 Maia mga janat McLean, maia presenteda kaiti kai apuniek wa i vadia— Britain leaving the EU and we have just been so fortunate in the law school that in the same week we haven't had two UK experts on the EU, Brexit on how it will impact on both Scotland and the wider UK. So without more ado, it's my great pleasure to welcome Professor Paul Craig, the Professor of English Law at University of Oxford, he's taught many of you, I gather, and is well known to New Zealand audiences. He's an expert on constitutional and administrative law in the UK, he's written extensively on EU law, he's been an interpreter of EU law for a British public, and he's recently been an expert witness at the UK House of Lords Constitutional Committee on the Great Repeal Bill of which we'll be hearing more. It's my pleasure too to welcome Professor Alan Page, a former and wonderful colleague of mine at the University of Dundee, he's written the leading work on Scottish constitutional law since devolution. He too has been deeply engaged in EU law and has written a very influential paper on the impact of Brexit on Scotland, which has been cited in a number of parliamentary committees, both at Westminster and at Edinburgh. So we're very lucky to have people here at this time when the world is changing so quickly and so rapidly that no one can keep up with it. So without further ado, I welcome Professor Paul Craig to speak to us. Janet, thank you so much for the kind of welcome. I would only like to mention right at the beginning that normally I don't take a glass of red wine. Not before 11 o'clock in the morning. In any event. It's a great pleasure to be here. Thank you very much indeed. Alan and I are going to divide up the general topic. So Alan, Gregor, British and Scotland and on EU law more generally, but it seemed sensible tonight that we both speak for about 20 minutes and that I would talk about some of the general issues concerned with Brexit and that Alan would focus in particular on the Scottish dimension broadly conceived. So what I thought would be helpful because there are a huge number of legal, constitutional and political issues concerning Brexit. What would be helpful, I thought, in the time available. I'm very happy to take questions on any aspect of the topic, but what seems to me to be very helpful now would be if I gave some sort of roadmap through Article 50 and through the different stages of Brexit and looking at the constitutional and legal issues and the political backdrop to them. Because that seems to me at least a way into this minefield of different legal and constitutional issues. So that's what I'm going to do, but as I said I'm very happy to take questions more broadly on any aspect of this. So Article 50 was a new article in the Lisbon Treaty. There was not an escape clause or withdrawal clause beforehand. There was debate about whether a state could withdraw the best version or the best view about that was that it was or was that a state could leave and that the rules about withdrawal would probably be drawn from the Vienna Convention on the Law of Treaties given that this was or is the master plan for treaty interpretation. But that was no longer needed because in the, pretty much everything in the Lisbon Treaty is actually taken from the Constitutional Treaty of 2004. Constitutional Treaty was never became reality because of the negative votes in referenda in France and Holland. But pretty much everything new in the Lisbon Treaty is carried over from the Constitutional Treaty including Article 50 or the substance of Article 50. Article 50 was first written and the idea was not that it would be used by a state such as the UK. It was used, it was the best view from Sir John Kerr and Giuliano Romato, two of the leading lights in the Constitutional Treaty. The idea behind Article 50 was that actually it was going to be a way of kicking out a recalcitrant state. The real idea was that if a state started going absent without leaving and started becoming too autocratic, then in effect what would happen is that Article 50 would be the way to push it out the door rather than the state actually seeking to leave. No one would actually, no one actually thought at the time that the state would seriously wish to leave. Okay, so that much just by way of background. So Article 50, what are the different stages in Constitutional and legal terms? The stage one has already happened. The stage one is that it's for the state in question to trigger Article 50 in accordance with the constitutional requirements of that state. And that is exactly what has happened in the UK. The Prime Minister triggered Article 50 on the 29th of March. Having however had a long fight in the courts about exactly what the constitutional requirements of the United Kingdom were in this respect, the judgement ended up being given first of all by the divisional court in the Miller litigation and then it went straight from the divisional court to the Supreme Court and the Supreme Court held by 8-3, one powerful dissent by Lord Reed in particular, but it held by 8-3 that the executive could not trigger withdrawal from or under Article 50 in accordance with the constitutional requirements of the United Kingdom. The triggering required parliamentary approval for a statute. It could not be undertaken by and through the prerogative. It was lots of controversial argument or lots of contestable arguments put about this. The case rapidly became the most blogged about case in English