 Welcome to the 25th meeting in 2017 of the Finance and Constitution Committee. The usual story regarding your mobile phones or other such equipment, please. We are on to agenda item 1, which is to decide whether or not to take item 3 in private. Are members agreed? Members are agreed. Our next item is to take evidence on the EU withdrawal bill. We have today Michael Clancy, the director of the Law Reform and Law Society of Scotland. Professor Jim Gallow, her research fellow at the Nuffield College in Oxford University. Professor Michael Keating, professor of politics of the University of Aberdeen. Professor Eileen McCarren, coos professor of public law and university of Strathclyde. Members of the committee will recognise from your papers that you had earlier. Professor Laura Cram was supposed to join us, but unfortunately she said to give her apologies, so she can't be with us today. I'm also conscious that Michael Clancy will need to leave about 11.30. You've got a flight to catch, and therefore we'll try to achieve that, Michael, as best as we can. I'm sure we will. Members have received— Reiner, thank you very much. Well, if we don't, we'll understand that you've got to go. Members have received written briefings from this morning's participants, so without further ado, let us move to questions. I want to try and ask what I think is a simple question. In regard to the EU withdrawal bill, which for all intents and purposes I think most people agreed is effectively a continuity bill, is clause 11 necessary in order for the UK Government to reach the objectives that they are seeking to achieve in the bill? You've all written about that, so if we could be as close to yes and no as possible that would be helpful for other record purposes. So who wants to kick off? Something like clause 11 is necessary, because as powers wisely or unwisely are repatriated from Brussels to the UK, there needs to be a mechanism for allocating those powers to the different levels of government inside the UK. As you know, convener, I don't think that mechanism chosen in clause 11 is absolutely right, and I think it's wrong in some respects, but there is one defensible point in it, and that is that at a time when there is very deep uncertainty of precisely which powers will come back, which will remain, what the transitional arrangements will be, the extent to which EU law will continue to apply directly or not, all those questions remain unanswered, there is an argument for a holding pattern for a period until things become a little clearer. My view is that it is defensible to have clause 11 as it stands, provided that the approach of reserving everything until it is actively devolved is something that lasts for a defined period of time rather than permanently. No is my answer. There is a general agreement that something needs to be done about powers that might have to be exercised across the UK. There might have to be some common framework for market issues, competition, external trade treaties and so on, but I don't think that clause 11 does the trick because it merely refers to a bundle of things that just happened to have been legislated on by the EU. We've now had that list of 111 competencies, which is frankly a ragbag of bits and pieces. I think that that's starting at the wrong end. If there are some principles that must underpin what the UK Government did call the UK single market, which it now calls the internal market, which I think is a better term altogether, those principles should be laid down and the division of competencies and the machinery should flow from that. I think that they've gone about this the wrong way around. Possibly, as Jim said, there might have to be something to deal with the transition period, but that is not a solution to the broad problem. I agree with Michael. I think that it is necessary to remove the obligation to comply with the EU law that is currently in the Scotland act. I know that there are arguments that that might fall away anyway, but I think that, for the avoidance of doubt, it's best to take the obligation out of the Scotland act to comply with EU law. In terms of what happens in the future, I think that the approach taking clause 11 clearly isn't the only way in which necessary co-ordination post at Brexit could be achieved. It may be justifiable as a transitional measure, but, as Michael says, it is not, in fact, a transitional measure. Unlike many of the other provisions of the EU withdrawal bill, there is no sunset clause, so it's conceived of or presents as an indefinite solution, and it's not an appropriate, indefinite solution. Michael. We've had two nos and a yes, so I suppose it's for me to say it depends. And it depends— I'm not letting you away with that, though. No, I know. I know. Thank you, convener. Take me on a short leash. It depends on your perspective. Clearly, the United Kingdom Government believe it to be necessary, otherwise they wouldn't put it in the bill. But there are other views, and you've heard some of them already this morning. So, from the society's perspective, of course, we looked at this provision, which takes away the EU competence from the Scottish Parliament, and, in our view, that is likely to engage the Sewell convention. And also, we believe that the provision should be time limited, and we've promoted amendments in the House of Commons to that effect. And also, we believe that there are alternatives to be employed in connection with clause 11, for example, adopting only on a transitional basis, repealing the EU constraint completely, and leaving EU competencies once they are repatriated to fall, as determined according to schedule 5 in the 1998 act, replacing the cross-cutting EU constraint with new constraints, and lastly, repealing the EU constraint and amending schedule 5 to re-reserve the provisions that come back from Europe. So, depending on your perspective, you could pick one of those options. They're not the only options, but one of them, and amend the bill accordingly, but that's a matter of which we will no doubt discuss further. You must have thought we knew what my second question was going to be in terms of the way you just answered that, but no, to be fair to Jim Gallagher, I think it was a yes, but it was conditional yes. It's pretty conditional. Just to make sure we... One aspect, I think, is justifiable in other respects, I think it is not. Okay, we've got a situation now where the clause 11 exists, Scottish Government, UK and the Welsh Governments have put amendments down, general agreement that some sort of framework arrangements will be required. At this stage, from what I can see, there is no majority in this Parliament to pass a legislative consent motion of clause 11's there. Therefore, the ball, I think, is firmly in the court at this stage of the UK Government. I'm trying not to make this a political question because we've got to find some solutions here. So, if you were in that situation and that framework, what would she suggest to both Governments about what should now happen to break that deadlock? Well, I think that the two Governments in that case should go back to negotiate. I know that we all know that the civil convention is not enforceable as a matter of law, but it is part of the constitutional understandings that underpin the devolution settlement. It would be very unfortunate precedent for Westminster simply to override the refusal of legislative consent. Since I've argued in my paper and elsewhere that there are four or five different ways in which you can deal with the issue of the need for frameworks, I think that the UK Government could dispense with this particular one and start somewhere else. There is a time limit, of course, but then that applies to the whole of Brexit. Things will have to be learned very quickly. However, I don't think that the world would come to an end if we dispensed with this clause. Again, I agree with that. I don't think that this would be a situation in which the UK Parliament would be justified in overriding a refusal of devolved consent. I don't think that they should get to that point. Negotiation is required. To take account of the uncertainty clearly, some kind of relatively open-ended mechanism is required, one that is flexible in its operation, whether that is some kind of institutional solution that provides a forum for negotiation over future common frameworks or some kind of writing in of flexible principles into the bill. Although I don't like that, it would be an example, for instance, of an obligation not to legislate in a way that threatens the UK's internal market. That kind of flexible principle that allows for the taking into account of unforeseen situations would be an appropriate way ahead. Michael Jum. We have always said from the very beginning in this process that this is a whole of governance project. It is not simply something that belongs to the United Kingdom Government, but it should engage properly the devolved administrations and go wider. It should engage properly civic society generally. I think that the disappointment of which some committees, both here in the Scottish Parliament and in Westminster, have expressed about the JMC process is one that highlights where things need to change. I think that the communique that was issued from the meeting between the UK ministers and the devolved administration ministers points the way for establishing common frameworks, which could create the environment for agreement as to how clause 11 might change. However, as the bill is just about to begin its committee stage in the House of Commons on 14 this month, times are wasting. Therefore, this is a time for focus and attention to be paid to making this measure work properly within the concept of how we approach our constitutional arrangements. I think that it is significant that the UK Government