 I welcome members to the 14th meeting in 2018 of the Delegated Powers and Law Reform Committee. I've had one apology today, that's from Alison Harris. First of all, I welcome the minister to the meeting. Before the evidence session begins, there's one piece of business that the committee must decide first, and that's the decision on taking business in private. It's proposed that the committee takes item 5 in private, and this item is consideration of the evidence heard in relation to the European withdrawal bill. Does the committee agree to take this item in private? A gender item 2 is the prescription Scotland bill at stage 1 evidence. It's the last of our planned evidence sessions on the bill. We've got before us today the minister-in-charge of the bill, Annabelle Ewing, welcome. She's the minister for community safety and legal affairs, and she's accompanied by three Scottish Government officials, Jill Clark, head of the civil law reform unit, Michael Paparakis, civil law policy manager, and Neil Mogey, who's been here before. Solicitor, constitution and civil law, welcome to all of you. I'll open the session and we'll just start off with a general question. I suppose it's directed at yourself, minister. If you could just tell us why the Government decided to implement the Scottish Law Commission's report on prescription and what policy benefits do you think it will bring? Well, good morning. Thank you, convener. Can I just maybe start by referring members to my entry in the register of interests room? They will find that I am a member of the Lost Society of Scotland, that I do hold a current practising certificate, albeit that I'm not currently practising. The policy objectives behind the prescription bill are to ensure that there is clarity and certainty and fairness in the approach to prescription such that, in turn, the issues of legal certainty are very much brought to the fore. Of course, all these things are balancing acts but it is hoped that the bill has secured through the very hard work of the Scottish Law Commission working in tandem with many stakeholders during its consultation process. It is hoped that people will consider that the bill has struck that balance as between the respective interests of the creditor and the debtor. Meanwhile, recognising that there is an overall objective to be secured, providing legal certainty, which is a benefit to wider society. That, in a nutshell, is the objective of the bill. As it stands currently, what do you think are the gaps in that that need to be addressed? Well, the Scottish Law Commission made various comments in that regard and what they have made clear in terms of their work on this is that they are not looking at the law of prescription as a whole, they are looking at the law of negative prescription, and they are doing that because issues had arisen, which in their view needed to be addressed sooner rather than later, including in particular the issue to do with discoverability and latent defects. I am sure that we will probably get on to that, so I won't belabor the point at this stage. However, the issues had arisen as a result of a Supreme Court ruling that created some confusion as to what people understood to be the existing position under the Scottish Law. Anticipating other potential problems, the Scottish Law Commission felt that it would be very helpful for its contribution to keeping the Scottish Law under review that those issues were addressed in legislation. We have a question from Stuart McMillan. Good morning, minister. Minister, we know that the Scottish Government carried out a limited consultation on the proposals on the bill. In a previous evidence session, Joe Clark had mentioned and gave the list of organisations that were consulted. Can you explain the decision, given that the Scottish Government consultation might have attracted interest from other organisations and other stakeholders, in particular from welfare rights organisations? With the approach that has taken us far to the Scottish Law Commission bills that come to the DPLRC and are therefore regarded as being not particularly controversial, and that is the remit of them falling within your jurisdiction, convener, we adopted the procedure that has already been adopted. I think that this is the fourth such bill, and I am sure that Stuart McMillan, who sat on the committee, will be able to give me chapter and verse on all the other three, but one of which involved myself under my current ministerial portfolio duties that was a third party rights bill, a succession bill and the current writing counterpart bill. The procedure has been the same with regard to three of those four bills, in that it is the SLC which produces a discussion paper, it then takes on board the views expressed, it then proceeds to consultation on a draft bill and then the Scottish Government then will proceed with a targeted consultation, which is in fact the process that happened with regard to the prescription bill. The one exception was the succession legislation and that was because there had been quite a gap as between the SLC's processes and when we came to be looking at legislation in this Parliament, so it was felt that we would require to proceed with a fuller consultation at that time, but this is the process that has been followed with these types of bills and this is the same procedure that we adopted with regard to this bill. On the organisations that the Government had to consult with, it seemed to be quite focused when we put out our call for evidence. We've had other organisations and stakeholders contact us and certainly the evidence session that we had last week particularly from Mike Daley at the Government Law Centre was extremely interesting and opened up some other avenues for discussion. Like all that, the Government Law Centre, Welfare rights organisations, Citizens Advice Scotland, were they considered before the Scottish Government undertook its consultation or I'm just keen to try and understand the rationale for maybe not asking them before? I would have to see the list of all the bodies that we, as Scottish Government, wrote to in terms of the consultation processes that the SLC conducted. Again, I would need to confer back to the list of the initial discussion paper and then the draft consultation. Obviously, anybody can respond to a consultation and it's up to them to do so or not as they wish. I have read all the evidence sessions and I guess we'll get on to the substance of that shortly as well. In terms of the consultation, in terms of the number of people that have been engaged, I think there's been quite a few. Obviously, it is open at all times for Citizens Advice and others to make their views known. I understand as regards to Citizens Advice that they may have indicated a while back that they weren't intending to comment on everything, which I think had been the previous position but had to focus on particular issues of concern to them. In the end of the day, it's up if individuals or organisations wish to respond to a consultation. Obviously, their views are most welcome and it's up to them. We can't force people to respond. It's up to them to do so or not. OK. Thank you. I'm relatively new to the committee so I'm not too afraid with the background of consultations that take place in that regard. I must admit that I'm quite concerned about consultations that just focus on a certain group or a certain sector. I don't have the list in front of me, but it appears that the consultation is targeted very much at the business community and professional bodies. Given that this is dealing with debts for some people, it's dealing with benefits. I'm quite surprised that we're not bringing in bodies that would advocate on behalf of people and work on behalf of people who are in that position. Therefore, I'm concerned that the evidence has been taken too narrow because when we had the representatives here last week, they put a different perspective on some of the issues. The consultation approach that has been adoptive with regard to prescription bill has been the same as the other three of the other four DPLRC SLC bills. That's the first point to reiterate. In terms of acting for people with debt, it's Listers Act for both parties. That was a point that was made in an evidence session with members of the legal profession. Maybe it was yourself, Mr Finlay, who asked directly, do you represent both sides? They said, yes, we do. That's important to bear in mind as well. Obviously, we're keen for as wide a consultation as possible. Individual stakeholders are absolutely free to make their views known. I'm pleased that you had the evidence session that you did last week. We can't force people to submit. I think that's the position as it is. To characterise all the different bodies that have been involved since the start of the SLC's work, for example, it includes local authorities. It's perhaps unfair just to characterise the engagement as just with business and people not representing debtors. Clearly, you've already heard evidence to the effect that people you have had before you in earlier evidence sessions represent different parties that you've all had academics. It's fair to say that there has been a wide reach. Submit to your consultation, you've got to know that it exists. Just a moment. Of course, solicitors represent both sides, but the vast majority of people who are in, who are subject to see benefits over payments or council tax debts, they'll be represented usually to a welfare rights organisation rather than a solicitor. One would have to go and get the evidence to quantify that in broad brush. That may well be the case. As to the percentages involved again, one would need to get the statistics to indicate what that was. It's very clear that the process of engagement has been wide. As I say, local authorities have been involved and made submissions to the SLC. I would need to go back and check every single organisation that was involved because I don't have that information at the top of my head. I'd be happy to supply that to the committee. Obviously, the committee's role itself in calling for evidence as well has an important role to play in terms of scrutiny. I think that taking all those approaches and looking at them overall, it's fair to say that one will capture all different views as appropriate and that's quite right and proper. We won't labour that point any longer. It's a risen because we all found last week's evidence session quite very useful. I move on to question about section 3 of the bill, which extends the five-year prescription to all statutory obligations to pay money. The list of exceptions to the general rule lengthened as a result of the consultation process. We acknowledge the SLC's point that the policy choice, and that's between five years or 20 years, is for several reasons, not as stark as it first seems, but various stakeholders have suggested to us that the exceptions are essentially political choices for the Government and Parliament. Can you explain to us the policy rationale for each of the main exceptions listed in section 3? To say that the list lengthened, this section simply restates the status quo with regard to these matters, with regard to taxes, with regard to social security benefits, with regard to maintenance payments. It restates the status quo of the 20-year prescription, Scotland's negative prescription. I don't think that it's quite right to characterise it as extending it because that may be deemed to be interpreted in a slightly different way. As regards HMRC and, obviously, now Revenue Scotland, it had, I understand, put forward to the SLC clear policy objectives, which in their view justified the prescriptive period being negative 20 years, and the SLC accepted their position, and that is one of the recommendations, and we have accepted all of the recommendations put forward by the SLC substantive recommendations in their draft bill. This is to do with an opportunity to collect and so forth. The reserve social security benefits, again that is restating the present position. It is a 20-year negative prescription in Scotland, and in fact it is mirroring what happens in the rest of the UK anyway, because although on the face of it there is a six-year short negative prescription in England and Wales, as far as the DWP is concerned, I think they have made that clear to you in their recent submission of 23 April, that actually they are in a position to pursue well beyond the six-year period. Again, they argue, their argument is public policy objectives, but also in terms of what they say, and I think they reiterated that in their recent submission, they say that in the way in which they seek to recover over payments, taking into account that they can deduct from benefits, taking into account that they say that they have a particular approach looking at hardship so that they may extend the period of repayment over a considerable period of time to facilitate individual circumstances. They say that they may have to queue repayment arrangements because a number of benefits may be involved, and