legal history and that is a record which will not easily be broken. It made history as well by being the first instance or first case where four days of Supreme Court coverage was streamed continuously, knocking coronation screws off with this ascendancy in the TV ratings and the judgement was given, as I said, it was 8-3. That was pretty widely predicted. Everyone in fact had predicted it was going to be 7-4 rather than 8-3. People then wondered about, well, who switched sides at the last moment and that's not clear. My own view is in fact a rather heterodox view, but I think almost certainly true, which is that the Russian hackers who would be standing in the side on the US election and then were messing up the French election with Fillon and in between have revealed the denouement of Sherlock Holmes. So they were really busy and they could only get their B team onto the hacking of the result in Miller in the Supreme Court and therefore they got it one out to 7-4, 8-3. Hey, it's not a big deal. That's in effect what happened. Now, lots and lots of argumentation amongst constitutional scholars about whether the decision was right or wrong. There are two views about this, the right view and the wrong view. The right view is that the Supreme Court got it right. By the majority the wrong view is that they got it wrong. I think that they did get it right. I don't think that the issues were straightforward, but on a serious note I think that they did get it right. And I actually do think that they not only got it right analytically, I think it actually the decision coheres with one's intuition about constitutional argumentation and result in the following sense. If you think about it, stand back from it. This was withdrawal from the EU, whether you are a remainer or a Brexiteer is the most important single decision of a peacetime nature concerning a treaty which has ever been made by the UK. Now, actually, if you stand back and think about it in that way, the very idea that the executive should be able to do this autonomously without securing approval from Parliament is actually quite extraordinary. It's quite extraordinary that anyone could imagine that that would be or should be the right result in normative terms. It beggars belief. Actually, but that's not the reason why I think they got it right. I think they got it right because I think that the unorthodox constitutional reasoning, the classic limits on the prerogative, applied and the classic limits derived from the case of proclamations and to Kaiser applied with the consequence that the executive could not rely on the prerogative in this particular case and they had to have a course to Parliament. Final word on Miller just by way of footnote, but interesting political footnote because everything in this whole area is an admixture of the legal and the political. I mean, just everything. So, the real, one of the interesting political questions with a small and large piece is why the case was ever fought and the answer to that is simply not obvious. The Prime Minister didn't have to fight this case. She didn't. She could in October or November have gone to the House of Commons and simply said, I do not accept as a matter of legal principle that I have to seek your authorization before triggering Article 50. I do not concede that point, but I'm going to seek it anyway. So, she didn't have to, she wouldn't have to fight it legally. Her legal advisors could not possibly have given her any more, any better than odds of 50-50 winning and that would be putting it higher. So, she didn't have to fight this case. Could have saved a taxpayer a lot of money and of course once you put things in the hands of the court you never know what the outcome is going to be because you're putting it in the hands of the court. And as happened when the Parliament did consider the matter in late February, early March, she could have produced in November exactly the kind of bill that she produced in early March a two-line bill with precisely 164 words if you really are going to be pedantic about it and that's all she produced and that secured passage through both houses of Parliament and received royal assent without a single amendment being forced against the Government. She could have secured exactly the same outcome in November. So, one of the interesting things historically is with the 30-year rule is passed whether we find documentation indicating as to why actually she did bother to fight it. Anyway, that's all Stage 1 and that's happened. So, it's triggered. So, what happens now? What are the legal political issues which happen next? Well, the legal political issues which happen next are exactly the things going on now. Under Article 50, the next stage is that the European Council puts together guidelines for the Brexit negotiations. The European Council is the body within the European Union which consists of the heads of state, the heads of government, the presidents, prime ministers of the 28th member states. It has a permanent or semi-permanent President Tusk from Poland who's now in his second term. The way it works is that President Tusk put together the guidelines or draft of the guidelines you can't draft in the committee of 27-28. So, Tusk put together a draft of the guidelines presenting it to the other 27 member states saying, here is what I think the guidelines for the negotiation should be. Once those guidelines are agreed the actual negotiations are undertaken by the Commission and