has said that it will seek devolved consent. It went out of their way to do that and in the circumstances that are anything but normal of the Brexit bill, that is quite important. I therefore think that the process of negotiation that is under way needs to work. It probably will work. In terms of the bill, the right thing to do would be to amend the bill to put a sunset clause on clause 11, which would secure the short-term position and would put as it were equality of arms between the Governments in the negotiation that they are about to have. The general principle that matters should be devolved unless there is good reason to reserve them seems to me to be the right principle to operate on. However, there are things that are currently uniform across the UK solely because they are subject to EU law, which will require to continue to be uniform across the UK. As Michael Evidence says, there are a number of mechanisms that one might use to secure that. Some of it might be to add some issues to the list of reserved matters in schedule 5 and make them uniform across the UK because the UK Parliament will legislate on them. Others might be done by having an agreed common framework on matters that relate to things that are still devolved. That agreement could either be to legislate in parallel here in Cardiff and Belfast and in London, or to legislate in London with sole consent on an issue like, say, agriculture. My impression is that negotiations between the Governments have actually begun in earnest, now in a way in which they hadn't earlier, partly because, as you said, convener, we need to put some of the politics aside here and find a solution to what is a very difficult operational situation for many people. Those negotiations will succeed if and only if each side is not obsessed by the notion of sovereignty and the gaining of power, but it is actually looking for things that will work in the real world. That long list that Michael Evidence is mostly on and ends, there are a few big things that matter here. Things relating to the internal or domestic market include things such as state aids, things relating to agriculture and fisheries and things relating to the environment. Most of the rest of it is bits and pieces. Neil Findlay I introduced the sunset clause. Neil, do you want to ask questions about the sunset clause? Neil Findlay I have been mentioned by Professor Gallacher about the sunset clause, making the clause 11 more acceptable. I wonder if you wanted to expand Professor Gallacher on how exactly it would work and how its effects could be guaranteed and also to the other members of the panel on their views on the sunset. I think that that is a reasonable question. It is one thing to say sunset, it is another time to say when British summertime begins and ends. At the very minimum, there is the transition implementation period that is currently under discussion, since we do not have a clue what that is going to be, it is quite hard to legislate for it. I think that the best proposition in my view would be to set a reasonably long drop dead date four or five years with the capacity to do with individual issues before then. If that were three years, I would not object. If it were three, you might have to say and in special circumstances in some areas it might be extended. We have, as I mentioned, framed an amendment, which we have promoted to opposition and backbench members in the House of Commons. That looks at having a period of two years beginning with exit day, which takes us from now through to 29 March 2021. That could be amended further if it were seen to be too short, as Jim has suggested at a period of five years from exit day. Is it from exit day? Yes, I think so. If one imagines a two-year transition, which might run into a three-year transition, then a couple of years to tear you up afterwards. Sorry, if you could avoid having this. Just help me, my friend, out, convener. That was my fault for leading him on. Sorry, convener. That takes us quite some way into the post-exit period. One of the features of amending it with a short time limit is to concentrate minds among those who are deciding this process. Yes. One problem with this notion of a transition period, especially if it's up to five years, is that a lot of decisions will be made about policies in that time. We'll probably have a completely new agricultural policy, for example. If that is set unilaterally by the UK, then there's no point in giving the powers back to Scotland later, because all these decisions will have been taken. Presumably, during that transitional period, there needs to at least be a mechanism for the devolved Governments to feed into whatever the new policy was going to be. I was going to make a similar point to Michael. We mustn't think that the EU withdrawal bill is the only game in town. We know that there is other Brexit legislation to come, and therefore the input of the Parliament into that is also important. How could it work? How could it be guaranteed? It couldn't be guaranteed, because it could always be extended. There might be a case in principle for a sunset clause. Personally, I would do a lot more sunsetting in the EU withdrawal bill, and I would sunset the whole concept of retained EU law itself, because I think that causes many, many problems for the legal system. If we were to sunset the concept of retained EU law, then necessarily clause 11 would also be subject to a sunset there, too. I want to try and drag you back from sunsets into clause 11. Good morning. I think that it's fair to say that all three Governments—there isn't one in Northern Ireland at the moment—want this legislation to be passed with consent. Nobody wants this legislation to be passed without consent. As the convener said, I think that what we're interested in is trying to find a solution, in particular to the clause 11 problem. Last week in the House of Commons, Secretary of State for Scotland David Mundell said that of the 111 powers that Professor Keating referred to, all of those 111 powers would be exercised either by the Scottish Parliament or would be subject to a common framework to which the Scottish Government is a party. He then also said that the common framework will be agreed between the Governments of either Great Britain or the United Kingdom, not imposed on the devolved Administrations by Whitehall. Do you think that that kind of approach is likely to achieve the solution that I think we're all looking for so that this legislation can pass with consent? It takes two to tango, and if the approach of the two devolved Governments that are currently in operation is broadly similar, then an agreement can be reached. The necessary condition is that neither side is a hedger and ditcher on retaining sovereignty or grabbing power. If we focus on what needs to be done, it is in the context of an almost impossible project of leaving the EU, this part is certainly achievable. The interesting thing for me is to, as Michael said earlier, to get a clear understanding of the nature and the policy objective involved in each of those common frameworks and the external constraints upon them. Let me offer you two examples. One is the extent to which the European law currently underpins the UK internal market. An obvious example there would be the law on public procurement. Before the UK joined the EU, public procurement simply happened across the UK. There was a domestic market, that's the market in which it happened. Since we've joined the EU, there has been a comprehensive, complex, detailed and difficult to follow at times set of rules on public procurement. The world has moved on, we can't go back to where we were in 1972, so a common UK framework on public procurement seems to me to be sensible and desirable. Whether that's done by agreement or legislated for Westminster as a reserved matter doesn't seem to me to be all that important, to tell you the truth, provided there's agreement that it should become a reserved matter. That's one obvious example. The second obvious example has already been mentioned and that is agriculture. We will need a UK agricultural policy because there will continue to be a UK internal market in food products, but that agriculture policy will have to take account of the fact that the UK will enter into international obligations as yet unknown relating to trading agricultural products. Until we know the answer to that second question, we can't decide what the common UK framework on agriculture is. Some other issues will arise in relation to fish. Yes, if these powers are going to be exercised by the Scottish Parliament or by a common framework and if the framework is agreed, then I think that that's an argument against clause 11. I think that it becomes increasingly redundant. In fact, the issue of the broader UK internal market and the level of playing fields goes well beyond those powers. The relationship between that list of powers and the concept of a UK internal market is really contingent. They slightly overlap in some things and don't in others. Can you give a couple of examples that would really help the committee to understand what you mean by that in terms of the overlapping and the not overlapping? For example, we take the case of minimum pricing of alcohol. That came up, was proposed as a public health measure, and then it fell foul according to the opponents of single market regulations and competition regulations. That wasn't really anticipated. This notion of what the UK Government used to call the single market, the UK single market, was really misleading because it was an analogy with the European single market, which is not about particular competencies. It is a broad set of principles that can come up in just about any policy sphere or whatever. I think that it would be more appropriate to start at that point. What is