 Felly, i'n rhaid i dweud i gael. Felly, fel ddod i'n ddau'r 28 gyrfaeddau o'r ddau'r 2017 o'r ddau y Delegates, Fawr, i'n ddau'r Gweithio Llywodraeth i'r Llywodraeth. Alison Harris wedi cymaint o gwbl ei wneud i ddau'r hollegau. Fel ddod i'n ddau'r bobl i'r ddau'r ddau a'u ddau'r ddau. Rwy'n meddwl, Michael Russell, Minister for UK Negotiations on Scotland's Place in Europe and his officials to the meeting. The first item on our agenda is the declaration of interests in accordance with section 3 of the code of conduct. I invite Bill Bowman to declare any interests relevant to the remit of the committee. Thank you, convener. I have nothing to add other than what is in my register of interests. Okay. A agenda item 2 is decision on taking business in private. As proposed, the committee takes items 8, 9 and 10 in private. Those items are the delegated powers provisions in the social security Scotland bill, the contents of the committee's report to the Education and Skills Committee, on the delegated powers in the children and young people information sharing Scotland bill and consideration of the evidence that will hear from the minister Scottish Environment Link and RSPB on the European Union with Droll Bill. Does the committee agree to take these items in private? Okay, so move on to agenda item 3, the European Union with Droll Bill. So we're considering, yeah, so can I ask the minister if he'd like to make some quick opening remarks? Very, very briefly, convener, and thank you for the invitation to be here. I know you will have plenty of questions, but simply to stress one important point, we are very keen to differentiate between the technicalities of leaving the EU, which require the withdrawal bill at Westminster to be enacted, and the policy of leaving the EU with which we profoundly disagree. But insofar as our questioning today is concerned, focusing on the bill, then what we're trying to do is to find an essential modus vivendi with Westminster in order to take this issue forward. It's been difficult, and it remains difficult, but the GMCEN meeting, which was held last Monday in London, made some progress on the issue of frameworks, which are covered in clause 11 of the bill, and I'm happy to speak about that, have questioned about it. So I just want to make that distinction, because I don't think it would be a good use of any of our time if we were to be involved in the second issue at this stage, as this committee has focused on the first issue, which is the technicalities and getting the legislation right. Thanks minister, you're absolutely right. We're not concerned here with the policy rather than the technicalities. Can I just ask you to outline your general concerns about the bill? They lie in two areas. I mean, there are many concerns, and quite clearly there are things in the bill which many of us would take exception to, and it's the subject of, I think, over 300 amendments at Westminster so far. But early on we decided that along with the Welsh Government, with whom we were working very closely on this matter, that there were two principal areas of concern. Now this arose after failing to see the bill during its drafting, which would be normal for a bill that required a legislative consent motion. There would be a process between officials who would discuss the bill and make sure the bill was in a form in which legislative consent could be given. That didn't take place on this occasion. So when we were shown the bill, which I think was at the very beginning of July, with the bill due to be published in the middle of July, we expressed extreme concern over two issues. As a result of which I met with David Davis the following week, but we couldn't persuade the UK Government nor could the Welsh to make changes to the bill at that stage, and these two areas are as follows. First, in clause 11, which takes the powers that exist in the EU to do with devolved areas—this is so-called a list of 111 items—and transfers those to Westminster rather than to the devolved parliaments. That is unacceptable as far as we are concerned. I think there has been a broad level of agreement that that is unacceptable across a range of political parties, and that's an ongoing issue. The second one is to do with the so-called Henry VIII powers. We have concerns about the exercise of those powers and the breadth of those powers, and no doubt we'll come on to that. However, there is a specific issue with those powers in terms of the powers that are given to Scottish ministers. They are different from the powers given to UK ministers, and the powers given to UK ministers include the ability to change Scottish legislation without consultation with the Scottish Parliament or the Scottish Government, and that would be unacceptable to us. Those are the two principal areas of concern. We can talk about a variety of other issues that we find difficult, but in our approach to this, we decided very unusually to prepare joint amendments with the Welsh Government—it's the only time it's happened, the only time we've ever jointly proposed amendments to Westminster Bill—focused on the areas of most concern. Other matters, the individual political parties, Labour, the Liberals, the SNP, Plaid, the Green MP, have all brought forward amendments to Bill as have some Tory MPs, but those amendments are the ones that we are focused on and those amendments have been tabled in the House of Commons with the support of all the opposition parties. Can I speak a little about this meeting last week where there was a statement that came out about common frameworks? I must say that I personally found it quite positive that there had been such a statement, so I take it that you are party to that. You accept that there needs to be common frameworks. I've accepted that there needed to be some common frameworks since we published Scotland's Place in Europe last December. The issue is not frameworks, the issues are who decides on what subjects those should be required, how those frameworks