they say that they therefore feel as a matter of public policy that public policy is best served by having the status quo maintained. Maintenance agreements, I think, to ensure that the money's due from the person required to pay the maintenance obligation is in fact secured and that people are made to take responsibility for their children financially. Those are the first three. The council tax non-dom rates, again, were representations made by some local authorities to the SLC at the time of its discussion consultation paper published in February 2016. They argued that, in effect, the public policy considerations governing HMRC and Revenue Scotland were essentially the same for them. Again, the status quo that they asked to be maintained has been the position and vis-a-vis what is happening down south again. I understand that, although the six-year short-negative prescription is apparently in operation nonetheless, if a liability order is secured within that period of time, that can be enforced by local authorities elsewhere in the UK without a limit of time. I think that what they are arguing is that the status quo and the public policy considerations for it and that it ensures from their perspective as far as the HMRC and the DWP is concerned that the arrangements are broadly in line with what happens elsewhere in the UK. You are presumably agreeing with the DWP? With regard to the DWP, what has to be more in mind is that sadly, in my view, not the view of many members on this table except Mr Arthur and Mr McMillan, we do not believe that the UK Government should have jurisdiction over any benefits. However, sadly, that is still the case. About 85 per cent of spend... We are not really here to get into that. No, I know, but I am just trying to explain if I may. You asked the question, do I agree, so I am just trying to give you an answer. Some 85 per cent of spend is still decided further to rule set for the future. You have the reserved benefits and then you have the policy, which is also reserved about how you operate the benefit system. That, too, is reserved. It is important to note that they have this different system in place in terms of what we propose to do under our new social security agency, which was passed at stage 3 last week. We will have a different approach, but as far as their approach is concerned, what they argue and what they said to you in their letter of 23 April is that they have this system of organising how the repayment is to take effect, on which they can seek repayment is different from what we are proposing here in Scotland. If I could quote briefly one troubling, very troubling small section of their letter, and it was paragraph 13, if I just quote that from the DWP, it could also lead to greater pressure, if you bring the prescription period forward to five years. It could also lead to greater pressure to secure full repayments of debt within a five-year period, plus, under mine or at least blunt, the long-established hardship procedures that the department has to balance recovery against welfare needs. That would place debtors in a worse position than they are now, if there is an expectation to pay debts off quicker and hence at an increased rate of payment. The Scottish Government sadly does not have any jurisdiction over the policy decisions concerning the operation of reserve benefits. That is a matter for Westminster. Taking that into account, what I would say seems to be a clear shot across the bows here about looking at this issue, I do not want to put these vulnerable people in a worse position as far as reserve benefits are concerned, convener. I think that that would be extremely unhelpful. In that context, I have to look at what the DWP is saying, because they are the ones that are in control of the matter. Mike Daley, who was in front of us last week, has written a blog on this. I will just read out a paragraph of that and see if you agree with it. In relation to social security benefits, we believe that there is no justification for not having all devolved and reserved benefits subject to the five-year prescription period. Is it inequitable that people have a month to appeal a benefit decision while the DWP would have 20 years to pursue reserve benefit debts? What would your response be to that? Basically, what I have said before, we do not control the way in which the reserve benefits are operated, sadly. That is a matter for the DWP. I am sure that many members around the table have individual experiences where that has not been a very positive experience for the constituent, but that is nonetheless a situation that we are presented with. As regards what we hope to do here in Scotland, we hope to do things very differently because we want our social security system to be based on the key principles of dignity, fairness and respect. In that regard, the grounds for recovery of overpayment in Scotland will be different, so it will not include where there has been simply an error on the part of the agency, rather there would have to be some fault on the part of the recipient where you should be aware that there was a mistake. If you suddenly get a vast sum of money into your account, the likelihood is that it is not your lucky day that there is a mistake made. That is going to be a key difference in terms of the approach to recovery taken by the new agency, social security agency in Scotland. That is not the position of the DWP. Again, I am sure that many members around this table will have had cases where the DWP is coming back to the recipient for quite sizable sums of money where they have made the mistake and we are going to be adopting a different approach. Of course, we have jurisdiction over the matter including all aspects of it so that we can do something different. Finally, I would say with regard to the issue of prescription itself. If it is the case that the Parliament would be seeking to amend the prescription powers with regard to obligations to repay reserved benefit over payments that would seem to raise issues of legislative competence that the Scottish Government would have to consider very carefully. I have asked a few questions there so I will allow Neil Findlay to come in and ask a question about council tax. In relation to council tax and business rates, there appears to be some uncertainty over how councils deal with that. Using five years or 20 md, is there some uncertainty and will the bill resolve those uncertainties? What I understand from the process thus far is that certain councils, some of the larger councils including Glasgow and Fife, Southland made representations to the February 16 stage of the proceedings on the part of the SLC and indicated that they wished to see retention of the status quo which is 20-year negative prescription and they indicated the public policy considerations they felt were applicable which basically was reiterating why the HMRC and Revenue Scotland feel that there is a public policy consideration there and those were the representations made. Now, obviously I note that technical questions have arisen in the committee as to exactly what the current practice is in every single 32 local authorities in Scotland and certainly we will be seeking further information from COSLA but of course it's entirely appropriate for the committee itself to write to COSLA to seek clarification of these points. So I'm not quite sure do you think there's uncertainty or not? What I'm saying is that having listened to read the evidence of the committee from my understanding of the submissions made to the SLC local authorities are seeking. Now, I note that you Mr Finlay have suggested that this is not the position throughout every single of the 32 local authorities in Scotland so we will be seeking clarification but I would imagine on that and the general public policy considerations that have been raised that the committee may wish to seek clarification from COSLA but that's up to the committee. The law society and others say that in relation to council tax that the exception for council tax is unfair. It might discourage councils from collecting debts promptly but also debts should not be pursued over decades of time and we know that the shorter period in England exists so it really is a political choice not to extend that so could you maybe explain the reason behind that? Yes, just pick up a few points. First of all, this is the status quo so this has been the position for some time now that it's been a 20 year negative prescription vis-a-vis council tax and non-dom rates. Secondly, it's not quite correct to say that the positioning in England is a flat six year and that's it, that's not the case. They can proceed with liability orders which then can be enforced without a limit of time and it's important to note. Do you know how often those are? Well, I don't have chapter and verse about English court proceedings in front of me, I guess we can seek to try and obtain information but that is the fact that liability orders can be pursued and in terms of the political position this is a request that came from local authorities and indeed some of the largest local authorities in Scotland including Glasgow and Fife this was their request that the SLC then reflected upon and made the recommendation as appears currently in the the legislation, the draft bill. So that is where we are today and if it is the case Mr Finlay that you're suggesting that local authorities don't want this to happen then again the need to seek clarification from COSLA becomes more imminent. You're expressing the view of local authorities there's many things local authorities want that the government ignores they want more money to run services that are currently being cut so you're saying that whatever local authorities ask the Scottish Government they will deliver for self-evidently that's not the case but what I'm asking about is the issue around the fact that they're going to have a six year period in England and Wales but I've explained that the six year period is a bit of a misnomer because the six year period a liability order liability order can be secured and then there's actually there's no limitation on time so I think it is important Are you saying that there's going to be no difference between Scotland and the rest of the UK in England and Wales? I'm not saying that the position is analogous to and to suggest that it's simply six years and then it all stops it's not really quite correct convener as to what is happening as a matter of practising in England and Wales and going back on to the point of local authorities the SLC as I said proceeded with a consultation local authorities responded including some of the largest local authorities in Scotland their view was and they set it out that for the public policy considerations of HMRC in New Scotland that they felt that they required the same approach in order to ensure that they had the opportunity to maintain good order with regard to the obligation so to them and if I could say that obviously local authorities very important state code in Scotland along with many others and we listened to all views in terms of budget of course we had proceeded with a fair settlement of £1 billion in the budget that Mr Finlay didn't support which represented an increase in income and capital notwithstanding the cuts to the Scottish Government budget from Westminster so I think we're probably digressing to another area convener but that is the position and I think it would be very important to have further engagement with COSLA just to tease out some of these issues Will you get into the budget Mr Finlay No, I'm sorry I think we have received no evidence that I am aware of from anyone in relation to the situation in England other than to say England and Wales other than to say that they have a six-year period and what has been proposed would be a worse situation than we do have in England and Wales that's the only evidence that I have heard from people who have come before the committee if the minister is using the situation in England and Wales to rebut that then we need evidence from the Government that says in England this is the situation this is how debt is recovered after the six-year period this is how many cases are coming forward and by the way what we are proposing is a better system but we have had no evidence of that if we have the evidence and consider it fairly because what we want is the fairest possible system what appears to be being proposed is not the fairest system Minister, if you could perhaps write to us after the meeting we're trying to obtain as much information as we can Mr Finlay's right, the first we've heard of it are the only evidence we've had is that there's a six-year limit in England and Wales so this business about liability is new to us we'll try to obtain as much information as we can to write to the committee in relation to more payments and penalties of reserve social security benefits can you confirm that the exception is within devolved competency of the Scottish Parliament when you say the exception what specifically the recovery in relation to the