 Good morning and welcome to the fourth meeting in 2018 of the Finance and Constitution Committee. I can amend colleagues to do the usual with your mobile phones, at least put them in an order they don't interfere with proceedings. The only business on our agenda today is to take evidence on the EU withdrawal bill as amended in the House of Commons. We are here from the Minister for UK Negotiations in Scotland's place later in the morning. Before that we are joined by Professor Aileen MacRick, who is the Professor of Public Law at University of Strathclyde, and Professor Allan Lath. Alan Page, Professor of Public Law at the University of Dundee. I welcome both of the witnesses to the committee. I know you have been before us before, so I am very grateful for you attending us against the date. You provided us with written briefings, which have been circulated to members, and I think that therefore we will just go straight to questions. Emma, do you just want to set the same with your question, please? Yes, thank you. Thank you, convener. Good morning. In our briefing note, we have information that talks about certain amendments that have been made to the EU withdrawal bill. What would be the impact that that would have on the devolution settlement? In our note, it says that the provisions make clear that the devolved Governments will be able to use secondary legislation to deal with deficiencies in retained EU law. That needs to be done before exit day, as long as they have consulted rather than obtained the consent of the UK Government. Could you extrapolate on that a little bit for me, please? I think that that is a relatively minor amendment. The bill has originally introduced, provided that where those powers were to be used to make certain changes, changes that were to come into effect before exit day, changes to reciprocal agreements, then the consent of UK ministers would be required to the making of those changes. However, the bill, as amended, simply provides that the requirement is one of consultation rather than consent. However, overall, I do not think that it is a particularly significant change. I am just curious about the impact of anything that is going to be significant or not as we move forward with the progress of the withdrawal bill. I think that it is in a way that I have said that it is just a narrow amendment. Sorry, could you repeat the question? I am not a lawyer and as someone who is trying to speak to constituents about what is happening as we progress this withdrawal bill and there are amendments that have been made that it is very technical and I am sure that there are people in the room who will be able to help to answer the information. However, how is Scotland's parliament going to be affected either positively or negatively as we move forward with the settlement of this withdrawal bill? By the amendments that have been made, right. As Alan said, not very much. There are some changes to clause 7, which is the power to correct the statute book. Clause 7 gave us regulation making powers to ministers and then scheduled to replicate those with some modifications for the Scottish ministers. There is a slight narrowing of the clause 7 regulation making powers, which then has a knock-on effect on the Scottish Government's regulation making powers, but it is a very slight narrowing. As Alan said, the issue regarding consent to certain types of Scottish Government regulations has been downgraded to a requirement of consultation. There has been a clarification that regained direct EU law, which means things like directly effective regulations, where those are removed from the scope of the clause 11 restriction and devolved to Scotland, then the Scottish ministers will have the power to correct the statute book in relation to those, which it did not in the original draft of the bill. Again, those are quite narrow amendments, which do not really make much difference in principle. There are some more significant amendments to UK ministers' regulation making powers in terms of the procedures that apply in the House of Commons as a new sifting procedure that has been introduced and new requirements of explanatory memorandums. Interestingly, those are not applied to the Scottish Government's regulation making powers. I presume that the reason for that is because the House of Commons did not think it appropriate to tell this Parliament how you should exercise your scrutiny functions. Nevertheless, it is hard to see the argument in principle why the Parliament should have lesser control over the procedures that are followed by the Scottish ministers than the House of Commons will have over the regulations that are made by UK ministers. That is something that this Parliament needs to think about, to think about what kind of procedural control over the Scottish Government's regulations would be appropriate and how you are going to get that into the bill. That is quite interesting. Can you tell us a bit more about what you think this Parliament should do in those circumstances? I think that I set that out in a paper to the committee the last time I gave evidence that I am trying to recall what I said in that paper. The starting point is that the powers to make subordinate legislation, whether to correct deficiencies or ensure that the UK can continue to comply with its international obligations, are corresponding powers to the Scottish ministers, subject to some of the restrictions that Professor McHarg has mentioned. The likelihood is that, in some cases, at least those things will be done on a UK-wide basis. The fact that they are done on a UK-wide basis does not mean that they are not of interest to this Parliament. The question, which I highlighted before, becomes one then of the oversight that this Parliament has over the exercise of those powers on a GB or UK-wide basis. I am assuming that, and I am broadening it slightly now, but I am assuming that, at some point, the bill will be amended so as to make the exercise of UK ministers powers in relation to Scotland, in relation to devolved matters, subject to the consent of the Scottish ministers generally, which has not happened so far. The amendment that we were talking about earlier is much narrower than that. The crucial thing in those circumstances, as I said before, is that this Parliament knows when that is being done, that it is informed that it is being done and that it can scrutinise the decision to go on a UK-wide, rather than a Scotland-only basis. It is informed about that. The question, yet to be answered, is still to be thought about. What contribution of any can it make to the exercise of those powers at Westminster, rather than in this Parliament? In the last bit then, assuming that it is done here, what procedures will this Parliament subject the exercise of those powers to? I think that you are specific on schedule 2 in regard to this. Thanks, Bruce. I suppose that it is difficult to get excited about schedule 2, but I wonder if you could help us to clarify. You mentioned Professor McHarg downgrading from consent to consultation. That does sound like something of some significance where the first implies a right of veto effectively, but the second implies a consultative process. Is it defined where the decision-making will lie in there? Is it effectively consent by other means or is it genuine consultation? Do we know? We probably don't know. No, it does not say anything other than regulations cannot be made unless there has been consultation with the Secretary of State, so it does not say anything about the process. I think that you are right that a shift from consent to consultation is an important change in principle. I think that the rationale for the consent requirement was that the UK Government said that it was concerned, particularly in relation to regulations made before exit day, when we are still bound to comply with EU law, that the Scottish ministers might do something that put in jeopardy our compliance with EU law, and therefore they want to check over that. However, they are now satisfied that consultation will be sufficient to avoid that kind of problem rather than consent. In the other area, Professor Page in your paper says that the Scottish ministers will be able to modify direct retained EU laws in areas where it has decided that a common framework is not necessary. Could you tell