the person representing the Commission is a very seasoned, very professional and very clever man from France, Michel Farnier. He is going to be a tough negotiator. He's not going to give an inch or anything else to the British in that respect. Now, the position of the other European institution or one of the other European institutions is important as well. The European Parliament has no formal position or role in the Brexit negotiations. There's no formal position, no formal role in the Brexit negotiations. But it does have voice in the following sense. Any withdrawal agreement which is made and I'll say more about the nature of the withdrawal agreement in a moment, any withdrawal agreement which is made has to obtain the approval of the European Parliament. So, the European Parliament's views are going to matter and only today, literally today, the European Parliament put forward its guidelines. So, the European Parliament has survived and prospered by doing what Parliament has done in every country in the world which has taken the power they've got and used it as a ratchet to get more or to maximise their input. So, they know they have no voice in the actual negotiations but they're putting on the table, these are our guidelines and therefore they're sending a signal to the other political branches of government to say, be careful, make sure that you do not end up with an agreement which transgresses the guidelines which we are putting down because if you do, you do search for power. They have a veto, all right? If they don't approve it, if they don't approve a withdrawal agreement, that's it. Subli to political arm twisting and all that sort of stuff later. OK, so, that's what's happening now. So, what are the legal modalities? So, stage three, what are the legal modalities moving forward? Well, what Article 50 provides for is at least two agreements, perhaps three, but it provides for at least two agreements. There is a withdrawal agreement and that's the main game in town under Article 50, the divorce, OK? Article 50 is also framed in terms not only of a withdrawal agreement but Article 50 speaks in terms of the idea that while you're negotiating the withdrawal agreement there may also be discourse about future trade relations between the UK and the EU. Now, so this is stage three of our game as it were, or stage three of the process. Now, just to make it absolutely clear, there's the... to make clear the nature of these two agreements. So you have the withdrawal agreement and the future trade relations agreement. Now, I think what's very important to emphasise is that the respective content of these agreements is not fixed in stone. You could have a fat divorce or withdrawal agreement which was really quite meaty and contained an awful lot with the consequence that the agreement concerning future trade relations was actually relatively thin by way of comparison. You could alternatively have a scenario where the divorce agreement, withdrawal agreements relatively thin and an awful lot is left for resolution in the future trade relationship. What's the key criterion which determines the fatness and relative fatness and thinness of the two agreements? It's this. If the UK had gone for what is known in the jargon of the trade as a soft Brexit solution, if it had gone for a soft Brexit solution other things being equal to a strong likelihood that withdrawal agreement will be quite fat and the future trade relationship agreement will be quite thin. Why? On the soft Brexit option, the soft Brexit option is predicated on the idea that the state in question models itself rather on the model of Norway and the other states which are part of the European Economic Area and states which belong to the EEA get full access to the single market and the customs union in March. But the quid pro quo is that they have to accept the full rigours of the four freedoms including free movement of people. Hard Brexiteers have never been willing to accept that. But just still sticking to the fatness and thinness of the two agreements, if the UK had gone down the soft Brexit solution, if they had, then the withdrawal agreement would almost certainly be modelled directly on the EEA agreement of which there is a detailed boilerplate there, it's a long treaty which already exists, you would take that, you would cut and paste it, you would put it into your withdrawal agreement and that wouldn't be very much left to be dealt with by a future trade agreement. However, the UK has not gone down the soft Brexit solution. The UK has gone down the road of hard Brexit, a hard Brexit meaning that the government is saying no, we're not seeking access to the single market and probably not the customs union either because that would only come with the price tag of free movement which the hard Brexiters within the Tory party are not willing to accept. What that means in terms of the relative content of the withdrawal agreement and the future trade relations agreement is this. It is very likely that the withdrawal agreement will be quite thick. It will be a quickie divorce but it will not be simple or easy. Quickie in the sense that the content put into the withdrawal agreement to go to be relatively small. What will it contain? It will contain the financial settlement. At the moment there is a wide gap between the two sides. The bill for Britain's exit is somewhere between 28 and 60 billion more than I earned in a week and there's going to be very hard negotiation about