they are doing. We have made this point very forcibly to David Davis. I have made it as has John Swinney, very forcibly to Damian Greene, who I understand will now chair the JMCEN, as he has taken responsibility for the Cabinet Office and for Devolution, and we have made the point to the Prime Minister. We continue to make the point strongly and in public. You have had bilateral meetings on 9 August. Was that useful? Could you update the committee on that? It was useful in the sense that we would rather meet and discuss and not meet and discuss. It followed on a telephone conversation that I had with Damian Greene about four weeks beforehand, and then a joint telephone call that he had had with John Swinney and I about two weeks beforehand. We had a discussion, and Secretary of State for Scotland was there too. This is focused primarily—we have had almost exclusively on the issue of the withdrawal bill. There are separate issues being dealt with with David Davis, although they come together in the lack of consultation. We agreed at the end of that meeting that we had made no real progress. We agreed that we would meet again. Officials have been endeavouring to find a form of words on the principles that would allow us to start discussing the frameworks that are inherent within the withdrawal bill. That is the frameworks going forward on key issues of intersection between devolved competencies and European competencies. However, we have not got an agreement on those. We have a set of agreed principles between ourselves and the Welsh Government, but there is no agreement with the UK Government on those. Discussions are continuing. I would hope that we could convene a meeting again soon, but we would require something to talk about, and therefore there has to be some progress on the principles. I am sure that other members will have questions about the withdrawal bill. Of course, the Finance and Constitution Committee of this Parliament is examining that aspect, but what you seem to be saying is that that has basically pushed out any opportunity for the Scottish Government, even in bilateral talks, to get information about the negotiations themselves. David Davis is a person responsible for the negotiations, and of course there are separate discussions with him. They come together in what should be the JMCEN, which has not met. I have been briefed on each round of talks, not beforehand, not in saying what does the Scottish Government think about this, but on the first round I had a conversation with Tim Barrow the night after the talks because I was in Brussels and received information about it. On the second round, David Davis rang me during the week, and indeed I spoke to him on Monday this week. He spoke to me about what had taken place. I think that it is fair to characterise what has happened since the 8th of June since the election is this. The bilateral discussion, there have been more of them. There has been substantially less, in fact, no consultation. Information is given to you about what the UK Government's view of what happened at the talks was. There is nothing else. There is no chance to discuss it beforehand. There is no chance to touch on genders. It is a very long way from the proposal that the Welsh and ourselves made at the start of the talks, that a JMC process should be built into the four-weekly talk cycle, that there should be one of the meetings during the four-weekly talk cycle in which the discussion could take place about key issues. I do not want to convene a complicated sum necessarily, but there is also the issue of the papers that the UK Government published up until the end of last week. It is now 16. Those papers are meant to inform the talks process. Some of those deal with areas of devolved competence. For example, one yesterday on science and technology is about areas of devolved competence largely. The one on civil jurisdiction is, there is a criminal jurisdiction one. There has been no consultation about these at all. We are told about 24 hours, 48 hours, sometimes before they appear, that we see an embargoed copy, that there is not even the ability to dot an eye or cross a T. It is, and I use the word in the letter, intolerable, that areas of devolved competence are being discussed, put on the table in these negotiations without even a courtesy of a consultation with the devolved administrations. That is simply wrong. The letter, I think, lays it out in fairly stark language that this cannot continue. You mentioned in the context of the letter details about these papers. How would the papers have been different if you had been consulted in the way that you... You might ask that, in fact, if you turn to the annex. I have read the annex. If you look at the annex, you can see the points we would make on each of the papers. Those are summary points. The JMC process was meant to do this. If, for example, migration was on the agenda of the JMC, the process should have been we would come to the table and say, this is what we thought, the Welsh would say what they thought, which may be different. Welsh are publishing, I think, today a paper on migration. Then there would be a discussion and at the end of the day a common position would have been reached. You can see in each of the papers we would have views. Not to an area of devolved competence, we would have expected the UK Government to say, this is a matter for you, what are your views and how should they operate, and a position would then have been reached on those. In each of them we can say, this is how we would have done things. No, we don't disagree for the sake of disagreeing. The papers indicate where we think there are issues and where some issues clearly aren't there. Overall, if you read the papers, you come to the conclusion that they are actually a pretty good argument for staying in, because they stress very of the strong positive points. To that regard, we might also have said that there are some good things that you need to preserve here. Finally, the paper on civil law. Obviously, law is something that is devolved, not just under the devolved settlement, but it obviously dates back to the Act of Union in 1707, which enshrined the independence of Scots law. Are you saying that this is particularly concerning? It is outrageous that a paper can be published on civil law without even a consultation with the Scottish Government or the Lord Advocate. It almost defies belief that such a thing would happen. We have to make