us a bit more about that and what that means? Yes, that was one of the criticisms that was made of. The bill has introduced that they would not be able to modify direct retained EU law. If it was to be modified, it could only be modified by UK ministers. The bill, as amended, now provides that in those areas where the clause 11 restriction on the devolved institutions—that is to say, the restriction whereby they cannot modify retained EU law—in those areas where that restriction is lifted, and that is, of course, the crucial issue, which will those areas be and when, if at all, that decision be made and the legislation amended. When that happens, assuming that it happens, then in those areas Scottish ministers will be able to modify direct retained EU law. You could almost say that it is a consequential amendment. It anticipates that clause 11 will be amended but, without clause 11 yet, having been amended. It anticipates that the order-making power under clause 11 will be used but, as we know, as clause 11 is currently drafted, there is no obligation to use that order-making power and no timescale for the use of that order-making power. The regulation making powers that we are talking about are subject to sunset clause anyway. They only apply before exit day and for up to two years after exit day. Again, that limits the significance of any change that is made to them. In terms of those frameworks themselves, have you moved anywhere further forward in who decides whether a common framework is necessary or not? Not on the face of the bill. The promise that was made was to bring an amendment to clause 11 to the House of Commons report stage. That obviously did not happen. There is now a commitment to bring it forward during the Lord's stages but, at the moment, you know as much as we do about when that will happen and what that new version of clause 11 will look like. That is getting quite deep in terms of the technical stuff. I will make it worse. If clause 11 is removed or amended satisfactorily, why do we still need a northern council process to allow the Scottish Government to make modifications to deficiencies? That is a good question. It depends on the amendments to clause 11 and what changes would need to be made consequential upon those amendments. That is the key. If we are going to make the bill, we also need then to amend this particular bit of schedule 2 to reflect whatever changes are in. I guess that, going back to what I said earlier, it is not so much a consequential amendment as just saying that, you know, if the order making power under clause 11 is exercised, the restriction on the Scottish ministers, the Scottish Parliament is lifted, then Scottish ministers will be able to modify and direct, attend to you law in those areas. A lot of is. If they get that, Adam did. Thank you. That has helped to clarify it. Effectively, if clause 11 goes that, it does not really mean anything effective. No, no, we are done. No effect. It could stay on the statute, but it would not mean anything. Well, yes. Okay, Neil. Professor McHargan, in your submission, you said that if the UK Parliament votes not to approve the final withdrawal terms, you said that Parliament's choice may be to take it or leave it. I just wanted to explore a bit more about what would be the consequences, you think, if the UK Parliament does reject the terms of the withdrawal. You said that it was unlikely that there would be scope to renegotiate to what extent is that the case and just explore the consequences of that. Can I take it or leave it? Choice? Okay, well, this depends on a whole range of unknowns. The article 50 process, the way it works on the face of the treaty is that once we've triggered article 50, we have two years to negotiate and at the end of two years, we leave the EU. Now, if we can either leave on terms that we've agreed or we can leave on no agreed terms, that's what article 50 says. On the face of it, if the UK Parliament chooses not to accept the terms of negotiation, the terms of withdrawal as negotiated by the UK Government, then the alternative is that we just leave, we just leave with no agreement. The unknowns in that, I suppose, are first of all, article 50 does permit the two-year period to be extended by agreement, so that could happen. Although you ask yourself what's the incentive on the EU 27 to extend if they have negotiated a set of terms and we don't like it, what's their incentive to reopen the negotiation period? The alternative unknown is around about whether we could, before our two years as up, revoke our article 50 notification. That is not clear on the text of article 50. There are different views on the matter. You're probably aware that there is a case for the court of session, an attempt to get a reference of that question to the European Court of Justice, but whether that will succeed remains to be seen, and what the answer is, of course, remains to be seen. So there are a range of unknowns here. We don't know what would happen if Parliament were to reject the terms of the withdrawal agreement, but at least one possibility is, well, we just leave on 29 March 2019. If Parliament rejected a deal and there was no renegotiation, and we just left, what would be the immediate consequences of that? Well, we would leave on a WTO term, so it would affect our future trading relationship. It would affect, potentially, rights of EU nationals and all that kind of stuff that's been bound up in the negotiations. Patrick, thank you very much. Good morning. Just to follow up on that point that Neil Bibby was asking about, the amendment that's been made to clause 9 says that the regulation making powers in relation to implementing the withdrawal agreement are subject to the prior enactment of a statute of Parliament approving the final terms of withdrawal. Presumably that means a bill, that means a withdrawal agreement bill. Is it yet clear whether that bill requires legislative consent or do we need to know what's in the withdrawal agreement to walk that out? Well, I think that depends on what the bill does. If all the bill does is to grant an approval to the exercise of power in international law, a treaty, well, this Parliament has no treaty making powers and therefore I think you would make the argument that it doesn't have impacts on devolved matters. If, on the other hand, it starts doing some of the implementation, some of which might affect devolved areas, some of which will affect devolved areas, then certainly you could make a case for the legislative consent convention to apply. At the moment, I think the position of the UK Government is that clause 9 does not require consent, but the position of the devolved Governments is that it does require consent. I would have thought that the devolved Governments position is correct because these are implementation powers that can be used in devolved areas. Is that a disagreement, though, about whether clause 9 of the EU withdrawal bill requires legislative consent? There's a separate subsequent question, then, in relation to that phrase, that the withdrawal agreement bill would have to approve the final terms of the withdrawal. Surely, then, the contents of that withdrawal agreement, if they affect devolved competence in any way, that withdrawal agreement bill itself would also require legislative consent? Not necessarily, because we're up against our dualist system again. Things that happen on the international plane are different from things that happen on the domestic plane. This Parliament has no competence in relation to things that happen purely on the international plane. It's only once things that happen on the international plane start having a domestic effect that questions of encroaching on the competence of this Parliament arise. That's why I say it would depend on what exactly that withdrawal or implementation bill does. We're back to, I suppose, the kind of argument that we had around about the notification of withdrawal bill, where the UK Government says, well, this is simply about triggering an international process and, therefore, it has no implications for the devolved legislatures. Whereas the devolved legislatures taking the logic of the Miller case say, well, no, the whole point is that we've collapsed that distinction between the international plane and the domestic plane. So we're in a very unclear and