that sum. But also in that divorce there's other big issues. The almost certainly the rights of EU citizens in the UK and UK citizens in Europe will become part of the divorce settlement. So too will import institutional issues. The European Banking Authority and the EMA, the European Medicines Authority are both situated in London. They're going to be moved. They're going to be pulled out and that's going to have important consequences of various kinds as well. That will probably all be included in the withdrawal agreement. It probably won't contain much else which is, we might, but I doubt whether it will end up containing much else. Which is why the PM, our PM's bargaining position is we want, the UK wants negotiation about withdrawal and negotiation about the future trade agreement to happen in parallel. They know that the content of the divorce is going to be relatively thin, that agreement. They know the real gaming town in terms of future trade relations and safeguarding position of the city and all that and preventing a meltdown of the UK economy is going to happen because of the content of the trade agreement which is why they want the two to go in parallel. So we have not only a substantive issue which is what's the content of the respective agreements and there's also a process issue which gets discussed first. Now as I've just mentioned, the UK's bargaining position is we want both of them discussed in parallel. It is not fortuitous that one of the very headline issues that came out from TUS in the guidelines for the European Council and that came out from the European Parliament in their bargaining guidelines in technical legal terms. No way. No way. They said the formulation varied but technically the substance was there is no way we're having parallel talks going through at the same time. We are going to have, their view is we're going to have to have significant progress on the divorce crypto-sensing before we even begin to pick up any issues concerning the future trade relationship. Now just, I know the limits of time, but just a word more about this issue, this stage three. Why is this all so important? It's so important because if an awful lot has to be done and FTA, a free trade agreement of some kind, then one has to be mindful of the logistics in every sense of the term of negotiating FTAs. Now this all may be known to everyone but in case it's not, let me just put a few kind of basics on the table here. The average FTA is not a lever de poche, it's not a book of bedtime and it weighs in at a chubby 260 odd pages. That is actually quite small concern to some compared to some of the FTAs, the FTA between Canada and the EU weighed in at about 1600 pages. Alright? Not rocket science to understand that the longer the FTA, its length is commensurate with how ambitious it is. The core of a free trade agreement is about tariffs. It's usually mainly about goods and it's about tariffs and customs duties and equivalent conditions for trade. The more ambitious you want your trade agreement to be, if you want it to cover services, if you want it to cover IP, if you want it to cover competition, if it gets bigger and better and it takes longer to negotiate. Average FTAs the average FTA takes somewhere between 4 and 60 years to negotiate. And that's leaving aside as it were political goodwill or badwill as the case may be in this instance. What that all means is that there's a strong likelihood that at the end of the two-year period an article 50 has a two-year deadline in it by which time the withdrawal agreement has to be made or certain consequences follow about which I'll say one word in a moment. But basically what that all means is the following. What that all means is I have one minute left. So what that means is that almost certainly there will have to be a third agreement called a transitional agreement. Now everything about the nature of a transitional agreement is uncertain just about everything. Its legal provenance is uncertain. Its legal nature is uncertain and its legal content is uncertain. Except everyone's beginning to turn the knife everyone's beginning to turn the knife in a nice delicate way. So the parliament is beginning to turn the knife by saying if you have a transitional agreement to ease the passage between withdrawal and a future trade agreement then of course the European Court of Justice will have to have full authority over the terms of it which is enough to cause perplexi amongst the back benches of the Tory party. 32nd Stage 4 Stage 4 Part 4 and then I stop. Stage 4 there is a two year deadline. If no agreement is reached within two years then what Article 50 states is that unless all the member states of the European Council agree to an extension of time we the UK fall off the edge of the cliff that is rights and obligations under EU law cease to apply at the end of that two year period. Which means that in legal terms you default to the WTO default position which would almost certainly be very harmful to the UK economy. But there is a reasonable likelihood that we could end up in a situation where no agreement is reached and where we do indeed fall off the edge of the cliff. Thank you very much indeed. Well, good evening everyone and thank you first of all for the invitation to be here in Auckland with you and the opportunity to speak this evening about Brexit which is occupied far more of my time in the last few months than is at all appropriate. Paul has talked about article 50 and how