prescription period relating to overpayments of reserve benefits I had just said a moment ago but I'll reiterate that as regards the issue of prescriptive periods for obligations concerning overpayment of reserve benefits if any amendment were sought to be made to the status quo that would raise issues of legislative competence so I'll try to look at very carefully because the advice that we've got is within devolved competence well as I say but have you not looked at that already? said well with respect the bill is presented as it is and for the reasons stated in particular the practical issue of the DWP clearly indicating that if it doesn't have this approach it may have a different approach but it might not be as beneficial to individual applicants and obviously one has to weigh up all issues including practical impacts of any course of action but as I say the issue that the member raised as I had already said a moment ago raises issues of legislative competence which would require to be considered very carefully by the Scottish Government I wonder if I could put that to Mr Wojie since he's a solicitor have you made that consideration that the department weighed up potential differences that could emerge in terms of the competence? I would just reiterate what the minister said have you allowed to say yes or no? I think that amending the current exception does raise issues of legislative competence which we'd need to consider carefully if that was to happen okay several stakeholders have suggested that it would be fairer for debtors and we would encourage the DWP to be more prompt in its debt recovery if the exception for reserved benefits and tax credits were removed, what do you say to that? What I would say is that that is perhaps unknowable, my experience of the DWP I have to say is nothing happens terribly quickly but having said that what I can go on is what they have said publicly in their memo to the committee of 23 April where and I read it out where they seem to be saying that if you were to bring forward because they have different technical methods of recovery as well and different ways of doing that so if you were to bring all this forward to a five year period that it could be therefore that some of the ways in which they proceed that actually mitigating effect for the recipient may no longer be available to them and that this therefore could end up having a detrimental effect on the recipient and I'm sure none of us would want to do something that puts these vulnerable people into a worse position than many of them currently are. We'll move on to another area of questioning and that's on forfeiture Stuart McMillan Minister an earlier version of the proposals had a specific exception to five year prescription for forfeiture mirroring the legislation that applies to England and Wales can you explain why that provision was removed please? My understanding is that as a matter of technicality the issues with regard to forfeiture once you establish the obligation which is then subject to the normal prescriptive period the forfeiture allows you to enforce that in certain ways so customs and exercise use this for example apparently you can see shit and so forth so this is an ancillary element so basically if you have as long as the obligation the overarching obligation in terms of whatever the debt is due then you will have the ancillary powers of forfeiture so it actually is a matter of technical drafting it was considered unnecessary to repeat the exception it was there if the obligation is persists then the ancillary powers of enforcement in terms of forfeiture will also persist so it wasn't deemed necessary to make that point again because that was deemed to be axiomatic from the the obligation itself which was subject to the normal prescriptive prescriptive rules I'm sure I'm not explaining this in the best way I can I'm a bit legalese here but that is basically the feeling that it was actually a matter of technical drafting there was no attempt to to put it this way there was no attempt to change the outcome it was just a matter of technical drafting that it was deemed from a legal perspective it was not actually to be necessary but you mentioned the ship there also that covers an aspect of goods but there was certainly a committee we were in previous discussions were considering the issue of unpaid taxes and we had that concern that the general exception relating to taxes wouldn't cover all situations where forfeiture is actually used in practice and accordingly removing the specific exception might take away the opportunity to actually clarify how prescription applies to forfeiture more generally okay well what I can say to the member is I understand that the feeling is that actually everything that has needed to be captured has been captured but what I will do is undertake to go away and have a further reflection on that point convener and report back okay bill Bowman morning some questions on discoverability section 5 of the bill sets out the new test associated with the start date for five-year prescription in relation to the obligation to pay damages the third part of the new test requires the pursuer to know the identity of the defender or defenders before the five-year prescription starts to run can you outline how this might work where there is joint and several liability and we are particularly interested in the situation where other potential defenders were not involved in the neglect but were only linked to the case financially okay starting with the last point in joint and several liability I have seen certain references to joint and several liability as regards tenants for example with council tax and now in this instance joint and several liability is a general principle of scott's law and this bill sits alongside scott's law so this bill is not changing the rules in joint and several liability this bill is looking at the narrow focus on rules of negative prescription in scotland so this bill operates in the context of what already is the position for joint and several liability in scotland and therefore one would look at the facts and circumstances of each case to determine as regards joint and several liability what the legal position would be this bill rather looks at the position from the point of view of negative prescription to determine when the start date runs what date the start date runs from the relevant prescriptive period comes to an end and so forth so I'm afraid that this bill is not attempting to deal with all aspects of scott's law including joint and several liability it is just dealing with negative prescription and one would need to look in the instance that Mr Bowman gave to the facts and circumstances of the relevant case to determine what the joint and several liability in that instance case actually was so where the period starts to run is determined on what then where there are unknown well there may be unknown but if you can identify one I mean if your joint and several liability then you are liable for the actings of the other and so if you can identify a debtor then you will be able to well in that instance that your prescriptive period will start to run assuming you've lost and that has been as a result of an act or a mission of that person and that person be it only one of the parties has been identified in circumstances where you then are able to identify in your example other parties who were involved in the actual mission there can be different start dates from which the prescriptive period starts to run I think that is clear in the bill so if you discover someone else who's joint and several liability well not under necessarily if you discover somebody else there's not a joint and several liability situation because that is subject to the rules and joint and several liability but if you know if there are various actors involved various players involved in the loss through their acts or emissions then there can be different start dates sorry I didn't mean to conflate the two but there can be different start dates then for the run-off of the prescriptive period the joint and several liability rules under Scots law and you would need to look at those rules to determine in that instant case that you have raised what the position would be but in terms of the normal approach of joint and several liability is that if you agree to be joint and several libo then or you are deemed to be joint and several libo then you are joint and several libo and that's it so that's always got legal advice about what obligations you take on in life okay so I'm not disadvantaged by this change here if there's a joint and several liability and then I have to go on to pursue the joint and several liability individuals to get payment so who's joint and several liability so you're saying to I'm just getting a bit confused with you I thought I had got your example but you've now veered off to from which perspective so the prescriptive period will start to run for the benefit of the creditor when three things in terms of the bill anyway as proposed three things are known one is that there has been loss injury or damage two that has resulted from an act or a mission of a particular person or persons and three you are able to identify who that person or persons people are okay so I'm making a claim and against the person that I think has been the person who's done the damage shall we say for some reason that person doesn't pay and then I want to go against the joint and several partners that I then pursue is there anything in the new law that brings that five year prescription to prevent me going against the joint and several individuals because I haven't gone after them within the five years right okay I see where you're guessing from well I guess in these hypotheticals why wouldn't you necessarily know the identity but taking examples to extremes where for whatever reason you may not know the identity of the other parties I mean you could I guess adopt our kind of belt and braces approach but the point of this bill is to hope to provide as much legal certainty as it's possible you can't legislate for every single individual case given that you're thinking about it is there some further clarity well I'm certainly happy to again look into that specific example that you just raised there in terms of when then so if you identify one say there's two people you identify two debtors you identify one of them and for whatever reason you decide it's certainly not worth proceeding with legal action against them so you're then sort of trying to find out is there somebody else and you feel that you're running up against the end of the prescriptive period so in the extreme case where the joint central liability would be such that you couldn't possibly identify almost around the same time the second party which I think would take you to a certainly less common circumstance but we shall look into that Joe we shall, okay, thank you Thank you The committee heard some oral evidence to the effect that the third part of the new test in section 5 might increase the complexity of law in some situations including whether there are multiple potential defenders as a result of complex, contractual or corporate structures do you accept that this criticism of the new test and is the risk offset by other benefits to it? Well, I think if we go back to first principles obviously the reasoning behind this reformulation of the discoverability test is to seek to facilitate fairness for the, in this case, the creditor and that is balanced with other aspects of the bill which is looking at the position from the debtor and taking into account the wider public benefit of greater legal certainty so I think in the incident that you've just outlined Mr Bowman that in those circumstances you could sue the different providers at different times so there shouldn't really be any particular problem at the present time what you would do to preserve your prescription period is you would sort of just put out a number of protective routes because you're not entirely sure who you should be suing to break the prescriptive period running and of course that is not really the best use of resources for anybody for either side of that legal dispute or indeed for the courts and society at large it's not a very sensible way there must be better ways to do this so I think the feeling is on balance that the option that the SLC because they did put forward a number of options in the consultation that the option that has been decided upon by the SLC and represented in this bill is a reasonable one and of course there is a counter veiling issue of the need to pursue reasonable diligence and a kind of already a balance written into the new rules and I think that it seems to me reading the evidence that the balance of the evidence suggests that this is a solution that is certainly an improvement on the current position and of course that was as I say put into doubt as a result of the Supreme Court case in the Morrison case in 2014 because people thought they knew what the rules were and found out that actually the rules