contested area. But I think if the withdrawal bill, I mean, if the withdrawal and implementation bill were to do the logical thing, which is to take clause nine out of this bill and put it into the subsequent bill, so it clearly does have an impact on how the withdrawal agreement is going to be implemented in domestic law, then I think at that point there would be an argument for saying devolved consent is required. And that might be, as I suggested, that might be a reason for the UK Government wanting to keep it in here because, you know, the question of devolved consent to this bill is so much bigger. And, you know, it's easier to kind of do a deal when you've got a range of different considerations than when you're just facing that one question. Okay. Thank you, I think. Just to put it shortly, a statute of a bill approving the withdrawal agreement, as Professor McHarg has said, by itself would not have any domestic legal consequences. Lest of what's in the withdrawal agreement itself? Yes. And as you rightly point out, or your question is premisthorn, yes, the withdrawal agreement will clearly have consequences, but the bill itself wouldn't have domestic legal consequences. Therefore, the question of this Parliament's consent would not arise unless, as Professor McHarg said, the bill started to go beyond simply approving the agreement and started to legislate for what's going to happen as a result of that, at which point the question of domestic this Parliament's consent would in all probability arise. Okay. Thank you. While we're on these wider issues, on Monday the Council of European Union agreed guidelines setting out the position of the EU with regard to possible transition arrangements for the UK's exit. The guidelines state that the UK would be required to comply with all existing EU regulatory, budgetary, supervisory, judiciary and enforcement instruments. What impact of any would such a transition period have on the withdrawal? I don't think any, but just for the record purposes, would that potentially have any impact on the withdrawal bill? Not on the withdrawal bill, but it would have significant implications in terms of what's going to happen between until the point of withdrawal. If that happens, then it's effectively extending EU membership, strict of voting rights and all the rest of it, until such time as... But if it extends EU membership, what extends the conditions, but not actual membership? In terms of membership, okay. I think that the difficulty is around about the definition of exit day. Everything in the withdrawal bill is tied to the concept of exit day. EU law will cease to apply as of exit day, it will become retained EU law as of exit day, and exit day is defined on the face of the bill as 29 March 2019, but that can be modified by regulations. That's what would need to be done, some modification would need to be done in order to preserve the position in domestic law of EU law and to postpone the point at which we transfer from the EU law regime to the retained EU law regime, but that could be done by regulations. Then the date of 29 March 2019, if there is this transition period, may have to be amended to go to the end of that two-year period, so that the withdrawal bill didn't actually come into effect until the end of transition. Is that what you're saying? Yes, so that the withdrawal bill doesn't come into effect until such times as we cease to be bound by the treaties would be what's required. Alan? I mean, I sense there's a sort of neverland quality about this legislation when you talk about or the EU withdrawal bill and set it against what's assumed that this transition period involves no effective change in the terms of membership. None of this is actually going to happen, depending on what is actually agreed in terms of that transition, until that later day, be it what are they talking about December 2 years down the line or when it would be December 2020 or March 2021. When is a withdrawal? Not a withdrawal. Ivan, do you have any questions? I can't remember. I think it takes away a lot of the, you know, this legislation has been presented about and has been talked very much in terms of the scale of the task, the urgency of the task and the need to get on with it quickly. If we're talking about the transition stroke implementation period in those terms—and I'm not saying that that is what will happen, but if we are, then that slightly alters the time frame in which we're talking about getting the domestic statute built into shape to cope with the consequences of withdrawal, it becomes a less—it doesn't become any less—well, it might become less major or significant to task, but it certainly becomes less urgent to task. This isn't a question of strict constitutional law, but you are both experts in the politics of the constitution as well as in the law, strictly speaking, of the constitution. I wonder if you would want to reflect on this, and you might not want to. It's speculative because it's about the future. What do you think will happen and what do you think constitutionally should happen if this Parliament does not give its consent to the withdrawal bill before the last amending stage in the House of Lords? Part of that is easy to answer. Part of it is difficult to answer. What should happen is easy to answer. The bill should not be enacted in its current form, is the answer to that. If it doesn't gain the consent of the devolved legislatures, then it shouldn't be enacted in its current form. What will happen and what the consequences of that would be are much harder to answer. As far as I can see, the UK Government seems to be committed to gaining the agreement of the devolved Governments, so that's a positive thing. If it doesn't, I don't know what it will do. I wouldn't like to speculate on that. I think that I'm rocked in to get into the what should. It's easy to say that the bill should not be enacted in its current form. I don't think that that is going to happen, which slightly colours my view of the what should. I think that the UK Parliament would have no choice but to go ahead with the consequences. It would do it in terms of whether we are doing this with a heavy heart. We have strained every sinew, made every effort to get in agreement. Unfortunately, it did not prove possible to get agreement. Therefore, with a gracious reluctance, we go ahead. Assuming, of course, the world majority from doing that. The question then becomes one of answers that has been said, and rightly, the only court that really matters is the Court of Public Opinion, how that plays out in the Court of Public Opinion. I think that there's noise surrounding it and so much else going on. I'm not sure it would take on quite the dimensions of a constitutional crisis that people, the language that people so easily use. There's a long way to go until we get to that stage. It is speculative and it is also something that both Governments are committed to not happening. Both Governments want this legislation to be passed with this place's consent, and not despite the absence of this place's consent. It's a very speculative question. We have to remember that we have an extra long parliamentary session, so we've got two years rather than one year in order to get this bill enacted. If getting to consent takes a long time, there is time to do it. Although, of course, the longer the enactment of the withdrawal bill is delayed, the more problematic that becomes in terms of reducing time for exercise of the regulation making powers. However, as Alan said, if we're going to enter into a two-year implementation transition period, that reduces some of those time pressures. What you're saying is that this bill could be passed in that transition period and another statute brought forward or another instrument of some sort to try to get that consent? No. What I don't understand in that case is why we've got that time. What I'm saying is that a bill in the UK Parliament has to be passed within one parliamentary session, which is normally 12 months or thereabouts. However, the current session has been extended over two years, so that gives two years in which to enact the bill rather than one year. What I'm saying is that the time pressures, which would normally apply to saying that we've got to move through the stages, we've got to move through the common stages, the Lord's