it clear that this is creating a circumstance in which the negotiations were they to go on to the area of civil law would be based on sand. If they are offering to deliver things on civil law, we may not be able to deliver them. Those may be impossibilities. They need to be very careful, even on the practical nature of this, that they are into areas that they do not know, do not understand and cannot deliver on. Given any indication as to how the EU negotiators may view the fact that the UK Government is publishing position papers in which it does not actually have authority. I am making those representations and making sure that people know that. I am often, to say when I go to Brussels and speak to people, they treat the issues with incredulity. They cannot believe that this is happening and it is a clear breach of the unwritten constitution. The UK Government is presently operating as if devolution never happened and indeed that is also what is happening in the repeal bill. The repeal bill actually is written for a set of circumstances in which devolution does not exist. You do have a set of ministers whose knowledge of devolution is very limited, we accept that, but you cannot simply pretend that devolution is not there unless you intend to undermine devolution. Indeed that may be a conscious effort now because the withdrawal bill, again we did not see until a fortnight before it was due to be published, we have been asking for it since January and when we saw it we said that this does not work. Not simply that it is wrong and undermines devolution, there are bits of it that do not work. Please do not publish particularly clause 11, we said. Put a placeholder in and let's discuss how we can get this to work. Completely ignored, it was published as is and that is why, as the First Minister indicated on Tuesday, when we publish a legislative consent memorandum next week, it will be impossible for us to recommend as the bill presently stands that the Scottish Parliament supports it. I will now pass to Lewis MacDonald. Thank you very much. Can I ask you, Minister, about the bigger picture in a sense of what the negotiation looks like and what feedback you are receiving? The UK Government has published a number of position papers on a number of areas, some of which clearly do need to be resolved early, some of which are perhaps further down the road. The one thing that is clearly missing is a UK Government position paper on the financial settlement and therefore your letter to David Davis does not deal with that in any detail. Given that there have been views expressed about the basis for this negotiation, I wonder how much you can tell the committee today about the UK Government's view as communicated to yourselves and about your own view, given that this has implications for us all. Quite clearly, we do not want to make a bad situation worse. We have been very restrained in what we have said about the financial settlement. I think that from my observation and from what I can see and hear on both sides, there is a complete mismatch on the understanding of what obligations there are. The UK Government seems to accept implicitly moral and political obligations, but not to accept legal obligations. The EU is saying that there are legal obligations that have to take precedence over everything else. Both sides see the financial settlement as being something that is a lever. That is quite clear. The UK Government, in terms of leverage for getting a framework in place, a future relationship in place, the EU 27 of making sure that this is used to get maximum leverage in terms of future negotiation. That would be what happens in a negotiation. It will have to be resolved. I suspect that the noises off are one of the problems in resolving it, and particularly not wishing to make too political a point for Rachel Hamilton. The Tory party conference looming and a number of people who will be very unhappy that any payments are made, that clearly will affect what is taking place. The key issue here is what article 50 actually says. An article 50 says, Exit framework. Now you could interpret that saying they're simultaneous, but there was an agreement reached between the UK and the 27. It's important that we recognise this at the start of the negotiations that the exit negotiations would move forward and then the framework negotiations would kick in once progress had been made with the exit negotiations. That was agreed. That wasn't imposed. That was agreed. I think that it's childish perhaps to complain about it now. It would be best just to try and conclude the financial issue as soon as possible. If they're not able to do so, then that is going to colour everything else. You may have heard Van Rumpuy on Radio 4 this morning. It's worth hearing if you don't. He, as a former president of the commission, he is simply saying that he does not think that there's any chance of progress being made in October. He thinks that it will take longer than that. I met him some months ago in Brussels. He's clearly a very wise and experienced head in terms of what's happening in Europe. I think that there is a view that the progress has presently stalled. We believe that progress should be made. We don't want the UK to leave the EU. We don't want to leave the EU. But it's better that there's clarity in this process than lack of clarity. Therefore, we've been urging both sides to come to a conclusion. We'll know a bit more today about the EU position, not necessarily on finance, but on the issues in which they will publish today. As I said, a paper is due to be published today after Barney press conference. You will obviously hear about that when you're in Brussels next week. Some of those things may clarify it, but even if, for example, the paper that they publish in Northern Ireland today takes things on, the financial position will require wise heads on both sides and a compromise. Perhaps I would commend a paper by Charles Grant last week, who is, as you know, a member of the First Minister's Standing Council, where he talks about the need to find a compromise. Of course, the compromise is the single market membership. If you were to accept the single market membership even as a transition, though I think it should be steady state, but if you were to accept that, that would change the nature of the negotiations, including the financial negotiations. Therefore, there is a way through this that comes from an acceptance of single market membership