introduced appropriate fairness into the process and I think it is balanced by the reasonable diligence obligation I've got a question on the start date of 20-year prescription which is in section 8 of the bill so 20-year prescription like 5-year prescription starts from the date the obligation comes enforceable so for obligations to pay damages this is currently when the loss, injury or damage occurs so section 8 changes the start date of 20-year prescription for the obligation to pay damages it says the 20-year period should run from the date on which the defenders act or a mission actually occurred so this proposed change would be a shift in the law in favour of the defender clearly because the new start point would be much earlier than the old one in some cases and would never be later so in evidence to the committee last week Mike Daley again at the Government Law Centre suggested that section 8 was unnecessary he said each proposal in the bill should be examined on its own policy merits and it's unhelpful to regard the bill as something which has to offer benefits to both pursuers and defenders how do you respond to that viewpoint I noted Mike Daley's view as I read the evidence session of last week obviously other people have other views and if you read the SLC report where they narrate the nature of their consultation and the nature of how the work progressed I think you'll find that thus far in the balance of the evidence that the committee has had before it actually supports this provision it is indeed recognising the balancing act that has to strive to to reach a fair balance as between the interests of both sides to a claim and also representing the importance of looking at the overall picture in terms of legal certainty which we discussed as a key objective at your very first question, convener and this indeed enhances legal certainty and allows finality of course in terms of the earlier start date which is most likely to be the case as a matter of practice by looking at the date of the last the act of remission or last act or a mission it was felt that in many cases the loss can arise many years down the line and for the 20 year prescriptive period to stop to start running from them Ellen Gates' whole process quite considerably and also taking into account some years ago that of course we decided in Scotland to remove the 40 year next prescription from our legal system so this I think is reflecting that feeling that we can't go on indefinitely with having obligations extant and that this improves legal certainty okay of course if we change that start date that runs the risk of an increase in some of the harsh cases that we've taken evidence on these will be where the obligation to pay damages is extinguished without the right holder ever having even been aware that that obligation existed at all so should this risk affect the policy underpinning section 8 well I note the reference to hard cases and indeed I note that the committee has been looking at particular case which is before the petitions committee the Patterson case and I think it has been widely accepted that if there is any potential remedy for the patences it's not to be found under the law of prescription and that you know ultimately and a point well made in the SLC's report that in terms of seeking to come up with a situation that improves legal certainty you can't rely on the individual knowledge of any individual creditor that would not allow you to have a system at all and therefore you have to decide what your system is and inevitably at the margins with any cut off date there will be some hard cases but I think the point has been made by a number of people who have given oral evidence that hard cases don't make the best law so in terms of the Patterson case obviously issues have been raised around the Land Registration Act I think that the Public Audit and Post Legislature Committee is looking at that act and it may be that there are some areas of improvement there that can be made certainly I meet regularly with the Law Society of Scotland and I met with them recently the other week, two weeks ago I think now I would ask them to look at what practice rules may be in place as regards this particular issue about acknowledgement from the keeper and ensuring that the client is aware of that so there are other issues in training as a result of this case being raised but as regards the law of prescription that is not where the solution will be okay that's clear enough so section 8 the bill some concerns being expressed by stakeholders including the Law Society and the Faculty of Advocates about how it would work in relation to admissions to act and on-going breaches can you offer us any reassurance in this regard? again on section 8 we've had some concern from the Law Society and the Faculty of Advocates about how it would work in relation to admissions to act and on-going breaches okay if this is to deal with the general issue about the language of admissions acts of admissions particularly the word admissions again these are terms of art of scots law and this bill operates within the general context of scots law that these are matters that the courts look at very very frequently indeed and I think there was also from other people who gave evidence and made written submissions a feeling that these were terms of art and that the court actually deals with all this and deals with it very practically and that there wasn't really anything new here by including that particular phraseology okay so move on to another question I think that's you Stuart thank you it's regarding section 6 of the bill and that's regarding the 20 year prescription I've been able to be interrupted but it could be extended only to allow for on-going litigation or other proceedings to finish the SLC suggested in oral evidence that any extension of practice will be fairly short as courts tend to actively manage cases and don't let them drag on certainly with the challenges to the public sector finances could there be an impact upon the court system in the future if this in terms of longer delays if this were to be the case with that 20 year but also does the possibility of an extension to allow litigation to finish undermine the overall effectiveness of section 6 okay on the first issue I wouldn't have thought that there was any particular impact likely to fall on to the operation of the Scottish Courts and Tribunals Service as a result of this provision on the second issue what the SLC was very keen to do was to recognise the practical situation where you may have towards the end of the 20 year negative prescriptive period an on-going court case and you know to say then that well I'm sorry because your case didn't reach the next stage by next stage that's it so all the work that's going into that court case which could be years suddenly on a very very arbitrary ground is no longer to be heard so I think the SLC was desperately trying to find a way to reflect that as a matter of practice but keep it very tight so what they have said and reproduced in the bill is that you would look at whether you would extend in effect the period only till such time was the actual case the claim was disposed of or the proceedings were brought to an end because the proceedings could be brought to an end being disposed of so I think that ensures that the extension is limited and I think it is only really reflecting as a matter of practice the situation that would pertain in those circumstances so I think that the SLC have got it absolutely right there can I just ask you one kind of re-question and I may be stretching this a wee bit the minister just to be short length of time in addition to the 20-year period sitting with your previous experience outwith Parliament would you be able to provide any indications to me if there were to be an extension what would an extension normally be would it be a few months or would it be a year or every case is different I accept but on an average basis it's not really possible to definitively say because I could say something and then actually down the line there could be a different set of circumstances and then you would say that I had not given you the correct information so I think it's fair to say that these circumstances actually will be not common as has been mentioned and it is just trying to reflect that as a matter of practicality what do you do if a case is there 19 years and two months in do you just say when you reach the 20 mark albeit that case has got another wee bit of time to go and it was felt that that was not really the most appropriate way forward okay thank you okay right I think you've won for you Mr Bowman thank you convener this is still on prescription but on property right aspects of it section 7 of the bill says that the 20-year prescription which applies rights will no longer be able to be interrupted but can be extended only to allow on-going litigation to finish now although this mirrors the approach in section 6 for personal rights the faculty of advocates and supported by other stakeholders has suggested that the approach in section 7 would not work well for property rights like servitudes in light of the evidence received are you minded to reconsider the Government's approach to section 7 is that we have carefully reflected on that we recognise the concerns that have been raised and we are reflecting on whether we need to then look at the language to make the position clear so if we feel that the language having addressed looks at all the concerns is okay then that would be one thing but we are going to reflect on that very carefully so it was a very useful point that was teased out by the evidence sessions that's work in progress it is so now on final disposal in section 12 Brodie's has raised some concerns and its written evidence relating to section 12 of the bill which defines what a final disposal is in court proceedings in particular Brodie's says section 12 in its current form does not allow for the possibility that a court or other body will grant lever permission to appeal late or will allow an appeal to be lodged late do you accept that interpretation and are you minded to propose amendments to section 12 that's another work in progress we recognise the concern that's been raised by Brodie's and we're reflecting on the matter carefully thanks Mr Bowman so there's a couple of areas there that you may it's not that we would be against many we just need to see if we feel that the language is adequate if we feel it's not adequate in light of these concerns we will look at amending it have you got a time scale for that well it would be in time for stage 2 stage 1 debate well I suppose it depends when the stage 1 debate is but I'm not sure when the stage 1 debate is it's mid June sometime in June apparently sometime in June well that is a long leading time sometimes it's much shorter so that should allow us to progress work as expeditiously as possible okay good Tom Arthur and good morning minister before turning to my main line of questioning I just wish to seek a point of clarification regarding council tax but I'd be correct understanding that liability orders in England are roughly analogous to summary warrants in Scotland they may be I wouldn't like to I referred to my entry in the residence I'm a member of the law side of Scotland I appreciate that I don't profess any particular qualification I think on this issue as we've indicated we wish to seek to obtain more information but the fact is that they do have this liability order I would appreciate that as a lay person from a limited understanding they do seem to have the same objectives and I would struck at least one website counciltaxadvisors.co.uk which is accredited by Advice UK suggests that Magistrate Courtsling within Wales granted over 1 million council tax liability orders in England so it'd be interesting just to see a greater understanding of that particular method of the colouring debt the area I want to turn to is section 13 of the bill which of course would seek to replace section 13 of the act a nice coincidence this pertains to so-called standstill agreements and would allow for a single extension of the F5 year prescription period the committee has received a range of views on this there were suggestions that such an arrangement by allowing a standstill would risk abuse by the economically stronger party in a dispute on the other hand there are some stakeholders who say that the measures don't go far enough and indeed we have taken evidence where the suggestion that as the bill stands is fine but there could be additional safeguards for example including any agreement for a standstill must be in writing and that the debtor in obligation must have taken legal or money advice now I appreciate if there's one party saying it doesn't go far enough and another party suggestion it should go further it may suggest you have found the perfect balance in the middle but I'd be keen minister to hear your views on those various policy arguments that are associated with section 13 so section 13 again recognising the balancing