that might all pan out or not pan out. Let me turn around and look at it from the point of view of what this all means domestically for the United Kingdom with particular references as Janet said at the beginning about the implications of some of the consequences for the devolved parts of the United Kingdom and in particular Scotland. Something I would like to stress right at the very beginning when I say I'm talking about it from the Scottish perspective I am not talking about it from a Scottish nationalist perspective I'm not here to beat the drum for any particular cause. Let me go back to the beginning and say a little bit about the meaning of Brexit. What does Brexit actually mean? Because after the referendum as Paul will remember we went through a period of several months in which there was complete uncertainty as to what Brexit meant. The referendum was in June but the United Kingdom having voted by a majority to leave no one actually knew what this meant. Brexit means Brexit. Brexit means red, white and blue Brexit. These were some of the meaningless soundbites that we were treated to between June and December. And it wasn't in fact until a speech by the Prime Minister at Lancaster House this January that we began to get a clearer idea of what it might mean. And in the course of that speech she said the following and I quote leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country because we will not have truly left the European Union if we are not in control of our own laws. Now I quote that passage because the reference the laws made in Edinburgh, Cardiff, Belfast and Westminster as that reference makes clear taking control of our own laws means something very different from what it meant when the United Kingdom joined what is now the European Union in 1973 and the UK Parliament the Westminster Parliament was the only legislature in the United Kingdom. The UK that joined in 1973 was a unitary state the UK that will leave is on one description a state which is unitary but devolved. And that immediately prompts the question I'm sure well what is the significance of that but devolved and what difference does it make what does it mean Well as a matter of law according to the Supreme Court in the Miller litigation which Paul talked about it makes no difference at all because as well as deciding that the UK Government couldn't trigger Article 50 without first obtaining the approval of Parliament expressed in the form of legislation the Supreme Court decided unanimously that the UK Government was not legally obliged to consult the Scottish Parliament or the other devolved legislatures or to obtain their agreement before notifying the European Council of the UK's intention to leave. Now the Supreme Court reached this conclusion despite in Scotland's case a convention called the Sewell Convention after the author despite the Sewell Convention whereby the UK Parliament does not legislate with regard to does not normally legislate with regard to devolved matters without the Scottish Parliament's consent having been written into the Scotland Act 2016 in implementation of the recommendations of an all-party commission which was set up immediately after the first independence referendum of the 2014 independence referendum to agree to the devolution settlement Janet tells me that this is all the rage it's on so all I need to do is this rather than that so this is the this is the this is the key provision of the Scotland Act which as you can see confers the power on the Scottish Parliament to make laws for Scotland and then it says section 287 there in the affirmation of the continuing sovereignty of the United Kingdom Parliament that this power of this section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland and then section 288 is the Sewell Convention written into statute what the Supreme Court said about this was that in writing the convention into the Act it was not seeking to convert it into a rule which can be interpreted let alone enforced by the courts rather it was simply recognising the convention for what it is namely a political convention and is effectively declaring that it is a permanent feature of the devolution settlement while the convention had an important role in facilitating harmonious relations between the UK Parliament and that of all legislatures so that the manner of its operation matters with the political rather than the judicial process I'll remove that from that post now some reaction to the Miller case the Supreme Court's judgement has been to the effect that section 288 is not worth the paper as there is not that's not a view I share or share certainly before the events of the last two weeks because in my view convention remains no less politically binding than before so the question of the Scottish Parliament's consent to the legislative consequences of Brexit which I'll come on to in a moment in my view has thus only been delayed not settled by the Supreme Court's decision now whether that's still the case I think remains to be seen because last Thursday the day after the Prime Minister triggered Article 50 the Scottish First Minister wrote to the Prime Minister seeking sanctioning for the second referendum on Scottish independence and if I have a question it is whether by pushing the referendum button early pressing the referendum button early the Scottish Government may not have deprived itself of the leverage which the threat of a referendum would have afforded it in negotiations over