stages get royal ascent, are less intense for this bill than normally would be the case. Therefore, there is more time for negotiation between the UK and the devolved Governments over amendments to the bill. That would mean delaying the Lord's stage in that case. It would mean delaying something or delaying ping-pong or… Sorry, Adam, I'm cutting across you. No, not at all. There's more time in terms of Westminster parliamentary process, but there's less time in a sense that the article 50 o'clock is ticking and the 29th of March date is there. Absolutely. Although if we are then into a transition period, we've got longer to do that. That becomes less important. Going back to the Deputy Convener's question, one of the things that one would hope would happen in this period before we get to a constitutional crisis is that the area of disagreement will become clearer. At the moment, there is certainly from the point of view of an outsider, there is an absolute lack of clarity as to whether we know there was a GMC. Meeting back in October, principles were agreed. We were told that progress has been good and all the rest of it, but we know no more than that. I think that clarity around that will go some considerable way to resolving the differences between… That's a question for our next witness that might produce some clarity around that. But is the disagreement between the UK Government and the devolved Administrations is it within the UK Government, which is a possibility that one simply doesn't know, or I don't know? Neil? I was just related to that. Professor Page, when you were last at the committee, I think you talked about the possibility of standstill agreements to try and get legislative consent, particularly around the issues of clause-alignment framework. Do you still think that's a possible solution? I was disappointed to read that the committee was not persuaded by the merits of any of the alternatives that had been put forward. However, I remain of the view that there has to be applescope for all the parties concerned. I wasn't just talking about the devolved Administrations. I was also talking about the UK Government saying, separately from the question of legislative consent, if you like. That is another dimension to my previous answer. We won't do anything to compromise or threaten the integrity of the UK market or whatever until such time as we've actually bottomed out the disagreements between ourselves and reached agreement on what common frameworks are necessary, how they are to be put in place, managed, changed and all the rest of it. That, in a sense, is a key issue, of course, but it could be almost addressed separately from the bill in the sense that you could strip out, in my view, clause 11 and continue that process until you eventually reached agreement. Going back to what we said earlier, there is a commitment, as I understand it, on both sides to reach agreement on those questions. I don't see that the fate of this bill should hinge or depend solely on that question. I don't know if there are other questions at issue, but I would have thought a self-denying ordinance whereby you say, we're not going to do anything until we work this out. We're not going to exercise our powers until this has worked out. I still think that it's, from my point of view, at least a possible way forward. I'm not sure that it's possible in all areas. I can see that that would work in relation to something like environmental regulation, where you agree to maintain existing regulations until such times as you agree on what needs to be changed. However, in relation to agricultural subsidies, where a new regime has to be put in place, there isn't the option of not acting. Something has to be done before exit day or before the end of the transition period. However, you're going to have to do that anyway. You've reached an agreement on what's going to happen in relation to agriculture and, crucially, who's going to pay for it, which is a whole separate issue. The legislation doesn't talk about it at all. It's just about powers. It's not about money. There is a growing concern that we might have a pyrrhic victory over Clause 11, but it doesn't really matter, because we didn't get the cash anyway, so we just need to, in the next fight, be about the money. Any other questions, folks? Thank you very much for coming along, both professors, for that rather short session this morning, but it's a very important session, as part of our procedures that are concerning. I'm very grateful for your attendance this morning. I'll suspend the meeting to tell you a change of your witnesses. Thank you very much. Colleagues, we will now take evidence on the EU withdrawal bill, as amended by the House of Commons. We are joined for this session by the Minister for UK Negotiations in Scotland's place in Europe, Michael Russell. Mr Russell is accompanied by Scottish Government officials, Ian Davidson, who is the Deputy Director of the Constitution and UK Relations Division, and Luke McBrackney, who is the constitutional policy team. You're not the whole team. You're part of it. I welcome our witnesses to the meeting. I understand, Mr Russell, that you don't wish to make a statement, so we'll go straight to questions. Minister, the House of Lords constitutionally published its report in the bill earlier this week. I know that you met with peers earlier this week, alongside your counterpart from the Welsh Government, Mark Drakeford. Can you provide us an update on what was discussed and whether you're an indication of potential amendments that might potentially be made in the lords, and in general terms, give us an update about where we are in terms of the consent process? Mark Drakeford and I had a very constructive briefing in the House of Lords on Monday evening, chaired by Baroness Finlay of the Welsh Pier. Sameer Jones-Parrie also took part, as did Jim Wallace. We had a standing room only event, I have to say, about 40 peers attended. There was detailed questioning on the issues that we raised, the devolution issues. Say, we had a broadly sympathetic audience, I say broadly, because I don't think I could characterize the position of Michael Forsythe as being sympathetic on these issues, but most of the others were pretty positive about things. I think that I was very heartened to read the hands-on of the first day of the two-day second reading debate in the House of Lords, and the first day was yesterday, the second day is today. Andrew Adonis brought forward a reasoned amendment, and he made a very powerful speech at the beginning. He was at the briefing on Monday, and he made the point that no second reading debate in the history of the House of Lords had ever had 193 peers wishing to speak. I was very struck by the number of peers who wanted to mention the devolution issues yesterday. It was very interesting indeed. Lord Hope's speech, The Leader of the Cross Benchars, was one of the most powerful speeches that I have ever read from any of the houses of parliament. I commend it to people. It is a very clear and strong statement of why this bill needs to change and the issues, the devolution issues within the bill. I was interested that Ian Lang commended Lord Hope's speech in his contribution. There were other contributions that also indicated who would be bringing amendments. Lord Hope has indicated that he intends to bring amendments in the terms of the amendments that we put down in the commons. We devised the commons between the Welsh and the Scottish Governments. Lord Fawkes indicated, along with Lord Wiggly, that he intended also to bring amendments that would raise the issue of legislative consent and the relationship of legislative consent to the progress and passage of the bill. The issue is being well addressed in the House of Lords. The committee stage of the bill is due to take place over a period of time, lasting up until Easter. Then, of course, there is a report stage that will take place during April. That is the positive part of it. I have to say that the negative part of it is that we do not have an amendment or amendments in any concrete terms from the UK Government. I heard Professor Alan Page in giving evidence to you earlier, indicating that he was not entirely clear about the nature of the disagreement between and the failure to agree between the UK Government and the adult administration. I