the issue here about free trade and free movement of trade and exercise of professions and so on? The reason for that is that, rather than looking at those powers that are devolved that fall into areas that the EU happens to have legislated on—this is the point that I murdered earlier on—they are starting up the wrong end. Also, thinking about mechanisms. It is all very well to talk about frameworks, but the EU single market, if that is the analogy, has very specific mechanisms. Particularly, it has legal mechanisms for enforcements, it is not just a political mechanism, it is subject to principles of subsidiarity and proportionality. We could learn a lot from that in thinking about how those principles might be applied within the UK. It would probably point us in a different direction from what seems to me to be a rather quick fix. Let's take the powers back and then we'll devolve the ones that don't contravene the notion of a UK internal market. To answer Adam's question about whether the devolved Governments ought to be satisfied with the commitment that the Secretary of State has made, I think that it is understandable that it might want more guarantees. If we go back to the immediate aftermath of the EU referendum, of course, there was a promise that article 50 would not be in vote without agreeing a common line between the UK and devolved Governments. We know that that did not happen. It is unsurprising, given the context, that the devolved Governments would want more guarantees than simply a promise that this is where powers will be devolved and this is how we will operate common frameworks. I think that that guarantee could come through the removal of clause 11 from the bill, because that would give the devolved Governments some concrete powers in relation to the negotiation of common frameworks. On the wider point where this conversation has gone in terms of the idea of the UK single market, it is really important that we understand the complexity and the controversy of that concept. Because the idea of a single market has been constitutionalised at the EU level, we have perhaps lost sight of the fact that it is a politically contentious notion where how far markets extend, how much harmonisation they need, how far they extend into, as Michael said, issues of social regulation as well as economic regulation, these are all contestable issues. Public procurement that Jim mentioned, yes, okay, so public procurement at UK level pre-devolution, that would have been done on a common basis perhaps, but public procurement also applies to local government and the application of detailed contracting frameworks to local government was not simply a matter of EU law. That initially was policy of the Thatcher Governments to constrain the powers of local government and at the time highly politically contentious. We need to recognise what is at stake here. This is not some kind of technocratic process of maintaining something that is unproblematically understood as the UK single market. These are intensely political matters about which there is likely to be disagreement, legitimately so. Michael? The schedule 4 of the Scotland Act 1998 preserves or makes protected legislation the treaty of union so far as it creates a system for freedom of trade within the UK, as it then was the United Kingdom of Great Britain. This is not a new issue. I think that there is a tendency just to think of labelling these things as new. When one looks at the list of 111 powers that the Cabinet Office provided to government in Scotland on this, you can see that there are things that would clearly fall into that concept of freedom of trade—animal health and traceability and movement, carbon capture and storage, data sharing and things like that. Those are very clearly things that could be viewed through a strategic United Kingdom lens when coming to decide how to deal with them. It is a matter of political agreement. The UK and Scottish Government, the Welsh assembly Government and however we get Northern Ireland to sit at the table have to be talking with one another and to create a system of debate, a ground of mutual trust. The UK Government recently, last Friday, responded to the Public Administration and Constitutional Affairs Committee report on that. It had in its response very warm words to describe how trust should be re-established. I think that it is incumbent on those who are participatory in those discussions to make sure that those warm words become reality. Specifically about something that Professor Gallagher said in the context of agriculture and future trade agreements, I take you to one of the darker corners of the Scotland Act section 58. It is the power in the Scotland Act that enables UK ministers to require ministers and devolved administrations, or specifically ministers in the Scottish Government as an analogue in the Wales Act, to change law to be compatible with the United Kingdom's national treaty obligations. Is that power likely to be robust enough in the post-Brexit world, or are we likely to see more statutory interventions along those lines in your view? There is an argument that says that clause 11 is completely unnecessary because that power exists. One of the slightly better arguments for a clause 11 style approach is that it would avoid the use of that power. As you know, the search for power in each of the devolution settlements was put in as a backup in 1999, when the vast majority of international obligations were of course EU, and they were dealt with by the EU approach. The power has never, to my knowledge, been exercised. There are many areas where it might, in principle, have been exercised, but where agreement has been sufficient, either in the knowledge that the power existed, or in the case of climate change, where people simply agreed without referring to it. I would prefer that we did not get into the world of having to use that power, for two reasons. One, because it is by definition confrontational, and two, because it would be a nightmare administratively. Who knows what it would be like? We have never done it and we shouldn't start learning in this context. A correction but it is an important one. The section 58 power allows direction to be given to require the Scottish ministers to introduce a bill into the Parliament. It doesn't require the Parliament to pass the bill, which is a very important distinction in principle, if not necessarily in practice. In those circumstances, presumably where the Parliament refused to enact the bill, you would be into a section 27 Westminster legislates, and arguably that would be a circumstance in which you could argue that Sewell would not apply, because it would be necessary if you could make an argument that it is necessary to fulfil international obligations. I think that that would be a circumstance in which overriding at Holyrood would be justified. Except, of course, that you can well imagine circumstances where, for instance, the Scottish Parliament refuses to legislate because it thinks that it is not necessary, or because it takes a different view of the meaning of international obligations. Once you are into Westminster legislation to impose a solution, there is no way of questioning that. There is no challenge to the UK Parliament. I agree with Jim that that mechanism is inappropriately confrontational and probably gives insufficient input to the Scottish institutions to argue for how they think that their legal system, the Scottish legal system, ought to respond to international obligations. I thank you for taking us into some of these dark places in the Scotland Act, Adam. At least we've got some light, Sean, on them now. Good morning. Professor Gallacher just offered the principle that something shouldn't be done because we haven't done it before and it's a nightmare of complexity. That's how I feel about the whole situation. The commitment that people have referred to from the Secretary of State that common frameworks will be by agreement, not in position. I welcome those reassurances. However, I'm not clear how other ministers and secretaries of state can be held accountable to that verbal commitment in future or how future ministers can be held accountable. However, if we accept the intention of the UK Government only to achieve those things by agreement and negotiation, I'm still struggling to find a more generous interpretation of what they want from section 11. The phrase that Professor Gallacher also used a few minutes ago was that there needs to be equality of arms during the negotiation process. Is there anything that the bill as it currently stands gives that I should be more generous in interpreting other than the ability of the UK Government to say, during that period of negotiation, if you don't like it, we'll do it anyway? Does it give them anything other than that inequality of arms that Professor Gallacher was trying to see we should avoid? I think that this exposes the weakness in the whole devolution settlement that we've been aware of all along. This is not a federal system in which the devolved level has constitutionally entrenched price. It's just another instance of that. I think that that is problematic. It's problematic again in respect of this bill because we're talking about shifting competencies. This may be an opportunity to rethink that model of devolution, particularly if we see the UK Government proposing to take back powers for what appears to be merely reasons of convenience rather than any kind of principle, is problematic. During the process, we'll see a lot of these challenges. It's important to think through the consequences of what we're doing here and that we're not moving by default back to the old understanding of devolution, which is that Westminster merely lends powers that it can take back at any time it likes. The Sewell convention was