interests of legal certainty versus the interests of the creditor in getting a result if you like and it was felt that instead of having some generally applicable wide provision allowing for extensions of the prescriptive period which would defeat the purpose of seeking to have greater legal certainty it was felt that having this what they call a standstill provision would be helpful in facilitating resolution so that it will be available but in very under specified circumstances so as Tom Arthur rightly said it is to be only for a year's duration that period cannot be extended and also importantly it is not to be a general contractual provision it is to be invoked if you like after it can only arise after the dispute has occurred so it is very much focused on dispute resolution and I think that is a good thing I think we'd all welcome that that is a good thing and indeed we are seeking in other areas to facilitate all actions immediately going straight to court so I think that is the motivation behind it and again it is a balance to be struck in terms of the circumstances under which this provision can be invoked in terms of the inequality of arms issue it is interesting to note in the SLC's discussions in the report that also there were calls from some to consider restricting the prescriptive period it was felt very much there by some stakeholders that actually in those circumstances you could have circumstances where there might be a creditor who is less powerful than the debtor and that that would involve a real inequality of arms situation so that was a road that the SLC chose not to go down but they felt that the standstill provisions for the short negative prescription represented a balance in terms of this overall desire to have a balance between the respective interests. As to the final point of the additional safeguards, I noted that in the evidence of last week's session in particular and I had some questions about how that would work on the face of this bill I mean it may be for example that again as far as lawyers are concerned and solicitors are concerned that that would be something that law society should be asked to look at in terms of its practice rules because there may be some issues as to how it fits here. Of course if you say that you must take legal advice it may be that if you are a large organisation I don't know so there's no inequality of arms in touch with another large organisation although I suppose normally you would have solicitors but you may use in-house so does that count will you be required to take legal advice? I understand the intention here is not to get into that kind of scenario but when we're drafting legislation we have to contemplate as many possible scenarios as we can so I think what I was saying that regards to the last point is that it's certainly an issue I'm happy to go away and reflect upon but I do feel that as to whether it's on the face of this bill might not be instinctively I feel that might cause certain issues but I'm very happy to go and look at that issue and reflect on it Okay saying on section 13 there's been an argument from the authorities that rather than just allowing for extensions suspensions should be permitted as well what I understand effectively to be a pause and there has been various arguments do you think there's policy merit in this proposal? Again having read the genesis of the SLC's work I mean read the entire report and all the subsequent submissions I don't feel that I feel that the objective here has been to seek to find this balance and I think that the stance still with the safeguards employed as set forth expressly on the face of the bill is a better way to do this than a suspension and taking into account the overarching objective of legal certainty I agree with the SLC that the stance still is a better way of meeting that objective than a suspension as proposed by Brodie's and in fact I think the stance still provisions do have quite a bit of support Okay it's the final question on section 13 there have been a various legal preconditions suggesting that section 13 in its current form might raise an issue in relation to contractual limitation clauses and particularly the fear that although those clauses are common and important in practice they might be outlawed due to the current wording in section 13 How would you respond minister to the points that the practitioners are making here? I noted the points but I don't feel they're well founded I mean the contractual it's quite clear to me that contractual limitation clauses are not affected this is a bill to do with negative prescription it is important to bear in mind the very important difference in terms of limitation prescription concerns the existence of the obligation itself limitation is a procedural issue in terms of at what point you have to pursue the claim and so forth in terms of court action so the two issues are entirely separate and it is quite clear to me that there's no intention at all of impacting on contractual limitation clauses and I also feel clear from the face of the bill itself My final question is actually concerns with something that is omitted from the bill we have taken evidence that one potential further reform of the 1973 act could be with regard to the definition of legal disability it's defined currently in section 15 of the 1973 act as including on soundness of mind a term that we would probably all agree is somewhat archaic and indeed offensive one of the suggestions that we have received in the course of taking evidence is that this definition could be replaced with a definition taken from the adults within capacity Scotland Act 2000 I wonder what your thoughts are on that particular suggestion Yes, I noted the comment Dr Russell Yes, and I actually understand that this is a point that is made with regard to other legislation Again I would go back to the pointed issue which is this is the prescription bill dealing with some issues to do with negative prescription it sits alongside in the context of general Scots law principles and if one is seeking to amend general Scots law principles that apply in many other different areas one would be best to look at that through a different vehicle the danger of seeking to impact basic Scots law principles in other areas and other definitions in a bill dealing with a particular area of the law is that there is a risk that one ends up with a bit of a hotch poach and unintended consequences and as regards the particular drafting suggestion that one would refer to the adults within capacity legislation to consider at what point does the prescription period run is it the rules here or is it to be a different set of rules in terms of when for example the guardian is appointed so you get yourself into a whole other series of issues and this is dealing with the negative prescription rules to apply to general principles of Scots law as they currently stand if one feels that one wants to amend those other principles this bill would not seem to me to be particularly taking into account as I see unintended consequences that can then arise Okay, thank you I'll just come back on that because Dr Russell mentioned the 1973 act and said that the legal disability is defined in that act as including unsoundness of mind that was Dr Russell's evidence The unsoundness of mind issue is the general principle the general concept that I'm talking about Is it defined as that in that act? It's not defined It's not defined in the 1973 act which gives the court some flexibility as to how they interpret it Okay, thanks for that Any further questions from members? No Do you have any closing remarks, minister? No, I just find this very helpful, convener and I have noted the power of work that the committee has done thus far and I look forward to further engagement with the committee as we go through the next stages and we will get back to you with the information Okay, I wonder if I could ask if you could come back to us by May 11 So, thank you very much and I'll suspend the meeting briefly to allow the witnesses to leave Okay, welcome back Gender item 3 is the European U European Union withdrawal bill European Union withdrawal bill So, we've got for us Michael Russell, minister for UK negotiations on Scotland's placing Europe and his officials Gerald Byrne, head of constitutional policy Luke McBrattney, legislative consequences of EU withdrawal project Always a mouthful, minister McBrattney Graham Fisher, solicitor and team leader constitutional and civil law division Welcome to you all Minister, I believe you've got an opening statement Yes, thank you I thought it would be helpful if I laid out the issues in the memorandum as the Government sees them and thank you for invitation to give evidence here today This committee will of course be central to the programme of work required to prepare Scotland's laws for the shock of EU withdrawal Work that will be required regardless of the bill being used to get us there Work that will be required regardless of whether the UK Government and the Scottish Government agree about the bill or don't The Scottish Government has always accepted no matter how much we may regret the UK's decision to leave the EU that we must prepare responsibly for the prospect of EU withdrawal We've also said that that must be done in a way that respects devolution and we've been working intensely towards that goal for nearly a year now The Parliament has before it the position of the Scottish Government we've set out as we see it compatible with the devolution settlement Each of those options has its challenges and we don't share it from that Those challenges however aren't of our making The task of preparing for EU withdrawal would on any scenario and in any Parliament involve an extraordinary level of scale pace, complexity, uncertainty and risk There's no doubt it would be done best by co-operation and co-ordination between the Governments by each respecting the other's responsibilities by coming together when interests are aligned and by each being able to make our own preparations where that is required and I hope we can still achieve that The right way to do it would be to amend the EU withdrawal bill so that it gives the Governments of these islands their proper roles We've yet to see whether the House of Lords supports the UK Government's amendments but the position of the Scottish Government is clear and I hope could be supported across the Parliament and our view has been consistent throughout the process We've proposed two approaches to making the changes required either of which would be sufficient to allow us to recommend consent to the bill Either we would take out clause 11 and related provisions and proceed by political agreement or following the arrangements in the Scotland Act which require the consent of the Scottish Parliament to any adjustments to competence temporary or otherwise and I'm pleased that the set of amendments which would achieve that has now been tabled for House of Lords discussion by Lord Hope and Lord Mackay of Plashfairn The Parliament passed the continuity bill overwhelmingly as the best way to prepare for EU withdrawal if agreement can't be reached The policy memorandum lodged alongside the continuity bill sets out various scenarios of how the Parliament could proceed in these circumstances but given an agreement hasn't yet been reached Parliament must now finally decide on three things Whether it agrees with the Scottish Government that the powers set out in clause 11 and related provisions aren't acceptable in these circumstances to ensure continuity of law in Scotland and the scope of the powers to ensure that this law operates effectively and supports co-operation between the Governments whilst maintaining the rights of the Parliament It's open to the Scottish Parliament to withhold consent to EU withdrawal bill given alternative arrangements in the form of the continuity bill are in place or the Parliament could consent to parts of the withdrawal bill primarily for the fixing powers of the UK ministers to be used in deforved areas which would allow the Governments to co-operate A third option would be for Parliament to decide that sufficient changes to be made to the EU withdrawal bill to address the concerns expressed by this committee and the Finance and Constitution Committee Consent could therefore be given to the whole bill or the whole bill except for clause 11 and schedule 3 the parts that impose new and unwanted restrictions on our devolution settlement The Government has invited Parliament to consider these options and to set out its views Legislative consent is in the end given or withheld by Parliament and I look forward to helping Parliament to come to that conclusion As I've said, the UK Government was then put forward amendments to the bill to reflect the extent and form of the consent provided by this Parliament That is what our constitutional system requires Deciding whether to take account of legislation passed by this Parliament Deciding whether to follow the constitutional rules is not optional The UK Government acknowledged