think that I can be very clear about it indeed today. Indeed, John Swinney and I are meeting David Lidington and the Secretary of State tomorrow, and we will be very clear about it tomorrow. There is no agreed amendment. There is no amendment that has been brought to us for the process of agreement. We cannot agree to any amendment that does not rest upon the equity of treatment of the four nations and the way in which they will voluntarily enter into agreements on what should be the subject of frameworks and how those frameworks should operate. That is very simple. We have been saying the same things since the bill was published. We have had almost seven months of that. The UK Government is a Government. It has to come to the table with a proposal. Either that or to say that it is not going to come to the table with a proposal. We cannot go on forever having meetings about meetings. That is where the disagreement lies. There has to be an amendment to which we can agree, which takes away the power grab of clause 11. There are other issues in the bill that require to be resolved. We have made that clear. However, the heart of it is the inability of the UK Government to bring to the table what it said it would bring to the table. That is where the problem lies. I do not know if you have any further questions in that. Thanks, convener. It sounds fairly clear in terms of what you are saying, as in it is not clear. The amendments and the laws have indicated that those would be along the lines of what the devolved Administrations were looking for. That sounds positive, but clearly that would not have to go back to the commons and at some stage the UK Government would have to engage in that process. Is that how it would play out? I do not know what the amendments and the laws will be. The situation that we are in, and I think that we have a fairly clear timeline of how that has moved forward, is that the bill was published on 13 July. We were shown it on 30 June. In 19 September last year, we published our joint amendments, the first time that has ever been done between the two Administrations. The committee stage started in the first amending stage on 14 November. The First Minister met the Prime Minister and discussed the withdrawal bill. I made clear to the committee on 29 November once again that there could not be a legislative consent motion without an amendment. The amendment that we put forward was voted down on 4 December. On 5 December, the Secretary of State for Scotland said that clause 11 will be amended in the House of Commons. On 12 December, the GMC-EN, Damian Green, made the same commitment. The committee stage ended on 20 December. The report stage, again, was an amendment that was acceptable to the Scottish and Welsh Governments, which was proposed by Labour. It was voted down. The committee stage has now started in the Lords. We do not have that amendment. We have no amendment that is draft or otherwise from the UK Government. Those are simply facts. There is no agreement. There can be no agreement. There will be no legislative consent motion unless that changes. Just beyond the clause 11 issue and the other areas where the Scottish Government said that it was concerned about the bill, can you give us a picture of what that looks like when we have discussions around the other elements that go through it? There was a very minor change to the bill at the report stage, which softened the issue of the ability of the UK ministers to change law in Scotland under delegated powers. There are still amendments required. I outlined to the committee at the very beginning four areas where amendment is required, the most important of which was clause 11. There remain other areas. Those are areas in which the Lords are addressing, and each of those areas will be subject to, I believe, the same amendments that the Scottish and Welsh Governments put forward. Everybody is saying—this committee is saying—that this bill needs to be changed. The Welsh Assembly voted unanimously, including its UKIP members, with regard to the continuity bill and the need for progress on that. We need to see the amending process, but at the heart of that amending process is clause 11. Thank you, convener. It is a bit depressing that we are still here going round in circles, so it seems. Underneath the top level, my understanding is that there are significantly intensified negotiations, conversations and discussions going on, particularly at official level, minister between your officials and UK Government officials' cabinet office and Scotland office. Is that correct? Yes, and I pay tribute to the officials doing this. I also pay tribute to Tory MSPs like Adam Tomkins, who have been very positive about this need for change. There has been a unanimity about this, but at the end of the day there is a need for a political decision on this matter. Ministers are sitting down tomorrow afternoon in this building, and I understand that David Lidington will have been in Cardiff earlier in the day with the Secretary of State for Wales. There is a need for the politicians to be able to say to each other that they need to say, here is our draft amendment, and we need to say, that works, that works, that does not work, and we need to have that conversation. We cannot simply rely on yet another intensification by officials, because we have not got to that. I think that it is really significant that the last time that the JMC plenary met was a year ago yesterday, so, despite the view that there should be the closest of consultations and the clearest of discussions about this, there are 12 months without a JMC plenary. There is a failure in political process here, and it is the political process that needs now to engage, and it has not done so. To be fair, the Welsh Tory AMs, the Scottish Conservative MSPs know that as well as I know that, but for some reason there is a Government in paralysis, and it has to change. Those of you who follow, and I show you all follow in this committee very closely, the negotiations between the UK and the EU will recognise this syndrome. The story about Theresa May saying Angela Merkel, you know, make me an offer. They are the Government, they have to come forward to the table, they have to have something to put on the table. We are seeing exactly the same in these negotiations as it appears to be the case with the EU. In terms of the intensified negotiations and discussions that have been going on at official level, it is very welcome that David Lettington is coming here tomorrow, and I hope that those talks are successful. One of the issues that we have debated in the chamber, minister, is the need, and you mentioned it a few minutes ago, the need for common frameworks, where they are binding to bind UK ministers and devolved ministers equally. That was one of the recommendations that this committee made in its report on the LCM. Is that one of the stumbling blocks at the moment? Yes. That is a key issue. A key issue is a word agreement. These frameworks cannot be imposed either in the subject or in content. That is the issue. There has to be a agreement. Where it is likely that frameworks will be necessary. I do not think that there is much dispute about that. The parallel discussions on what frameworks are needed and what are called the deep dives—I know that some people objected to that term, but the deep dives on the detail could produce and can produce results. I have no doubt about that. They are contingent on ensuring an agreement, content and function. That agreement has to be the agreement between equals. That agreement not only has to respect the devolution settlement, it has to understand that there is an equity in powers. Until that happens, there is no possibility of agreement. I understand that—I know that it is much quoted that a senior Tory minister in London had said at one of these meetings that we may be partners, but we are not equals. If that is the prevailing view on these issues, there will not be agreement. I just want to touch a little bit on the idea. I know that we are covering some of the same ground, but on a previous appearance in front of the committee, you said that you felt that the JMCEN had been reset to a degree in at least that it was meeting regularly and that progress was made when a set of principles was agreed for going forward. Do you think