supposed to do that. I think that the Supreme Court made an unfortunate move not in saying that it wasn't legally enforceable because we already knew that, but in merely dismissing it as something political rather than as part of the constitution. We're going to get a lot of those challenges. It's important to identify that there are matters of principle here that ought to be faced up to. Presidents are being set, and that should not be seen merely as a matter of short-term convenience. I agree with a bit of that. The important thing here, and the proof of this pudding will be in the eating, is that the UK Government has said that it will observe the Sewell convention in respect to this bill. Provided that it does that, I agree with Michael that there is no legal entrenchment of the powers of the Parliament. If the Parliament has the capacity to say no to something that it doesn't want and the UK Government and Parliament will respect that, then that's a reasonable outcome. I think that the point about equality of arms, Mr Harvey, is that if clause 11 were sunsetted, then the default position on an issue would be that it would fall where the Scotland Act makes it fall. That would give the Scottish Government and the Welsh Administration a degree of leverage in the negotiations that they currently don't have, and that's what I'm meant by equality of arms. I don't want to lose that point. You mentioned principles rightly so. Obviously, if there was a sunset clause, we'd still have a situation where the bill is currently drafted would result in a significant shift in the structure of devolution from a reserve model, powers model to a confers powers model, so we'd be shifting significantly on the principles of devolution that Donald Dure did so well to establish, even though we had a sunset clause, because we would be effectively agreeing that we were prepared for a short time to change that process. That very persuasive argument, I'm afraid. If there were a sunset clause on clause 11, and I haven't drafted it, Michael has drafted one and no doubt one could be drafted in various ways, but if clause 11 ceased to have effect after a period of time, in other words, retained EU law was not automatically reserved and that reservation ceased after a certain time. The principles in the Scotland Act in schedule 5 and elsewhere which determined where powers fell would apply, and those are the same principles that underlay at the settlement in 1999 to which you referred. I just want to get the stuff on the record. I do sound ill who wants to refer to that. Patrick, I'll come back to you. Sorry, Ailey. Patrick asked if there's anything in clause 11 that gives any guarantees, and I think not. Jim has referred to the Sewell convention. The UK Government has committed to seeking consent, but, of course, that doesn't tell us what happens if consent is not forthcoming, and we know, post-miller, that if it comes down to a dispute about whether it's legitimate to override a refusal of consent, we have no mechanism for neutral arbitration or adjudication. There are no guarantees. The sunsetting approach is one way of trying to achieve some kind of guarantee. The other thing that has occurred to me is that you could perhaps give the devolved Governments power over the ordering council procedure. At the moment that the power to make an ordering council, which is then subject to consent by the devolved legislatures, would be a power for the UK Government. However, you could envisage a mechanism whereby it could be invoked by one of the devolved Administrations subject to Westminster consent. That might work. My problem with that would be leaving this horrible concept of retained EU law as a constraint on devolved competence more generally, because it's really complicated. It really messes up what is already a complicated boundary between devolved and reserved powers, but you're throwing an additional multi-stage complexity into any attempt to understand where the boundaries of devolved competence lie in future. To my mind, there are additional reasons for getting rid of that approach to setting the boundaries of devolved competence in future, which is a more technical objection. It simply seems to me that we're still accepting that we should work under the assumption that EU competencies should default in the first instance to the UK without there being a clear reason for them to do so. I can understand why the UK Government might naturally work in that way, but I don't see why we should. Is there any advantage either to Scotland or to the UK? Is there any particular reason why we ought to work in that way, rather than saying that schedule 5 of the Scotland Act determines those matters, and if we then need to work on a common approach, we'll do it by negotiation? Should I find any reason to be more generous to the UK Government and willing to be persuaded if there's a reason why we should be more generous to the UK Government's position? You would have to have a UK minister here to persuade you, because I think that that's important for us to acknowledge that this is a political process, and that both the UK Government and the Scottish Government have to make their own cases in the context of the negotiations. I think that an amendment has been tabled in the House of Commons to put the GMCEN on a statutory footing. With a statutory footing, there might come some kind of objectives that the committee might seek to achieve, but what those might be would have to be a matter of negotiation between the respective Governments of the devolved Administrations and the UK Government. Would that be the clear process for parliamentary scrutiny of those shared governmental functions? Of course, the lack of adequate parliamentary scrutiny is a theme that provides a rich theme for questions, perhaps later on, throughout this bill. We'll get a chance to put that directly to the UK ministers next week, so we'll get a chance to put that directly to them. Ash Denham, I want to move on now to IGR and common frameworks area. Good morning. If we're thinking about this idea of agreed frameworks and the process of achieving them, so getting to that point where you've agreed them, I'm just wondering what the panel's view is on. Do you have confidence that the existing intergovernmental processes, as they stand at the moment, are such that they will even allow developing agreement towards establishing those frameworks? I mean, I've had the unfortunate experience that has been involved in intergovernmental relations for a long time, and it's hard going, let's be clear. It's hard going for two reasons. One, bizarrely, because hither to the revolution settlements have produced remarkably clear boundaries between Governments because they were built on pre-existing and administrative structures. In that sense, one of the struggles that intergovernmental relations have had is finding things to talk about. Good fences, it is to say, makes good neighbours. In that sense, our IGR has grown up, and when I speak from experience, I'm not breaching any confidences when I say that in the intergovernmental meetings that I have worked at in the civil servant, one of the conversations beforehand was creaky what we got to talk about. That's part of the context, and it's one of the reasons why our IGR are relatively weak. There are other reasons as well. There is no reason in principle to assume that they cannot be made to work for the major tasks that now lie ahead, but it will require a change of gear on the part of both ministers and officials when they've got something really to chew on, and it will require, I'm afraid, and this is the challenge of all of this, some greater certainty about what's involved in the external environment. In other words, if Edinburgh and London, or Edinburgh, London and Cardiff, sit down together to talk about, say, agriculture, we need to have some understanding of how the UK's agricultural system fits into its trade and its other international relations. At the moment, we do not know that, and that is deeply problematic. Yes, it's true. We've compared with other systems. We've not had a lot of intergovernmental policy making, except in relation to European manners, as it happens. But in thinking about mechanisms here, we've got to think about institutions seriously. It's no good saying, let's have an intergovernmental meeting, a joint ministerial council or whatever, and let's have goodwill on all sides and this kind of vague talk. Institutions really matter, procedures really matter. That's the lesson we learn from other systems. We've got to have a non-hierarchical mechanism. This is really difficult to introduce given the disparity in size of the nations of the United Kingdom. We've got to think about how England would fit into such a mechanism and separate the interests of England from the UK at the moment that is not done. We'd have to think about the capacity of such institutions to be able to produce an evidence base that's shared by all parties. We think about mechanisms for arbitrating conflicts and we'd have to think about the legal basis of this. Under our constitution, of course, we don't have federalism, we don't have a written constitution that will allow us to entrench the powers of the devolts, but the successive governments have said, oh well we want to get there, we want to get the nearest equivalence and so we'd have to understand the role of conventions, which are so important in the United Kingdom constitution generally, do apply in relation to devolution and the devolution settlement. Finally, there's the whole area of foreign trade negotiations, in fact foreign policy generally but particularly in relation to trade negotiations because they will drive a lot of domestic policy now, in formally European matters. It's important to think about how the devolts would fit into