are governed and how decisions are made as a result of those frameworks. Those are the issues, not the frameworks. There are some things which we will not need frameworks for, both sides agree. There are some things that we are likely to need some frameworks of some sort, but those can't be imposed and they have to have an element of co-decision making. If you are dealing with matters that are devolved to the Scottish Parliament, then the Scottish Parliament is not going to give those up. It could choose to share decision making in those matters, but then the UK would have to decide that they were going to do that as well. That's the issue. The positive nature of last week's meeting was that we managed to agree on the principles which would guide our decision making. We are then moving on to look at exemplars in a number of areas, agriculture, the legal one, justice and home affairs, and the Welsh Government has asked for something on food labelling because they don't deal as much with justice and home affairs as we do. We will then look at those as exemplars to see if we could agree a governance structure. So, we've made a small step forward, but we are genuinely trying to make that step, but we could not—and I stress this again—we could not bring a legislative consent motion at the present time because we could not consent to the bill as well, particularly Cros 11. I'm just going to ask you—I'm going to read a bit out from this statement and see if you can help me here. I'll just read it. Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures and will therefore be based on established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent. What does that phrase mean, not normally? As far as we're concerned, it means it will not be adjusted without our consent. The word normally was applied in the last Scotland Act, if I'm correct, with regard to the sole convention. The expectation then was that it would be a binding commitment by Westminster. It turned out, rather unfortunately—and I don't want to be too unkind about this—that the Advocate General made much of the word normally during the Supreme Court hearings to say that it was a meaningless word, and it had no meaning whatsoever. Now, that was a foolish thing in my view, and I've made that clear in other circles too, because it undermined confidence in a relationship that should have an element of trust in it. But if one party puts words into an agreement and then turns round and says, yabw, they don't mean anything, then that diminishes that trust. As far as I'm concerned, the agreement that we reached last week, as well as the reached last week, means that there will be no change in the devolved settlement without the consent of the devolved administrations. Will that not be the case, we would go back to where we have been, which is an inability to communicate on these matters. I take it to mean that we have an agreement that we're going to behave properly, respectfully and trustfully to each other and move forward to try and find a way to get a solution. Okay, that's very helpful. Let's hope that's the case. So we've got some set questions here, which we'll just work our way through, if that's okay. Okay. So the bill confers wide powers on UK and devolved ministers to correct retained EU law. Are these powers clearly expressed in your view? Well, they are expressed in terms which are understandable, whether these terms actually need further refinement will be an issue to be discussed. For example, one could ask are the powers necessary? No power should be broader than it needs to be. We need to make sure that the powers cannot be used to enable ministers to make significant policy changes, for example. That's not the intention of the bill. The intention of the bill is to make the necessary changes that are necessary or appropriate in terms of the bill, but one might come on to that issue between the two words. We want to make sure that the bill is used to do those things that require to be done. There's no doubt that this exercise is unique. It's huge in scale. By unique, I mean never been done before, as a result of which we will have to do things which haven't been done before. But we need to be very, very cautious that we're not then using the opportunity to do things that shouldn't be done. I use, for example, the way in which the bill has been drafted. Some would interpret the bill as being used as a backdoor means to reduce the powers of the devolved administrations. That's not what it should be used for. Therefore, at its very heart, we would object to that. Do you think that's the case? I think that's how it looks. I know that I've had the assurance from the First Secretary for example that that's not the case, but I do think that's how it looks. I do hope that we can come to an agreement that removes those parts of the bill. Certainly, that is also the position of the Welsh, who have taken a very strong line, as we have, that we are not going to allow that to happen. As you said earlier, there's been cross-party support for that view. Absolutely. Every party. Absolutely. I'm happy to say that the parties have been meeting in the Parliament, as you know, and the Conservatives have been at the last meeting, and I'm glad that they are involved in that way. Yeah. Okay. The committee's heard from witnesses that there are problems with the breadth of the powers, and in particular the wide reach of the term deficiencies. At the same time, we recognise that deficiencies must arise from the UK's withdrawal from the EU in order to fall within the scope of the correcting power. How do you think the powers could be improved? Well, there's a number of ways. We've focused our attention, and I want to make that clear again. We've focused our intention on two deficiencies in the bill, which we require to have remedied before we can give legislative consent. There's a broader range of views on deficiencies, which Westminster MPs are bringing forward to amend. For example, the definition of