that that momentum is still going now or has it stalled? No, it has stalled without a doubt. The reason I am very straight about this is that unfortunately, Damian Greene's departure stalled the process. He had a commitment and a developed commitment to making the JMC work if he could. He had significantly slimmed down the attendance of the JMC, which was a big issue. The JMC had a cost of thousands, and it was not conducive to discussion. We were beginning to focus on the big issues, which include—it is not simply that it was 11. There is a very big issue in terms of representation and involvement in negotiations. The terms of reference of JMCEN were twofold when it was established as a result of the Downing Street plenary JMC in October 2016. The terms of reference are four key points. They have to discuss each other's requirements of the future relationship with the EU. We put papers in, they have been denounced, and they turn out to be the same as the UK papers, which is rather galling to say the least. We were meant to seek to agree a UK approach to and objectives for article 50 negotiations. It never happened. We never saw the article 50 letter. It was never discussed. This is key to provide oversight of negotiations with the EU to ensure, as far as possible, that outcomes agreed by all four Governments are secured from these negotiations. That is the involvement issue. It did not happen at all in the first stage. It now has to happen in the second stage because areas of devolved competence are being dealt with in those negotiations. It says that discuss issues stemming from any negotiation process that may impact upon or have consequences for the UK Government, the Scottish Government, the Welsh Government and the Northern Ireland Executive. Those terms of reference have not been observed. We last met on 12 December. We met in a meeting before the end of January. It has not taken place. There have been endless negotiations about meeting dates. The UK Government tends to insist on Tuesdays and Thursdays, even for First Ministers, ignoring First Minister's questions and questions in the Welsh Assembly. I think that we may now have a date for the GMCEN towards the end of February, and I think that work is still going on the date for the GMCP. What priority is being given to this? How will those terms of reference agreed amongst all of us? Those are not imposed. Those were agreed amongst all of us. How will they operate? We have no proposals on the issues of involvement negotiation, though it was a key issue at the GMCEN on the 12th. We were told that they would be coming forward with proposals to ensure that this happened. Nothing. You can understand an element of frustration in this. On a slightly different note, you said that you would listen to the session that we had earlier with the two professors who were giving us evidence. Professor Page said that, in his view, we were a long way from a constitutional crisis. Do you share that view? No. I reluctantly disagree with Professor Page, but I did. I said on Monday that I think that we had been in a constitutional crisis for some considerable time. I think that it is simply deepening as day follows day, and it is deepening because of the United Kingdom Government. It is failure to observe the GMC process, failure to bring forward an amendment and failure to recognise the importance of it. Alexander Stewart If I could just talk about common frameworks and some of the progress and some of the detail, now I know that the minister has always wanted to avoid conflict. Where adjudication is needed, for many people, a logical final court of adjudication, given other parts of the UK legal system would be the Supreme Court, would you agree with that? If not, what would you or what are you proposing instead? I started out on this journey thinking that there would need to be some sort of Supreme Court of adjudication, not the Supreme Court, but some. Actually, I have been quite impressed by some of the mechanisms that already exist to resolve issues. If you look at the fishing issue, there are in actual fact some fairly complex and long standing arrangements between Governments in terms of discussing issues of contention within fisheries. I think that one of the discovery processes during the deep dives in those areas where frameworks have been agreed to be useful or desirable has been that there are many mechanisms that are already in existence. Of course, in areas like fishes and agriculture, there will also be primary legislation from Westminster. Where there would require to be a governance system established in statute, then the potential exists for that statute to be passed in any case. I think that it is unlikely that we would want to construct a system that was very legalistic in its operation if there were existing mechanisms that could be used or if, within the legislation going forward, by agreement with legislative consent, there was a possibility of establishing those systems. I am actually quite hopeful that we could make this quite fleet of foot and less bureaucratic than it would otherwise be and probably less legalistic. We have narrowed this down quite substantially in terms of what will be involved. I had a positive discussion with the NFUS this morning about some of the agriculture issues. We are quite clear that we could construct this in a way that was non-bureaucratic and that it was quite helpful. Of course, the council of ministers operates in that way in Europe that there can be consensus and agreement. The idea that you would have the four ministers involved in agriculture meeting together and being able to agree these things on the basis of equality would be a positive thing. I am not sure how much Michael Gove would enjoy it but the others might find it quite productive. Adam, can I ask a supplementary on that? You have said before, minister, that animal welfare might be an area where you would expect it to be the need for a common framework. Let us take that as an example. Suppose that there is a common framework in the area of animal welfare and you want to act in a way in which the United Kingdom Government thinks reasonably or unreasonably, rightly or wrongly, is contrary to that common framework. There is a dispute between the two Governments. Do you think that that dispute should be resolved without recourse to a court of law? I hope that we could make a structure that would allow that to happen. Can you just talk me through the detail of what that structure might look like? I am not saying that I can guarantee that but I am saying that, for example, if we were to accept a common framework of regulation within that area, the regulatory framework would probably dictate how that would work in terms of the actions of each individual Government. We would understand the parameters for those actions. If a Government wanted to act out with that, there would be, of course, an issue. However, I hope that the framework that we presently have, for example, on regulation, tends to operate without that happening most of the time. There are occasions—I am just going to try and anticipate this—there are occasions, of course, where you could look at some of the BSE disputes with France, where that becomes a matter for the commission and the system in there. Therefore, I think that that needs to be borne in mind as the regulations are being drawn up. You then have the added complication that, of course, if you are going into regulatory alignment on an agricultural issue with Northern Ireland, which might be in regulatory alignment with Ireland and therefore with the rest of the EU, you might well have a function there of the ECJ, so you have a complex thing. To understand what this is going to look like without having courts at least as a backstop, because you mentioned the Council of Ministers and how it is resolved in the Council of Ministers, but, as you know and as you have just said, the commission has the power under article 226 of the treaty to take any member state directly to the Court of Justice whenever the commission thinks that the member state in question is infringing EU law. I am not saying that there would not be and could not be such difficulties. I am saying that we started off in these discussions on the basis of seeing what the existing frameworks could deliver. We are heartened by how much they could