those, which are undeniably reserved, but where the devolved administrations have a particular interest. I agree with Michael's last point about the need to have some mechanisms for the devolved governments to feed into international trade negotiations. Interestingly, for all of the criticisms that have been made of inter-governmental relations, it's in relation to Europe that they've worked best where there has been a recognition of a need for co-operation, not just in terms of implementation but also co-operation over the establishment of UK negotiating lines. The reservation of issues to the UK level has not been and should not be a barrier to co-operation and inter-governmental co-operation. What that would look like is very difficult. There are a number of difficult questions to be determined. The Welsh Government has made a stab at suggesting some new arrangements. A UK council of ministers has made a stab at suggesting some principles for decision making. The UK Government would always have to consent, but it would also have to have the consent of at least one devolved administration to any decision. Whether that's fair is a matter for dispute. We have an inherently problematic situation given the disparity in population sizes, given, as Michael says, the lack of clear distinction between the interests of the UK Government and English departments. It is inherently difficult to propose a set of quasi-federal decision-making arrangements in that context. I agree with that. When one is thinking about inter-governmental relations, as Jim has said, they are difficult. However, what is the evidence that we have on the surface, not dipping into Jim's private diaries of years gone by? The Sewell convention has worked pretty well as an inter-governmental relational tool. It has enabled legislation to pass, which might have caused difficulties in other circumstances or might have required the invoking of provisions of the Scotland act, which are nearly as dark as Professor Tomkins' provisions. We have to look at the evidence for good inter-governmental relations. The Sewell convention over the period from 1999 to the present day has worked pretty well. I hesitate to use the word framework in other formats, because it seems to be used as a noun, an adjective and possibly as a verb. I think that I would use mechanisms as being something that I would employ. When we responded to the UK Government's white paper on Brexit, we talked about creating a new structure that would include Scottish, UK, Northern Irish and Welsh ministers together with experts and other stakeholders as one conglomeration mechanism that would enable ministers not to be unduly closeted but to be exposed to the fresh air and scrutiny of those who are not involved in the political process in that way. The GMC is another route, perhaps even something that would be akin to the Smith commission or the Kalman commission, but perhaps enhanced. Lastly, the House of Commons political and constitutional reform committee talked about a constitutional convention. Inevitably, that is where you are going if you start to unpick all those kinds of mechanisms and try to think of how we get to a point of change, but that is not going to happen in the context of this bill. Those are discussions that, by force of circumstance, we probably do not have the luxury of the time to devote to them. Presumably, once we get to a point where the frameworks are agreed, managing those frameworks on an ongoing basis beyond that point, we will potentially need some form of dispute resolution system. I know that Professor MacArthur is saying that a quasi-federal machinery may not be a good fit in this scenario, but we would still need some way of resolving that. I noted that Professor Keating in your written submission talked about some international comparisons, particularly in Canada, where disagreements are handled by what is called the regulatory reconciliation and co-operation. I wonder if you could speak a little bit about that and how you think that we could operate this going forward. Yes, of course. The difference between the UK and almost any other system is the partial devolution for three of the parts of the United Kingdom and not the other big part. That makes applying the fundamental comparisons very difficult, but what is important in the Canadian case is that the federal government cannot croach on the powers of the provinces. The Supreme Court has to make sure that they cannot do it, so they have to work around that. There have been good experiences and there have been bad experiences. There have been constitutional deadlocks, but most of the time it actually works. It requires a lot of effort to be put into it, but it works because there is a commitment on all sides to make it work because it is in their interests to make it work. I think that that would be true in the United Kingdom. We have high-profile differences about big constitutional issues, but on most policy issues, the big differences are not among the component parts of the United Kingdom. They are on other lines, so I wouldn't want to exaggerate the extent to which you would get huge differences, but I would just take one example. If we are going to have a new agricultural policy, there are significant differences among the Governments and the stakeholders in the different parts of the United Kingdom as to what that should look like. It is important that that should be negotiated, that the common principle should be agreed and that the various parts of the United Kingdom should then be given as much discretion as is possible in order to work that out. Now, that is the kind of thing that they do fairly well in Canada. It is time-consuming, but that is the price you pay for having a federal system. Negative examples would be in European countries where they have framework laws that are laid down by the central government. The constitution says that they should only lay down the basic principles. They inevitably go beyond that, and these have been a cause of massive conflicts. I would go for the Canadian model in which the powers are clearly divided and then you have to agree about the policies. If I may add something to that, I think that it is important to realise that we talk very vaguely about these UK frameworks because we are not all clear what we will have to replace, but what we will end up replacing, of course, is existing sets of EU rules, which are reasonably well defined legal rules usually. That may offer you two examples. Michael Russell referred to agriculture. In the agricultural space, we have EU legislation and domestic, secondary legislation. That has permitted, for example—I do not know what the current jargon is, but we used to talk about the modulation of agricultural subsidies. In some parts of the UK, subsidies are more produce-related, and in other parts they are more land-use management-related. That has been possible inside a single set of EU laws. There is no reason why it should not continue to be possible inside an analogue set of UK laws. A second example might be that those frameworks are less concerned with day-to-day administration of agricultural subsidies or even fish courses, but they are legal frameworks that constrain the actions of Government. The most obvious, and this ever made response to a question that Professor Tomkins asked earlier—example of that for new things, as it were—would be the state-age rules. Going back to pre-EU days, back to the 1970s, we had no state-age rules. We were able, rather, to subsidise industry in ways that we thought fit, which brought us car plants to Llynwood. We will need some legal framework to replace those. It might be a bit more permissive than the EU rules, but it cannot be a free-for-all. That is the kind of thing that needs to be negotiated. In the end, I suspect, it has to be not merely negotiated but legislated for and enforced by the courts. We need to be clear about what we might mean by frameworks, because it could mean lots of different things. The question of how disputes are resolved is different. We may be talking about an agreement to implement parallel legislation. We may be talking about UK legislation, subject to devolve consent. We may be talking about parallel legislation with decentralised administration, in which case we are then into questions about how much policy freedom that decentralised administration brings with it. We may be talking about centralised administration. We may be talking about the establishment of new UK-wide regulatory agencies, in which case we need to think about who appoints those bodies, to whom those bodies report, what powers this Parliament, among other parliaments, has to hold them to account, or we may be talking about the kind of general cross-crutting frameworks that Jim has been talking about, new-state aid rules, beefing up UK competition law and other general frameworks, of which we have some at the moment. The way in which things like UK competition law and UK data protection law operate at the moment is quite interesting and operates differently to other kinds of reservations. The data protection one came up in the Christian Institute case recently, for instance, where it is made clear that, although this Parliament cannot legislate to change the Data Protection Act, it can nevertheless, within the framework established by the Data Protection Act, legislate on issues relating to data protection because the legislation allows it to do that. Similarly, in relation to competition, this Parliament can protect certain industries, such as the water industry, if it wishes to do so, from the impact of UK competition law, because UK competition law allows for that. We have a really complex technical set of questions to ask about how best we achieve common frameworks. The issues about constraining the devolved Governments