deficiencies is unlimited, but there is illustration given, as you know, in Clause 7-2, and those examples demonstrate the range of ways in which law will be inoperable as a consequence of leaving the EU. So, in those circumstances, there is an illustration given of what the problem is and then the application of the solution to that problem. There are parts of this bill where that doesn't happen, where there is no examples given at all. Those are harder to interpret. On a general point, convener, I don't think that we object to this having to be done. I mean, we don't want it to be done, and I make that policy point. When we don't object to it having to be done, we just want it to be done in the best and most efficient way possible without unintended or intended adverse consequences. Okay. Now, I'll just ask you a final question for now, because you've mentioned it. Would you support calls to make the powers available only where necessary to correct deficiencies in retained EU law, rather than where considered appropriate? And we've taken evidence on this already. I know. Appropriateness, of course, is often used, including in our own legislation, so the meaning of it is easier to come to. But no powers exercised in this bill, I suppose, in any bill, but particularly in this bill, should be capable of being used to make significant policy changes. So, I suppose the word necessary is narrower and perhaps more appropriate in that scope. So, I'm not unsympathetic to that. I don't think I would take a firm view at this moment, but I can see that if we are trying to make sure that this bill is not abused accidentally or deliberately, then the word necessary might be a better word. Yeah, although both words allow for some flexibility. Yeah, necessary probably defines it more narrowly, and therefore, by defining it more narrowly, perhaps allows a degree of confidence to be gained in how the powers might be used. Okay. Stuart. Thank you. Good morning. Morning. Question regarding the sunset clauses. Do you think that the sunset clauses which apply to the powers in the bill are the right ones, or should the powers lapse earlier, for example, on exit day? Well, I have no firm view on sunset clauses in terms of most of the bill. That will be a matter for amendment and discussion at Westminster, where I don't think a sunset clause would create a difference, and this has been raised, of course, would be in case of clause 11 of the bill. I think the Law Society of Scotland is amongst the bodies that's suggesting the possibility of a sunset clause on clause 11. That is for the powers being transferred. Doesn't seem to me it cures the problem. If the problem is, as I've defined the problem this morning, who makes the decisions and how those decisions are made, then, you know, the fact that those decisions would stop being made by the wrong people, and in the wrong way, after a period of time, doesn't actually get to the root of the problem, which is to make sure that doesn't happen at all. So I'm not unsympathetic to limiting powers, but I don't think in this case it makes much difference. As for the other sunset powers, I think that would be it for others to say. And do you think that the constitutional statutes, such as the Scotland Act 1998, should be or would be capable of amendment or repeal and regulations made under the bill? No, because there should be a further restriction of the powers in clauses 7, 8 and 9, because the ability to amend a Northern Ireland devolution statute is explicitly referred to in the bill, it's not possible to do that. I cannot see why, well I can see why, but I don't think it's right that there is no power to amend the Northern Ireland devolution statute, but power would remain to amend the Welsh and Scottish statute now, and indeed we have made that absolutely clear. And this morning you've already touched upon clause 11 on a few occasions, and certainly also clause 11 of the bill provides for the process by Ordering Council to allow for amendment or retained EU law, where that is otherwise restricted at the point of exit from the EU. The process is similar to that already provided for in section 30 of the Scotland Act 1998 to make modifications to schedules 4 and 5 of that legislation. Orders in Council under clause 11 will be subject to the affirmative procedure and subject to joint scrutiny in Westminster and also this Parliament. Do you agree that such a procedure by Ordering Council is the appropriate one? No, because I don't agree with clause 11. It is chicken and egg here if you let me say so. I think that clause 11 is unacceptable. We don't want it in the bill, we can't give consent to the bill while it remains there and that's absolutely clear. Yeah, it is modelled on section 30 of the Scotland Act which provides for adjustment of reserve matters, but this is not an adjustment of reserve matters. This is a clear point of principle that at the time of withdrawal the powers should come to the Scottish Parliament. That is also consistent with the political arguments at the time. The campaign, the leave campaign, made much of the fact that these powers would come directly to Scotland, so it is not only breaking that political promise, but there's also something quite wrong about it and it's confusing the process of devolution. This is the core problem. Devolution is built upon a simple foundation that those matters that are not reserved are devolved. Now, that's been the founding principle. It's worked very well. This clouds that. In fact, it contradicts it. Some matters would become reserved and devolved. It's not a good workable way forward. It's wrong constitutionally. The bill should not have been drafted in this way and we want it removed and that is a common position with Wales. It is also the position across the political parties in Scotland, so I do hope that that will prevail. I mean that there's no harm in people saying that we didn't get that right. We're just going to take this out and do something different and