and customs union membership. I don't want to ask you to go further than you have in expressing a view about the final nature of the financial settlement, but have you taken a view as to the legal position given that this is partly a debate about legal obligation? No, I don't think that's particularly helpful from our position. I mean, I think this is not leaving a tennis club, which is, I think, a position that one of the UKIP MEPs had likened it to. This is the ending of a complex relationship after 40 years. Therefore, there will be elements of law involved in it and there will be obligations. If you have committed yourself to the budget of the institution for a period of time, then clearly the other members will fulfil their obligations so that they thought that was going to happen and they planned accordingly. In the end, it will come down to negotiation and compromise and it would be important to realise that sooner rather than later. I believe that this is not a matter that anyone should see in terms of strict legality. It's a political resolution that's required. I disagree with the view that this is about moral and political obligation and not law, but it is also a matter of moral and political obligation and in the end politics will rule it. Can I ask about the other, the third? There are clearly three areas where the agreement you referred to suggested needed to be addressed before moving on to the second phase of negotiations. I know that other colleagues will ask about it. Can I ask about the position regarding Ireland and particularly about questions around customs because the UK Government has sought to bring forward customs proposals for the future relationship as a way to attempt to address the Irish conundrum. I note the points that you make in your annexes of your letter to David Davis but I wonder if you believe that there is a way to make progress in that area that doesn't involve a customs union in which the United Kingdom remains with the European Union? I think we'll know more when we see the paper on Northern Ireland today but from what we understand it's in that paper. I think that the EU is sceptical that you can have no customs union and still have no border. I think that there is a view that that's not likely to be possible. In Sweden and Norway there is a light touch border but it's still a border. I think that there is an issue in there that requires to be resolved. I know that the Irish Government has expressed scepticism that the technological solutions will be enough and there have been a lot of potential issues raised around that. We've always taken the position that the Irish situation is so special and requires such special handling that we would want to support a positive solution but we're not going to dig in on either side of that. We do note that if the EU does suggest a differentiated solution there are clear issues in there with regard to our proposals and other proposals for differentiated solutions within the rest of the UK. Welsh have made the same point about differentiated solutions. If a differentiated solution is possible then it should be discussed. The Northern Irish paper from the UK Government raised the prospect of migration being managed, for example, in the workplace. Issues that we have supported and we note, for example, the Institute of Directors now supports and the STUC supports. The issue of devolving migration responsibility would be one that should go on the table. There are issues to be discussed there but I'd be keen to see the paper. To be absolutely clear about the timescale for the Northern Ireland issue I think that the expectation has been that the solution of the Northern Irish issue and the negotiations in the first part of the exit round would be a long-term thing but there needs to be continued progress. Indeed, I think that both sides acknowledged last week there had been progress on the common travel area which is a crucial part of it. The common travel area is absolutely essential. Thanks very much. Tavish Scott. I wonder if I could ask about the repeal bill. The minister said earlier on to the convener that it could be construed that the UK Government are deliberately undermining devolution. Are you sure that they're that clever or even that united? I don't want to make that as a key point because I don't know that it's a situation but I have argued in the past and I think it's a tolerable argument to consider even if in the end it's not provable. If you are a passionate proponent in the EU and taking back control and refusing to acknowledge that the European Court of Justice would have jurisdiction then you would be in the position of actually supporting, as such people do support, the absolute sovereignty of the UK Parliament. That would also be something that would make you think that devolution was a bit of an irritant to you because that is about at least in some areas, devolved decision making. So if you are hostile to the EU then it's odd zone to be hostile to devolution as well. But I think also that it is just there's a lack of knowledge of devolution. I think that you have to recognise that devolution has been operating now for 18 years. Many UK ministers will have very limited engagement with devolved competencies. There are not many areas that actually straddle and therefore there will be a lack of experience. I don't think that Damien Greene has been in a government job to be deeply involved in devolution. Therefore there will be a lack of knowledge of how it operates. It's very important from time to time to remind the UK Government that there are established ways of working. It just strikes me that the UK Government can't sort out positions on most aspects of what's going on, whether it's a transition or whatever. So the idea that they've actually worked out their position towards Wales and Scotland on lands beyond me, completely beyond me. On the process, I suppose I'd probably ask a process question, have officials, Mr Russell, in your department and indeed in the Government more broadly been kept up-to-date in any sense in the construction of the repeal bill that we see debated in the Commons at stage 2 today? No, before I just answer that, can I just make a point in terms of planning? We do know, for example, that Liam Fox has made it clear that he doesn't want the devolved administrations anywhere near the issues of trade. In some parts, there is a reasoning in this and that is a reasoning based largely on the