that at the outset when it asked for the consent of the Parliament to the bill and it must recognise that fact But whatever the Parliament eventually decides that shouldn't be the end of the road for this There has to be co-operation and co-ordination between the Governments given the scale of the task that we're committed to that co-operation Thank you minister So I think we'll probably have some general questions I've first before we get into the meat of it So Perhaps you could just clarify things for me, you've put options in front of Parliament in the memorandum There's three options and you say that Parliament must finally decide What's the timescale for that? Well, the timescale is likely to be the third reading of the bill The House of Lords As you will know the regulation requires us to pass or not pass the legislative consent motion before the final amending stage of the bill That's anticipated to be the third reading and that is likely to take place on the 16th of May The House of Lords timetable dictates that but the 16th of May and it's our intention with the permission of the Parliament to have the final debate on this in the Parliament on the 15th of May so it will, I think, go to the wire but, as I indicated tomorrow's House of Lords report stage on the devolution clause is very significant and there are amendments there which could resolve this issue Okay, when were they tabled? They were tabled The closing date for tabling was last night The convention I've found I have to know a bit about House of Lords procedures which is a bit surprising The convention is that the Government tables a week before the debate than members up until two days before the debate so the amendments were obviously finally tabled last night and are in the order paper today There are also amendments in the name of Jim Wallace and Daffod Wigley I think supported by David Steele that also are helpful but the amendments tabled by Lord Hope and Lord Mackay are the objectives Okay Presumably you're going to be having further discussions, as you have been with the UK Government and maybe the Welsh Government as well There's a GMC meeting tomorrow afternoon in London I'm due to give evidence to the Finance and Constitution Committee tomorrow morning but I hope to weigh in time to get to a GMC meeting in London tomorrow afternoon Could that meeting resolve any outstanding issues? It certainly could One way forward is for the UK Government to accept the amendments that are in the House of Lords and as we've indicated the amendments that come from Lord Hope and Mackay would we think do the job that would be a way forward and we are looking for that way forward and discussion will continue and the GMC will no doubt consider those matters Okay Last week we had a situation where the Welsh Government I know you've been working closely with basically agreed with the UK Government and you don't Why has there been that divergence do you think? I think that would really have to be answered by the Welsh Government but I think that we have to recognise the context in which they're working is one in which Wales voted to leave the EU so that's a significant difference in our positions I think also that the Welsh have a different system of devolution they've only moved to the reserved powers system on the 1st of April they had a conferred powers system before so they have a different system of devolution but in the end of course there's a political decision to be made and the decision that we reached was that the proposals did not meet the basic test of consent that we had and that was confirmed for us when we saw the amendments to the bill which I think everybody would have to admit we're not terribly well drafted in terms of securing support I'll open up to other members if you've got any questions Yes, Stuart Thank you, convener Minister, just in your opening comments excuse me, you opened your comments and spoke about the option 2 and the amendments put down by Lord Swope and Lord Mackay and you also spoke about the Scotland Act in section 30 and the issue of the consent decision which in the previous Parliament's session when I was on the Delegated Powers and Law Reform Committee and the Referno Bill Committee and that section 30 process was extremely important and it showed the issue of co-operation and co-ordination between the two Governments and certainly regarding the section 30 of the Scotland Act orders adjusting the competence of the Scottish Parliament must also be passed by this Scottish Parliament and certainly from my reading of the UK Government's amendments to clause 11 this Parliament sent notice of proposed orders but they are not subject to any procedure formal scrutiny here and do you think that this will provide sufficient scrutiny to this Parliament and also to this committee in terms of decisions which will actually affect the Parliament? No, that is a key point that we have to consider in these matters the root of this difficulty lies in the desire in the EU withdrawal bill to have a second backstop to be able to overrule this Parliament there is already process within the Scotland Act I mean I don't like it I said I wouldn't want that but there is a process in the Scotland Act that allows this Parliament to be overruled that is at the end of the day the basis of devolution that is because Westminster is sovereign according to that interpretation so to put a second backstop in you have to ask why is this happening and when that backstop is put in is that no matter what the Parliament did it would be overruled is unacceptable now the section 30 orders require the approval of both Parliaments and that is the way to proceed that is what is written into devolution and all we are saying is let's abide by the settlement that exists and the choice that we have laid out is either to take out that second backstop in its entirety which would be then to have a written agreement between the Parliaments or if that is not acceptable to revert to what already exists and the section 30 orders are what already exists and provided we can do that then the system will work because that's the system we have and actually that system has worked since 1999 we've never been in a position where the prospect is that the Parliament will be overruled but that's the position we're in now so we're saying I think as productively and positively we can let's revert to the existing system of devolution which nobody voted to change Any questions? I just want it to be absolutely clear on the record that if the amendments that go through this week that would be sufficient for the Scottish Government that's absolutely clear Those amendments were sent to all members of the House of Lords by the First Minister in a letter to the Lord Speaker at the end of last week so those amendments are amendments which we have gone up and which we agree with they have been tabled by unimpeachable individuals who have been incredibly helpful during this process and who might have a great deal of dialogue and were they to be passed in their entirety that would resolve the issue For me and for my party we've been consistent all the way through in supporting the principle of devolution I don't think anyone could say we haven't been whether that has been in relation to the referendum on independence or otherwise we've been absolutely consistent in defending the principle of devolution and that's where we stand at the moment and you're right in relation to the Scotland Act but the reality is that there has never been a time when that has been overturned by the UK Government and long may that continue because that's the principle of if powers aren't written down then they're devolved it's the absolute for me the red line so I think there's a lot of agreement on that one thing that has disappointed me of the events of last week was that I think all the parties have worked very closely with you through this process but last week that stopped and we just got an email saying there's going to be a statement this afternoon and there was no dialogue before that did the dialogue happened afterwards I hope that you have reflected on that and that kind of thing won't happen again because we want to do this collectively as cooperatively as possible when goodwill is there my plea would be to you not to burn that goodwill and I accept that and I apologise if that action clearly was one that wasn't as helpful as it should have been in the circumstance I have asked for example I hope it would be possible to have a conversation with yourself and your party leader today who spoke about this issue yesterday I think it would be helpful to talk to the Liberal Democrats today in advance the JMCEN and my office is trying to arrange that as you will know I'm happy to have a conversation with the Conservatives today if they would like to have that conversation so that I can go to the JMCEN very clear about what the position across the Parliament is and I'll continue to make sure that that information is provided and I am listening to what you say and your party says In relation to the 24 areas given that only a few months ago it sat at 111 and 87 have gone we still have 10 months to go surely it's not beyond the width of men and women to take 10 months or whatever it is to come to agreements on those 24 I don't think to be honest I agree difficultly on that the issue is the approval of the frameworks and the consent of the Parliament gives to what the outcomes are of those there's been intensive work on those 24 I don't think it's absolutely right to say they disappeared, the other ones what's happened is they've moved they're in categories which do not require that intensive work because there are either existing arrangements between the governments and the parliaments to deal with it the 24 will require actions of some sort the question is what sort not all will require legislation by any matter of means there are two outstanding issues which the UK Government says are reserved matters and the Scottish Government says they aren't and that's a decision we've got to come to the awkwardness in that is the continued view of the UK Government that there might be others as yet unknown which could be introduced and frameworks established without consent if we have a consent process that's not a worry because if there are other issues which occur suddenly and there may just suddenly occur and be noticed then they can be dealt with under a consent process if however the existing the process presently an offer was there then nothing could be done about them so we are ready for that but I think we can establish effective frameworks in the areas in which we have had given consent I don't see a difficulty doing that so I think the general feeling I think out there in the real world is that people just want politicians to get on with and you have said that you don't think there are many problems in terms of working with other parties to come to a sensible workable conclusion I have to then ask does the rhetoric stocking up this as a big constitutional conflict help when the reality seems to be behind the scenes that actually things are probably a lot more calm and sensible than they are being presented by some I know that it would be regardless unusual for me to say that I have avoided rhetoric but I really have avoided rhetoric Minister I may not be on fire at you In that case I shall act as a human shield for the rest of the Government and make it absolutely clear that I do think that there has been an attempt to present not just a problem but also the solutions and that's what I'm continuing to do I may differ on that Okay everyone fine, Tom Thank you for being here and good morning Minister Minister you spoke to the drafting of the UK Government's amendment being done in such a way that it would make it difficult to secure support I think it also makes it rather difficult to comprehend as well Now you have and other members of the Government have previously characterised the disagreement with the UK Government that's coming down to essentially whether consent or consult The use of the word consent in those amendments I find quite alarming because consent suggests a power to refuse consent for that to be acknowledged and acted upon This amendment presented by the UK Government seems to express a user term consent decision which seems to me is another way of saying express an opinion Now my understanding would be that this amendment as tabled actually represents a retrograde step because it falls short even of consultation The UK Government would be in a position to table statutory instruments and regardless of whether the Scottish Parliament expressed an opinion or not and regardless of what opinion was expressed by the Scottish Parliament that would have no substance or weight and there's no implications for the UK Government in terms of having to justify substantially beyond the written statement the reasons for doing so I just wonder if you could comment on what your understanding of a consent decision is and what the implications are potentially for the understanding of relationships