the implications of Brexit for the devolution settlement which I'll come on to in a moment but first let me say something about a piece of legislation which is commonly referred to as the Great Repeal Bill because I have the party conference last October the Prime Minister announced that the next Queen's Speech would include a Great Repeal Bill and I also have to pinch myself and that title is used without any suggestion or hint or power in it but now it's intended to echo the Great Reformer Act of 1832 which put the parliamentary franchise on a current basis on the reform of the franchise but it's announced by the Prime Minister what this piece of legislation will do is speak things first and this got the largest cheer from the audience it will repeal the European Communities Act 1972 which gives effect to EU law in the United Kingdom so doing it will return so we've told power to UK politicians and institutions okay the difficulty with that is that after more than 40 years of membership EU law has woven into the fabric of UK law to such an extent that simply repealing the act without doing anything else would result in legal chaos so the second thing the act will do therefore in the interest of legal certainty will be to convert EU law into domestic law the idea being that UK law will be the same one minute after midnight as it is one minute before midnight on the day the UK leaves and the idea is then that it will be for the UK Parliament or the Devol Legislatures as the case may be to decide which elements of that law to keep to amend but from the very beginning it's been recognised and it's become clearer and clearer that not all this or such EU derived law will be operable in its own terms quite a lot of it will simply make no sense for us to EU law for us to EU institutions for us to other member states it will simply be inoperable so the last thing the bill will do will be to enable changes to be made by secondary legislation laws and I quote they would otherwise not function sensibly once we've left the EU so that our legal system continues to function correctly outside the EU and one of the consequences of Brexit therefore will be a massive transfer of legislative power from Parliament to the executive sounds simple doesn't it repeal to doubt correct that's all there is to it needless to say it won't be which is why the great repeal bill will be accompanied by as many as some say 15 other bills making those probably the heaviest or the most substantial legislative programme since the end of the Second World War so we're talking about not just a great repeal bill but a great repeal bill plus bills on immigration tax agriculture trading customs fisheries data protection sanctions plus bills on EU migrant benefits reciprocal healthcare arrangements road freight nuclear safeguards emissions trading and the transfer of spending from various EU funds to individual government departments what are the Scottish Parliament's consent as I've said my view is that the question has been delayed not settled by the middle of the case whether its consent is required or not will depend obviously on the terms in which the bill is drafted but the question of its consent will inevitably arise if, as seems clear now the powers that have evolved administrations are to be altered the Secretary of State for Scotland has been reported as saying that it's fair to anticipate that a great repeal bill will be the subject for a legislative consent process and then there are all the other bills some of which relate to devolved matters that say matters within the competence of the Scottish Parliament which could be the subject of separate Scottish legislation or else legislated for by Westminster with the consent of the Scottish Parliament under the Convention now I have absolutely no doubt that the UK government's preference will be to proceed on the basis of consent but whether that consent will be forthcoming the Scottish Parliament's consent will be forthcoming given the veto of the second and then the benefit of the referendum remains to be seen the war is clear if you can recall section 287 of the Scotland Act which said this section does not affect the power of the United Kingdom Parliament to legislate for Scotland what is clear as a matter of law is that the Parliament cannot by withholding its consent prevent the great repeal bill or any other bill in the Brexit legislative programme from law my final subject the implications of the devolution settlement the referendum meant that there was in Scotland the referendum never really happened I'm not quite sure why that was possibly because nobody actually spoke against the idea that we should continue to be members of the European Union we'd had a referendum two years before that was undoubtedly an element of voter fatigue in it it was also a sense in which this was a conservative party argument it was an argument south of the border which couldn't really resonate in Scotland and it was a little surprise there for when Scotland voted in favour of remaining but what there was in the immediate aftermath of the result laws what does this mean for us what are we going to be able to legislate about and you have members of the Scottish Parliament who are rubbing their hands saying this will mean more legislative power for us and I was asked at the end of last July to give some advice on what this would mean for the Scottish Parliament's legislative competence a piece of work that several people said could