CETA treaty where the Flemish Parliament created difficulties. Liam Fox does not want any restriction upon his ability to trade things. This is one of the reasons why, as you know very much in your constituency interests, fishing and farming are very keen to have a UK framework because then they can trade away issues there, for example, in farming the access by Brazilian beef is an issue. So I do think there are some areas in which that is deliberate policy. In terms of consultation about the construction of the bill, no. It's difficult to remember when we started to ask, but I do remember that it was a topic that I raised at the Cardiff JMC plenary at the end of January where I asked the Prime Minister specifically for access to the draft bill and to the timescale for the bill. She didn't know there was going to be an election then, but we presume that she didn't anyway. We went on asking thereafter. I know that the JMC immediately after that discussed it. I do know that at the January JMC I'd also had a conversation with Ben Gummer who was at that stage the Cabinet Office Minister which he had said he wanted to come to Edinburgh and sit down and talk about the bill and how it was to be constructed. That never happened. But since there was then of course the article 50 process so everything went dark and nothing happened there. We continued to press for access to the bill and in the end we were given access on Friday I think the first Friday in July I seem to remember and the release date was around about the 18th of July so we were given two weeks. We got at the same time. Having seen it the following week I spoke to David Davis on the phone and agreed that we should meet face to face. We're now in the recess. I went to London in the second week of July and met with him to talk about it with officials and lawyers and I asked him to drop from the bill, clause 11 and put in a placeholder why we worked on the alternative and that did not happen. I had another conversation I think the following week on the phone again about the bill and about the difficulties it presented but the bill was then published. What Drakeford in Wales did the same. Your expectation of the timescale of it is that it will run to the common suitill probably Christmas and then it goes into the lords the chance of royal assent whatever that may mean is well through 2018. Of course it is the first of several bills it opens the door for agriculture, fisheries trade and a whole range of things. Increasingly I suspect environment because one of the areas that has risen in the messages we're getting from the UK Government about UK frameworks is environment and that would be very concerning indeed. On the framework's point the convener's last one there's no mechanism agreed for the devolved administrations to discuss the UK Government but the framework is to be drawn up. We've said that the best way to do this and the Welsh would say this too is to have a set of principles the principles should indicate that this should respect the devolved settlement that's the start of it but no there is no framework what the bill says would happen is that there would be a ordering council process so if there was not to be once those powers are transferred back to the UK if there is not to be a framework the powers would then be referred back to the devolved administrations to an ordering council but there's no time limitation even on it once those powers are back, they're back one of the things we've said at the start of the process is okay is one of the solutions to this at least in part a sunset clause Neasa of an order of council it would have to be approved by both houses but essentially it would happen the second point in terms of parliamentary scrutiny is the Henry VIII powers that the UK Government are awarding themselves are not only without scrutiny and that's an issue that needs to be discussed but the powers being granted to us are lesser powers again, they should have scrutiny but they operate in devolved areas and they would operate for example on the Scotland Act so the UK Government could unilaterally alter the Scotland Act without Scottish Government and Scottish Parliament involvement there seem to be some conservatives who equally have that worry as well I share the worry I share with many people the worry that needs to be at least a framework of supervision of these powers and we need to find what that appropriate framework is that will be a big issue as the bill goes through on the immigration proposals that emerged earlier in the week which are said to have been produced by an official and have not been seen by UK ministers has the Scottish Government been told what the UK Government's formal position is on those proposals, are they actually now the negotiating position vis-à-vis immigration of the UK Government? They are according to the UK Government the early thoughts of officials they bear an uncanny resemblance to speeches that Amber Rudd has made including the Tory party conference but apparently they are merely the musings of officials we're pretty used to this a document appears it says it's leaked to officials and then another document appears it's pretty much the same that becomes, people get desensitised to it and then it happens you have a government that's very hard line on migration and to be blunt you have a Prime Minister who's a former Home Secretary who's very hard line on migration I believe those proposals reflect mainstream thinking in the UK Government they are to be blunt an absolute abomination as far as we are concerned to any of the devolved administrations of phoning up and saying look, these are whatever they are We had to inquire, didn't we? We did inquire and officials did speak to officials yesterday in Degsu to find out what was happening and we're assured this was a leak and there was an inquiry under way and that the proposals would come out in due course and we reiterated our desire to be fully engaged in the process of developing those we've yet to be so engaged OK, thank you Good morning Minister I think you must have the most frustrating job in the Scottish Government It's 15 months, isn't it now since the European referendum and we've not had a joint ministerial council meeting since the triggering of article 50 I haven't had one since the 8th of February 6 weeks before Indeed, this committee has been able to attract David Davis to come to the committee and speak to his request several times either or