between the two parliaments and the two Governments going forward as a result of this My understanding of the consent decision and we're talking about it is it's subsection 2 of the First Amendment in the name of Lord Cullinan on the Order of Paper for the House of Lords and it's section 4 of that and my understanding of it is the first line it says for the purposes of subsection 3 a consent decision is a decision to agree a motion consenting to the layer of the draft I think that that layer of the draft I think that's fine but the next two parts say that a consent decision is also a decision not to agree a motion consenting to the draft or see a decision to agree a motion refusing to consent to the laying of the draft so I think that this is at the very least badly drafted I think it is a drafting which a minister seeing might have said look I don't think that's going to help to conclude this matter let's try and understand it but what it implies is that there is no role for the Scottish Parliament in saying even unanimously this is not on no matter what you do you're still in the position that you're deemed to have given consent that is foolish and shouldn't be there and that's not what anybody could sign up to so let's accentuate the positive the positive is we can amend and the amendments that are in the name of Lord Hope and Lord Mackay can amend these amendments to make this something to which we can agree it can't be agreed to it's just on that particular point following on from the new family's comments in terms of some of the dialogue might not actually be fully reaching the population it might just seem to be a discussion or an argument between politicians in terms of this particular amendment and certainly the sub sections 4B and 4C all the amendments can you put that into some clearer language in terms of what in the future if this were to go through what the implications would be for Scotland in terms of any of the examples from the list of 24 as to how it would affect Scotland I mean I could take all of the lists 24 but I think that would take too much of your time convener but let's start just with on agricultural support farming support if there was a framework established on agricultural support and if that framework was without consent then you could have a framework for example decided on agricultural support that did not include less favoured area status even if we voted as a parliament unanimously to say and I think we probably would you know to be honest because anybody who knows Scottish agriculture knows that LFA payments are absolutely essential Scottish agriculture even if we did that we'd be in a position where they say it doesn't really matter what that view is we're not going to agree to that we're going to do something different now there has to be consent the principle of subsidiarity under PINs devolution and that means decisions are best made closest to where the place that is affected by them and that is what's at risk and that the quality of life in Scotland is all being applied now I think we probably need to look right through that list and go from agricultural support to number one to the services directed 24 and in each of them you can say without having consent there are things that could happen here and may happen there that are not desirable they may well be things to which UK government for the best of reasons believes that you need a different system but the basis of devolution is right that's not how we work and that's not how we've worked for the last 19 years and the system we have is a system that people of Scotland wanted and I think they want to keep it OK thanks for that we'll move into the meat of what the committee deals with which is the exercise of powers we've got three options that you've put forward at the moment and that could all change but let's deal with things as they are in terms of the continuity bill what kind of scenario planning is there in terms of whether the continuity bill is struck down and what's the implications if it is well that depends upon the decisions that are taken over the next few days the next few weeks in terms of what takes place it depends on what the legislative consent motion is but we remain very confident that the continuity bill is perfectly competent of course the process would be rather than striking down the question would be are there things in the continuity bill that should not be there the judgment of the Supreme Court might be that, we think it won't be we are very confident it won't be and therefore we would have to examine it at the time but the present moment we believe that the continuity bill is right and the question here is how much of it is it all to be used is it to be used partially is it used to be not at all that's the issue so the committee's clear are you scenario planning I'm not preparing for failure in the Supreme Court but we will meet every set of circumstances as it arises but we're not preparing for failure in the Supreme Court three options so of those options which mix of powers in each of those three options will best secure an accurate and functioning statute book by 29 March 2019 in your view I think all of them can achieve that I think that the question is exactly the right question this breaks down into three things that need to be achieved the first of which is continuity that is to make sure that the laws work the second of which is to make sure that the powers exist for that to happen and the third of which is to set up the frameworks and the functions that need to exist post Brexit to allow these things to happen so the question on all of these is how do they conform to them and the answer is all of them do to a greater or lesser extent in that way the question is what would work most effectively and most efficiently my own view is that we can work any of them we've always said that the most desirable outcome of this is to have a single statute which allows the two governments to work effectively together and that's less work it would rather be there's a massive amount of work no matter what so if we could achieve that that would be the best outcome if that can't be achieved that would be a mix of possibilities for example to the continuity bill plus clause 7 would allow the first objective that is to make sure that the powers come back to allow co-operation between ministers because it would empower ministers UK ministers to act in devolve areas and we could work together on those things so that's workable the withdrawal bill minus clause 11 would be workable the first two objectives would be met but the third one we would deal with ourselves and the continuity bill is workable it was backed by this Parliament 95 votes to 32 so the Parliament believes it's a workable solution and it's a solution that we can bring in so the choice would have to be made but there's no doubt that the first preference has been all along to get an agreement that allows the EU withdrawal world to operate so the first preference is actually to have none of the three options it is the option as I described complete consent and that would be the first option and thereafter there are choices but we've tried to do the proper thing by being prepared in any set of circumstances and that's what these do so that option of giving consent to the UK bill could be before the Parliament on I think you said the 15th yes it could be it could be if there is an agreement and the amendments tomorrow go through or another form of agreement yes it could be Mr Finlay I think you've got another question any indication as to the Government's view on the amendments that have come forward the UK government's view no I've no view on that none as yet there's a GMC tomorrow which is when the House of Lords is meeting so it could be we'll hear that and it would be helpful to know that one of the concerns for businesses and for many others is the whole issue of legal certainty I can't help but think just instinctively that the sort of mongrel option is not fulfilling people with huge confidence in certainty do you think is that a fair comment or an unfair comment? Whatever is going to happen this is difficult and as I indicated it's not of our making I would like to provide as much certainty as possible I think any of these are some of the functions that need to be done the three functions I've declared it is perhaps simpler to understand the two extremes of it one is the continuity bill where we just take the whole responsibility and we do it and we've got legislation that allows us to do it or we agree to the UK bill providing we settle the difficulty that exists those are probably the clearest options but the other options are workable I mean I wouldn't come to the Parliament with a lesser consent now around a menace I thought could produce a functioning result but the clarity of those two this has dragged on a long time but of course the timetable for the EU withdrawal bill again has not been of our making that is entirely in the hands of Westminster the EU withdrawal bill was being discussed at the JMC as far back as well it was announced at the Tory party conference in September 2016 it was being discussed at the JMC I think the first JMC in November 2016 would have mentioned it it was certainly discussed at the second one in December because I remember a conversation in the margins of the meeting with Ben Gammar about it who was then responsible for it and it's been on the go since then so that uncertainty is a product of that time scale and in terms of the way in which the Parliament operates we want to ensure that there's scrutiny of any proposals and proposal changes on which of the options do you think provides with the maximum scrutiny for any change that will happen all of them because we would intend because the issue of scrutiny is also an issue of standing orders of this Parliament and because I think you have already seen draft proposals in terms of scrutiny protocols yes we would intend to apply those enhanced protocols no matter what's here because I don't think the decision on how this Parliament scrutinises in the end the detail of that is a matter for Westminster legislation it's a matter for this Parliament to decide and therefore enhanced scrutiny is a commitment we made as a process of the continuity bill went through and we've been a stick to it and then as a following for that obviously the Parliament values engagement with stakeholder outside bodies etc is there a similar commitment on ensuring that we continue when there are changes to regulations of whatever then that commitment to scrutiny will apply to whatever the option is because that was built into the process that passed through the continuity bill and that is the process which we wish to see applied and that was discussed at stage 2 I can't remember anything that was discussed in the 11 hours of stage 2 it was certainly discussed at stage 2 and is built into the process thereafter and to the role of this committee in that process which is actually central to the process okay minister the supplementary LCM talks about the practical difficulties which will arise if reliance is placed solely on the powers of the continuity bill can you provide some further information they were set out quite clearly in paragraphs 19 and 20 of the policy memorandum to the continuity bill and I'm quite sure that is available we pointed out that the complexity is added to when we're not able to rely upon the joint activity between the two sets of ministers and the two governments it would require a large number of technical instruments to be laid and scrutinised here whilst the same provision is being made in the UK Parliament and clearly just for reasons of efficiency that would be better done jointly we'd like to co-ordinate those that complexity would flow from actually the inability of the UK Government to come to an agreement on this matter and that would be regrettable but we could do it there is a I think I said on a previous occasion at this committee there isn't an option on this this has to be done if there is a transition period that's likely at the moment then the period of time in which there should be done is not fortunately between now and the end of March next year but between now and the end of December 2020 so that's a big job our estimate as I think I've also said at this committee before is 300 to 350 but that's only an estimate which is about the whole annual crop of statutory instruments so you would take years worth of statutory instruments and have to do that but this summer I would have thought I'm just looking for officials probably from about this summer through until the end of 2020 so that's a big job that's two years to do so so an increase of 50% but it can be done it will have to be done also in the paragraph 17 of annex D to the supplementary LCM states that where both Governments have corresponding powers to make fixes in devolved areas and the ability of Scottish ministers to make subsequent, different provision than that made by UK ministers will protect devolved interests what will the impact of subsequent