become very different depending on what solution is chosen. You have just said that it very neatly leads on to the question that I was going to ask. To try and take that all down from a theoretical level to a much more practical one, we have talked a lot about common frameworks. What I am interested in finding out is what exactly you think those common frameworks should look like and how many they are going to be and who is going to decide all this, and how quickly. In very short answers, please. Do I have to go first? At this point, I say that I am a constitutional lawyer. I am not an agricultural lawyer or a fisheries lawyer or any of those things. Where we need common frameworks is in any circumstances where there is currently EU-level administration. Something where we need something urgently, for instance, would be on emissions trading because emissions trading is done at EU level. Something has to happen urgently to replace that, whether it is continuing to be part of the EU ETS or some kind of UK-based substitute. Where we are subject merely to regulation at the EU level, then there is more time to EU level regulation. We have to comply with laws set at the EU level, as in various environmental laws, other environmental laws, habitats directive or birds directive or whatever. We have more time to sort out common frameworks. I am not going to answer any questions about the substance of these common frameworks though, because I do not know. It all depends on the pace of change if we are going to be out of the EU by March 2019 completely, then we do not have very much time, but that is probably not going to happen. We are talking about transition periods, depending on how long that transition period is and the understanding at the moment is two years, and that gives two years more to put these things in place. That should be time and up, I would have thought. The frameworks do various things, as Eileen was saying. They can be just frameworks of law regulation within which you have to work or they can be about joint policy making. I think that there will have to be a bit of both in environmental fields. It might be a lot about setting the frameworks in agricultural policy, more about joint policy making and a lot of technical work. The format that we have at the moment of the joint ministerial committees is a starting point, but the problem with that is that, as Gem has said, they often do not have very much to do because they are about making policy and they do not do that. They are about arbitrating disputes and they do not do that either. Both of those tasks are going to have to be accomplished after Brexit because there are a lot more arguments about the pace of change. The details of what they would look like, there would be ministerial meetings. There would have to be, as the Welsh Government has suggested, some kind of voting procedure, whatever it is, because it could not be the UK just having the last word. There would have to be a lot of civil service backup. A lot of the detailed work would be done in those official civil service formats and only the major issues would then come to ministers. There are enough examples around the world of those things to show that that would be possible. Your question is very hard to answer for two reasons. The first and most important reason is that we are still, in many respects, substantially blind to what life outside the EU will be like. We do not know the long-term relationship between the UK and the EU and the extent to which it will import directly or indirectly obligations of one sort or another. We do not know what the transitional period will be like. We do not know the extent to which, during it, we might, for example, continue to be a member of the single market and the customs union. I know what ministers have said in that, but we will see what actually happens. Until those questions are answered, a comprehensive answer on the common framework is not possible to give. I will give you a stab at them. The first and most obvious thing is that, in practical terms, we will have to aim for maximal continuity. In other words, if there is no absolute reason for something to change on exit day or exit day plus two or whatever the day is, it must not change because we have so many things that will have to change. I agree with Michael that we should not invent new kinds of legislative arrangement for that. We will have to fall back on the things that we know how to do. The common frameworks that I suggest will be in the form of primary legislation either here and in Cardiff or in Westminster with or without consent, depending on the content. It may also be that it involves secondary legislative powers, which are decentralised. As to the content, it depends on the subject, and it depends on the external constraint and agriculture. We would have been the most obvious example of that. Do you have any view, Professor Galper, on how many common frameworks we would require? I do not think that there will be very many major ones. I think that there will be a great number of bits and pieces that might be described as common frameworks. The long list, which Michael referred to, most of those will probably deal with themselves in small ways, but we are looking at less than 10, I would think. When you look at the communique, which the UK and devolved administrations issued, they talk of those common frameworks being established where it is necessary in order to enable the functioning of the UK internal market, ensure compliance with international obligations, ensure that the UK can negotiate, enter into and implement new trade agreements and international treaties, enable the management of common resources, administer and provide access to justice in cases with a cross-border element and safeguard the security of the UK. Many of those functions are ones that are carried out just now. However, if you were to then trace those over to the 111 policy areas and then deconstruct them to fit with the relative powers that are located in Scotland, Wales and Northern Ireland and in England, you could see that that could be quite a growth industry. For example, things that one might be interested in, particularly administering and providing access to justice in cases with a cross-border element, such as the European arrest warrant. That has a resonance in England, which is different from Scotland, because of the different approaches to the justice system that we have, the different police forces and the different systems of prosecution and the different court structure. That is mirrored in Northern Ireland. Is that one framework or two frameworks? Do you know any advance on two? I probably do. That is two more. Perhaps it is as long as a framework might be. You have done so well answer our questions up to now. I will throw another layer of complexity in there. It has been mentioned, which is about international trade. One of the reasons that is listed for having common frameworks in the UK context is that it enables the UK Government to do international trade deals. That is a big part of the UK Government's narrative in the post-Brexit environment—how wonderful and successful all those international trade deals are going to be. To some extent, there will obviously not be deals with the EU, but that might actually be the easiest part of it, because a lot of that is understood in the current relationships. I suppose that what I would like to comment on is what are the implications of that for the common frameworks. They will be set up at the beginning, but they will clearly be dynamic and they will need to evolve, because as the UK Government goes in to do international trade deals with third-party countries, part of those negotiations will be around what we need to conform to be agriculture, fisheries, environment or whatever, in order to have those product standards to do a deal with whoever that third-party country needs to be. Clearly, at that point, the UK Government will be coming back and saying that we will have to change the way we do that in the UK in order to do this deal with country X and make some changes to what we have agreed in the common framework. How do you see that mechanism working in terms of what the devolved parliaments will be able to do there? In theory, that could extend beyond areas that are currently reserved. You can envision a situation in which we are doing a deal with the US and part of that involves liberalising part of the NHS, which might be easier down south than it is here. How does that play into that? The section 58 that you mentioned earlier raises its ugly head as well, because, in that context, there is a situation in which foreign obligations technically that card could be played. There is quite a bit there, but I would like you to comment on how you see that layer of complexity evolving. You could make the argument that it makes no difference. The UK Government already enters into a range of international agreements on behalf of the UK, which affect devolved competencies, and we already have mechanisms. We already agree on the internal changes that are necessary to achieve compliance with those international arrangements. You could also make the point—and I think that it is an important point—that international law, including international trade law, has a different constitutional status to EU law. EU law is part of a supranational organisation that affects the internal sovereignty of its member states in a way that international law does not. You could make the argument, and I think that I would go quite a long way to making the argument that this makes no difference in principle. The difference that it makes, of course, is in practice in that international trade agreements will take on a much greater significance in future, because they are replacing things that are currently done by