you are having to write letters expressing that you find the current situation intolerable Does your gut instinct tell you that the UK Government have no intention to listen to Scotland at all throughout the sole process? I wouldn't be that pessimistic I'm always hopeful that there will be a change in behaviour I think that the present evidence is that they are desperate to avoid the involvement of any of the devolved administrations if they can because it has proved to be challenging and they don't like accountability and they certainly don't respect devolution, that's my view at the moment I mean, I don't say it as frustrating my job is to constantly remind the UK Government of that to make sure that the Scottish position is well understood and to make sure it's understood not just in London but elsewhere and that's what we're trying to do In terms of the options available to you and to the Scottish Government to force the UK Government to listen to, as you mentioned withholding consent for the repeal bill in this Parliament you may not wish to disclose them just now but are there other options you are pursuing? There must be a whole range of issues, perhaps legal issues like civil law being affected would be a breach of the treaty of union so there must be other options hopefully the Scottish Government looking at just now I think that spending too much time in courts is not a good idea for politicians but that having been said of course there are options which we consider and thoughts that we have we're pretty much we are in uncharted waters we have been for months but when on Tuesday we publish a legislative consent memorandum that says that we do not find it possible to bring forward at this stage a legislative consent motion we'll be in unique territory it's not happened before so it will go on we don't want to be there to cure this bill I have made it clear from the beginning to David Davis and to others that we would rather, because this is a technical process and we don't want to have a cliff edge we would rather be involved in finding the right way forward but you can't do that it takes two to tangle in these circumstances but yes, there will be a range of possibilities and at appropriate times we'll discuss them with this committee and with others and we also welcome thinking that takes place because we'd like to get to the stage what the discussion is about is about the substance and we're trying to do that in terms of papers and publishing and we will be publishing more in the autumn and we've published on migration and other subjects and we'll go on doing that we unfortunately have found ourselves grounded upon a withdrawal bill that is the worst bill they could have thought of which they've done without consultation without thought, without consideration and that has to be sorted then we would be voting for a very substantial and permanent diminution of our powers clearly if the UK Government are ignoring the result and the referendum in Scotland, ignoring the devolution settlement ignoring the will of the Parliament not sending ministers to this committee then I do hope that the Scottish Government will explore all options my final question is a brief one in terms of financial settlement that other members have raised already do you envisage a situation where the EU will not accept a situation where the UK don't pay compensation for exiting the European Union? No, no, no. I can't see a resolution coming without money changing hands but in that way. I think the present situation is that both sides would like to find the appropriate formula for that without declaring the figure largely because the figure would be difficult for the current Government to explain to its more passionate supporters I think that's a very, very difficult thing to do when negotiations are in the light of day and there is transparency at least on the European side of negotiations but no, there it will be a financial obligation that is not in doubt the question is the solemn that eventually is reached That would be a double whammy where we are actually losing out European funding and having to use Scottish taxpayers' money to pay the EU for the right to leave European funding The whole process of Brexit makes no sense and it certainly makes no financial sense No, it is utterly pointless and as for £350 million a week coming back to the health service it just expresses the complete bankruptcy of the case that was made Thank you, Stuart McMillan Thank you, convener Good morning, minister Your email from yesterday touched upon the science paper that was published and in that science paper there was no mention at all of Erasmus Plus and some other areas I was fortunate through university but through an Erasmus scheme so I genuinely recognise how important the Erasmus scheme can be for individuals in Scotland and also other aspects of science in terms of the discussions that are taking place but also for the future of individuals in Scotland It is very important We have said from the very beginning that we want to see Erasmus Plus continue One of the founding mothers of Erasmus was when he was doing all of us believe that it is an important programme and so we want to see that happen I have been approached several times by academics who have said that they are just about to start work on on the Erasmus application should they bother I have said yes, I think that it is something that should continue so we will very much support it continuing In all these papers there is an element of unreality there are things missed out and there are assertions made bizarre on programme such as Horizon 2020 There is an air in Brussels that people look at this and think, what a cheek You want to come out, you want to leave but you still want to be part of the decision making process People think that this is just not real You are either in or out It also misunderstands the nature of scientific decision making in terms of these programmes that are governed by the whole day Those decisions are made quite rightly as they are made in this country on the basis of academic excellence and criteria such as that We would have said were we helping to draft this, hang on a minute This is actually an unrealistic expectation let's discuss how it's been but it just appears we would also have said look, think about Erasmus It's like the article 50 letter when it missed out any mention of Gibraltar We would have said at some stage hang on a minute, there's something