changes to legislation be for example in relation to certainty of retained EU law I think I'm probably going to ask a look to address that one I think the important thing about that option is that if the two Governments retained the ability to do something different this ought to in most circumstances prevent that having to happen the fact of corresponding and equal powers existing would ensure that each Government respected the rules it would in fact ensure that the situation where we were seeking to reverse a change that the UK Government made in a devolved area never came about I've spoken with the committee about section 57 of the Scotland Act before principally in terms of how it provides for scrutiny of these instruments but far the more significant part of that is the bit between the Scottish and UK Governments the way that section 57 which is an existing example of corresponding and equal powers works is that very often it is in fact the Scottish Government going to the UK Government with a proposal suggesting that things would be better done and because we could always choose to do something differently later if we wanted to section 57 regulations are invariably the product of agreement between the Governments and that's the situation that we envisage in paragraph 17 of the annex that supplementary consent memorandum Just to add to that one of the protocols the draft protocols that you've seen is intended to govern that position and give the Parliament a role in scrutinising proposals from the Scottish Government to consent to UK-wide orders and those circumstances so that's one of the other limbs of ensuring the role of the Parliament in the position we envisage where we might be looking for a UK-wide order that's important to look at the detail of that protocol Once again it takes us back to that the knob of this issue in terms of consent of this Parliament and this Parliament providing that consent although it's not written into the statute you would have the opportunity to scrutinise the Scottish ministers proposals to consent effectively to UK-wide orders again that's not a statutory requirement but because of the mechanisms that looks described as alternatives we have confidence that there would always be a process of agreement under the powers as they've been equalised under the proposed amendments to the bill Thank you for that The final question is in light of the differences in the UK Government and Scottish Government's views as to the limits of the Scottish Parliament and Scottish Government's devolved competence how do you envisage agreement will be reached on which areas the Scottish ministers may legislate for under the bills in a way that avoids potential challenges to instruments laid by the Scottish ministers The matter will be resolved should it be required to be resolved in the Supreme Court that process is now underway and what I can do is say that that will be vigorously pursued by the Lord Advocate we would much rather see all these circumstances pursued by co-operation and agreement that's been our wish from the beginning it continues to be our wish but the legal certainty will come as a result of the Supreme Court Thank you Bill Bowman The supplementary LCM mentions changes made to the UK bill which address concerns about the breadth of powers in the bill Can you say a bit more about these changes and how they address those concerns? The UK Government has introduced amendments which make some changes As we anticipated that by the case they've removed clause 8 the power to implement international obligations to set up new public authorities they're preventing the powers being used to introduce new fees they're preventing the withdrawal agreement power from being used to amend the withdrawal bill itself and they're introducing the need for explanatory statements some of those things of course the continuity bill for example makes explanatory statements we were engaged with them we do go a bit further we could talk about that perhaps if you like we think those amendments go some way to addressing the concerns that existed in the continuity bill and some of it isn't because the continuity bill reflected views about difficulties with the withdrawal bill so there's been welcome change I mean nobody would deny that One of the committee's recommendations in its report on the LCM from last November was that further consideration be given to basing the powers in the bill on a test of necessity rather than of appropriateness We understand that a non-government amendment which makes such a change for the exercise of UK ministers powers in the bill has been made at the report stage in the House of Lords Do you plan to recommend an equivalent change to Scottish ministers powers under the UK bill? We have that in the continuity bill of course and we accepted that in the continuity bill and indeed we assisted on amendments throughout the bill to put that into place The position would be one of equity whatever the powers are granted to the UK ministers and however they are restrained the equivalent powers should apply to Scottish ministers We thought that we'd got this into a better position in the continuity bill so we'd welcome the amendment I think it's from Lord Lisvein and were that amendment to succeed we don't know what the UK Government position would be on it were that amendment to succeed then quite clearly we want to see that the change is made Do you recommend an equivalent change? Yes, because we agreed to put it into the continuity bill so we think it's a good change We might just have forgotten We'd like to be consistent if we can be To be fair to you Mr Bowman you haven't been here for all the sessions and it's certainly been covered by this committee so we recommended a change to the parliamentary procedure for the power in schedule 4 to create or increase fees and charges in connection with functions which public bodies in the UK take on exit day The recommendation was that the power be subject to the affirmative procedure not just for new fees but also for significant increases to existing fees Do you know of any pending amendments to the UK bill to make that change? I think that the UK Government are going to promote an amendment in that way That's good The supplementary LCM mentions changes proposed to the UK bill to extend the requirements for explanatory statements to Scottish ministers for regulations laid in the Scottish Parliament. Can you outline what the new requirements will be? Yes, we're very supportive of explanatory statements and we're glad that this has moved I'll say in a moment that the continuity bill has actually still got some additional elements in it which we are going to apply but they include when exercising a schedule 2 a statement of the good reasons for the use of the power which I think is very welcome and that the use is a reasonable course of action a statement of the amendments that are being made to the Equality Act and that the ministers are due to regard to them a statement explaining the instrument the relevant law before exit day the instrument's effect on retained EU law the purpose of the instrument if they're exercising the powers in schedule 2 to create a criminal offence a statement of the good reasons for creating a criminal offence and of the sentence attached we're making an instrument under the urgent procedure a statement of the reasons for the declaration of urgency and where it's amending regulations under section 2 of the European Communities Act a statement of the good reasons for the modification that it is a reasonable course of action explaining the instrument the relevant law before exit day the instrument's effect now we committed to providing some further information statements under the continuity bill for example a statement about whether the regulations affected employment or health and safety matters those are amendments that came from Labour members during the bill and we're going to be held to that even if the continuity bill is not in effect we think that the additional information is useful to have so that would be within these statements okay thank you Tom Arthur thank you convener I just wish to pick up minister from a tail end of Neil Findlay's line of questioning earlier what's the subject of the protocols that was touched upon I just wish one if you could state for the record whether you think these protocols are workable, sufficient and whether or not the Government is content with them yes I mean there are a product of discussion with the Parliament I mean yeah I'm very very keen to stress that these are not Scottish Government protocols these are protocols that the Parliament would take on and we suggested this some considerable time ago I remember last autumn I think I suggested at a committee meeting that we should take this issue forward and I'm glad it has gone forward and I'm grateful to the Parliament and to this committee for being involved in it they give the necessary flexibility to make procedural changes they create a higher level of scrutiny that's otherwise would be in the bill and they also this has been quite an important issue they give an effective steer about what matters are considered more important than others I mean this is going to be a matter of prioritisation of activity so they don't supplant the work of this committee they enhance the work of this committee and they help this committee I hope to make decisions about what the most important issues are when there will be a flood of secondary legislation coming down the road so I think this is good joint working and because it's taken some time so I hope that these are going to be welcomed finally when out of draft form by this committee by the Parliament and certainly will be welcomed by the Government and they mean that there is more effective scrutiny and they mean that the Parliament has ownership of the way in which that takes place and with regard to all eventualities would you be in favour of a SIFP process applying to SSIs that are laid by the UK Government if so how do you think that would be achieved it's an interesting view the UK Government should not be legislating on how this Parliament scrutinises issues I would want to see anything that has effect in Scotland being effectively scrutinised now you know the sifting process is the process which the continuity build came to an agreement about it after a great deal of discussion Ross Greer's amendment worked by this committee came to a conclusion about how it should operate my view is that it should operate on all the material that will have effect in Scotland for which this Parliament is responsible I cannot however take any responsibility for what the UK Parliament chooses to do with issues that are relevant to it but I think in general what we have put in place in the continuity build is a effective and better system that works out well for us thank you okay so we've just got 10 months to go before exit day it's a very short time are we going to be able to deliver the programme of secondary legislation in that time frame I think that I'm going to use the word we we all will have to do that you know that this committee has an enormous role and I don't apologise but I do accept that this is not going to be a big pressure upon you but we are all going to have to do that because we have to give as Mr Finlay has indicated the legal certainty to Scotland to every part of Scotland, to every community to every interest group, to every business that this can be done and therefore we have to do it okay so any final questions from members Mr Finlay? just on that, just a very practical thing is there be additional recruitment within Government for this within the Parliament for this? I can't speak for the Parliament I can't speak for the Parliament but for the Government there has been an increase in the number of people who are working with us each area of Government is looking at this on its own too there is a resource available of course from the UK Government which is allocated resource for additional Brexit work and it's for Mr Mackay to account for that that money will have to be drawn down there will have to be additional resource in place and that's what we're trying to do Can you quantify that in terms of both finance and bodies? Well I can't quantify it in terms of either at the present moment but the UK Government has allocated if I'm correct £3 billion and the discussion I think is under way about what proportion of that can come to Scotland and how it will come to Scotland I think that Mr Mackay will be the right person to respond to that and I will ask him to respond to the committee in terms of the resource that's available so that you are aware of that That would be useful Any members have any further questions? No Okay minister Can I just thank you and your officials for your time We've got a further meeting of this committee on Thursday and we'll have Chloe Smith and David Mundell in front of us so thank you again and we'll perhaps see you at some future stage That may be the case I'll also spend the meeting for a couple of minutes