EU law. For me, the important thing is to ensure that the peculiar mechanisms that have always existed—right from the word go in the devolution settlements—to allow the devolved Governments to influence EU policymaking are then replicated in relation to international trade policy, because that will become so much more important an issue. I would want to insist on the principle that international law is different to EU law and deserves a different constitutional response. International trade agreements have expanded in scope in recent years, and they will expand even more as aliens say when they replace EU. Even outside the context of the EU, we have things about product standards, harmonisation of product standards, environmental standards, rules about subsidy, rules about competition, a tendency to try and put in regulations about social protection and labour standards, clauses about investor protection. All of those things went in trade agreements 30 or 40 years ago, but they are in now. Some of those impinged on devolved competencies, so that is going to become an important issue. It has become an important issue in all federal countries. We saw the case of the seat of the Canadian deal, which was held up for a while by the region of Wallonia in Belgium, because it impinged on competencies of the region there. I was going to say devolved. It is a federal country with competencies of the region. That is going to become important, and it will therefore be important to have some kind of input from the devolved administrations and parliaments, indeed, into that. It is clearly a reserved matter. It is nobody is going to devolve international trade. This is an instance not of getting the competencies, but of having an input into reserved competencies. It is not going to happen in relation to everything, but almost any international trade deal will have elements in it now that are covered of all the matters. I do not very much add to that. I agree with the analysis in particular at Bront Eileen. The thing is that international trade, we shall see to the extent to which we have new international trade deals. That seems to me to be deeply uncertain or unpredictable at this time. However, if we do have them, the deal is that they are dealt with in Westminster and that, if need be, Westminster has the capacity to use the dark arts that Professor Tonkin referred to to ensure. I know that darkness is obscure because the power has not yet been used. I think you've attest too much. Quite so, that's right. As the dark lord said earlier, we have section 58 of the Scotland Act. The deal is that international trade effects can be carried through into devolved arrangements. Therefore, it's wise of the devolved Governments to seek not to have those things done to them, but to get at the table and try to agree some kind of internal legislative framework that will both constrain them, but will also, to a degree, constrain the UK Government. As Michael said, the international trade these days seems to touch on all sorts of things. However, the two big ones are protection industries that you're seeking to keep out of trade. Traditionally, most places try to keep their agriculture protected. And subsidy, that's to say, state aids. Both of those things will have to the UK will need an approach to those issues. Once we know what that approach is, it will undoubtedly impact on devolved matters. Protection, perhaps in relation to agriculture, perhaps in relation to other industries, and subsidy. That takes us back to the issue of state aids. Finally, there's no doubt that the EU is a different character from other international relationships that the UK gets into. It is a supranational system, not a public international relationship. However, when we leave the EU, we will actually be entering into a relationship with the EU, which is a public international relationship, rather than part of the supranational relationship that we've had before. The withdrawal agreement and the continuing relationship that is envisaged between the UK and the EU would be, I think, of that character, rather than the former character. When it comes to public international relationships, of course, we're not in trade, but in other areas we've got some experience. Let's, for example, say the international criminal court legislation. There were two acts of parliament, one for the United Kingdom, which adopted the Rome statute for the court, and then one for the Scottish parliament, which tailored aspects of the procedure for arrest of international criminals in the Scottish context. It's not impossible for us to devise mechanisms to deal with things in the context of devolution, even though they emanate from international treaties. Michael, you've got to leave in about 10 minutes. I'm also conscious of the fact that the Law Society has quite a lot of things to say around the delegated powers area. I'm sorry to bring us back to some of the nuts and bolts of the legislative reality, and even if you have another question, I apologise. I think that we need to get some out on the record. The Law Society, among others, has highlighted a concern about the broad scope of the delegated powers conferred on ministers by the EU's draw bill. I wonder if you could bring it to life a little bit for us by giving us an example of a situation where, in using the power to correct deficiencies, they stray into the policy choices area that would normally be reserved to the devolved parliaments, or reserved to parliaments. I mean, neither Parliament has scrutiny when it's delegated powers. Thank you for that question. I think that our concerns were about some of the uncertainties around about clause 7 and its analogous provisions for Scotland in schedule 2, and those related to what is a deficiency. How does one define that? And also, whether or not a minister should be able to enact the subordinate legislation if he or she considers it appropriate to prevent remedy or mitigate the deficiency. It's hinging on that word appropriate that we've promoted amendments, many of which have been tabled in the House of Commons for the committee stage, to change that appropriate standard to a necessary standard that it should only be done if it is necessary to prevent remedy or mitigate. Of course, that's because what you, Mr Todd, might consider to be appropriate might be different from what the convener thinks is appropriate. Both of you might be in a different context from what any member of the panel might do, but necessity might be greater evidence of what is necessary to be done to prevent remedy or mitigate. That's really the primary problem with this provision and the others. The other aspect is, of course, the way in which the orders and other orders under the bill become law, because there are only two choices offered in the bill, either negative resolution procedure or affirmative resolution procedure. Neither of those have significant scrutiny elements attached to them, particularly in the context of, as the UK Government estimates, up to a thousand orders. I don't know how many orders the Scottish Parliament might have to deal with, but let's say that it will be a lot. It has to be done with this rapidly decreasing time in which to do it, especially if we wait until the bill becomes law before consulting on the orders. That's why we've promoted the idea that the departments that are framing those orders just now should consult on those that they have already just now to expose to fresh air. Does anyone have anything to add on that? I've heard a couple of suggestions about ways in which people are concerned that those powers might be abused. One suggestion that I've heard is that correcting the statute book might be used to dilute employment protections, for instance, that the Government doesn't like. I have also heard suggestions in relation to the choice of regulatory regimes that those subjects of the regulatory regimes are getting to choose which regulator they want, rather than an open policy choice being made. Of course, there are no protections for the Scotland Act itself, so there are closed seven that can't be used to amend the Northern Ireland Act, but the other devolved legislation, for some reason, is not listed. Then you have closed 17, which can be used to amend the withdrawal bill. It's conceivable that amendments that are made to the withdrawal bill in the course of parliamentary enactment could then be taken out through ministerial powers at a later stage, so there are lots of different ways in which those could potentially be abused. Michael Russell says that the real issue is the procedural control, which is a combination of the weakness of the controls that are there and, as he says, the time for scrutiny and the burden that this imposes on parliaments. One coda to that, which is about the Northern Ireland Act provisions, is that the explanatory notes tell us that the reason why regulations under closed seven will not or cannot affect the Northern Ireland Act is because it comprises an international agreement between the United Kingdom and the Republic of Ireland. That's the explanation, but nevertheless it still should be acknowledged that, if that is the case, it potentially is in the wrong place, because it might be in complying with international obligations, which is clause 8. It might suit it better. We've got amendments that we've promoted to include the Scotland Act and the Wales Act in this exemption from being affected by these orders. That's right. That's the area where, if there's sub-legislation passed at the UK level, that changes Scottish primary legislation, there is no consent mechanism available, i.e. a Sewell-type mechanism. All subordinate legislation is not subject to the Sewell Convention, so it's convention only. On this occasion, from this act, the sub-legel could change primary