you've forgotten in here because we're not given the opportunity to we can't, in a sense, save the UK from its own mistakes Certainly, regarding the science paper but also when other papers that have been published and your comments a moment ago, do you get the impression that the UK Government actually fully comprehended what's at stake for business as well as individuals? No, I think there are issues in there I think there's increasing realisation from business, from industry, from academia that the UK Government needs to wake up to what is actually taking place here There's a sort of nostalgia in some of these papers for what they're about to lose and the benefits that they're about to lose and I think people should read these papers and recognise you could have objections to certain aspects of memberships at EU but when the scales are filled the scales come down very heavily on the advantages that exist and those papers show that A final question You mentioned Wales on and some colleagues have raised issues about Wales as well The whole process it's something from the negotiation element from the UK Government to the devolved administrations just seems to be one of complete nutter and transigence and trying to ignore the devolved administrations but the Welsh Government have put forward a proposal to have a UK Council of Ministers Is that something that you would welcome and do you think it's something that the UK Government would actually consider to be a helpful proposal? Yeah, when the paper was published I welcomed it that same day and I think it's a very useful contribution there are a number of constructs you could put together about how this would move forward and how it would work but what the Welsh is saying is something that is very true if you are personally for example an agriculture official is by co-decision making so if you are going to replicate the European structure and you feel you need a UK framework we would accept that there should be some UK frameworks then you should put that together on the basis of co-decision making and what the Welsh have planned out there is a type of co-decision making and how you would reach decisions when there was disputes or whatever that can be worked out I mean the Welsh proposals are good proposals but they are one set of proposals and any Government would have to accept co-decision making in these areas they show no signs of doing so I was interested yesterday Professor Tomkins asked a question in the finance and constitution questions about what preparations we were making for I think I don't know what he called it power sharing but he called it some sort of sharing of responsibility within the UK no such proposals have been made by the UK they have never tabled or even mentioned such proposals but those frameworks were to be based upon equality of decision making equals sitting round a table then I think we could probably move moderately quickly to establishing areas in which they would be required that's not what's being discussed what's being discussed is an agricultural policy run out of London your example earlier of Liam Fox not wanting to have any input from the devolved administrations is a very good example of that thank you very much Ross Greer Minister, you mentioned the Scottish Government's intention to publish more of your own position papers I was wondering if you could flash out a little bit the timescale in which you plan on doing that we would hope to start publishing from roughly the end of September beginning of October obviously we wanted to see other material appearing we've got our own thoughts and ideas a lot of work going on you remember the expectation was that in October we would move into the second stage in Brussels and that seemed an appropriate time for us to start publishing on some of the detail accepting that the exit issues were issues while we had views we weren't going to necessarily intervene with those views unless we thought it was necessary and migration and European citizenship was the most necessary of those so we would anticipate publishing in the autumn what kind of consultation are you putting I imagine you'll be consulting closely with joint proposals even what level of consultation do you plan with the UK Government in advance of publishing your own papers recognising the difficulties you're having with the reverse of this situation what was made a practice to say to the UK Government would they like to think about the issues that we're thinking about would they like to have input but some of them it will be appropriate for and some it won't be some will be a reaction to the paper that they have published not formal negotiating documents these are contributions to the process what we're talking about in terms of the UK Government is a publication of formal negotiating documents on behalf of the UK which deal with areas of devolved competence and the devolved administrations have had no input so there is a substantial difference in the publication process but we're always wanting to consult and to discuss it's also the structures to do so we've been denied the structures to contribute as well as the opportunity to contribute I'm struggling to imagine what the end game is here essentially you've mentioned already yourself that we're in totally uncharted territory once we get into the potential for legislative consent motion which is projected could you envisage the negotiations getting to a point where the UK Government has potentially reached some kind of agreement with the European side which does in the view of the Scottish Government violate the terms of the devolved settlement which does interfere in devolved areas and as such you would have to recommend to the European Parliament or at least to Scotland's MEPs that they vote against such a deal feasible I've learnt in the last year in this job not to construct too many scenarios because you could construct many many different scenarios what you've outlined is potentially possible I'd like to avoid it if possible but it is a potential outcome I mean you know I still think there's a potential outcome of no deal I think the moment of maximum difficulty in that maximum pressure in that would come if it was clear that there was a strong majority developing for continued membership of the single market I think the extremists who weren't out at any price would perhaps try and push the no deal scenario remember the no deal scenario was made an assumption that