not be done given the sheer scale of EU legislation I find a way of doing it simply by scheduling schedule 5 to the Scotland Act which sets out the matters which are reserved to Westminster on to the set of EU competences the idea being that once I'd worked out which were reserved then all the others would fall logically to the Scottish Parliament and I had no real preconceptions of what I was going to find when I started on this piece of work but what I did find to my surprise was that as I went through individual EU competences the vast majority of them were actually reserved they belonged to Westminster some would go to the Scottish Parliament yes and the ones that I identified were Justice and Home Affairs Agriculture Fisheries Environment on the two other minor ones but the agreement of goods person services capital negotiation and conclusion of trade agreements all of that would go to Westminster so the accretion of powers for the Scottish Parliament would be relatively limited question so I asked myself why is that why should that be and the answer of course is that if you go through the powers and questions most of them turn out to be single market related without preserving the UK single market which if you like is the counterpart of the analogue of the EU single market so that was a picture of which I went which I came up with and I went on to make two key points one if you didn't demand the Scotland Act but the Scotland Act wasn't to be amended then the Scottish Parliament's legislative confidence would be exactly the same as it would be one minute or four midnight on the day the UK League but what would change would be that what were the terminology I used was nominal as opposed to real what were essentially nominal competences because the decisions relating to them were all taken in Brussels I could publish a very good example so the Scottish Government Scottish Parliament simply implements competences for the first time I'll use various language in which to describe that or try and get that across to politicians of various stripes full fat competence as opposed to no fat or low fat competence competence max as opposed to competence light so I made that point and the second point that I made was that this in turn opened up the prospect of different parts of the UK and offered different directives armed with these parts and with it the fragmentation of the UK single law do I have it's about to be the one winner or the one winner the black patch so that's what I said last August coming forward five months five minutes of speech at Lancaster House that I mentioned and she said this first of all no devolved competences would be resumed taken back from the devolved legislatures I should be equally clear that no decisions currently taken by the devolved administrations will be removed from but the exercise that devolved competences she went on to say should not result in new barriers to trade so our guiding principle would be to ensure that as we date the EU no new barriers to living and doing business are only created now since then and I'm cutting the story a little bit short but since then the first of these principles has undergone something of our own vision it's no longer the promise that no decisions currently taken by the devolved administrations will be removed from them instead it is the expectation that the outcome will be a significant increase in the decision making power of each devolved administration so in the letter that the Prime Minister sent she said exactly that but the second principle remains unchanged so when the Brexit Bill White Paper published last Thursday the government said as powers are repatriated it will be important to ensure that the effective functioning of the UK single market is maintained now when I last spoke about the parliamentary committees at Westminster I said we would need to wait to see how if I told these two principles would or could be reconciled but taking agriculture as an example I speculated that one possibility might be a UK common agricultural policy replacing the EU common agricultural policy which gave the devolved administrations at least as much and probably more freedom to tailor the policy to their own circumstances than the EU policy now I'm conscious I've run over my minute we've had a direct review of what paper which was published last Thursday, the day after the article 15 notification was given it is, I think the best you could say about it is a work in progress it says very little of substance it's evident that there's a vast amount that still needs to be argued over if I had a crystal ball which I most certainly don't what I would have said is what you'll see is sun and fury over a referendum which is after all what the SNP want resistance to any form of power grab what Scotland has, Scotland keeps but alongside that cooperation dictated by the practical exigencies of the situation is two-year clock that Paul talked about Scotland, after all, means a post-Brexit agricultural policy just as much as every other part of the United Kingdom and if it's not going to get it from Brussels where else is it going to get it but London my bone best guess therefore remains a UK cap common agricultural policy which will afford the devolved administrations at least as much freedom to adapt to their own circumstances as the EU regime what not to like is my reaction when I first thought about this rather a lot as I suspect they're all going to find out thank you very much