legislation in Scotland. Indeed, that is true. Therefore, do we think that's right and, if not, what do we need to do to change it? I hope that's not your question, James. No. That happens all the time that subordinate legislation might, or that there are powers taken where an order-making power allows the minister to change primary legislation. Yes, indeed, I think so. Can you give me an example? Well, I'm not off the top of my head. Let me take that back and I'll investigate. Regulatory reform act of the 1980s would be an example. Or the Scotland act of 2016, I think, allowed order-making powers, which would change primary legislation, in some respects. There are procedures built into those pieces of legislation that allow a form of consultation, a form of consent. That process doesn't allow for that. That's true. There's an imbalance in that the devolution analogue of those powers do have provisions for UK ministerial consent or veto, depending on how you want to look at it, which has not reproduced the other way round. When this issue first arose, when I think I've been at the Parliament before and we've discussed this, we talked about the importance of getting some kind of consent mechanism, or at least consultation mechanism, on the face of the bill, because, as Michael says, Sewell does not apply and it never has. At least ministerial consultation would be appropriate. You could make the argument for that in terms of, well, it's there in schedule too, when Scottish ministers might start encroaching on reserve matters, so let's mirror it in relation to closed seven, where UK ministers might start encroaching on devolved matters. To answer that, I agree in general that some Sewell-like procedure is sensible here, but we've got to think about the scale of this task, which is pretty overwhelming. Some kind of Henry VIII power, and that's the power to amend primary legislation, is, I think, inevitable. All such powers, all powers, of course, are potentially subject to the risk of abuse. People might not do the right thing with them, though one can't assume that, because you can identify potential abuses, those abuses are a real risk in practice. I think that, in a sense, I'd like to throw this back at you and ask you, given the scale of the task that this leaving the EU process involves in legislative changes, how are legislatures going to change their way of doing business to make it possible for them to engage with this stuff? I think it's a fair question, but again, I'm not a witness. James. Interestingly, convener, that was actually the point that I was going to raise, because earlier Professor McHarg pointed out that there was going to be a lot of additional Brexit legislation, and it's raised in a number of the submissions, so I wanted to ask the witnesses from their point of view, specific to the Scottish Parliament, what do we have to do to update our procedures in order to properly scrutinise all this additional legislation that's going to come through? The Delegated Powers and Law Reform Committee is currently conducting an inquiry into that very topic. I don't think it's for me to second guess what that committee might come to, but, of course, if one is dealing with, let's say, an increase of 300, 400 per cent in terms of the orders that might be being put through in a relatively short period of time, then there has to be some way in which one can separate the wheat from the chaff from those aspects that are going to be controversial from those that are simply altering phrases or words that are completely uncontroversial. That would be the first task, and then, to deal with those controversial measures, depending on their subject matter, the Scottish Parliament's provisions in respect of superaffirmative orders require additional consultation, but I don't think that they can provide for the order to be amended. It may be the case that there would need to be changes to standing orders to provide for that. I think that that's the sort of territory into which we might stray, but we'll have to wait to see what the GP and the LR committee decides to recommend. Michael, before I move on to Willie's question on principles, I'm conscious of the time that you've got an appointment. Would you like to make a— No, I will stay if you don't mind, convener. When you feel you need to go, just go in that case. I was hoping to ask a question to the panel just about general principles. We know that the Bill on Clause 5 intends to bring the general principles of EU law and domestic law apart from the Charter of Fundamental Rights. However, as I understand it, it still doesn't define or identify what those general principles are to be. That's worrying enough, I suggest. The Bill intends that there will be no right of action by citizens or anybody else if it's felt that there's been a failure to comply with any of these as you undefined principles. Can you help us and hopefully the public too to understand the significance of this and what the practical effects of that could actually be for the public? We have significant concerns about Clause 5. We've made those concerns known to the UK Government and to people in the Westminster. The issue is what are the general principles of fundamental rights or principles that exist irrespective of the Charter. What are they? One might say that the principle of subsidiarity might be one, or perhaps there might be some others, which principle of equal treatment might be another. Those are the kinds of things that one would like to see with greater definition. The difficulty might come if we restricted simply to decisions of the CJAEU and what the court has identified as a fundamental right or principle, then there might be some fuzziness around the edges. You might think that Mr Coffey to be a general or fundamental right or principle might be different from what other people legitimately might think to be. The other aspect is that removing the Charter of Fundamental Rights is something that we have asked the UK Government to reconsider. If the courts are going to be asked to interpret retained EU law, it would be helpful to be able to have the Charter to hand in so far as it might be a need to interpretation as to what is meant in some of that. That is where we are at the moment and we have tabled an amendment to remove clause 5.4. What are the general principles? Michael has mentioned fundamental rights, although we are not entirely sure which fundamental rights. As he says, it depends on decisions made by the court. There are principles of equality, proportionality, subsidiarity, transparency and legal certainty. That is about it. There is going to be no right of action. If schedule 1 is not amended, there will be no independent right of action. You will not be able to challenge a decision by a Government minister or a public body on the basis of breach of these principles, but you will be able to draw upon them as an aid to interpretation of retained EU law, except that the further complication is that neither the pre-Brexit nor the post-Brexit case law of the ECJ will be binding on the domestic court, so they will be able to decide whether or not to depart from the interpretation that is being given to legal certainty or the meaning that is being given to fundamental rights. We have a number of layers of uncertainty. The other potential uncertainty relates to the devolved parliaments. I am not entirely sure myself what will be the relationship between schedule 1, which says that you cannot rely on general principles to challenge the acts of public bodies, on the one hand and on the other hand, section 29 and section 54 of the Scotland Act as they are amended, which will bind the Scottish Parliament and the Scottish Government to comply with retained EU law, which includes the general principle. You have a problem about understanding the interrelationship of the two pieces of legislation. We have a number of points of un-clarity about how that will operate in the future. Do you feel that the citizens' rights are effectively diminished or enhanced by this measure in the bill? Is that a simple answer to that? The citizens' rights will be diminished. I think that there is no doubt about that in relation to enforcement. That is the key thing. We had a very nice illustration of the importance of EU fundamental rights last week in the Supreme Court, a case called Ben Karbush, which was a case brought by a woman who had been employed at the Sudanese Embassy in London. She wanted to sue for various breaches of employment rights. She was able to rely on the charter in relation to employment rights that are derived from EU law, but only on the Human Rights Act in relation to domestic employment rights. As a consequence, she got a stronger remedy in relation to her EU-derived employment rights because the State Immunity Act, which says that you cannot sue foreign embassies, had to be disapplied. She could pursue her claim in relation to purely domestic employment rights. All that the Supreme Court could do was give a declaration of incompatibility, which does not disapply the State Immunity Act. There is a clear difference. Insofar as fundamental rights are protected by EU law, they get stronger protection, albeit that it is only in a narrow area. It is only in areas governed by EU law. That brings us to a closure of that particular session. We have covered a lot of ground in the evidence-taking session. Some of it is dry, and some of it is wishing perhaps that we are sitting in some nice sunset somewhere. Nevertheless, it has been very important detail in helping us to come to conclusions on our report that we will have to draw together sometime towards the end of the year, and in particular to clause 11 and our attitude to an LCM. I am very grateful to you for coming along today. I close this, particularly when we are moving to private.