the EU would throw its hands up at the same time as the UK that's not necessarily the case the UK could walk out of talks but the EU might considerably say they have another year and a half to run so nothing is going to change and we're going to just sit here if you want us, we're at the table that would be a period of complete hiatus so there's lots and lots of scenarios I'm keen on trying to get us into a sensible space in which dialogue is taking place and there is mutual respect and I'll go on trying to do that I wish you luck with that I'm not quite sure how you're going to get on Thank you very much, Mary Evans It was just really to go back we've talked a bit already about the leaked paper regarding the status of EU nationals and you talked earlier as well about the potential for a differentiated system for Scotland I was just wondering if there had been any discussions at all with the UK Government regarding that in terms of signing that out and how that might be received Differentiation is within Scotland's place in Europe the paper that we published last December Differentiation was a topic that I presented that paper to the January JMC so Differentiation was discussed on that occasion The Welsh paper Differentiation was published in January and was presented to the February JMC Differentiation was a topic I raised within and others raised within most of the discussions in the JMC Remember that there was a very strong statement from the Prime Minister a repeated statement from the Prime Minister that we entered as one UK and we'd leave as one UK which of course was wrong because what it didn't acknowledge was that there had been devolution in that time and therefore it was a very different UK that was operating I have raised a topic of differentiated migration with David Davis on a number of occasions and with the Secretary of State for Scotland We continue to believe that Differentiation would be a reasonable option but I can't say I've ever had any encouragement to the UK Government that they think it's a goer Of course and the concept of Northern Ireland with Differentiation is at the basis of the discussion which as I've said earlier it looks as if the EU paper today will present a view that says Differentiation should be the basis of the agreement Thank you for that The one thing that I find particularly concerning in that document that was leaked as well is the fact that they state the Government will take a view on the economic and social needs of the country rather than leaving this decision entirely to those wishing to come here and employers and I think that obviously they would have a stake in that because I do think that given the way the Home Office has handled various things recently we had those letters that were sent out to certain EU nationals too apparently sent by mistake I mean what faith can people from the EU living in this country have in that system and in the Government when they're treated especially if we reach a stage where everybody has to apply for the settled status whatever that means in a couple of years time rather than having the automatic right to be here I mean how will they handle that surge of applications that they're going to get Freedom of movement is a sensible solution for many many reasons it is also the least bureaucratic solution I mean what you saw in that paper yesterday was a very bureaucratic construct and many small employers particularly have never had to deal with migration as that issue if they employ European citizens it's an easy process to do those who have any memory of the managed system have a gloomy view of how it could be reintroduced so Freedom of movement is the best solution not the best solution for us very often this discussion is entirely about people who come here there are lots and lots and lots of Scots who go elsewhere and who live elsewhere and whose interests are best served by Freedom of movement continuing Scotland also has a distinctive set of labour requirements indeed those original labour requirements and therefore we would be and are better placed to say what is necessary in Scotland so for all those reasons the minimalist position would be a Scottish system of migration managed within Scotland and we've made that point as I indicated earlier supported by the Institute of Directors, the STUC would not be possible the Northern Irish paper from the UK Government anticipates a system of migration managed through employment again something we've argued for a long time operates elsewhere in the world so it's all doable and possible in Scottish terms if the UK don't want to do it but the trouble is that you have a Prime Minister who is a hardliner on this and doesn't want to compromise on it and who sees a one UK solution and in all those circumstances the Scottish economy and the richness of Scottish culture and that diversity the losers are the individuals who are very worried I mean I spend some of my time talking to EU nationals I was in the Polish club in Glasgow last week for example talking to members of the club there is real concern from people real concern and the lack of knowledge and they go to the UK Government website and they can't work out what's going to happen some of them applied for settled status and now discovered that they won't need it because there will be some other form and it's very disturbing what is taking place and it needs to be resolved quickly and it's still not resolved thank you morning Mr Russell you question the experience within the Government of devolving powers and the UK Government as we know has a proven track record of devolving powers regions and I just wondered if you could explain that a little bit further because surely we can use this to our advantage the experience that we do have of devolving powers from one Government to another I'm sorry I don't get your point well you said earlier you made a comment that you were worried that the UK Government doesn't have experience you mentioned Amy and Green and I just wondered surely that could be used to an advantage to the experience and the proven track record that the UK Government does have of devolving powers to cities, nations and regions what I was reflecting upon was after 18 years of devolution the present members of the UK Government will have limited experience of devolution because they haven't had to deal with it in their departments I'm long enough in the tooth to have had the experience before devolution I think there were