deliver in these circumstances. The important thing is that, when we get to the stage of visualising the frameworks in detail—presuming that we get through this difficulty—we need to sit down with the committee and discuss the issues in more detail and give examples of how they will and will not work and have them scrutinised. I am heartened by that. Previously, Scottish ministers and Welsh ministers have been very deeply critical of the dispute resolution procedures in the JMC, but now it seems that you want to maintain some kind of JMC-style dispute resolution rather than going to court. I am not sure that that is true, because I think that the corollary here is one of your own recommendations in terms of statutory footing for the JMC would change that structure and atmosphere. We will respond to those recommendations in writing. I know that the issue of having a statutory footing of the JMC might also encompass that, and I am not unsympathetic to discussing that. On the question of the common frameworks of the 111 powers that are in your list of proposed amendments originally, I think that we understand that a number of those would be subject to common frameworks, and there are a number of others that would not require that, which could simply be devolved straight to Scottish Government, Scottish Parliament. Is there actually a list formulated anywhere of which falls into which category? Yes, we are pretty well down the road of that, but we are not complete in my view. I know that the Secretary of State for Scotland has talked about wanting to publish a list of where we are on this. I am not against talking about that, but we have not finalised the deep dive process yet. There is deep dive on animal health, or is it plant health this week? Both. It is amazing what you have to keep abreast of, and there is one on procurement on Monday. Until that process is complete and until we have bottomed out to carry on the deep dive analogy, I would not want to release anything from the list, but, broadly, the list was obviously able to be subdivided into those things that there was no need for anything. Adam Tomkins wrote about that. I think that it was the aircraft noise that he used as an example in your Scotsman piece. I am a deciduous student of Mr Tomkins' writings. There were things like that that you could put to one side and say that that should not be bothered by that. Things in the middle—some of those were already subject to frameworks of one sort or another, and therefore there is not much point worrying about them because they are there and they operate. Then there were these additional things that needed to be looked at. Remember our starting point, middle point and end point on this is that all of those things were and should be devolved. What we are talking about is consent and agreement—not just consent but agreement—amongst us all that there was this much smaller list that would be subject to frameworks provided that we could agree that they should be and provided that we could agree on the form and content of a framework. Is that a smaller list that we are in the process of finishing work on? Okay, thank you for that. If the Secretary of State wants to publish the list as to where we are at the moment, is there any particular reason why you don't want to do that? I think it's premature because we haven't finished that work. I mean, I can't imagine why we would want to do that until the work is done and we are able to say with confidence those are the areas. But the other thing is that none of those will happen unless we get the agreement on the bill. I mean, the reality is that it's a bit of a distraction in my view. I'm happy to talk about it. I commend the work that's been done by officials. It's been detailed and thorough, but it is not an end in itself. If David Lidington and the Secretary of State arrive tomorrow with an amendment in their hands, which we can negotiate and progress is possible, if not, it isn't. On the current frameworks, whether it's an implementation or a transition period, and if that period is entered into, as the EU laid out at the beginning of the week, there isn't that same urgency around common frameworks anyway? I was interested in Professor McCargg's analysis of timescales on this and the previous evidence that she gave to you. Of course, there's a middle element that needs to be considered, which is the time that will be taken for secondary legislation, which will have to be undertaken during this period. It's not elastic. There are parameters on both ends. You have a wider bit at Westminster, but the transition period, yes. Of course, the transition period, the present intention for it to last until the end of 2020, is in itself a debatable point, I mean quite clearly. My view is that it should be destination and not transition, but even those who believe in transition or, as the Prime Minister calls it, implementation do many believe that you need a longer period. Good morning. Just looking ahead at the possibility that agreement isn't reached between the two Governments on the EU withdrawal bill, you've indicated the possibility of a continuity bill being introduced here. Your letter to the Scottish Parliament's Presiding Officer on 10 January said that, to that end, our officials are developing a continuity bill for Scotland. This letter is intended to give you and your officials notice that the likely introduction of the bill in February and its submission to you for pre-introduction scrutiny later this month, that presumably means later in January. We're now at the 31st of January. Can you say where things stand with that? More particularly, what is involved in a continuity bill and what would the job of scrutiny look like in this Parliament of that substantial piece of legislation? It is with the Presiding Officer. Therefore, we await the Presiding Officer's view. I'm not at liberty to publish the bill until the Presiding Officer has given his view. Therefore, I'm not at liberty to go through the detail of the bill at the present moment, but at the earliest possible opportunity when we introduce it, this committee clearly will be very keen to see it. The bill essentially seeks to achieve what the withdrawal bill does, that is to ensure that there is no legislative cliff edge. Presuming if it is approved by the Presiding Officer and is seen to be legislated to be competent, then the Parliament will judge how it should go forward. It will be a bill that requires to go through more rapidly than other bills, because, quite clearly, it has to be through before Royal Ascent is given to the withdrawal bill, because it does the same job and it has to go in essentially at the same time. We have a longer period between passage and Royal Ascent, as you will know, and therefore the timescale will have to be constrained. However, that will be a matter for the Parliamentary Bureau and the Parliament to discuss, or we can indicate what the objectives would be. However, I would want to see it having the maximum scrutiny. You have seen the EU withdrawal bill, so therefore the means by which this might be done are not unfamiliar to you, but I can't go into any more detail than that. When you say that you would want to see the bill given maximum scrutiny, I'm notwithstanding the fact that the decision on procedure would be for the Parliament to make, the Government will make its proposal for what that procedure should be. Can I assume that you would not be seeking to have that bill pushed through in a single day, but you would want to extend some greater scrutiny for that, both in this committee and in the Parliament chamber? I would want to see the maximum possible scrutiny of that bill. I would hope that we would be able to achieve that in the timescale that I have indicated, but I am not in a position to say what the Government will bring to the Bureau as yet. We very much are thinking about this, thinking about what needs to be done. I don't want this bill to be anything other than the subject to the widest view, but equally there is a timescale in there that will have to be observed. That discussion has to take place. I think that it's just worth reflecting on the fact that emergency bill procedures tend to be used for relatively minor or technical matters, not for major constitutional change. It is not a bill like—I'm trying to remember an emergency bill—the one that was involved in resetting tools on the Erskine bridge under the Labour and Liberal administration. It's not of that nature, of course, and we accept that. You said earlier on this morning, Minister, that the UK Government gave the Scottish Government the courtesy of a site of the withdrawal bill two weeks before it was published. Will you return the compliment by giving the UK Government a site of the continuity bill two weeks before it's published? If I know when I know it is to be published, of course that would be the case. I don't know that you want to be very clear. I have no publication date in my mind at present moment, but the moment we have, I certainly think, two weeks is the minimum that I would want to give. Minister, could you tell us where we are, if anywhere, on the charter of fundamental rights? Have they gone and are we now relying on the Lords to perhaps bring them or elements of them back? Well, there is absolutely no doubt that the Lords will wish to do that. I was aware of that in discussion on Monday. It is a key concern. Indeed, one of the areas that was raised with me by Lord Fawkes was whether or not the Government had a view on other issues in the withdrawal bill over and above the devolution issues. The answer is yes, it does, but the common work with Wales has been designed to focus on the devolution issues. Of course, we don't believe that the rights will be adequately protected by any of the proposals that the UK Government has yet made. Therefore, we will have to make sure that they are addressed, and we would want to make sure that they are addressed. Of course, addressing them in the Lords would be an obvious way forward. We would hope and expect that the Lords would do so. Do you expect them to try and bring the whole charter back in on block, or do you think that there will be some kind of picking and choosing to try to get some kind of agreement? A number of the peers that I have spoken to are very keen to restore the status quo on this, and they are not convinced by the UK Government's arguments. That is a matter for the House of Lords. Despite my discussions with them this week, I am not an expert in the House of Lords procedure. It is up to them what they do, but I know that there is a keenness on that. There is a strong view in the House of Commons that the proposals that they went through are not adequate. Emma Cackie, I am interested in exploring the report that was published this week. It is an online report by BuzzFeed. It was an EU exit analysis cross-white hall briefing that was published, and it stated that leaving the EU will adversely affect almost every sector in the UK region, and it quoted that almost every sector in the economy, including in the analysis, would be negatively impacted—chemicals, clothing, manufacturing, food and drink, cars and retail. I am curious about what the reaction has been from the Secretary of State, David Mundell, regarding this or any other analysis. Has there been any comment from the Scotland office? I am unaware of it. I do not spend my time trolling the Twitter feed of the Scotland office, but I am unaware of any such comment. However, I think that you could note with perhaps a rai interest the Secretary of State's comments on 17 January, when he described the Scottish Government's report, which actually comes to virtually the same conclusion. Scotland's place in Europe, as published on 15 January, was at the fact that, when I first saw the first coverage of the BuzzFeed coverage, I thought they were talking about our document. Essentially, it is at the same point, and the Secretary of State for Scotland said, objective observers might wonder if the aim is to provide bracingly frank analysis or to try and talk up the challenges of Brexit. The reality of the situation is that I think that that report, as far as we know it from the BuzzFeed leak, should clearly be published. It was meant to be shown to Cabinet ministers only in locked rooms, but if that is published and does what I believe it does, which is to confirm our own views, then there is a question of whether the Secretary of State for Scotland had seen the UK report at that stage or knew of it's existence and why, therefore, he would attack the report in exactly the same terms in the Scottish Government but failed to mention anything about his own report. Do you think that that kind of report might be partly what is contributing to the paralysis of the UK Government that you describe? Andrew Adonis, in his opening speech in the House of Lords debate yesterday for the reasoned amendment, quoted George Orwell in his essay Politics in the English Language. Orwell wrote that, in times of crisis, political language is designed to make lies sound truthful and to give an appearance of solidity to pure wind. The political language that we have heard around Brexit is enaming to disguise the fact that the UK Government cannot have a policy because, if it moves on one side, it will offend one group, if it moves on the other side, it will offend another group. It is vague generalities that we have heard for the last 18 months, but you cannot come to an agreement on vague generalities. You have to have a specific agreement. We saw that with the different interpretations of what took place in December, particularly over the Irish issue, and we are seeing it again now, and there will need to be a position taken. Now, I know little of the internal machinations around the clause 11, but it does strike me that an outside observer might think that that is exactly what is taking place. There are some people who do not want that change to clause 11, and there are some people who do want that change to clause 11. In the middle are ministers who are endeavouring to balance the two forces. What you learn in Government eventually is that you have to make a decision and you have to push ahead with that decision. If the UK Government wants to bring the amendment, it should bring us the amendment for discussion, and we will make progress in that way. Mr Smith, just a final question. Obviously, we all hope that clause 11 issues will be resolved. We hope that we can come to a successful conclusion on how we come to agreement on common frameworks and that all those matters can be put aside. At the end of the day, that is going to come down to the money. We can have those pyrrhic victories around clause 11, which is important, but if the cash is not there at the end of the day, then this really matters. Where have we got to in discussions about cash, if anywhere? Those discussions have not produced any results, because again, the rhetoric is one of the problems. Michael Gove, in his speech to the Oxford Farming Conference, for example, made an assertion about continued farm support until 2024. No such commitment has been made to Scotland, so we do not know whether that will apply or won't apply. In that speech, incidentally, he mentioned the archers more often than he mentioned the devolved administrations. I do not think that his focus is on the things that really matter, but we need an indication of money and money flows and fiscal flows, and we just do not have those indications. Assertions are made, and then pressure is put on us, put on the treasury by us to try and make sure that there is assertion supply here. However, it all folds into what I read out in terms of the JMCEN remit. With a functioning JMCEN and an atmosphere of mutual respect, you would ask me that question and I would be able to say that those are the discussions that are taking place and that is what is happening. I cannot, because that is not what is happening. If David Littington is a new broom and he has the opportunity to show it, he has to come here tomorrow with a cost-iron commitment to get the JMCEN process up and running and working, and he has to come determined to get an agreement on clause 11 and the details around the bill. That includes the JMC involvement in the negotiations and making sure that the Scottish Parliament and the Scottish Government are in there. That is what we now need. Without that, we continue in this state of chaos or not wishing to contradict Professor Page's constitutional crisis. Thank you, minister. Thank you for your official colleagues coming with you today as well on giving us evidence. I will close this session with the finance committee.