many UK ministers and others who experienced political life before devolution went through it so what had happened saw the extension of the Scottish Government's powers and the Welsh Government's powers and there was a grain with which they went and they understood it I think the minimum difficulty I could point to is the fact that they have not had that experience and therefore they don't quite know how the system works I mean I was struck and continue to be struck by the fact that the EU withdrawal bill does not seem to understand the basic principle of devolution which is those powers that are not reserved are devolved and if you look at that that's actually been very interesting in a dynamic of devolution because devolution took place in the run up to 2000 an example would be climate change climate change was not a huge issue in the 1990s so it wasn't included in the list of reserved powers I suspect that devolution had taken place but it wasn't and that's allowed the Scottish Parliament to take a very distinctive view of its responsibilities and to operate in a particular way now that's the richness of the pattern I don't think there's much understanding of that politicians as creatures have short memories and they live for the day and for the next day and what's coming next a general observation is not a criticism and I think we see a lack of knowledge of devolution and a lack of knowledge of what devolution was in the current UK Government now I know Andrew Dunlop for example was very vociferous about a criticism I made about the intention of the UK Government to undermine devolution and said there were many people like him and others who were strong devolutionists within the government I don't deny that but I think the general drift that there's no such thing as continual progress I think you've seen in the last 20 years a growing transfer of powers to the devolved administrations I think the EU withdrawal bill is a very substantial indication that there are people wittingly or unwittingly who are trying to put that into reverse because the effect of that bill will be to undermine devolution and diminish the powers of the devolved administrations so I would hope that if people were committed to devolution within the current government they would recognise that and work with the devolved administrations to ensure that that does not happen that's presently not happening I just want to make a comment that I do believe that there is a commitment to deliver to devolved administrations however it seems that this stumbling block is an administrative block within the terms of the meetings that you are asking for and I can't see any other reason that there has been a stumbling block other than just a practicality of meetings I've heard this said and let me make it clear what I think the situation is I am not hung up on the present structure of the JMCEN we did agree the terms of reference together and I think that is important but I've said and indeed Mark Drakeford and I wrote to David Davis just after the election with a very comprehensive proposal that said we accept the JMCEN as it's presently constituted hasn't worked there are too many people at it you know there's at least 8 to 10 UK Government ministers at it the agendas are not worked out well enough in advance there's not enough involvement from officials from all the administrations there's no action focus but here's the opportunity because we're going into a monthly cycle of negotiations let's plug it in to a regular date within that cycle let's reduce the membership of it let's focus it on the agenda items the negotiations and let's do this in a new way things happen now you can't have there's an attempt being made by the UK Government to resolve the issue of multilateral involvement by bilateral discussion that can't be done there needs to be a multilateral discussion of how this changes meanwhile the UK Government then publishes a withdrawal bill that undermines devolution itself you can't then be surprised that the devolved administrations say hang on a minute what's going on here but I would go tomorrow as I'm sure Mark Drakeford would as well I can't speak for him but I know him well enough to think he would we would go tomorrow to sit down with the UK Government if the agenda item said JMCEN monthly meetings within the cycle and let's work out how we do those that has not happened we still don't have a meeting plan there's a discussion of the possibility at the beginning of 16 October but nothing has been set as yet thank you very much Mr Russell I think that the experiences that you've outlined that the Governments had in engaging with the UK Government are reflected by this committee Mr Lockhead said earlier that Mr Davis had at an early stage indicated that he would come to see this committee and has now reneged on that promise although he managed to fit in the Edinburgh festival but didn't manage to fit in this committee Mr Russell Since then we have seen the Secretary of State for Scotland who had assured us that he would keep this committee updated we have now found that the Secretary of State for Scotland was not able to come and see us he's indicated that he can't come and see us before November you said that you had met the Secretary of State for Scotland yourself and I wondered if you could give some indication as to whether you think that he's closely involved in those negotiations what his role is is he in a position to be able to bat for Scotland indeed has he batted for Scotland I think that I would want him to answer that question I don't think that I should do his performance appraisal at this committee I am sceptical about the issue of the role and I might be sceptical about some of the performance but I think that it's fair to allow him to speak for himself our job is to make sure that we recognise what's happening and we get ourselves heard and we make our decisions according to our powers and presently we're having difficulty because of the actions of the UK Government of which he is a member so my view of him would be that I would like to see him expressing his own dissatisfaction with the process rather than criticising others as for David Davis it would be up to him to appear I would just point out that I myself did manage to appear in the Alex Salmond show and appear before this committee and I'm sure that he would quite like to do it Thank you very much to Ellen Lever and I shall now move the meeting into private session