that's exactly what we would want to happen. I mean that, but further to that, obviously the delegate powers and regulatory law reform, sorry, the regulatory reform committee in the House of Lords, they also have a similar position regarding that clause 11. It is very hard to find anybody who supports clause 11 except that I have to say the current Government. I've not heard the argument put that this is the right thing to do and indeed all the examinations have taken place of it have indicated that it shouldn't be there. Given the consensus and the consensus, as the convener has pointed out across this Parliament, which exists on this, I think there's an overwhelming case for it to be removed and for this to proceed in a more sensible way. In order for that aspect to proceed, what alternative process would you suggest to this committee that could actually be considered? Where we are at the moment in discussions indicate that with the removal of clause 11, then there are a range of ways in which the co-operation can take place on frameworks. Some of which already exist. There's already legislative co-operation on issues, memorandum of understanding or another way. Joint working is another way. In those areas where there requires legislative underpinning and it may require it, for example in the area of agriculture, which would replicate what the council of minister's structure is now, then we are very keen to discuss how that would work so that there is co-decision making. I go back to that word again. There needs to be in areas which have legislative underpinning a co-decision making process. We can envisage that very clearly in the actual fact. The Welsh Government published a paper in June on these issues, which looked at possible structures. Now we think it's a helpful contribution. It's not necessarily the final word on these matters, but there are lots of models and that's what we're trying to scope with the UK Government and with the Welsh Government through the JMC process to make sure that we understand how they would work to build trust and confidence in them working. If we can do that, then we can get an agreement. I'd like to move to devolved authorities powers. Again, we may have touched on this already. The committee has noted that the Scottish ministers have no power under the bill to modify retained direct EU legislation. It has been suggested in evidence to this committee that it would give rise to legal uncertainty if four sets of Governments in the UK were able to modify direct EU legislation. For example, it would make it very difficult to identify what retained EU law was with a potentially detrimental effect on the continuity which the bill aims to provide for. What would be your response to that? I think I have two responses to that. One is to say that I think the concept of retained EU law is a pretty strange one anyway in the way in which the bill applies because it's bound to atrophy, it's bound to die away and in dying away it's going to be difficult sometimes to read the runes of it to find out what is and isn't there. So I think that that's not a way we would have gone about this but we are where we are. On the second point, do you pollution is predicated upon the issue of subsidiarity? Whether right places for decisions to make? The fact that those decisions may be different in each place is not a reason not to do it. In fact, unless you reject evolution in its entirety then what you will have is a variation and a pattern of provision and there's no reason why that shouldn't be the case. It can be well dealt with. If there are to be frameworks then those frameworks can deal with those areas in which some certainty is required because there is a European equivalent. For example, in agriculture we can use agriculture in example but actually there's also diversity in the agricultural provision because there is a degree of diversity in how things are delivered. You will see for example that less favoured area payments exist in Scotland, don't exist in the vast majority of England. So there are differences in the way things are done. That doesn't actually affect or change the way in which agriculture is understood within these islands and people can practice their business. So I don't think having differences necessarily a problem particularly if there is coordination and we've always agreed on coordination through a variety of mechanisms and I've indicated to the convener just a few moments ago what those mechanisms are. You can go from the very loosest type of coordination which simply is a recognition of difference perhaps with a memorandum of understanding right through to legislative coordination through agreed structures. So I think it's all possible to do. It's based on the approach to devolution that exists and particularly if that approach is underpinned by a simple principle that what's reserved is and what is devolved and that's the problem with this bill. It confuses that principle. So you need the co-ordination to make that work? Where you need co-ordination you should have it. You don't need it everywhere. There's already many areas where it doesn't take place. I mean I know Damien Greene used the example of a jam manufactured in D you wanting to sell his jam in Newcastle. Now there's nothing in this bill that either helps or hinders that. The reality is that with the present situation there will be no difficulty in that jam manufacturer selling whatever he wants in Newcastle. It is actually the UK government that's going to make it more difficult for that jam manufacturer to sell it in Nantes rather than in Newcastle but that's another matter. Well I recently bought Mackay's marmalade in Faro so perhaps well I just hope you can continue to do so after 2019 staple produce I'm sure. Always happy to mention Dundee anyway. There may be just a shorter question then. Are there powers available to UK ministers under the bill that you think should be able should be available to Scottish ministers? That's a very interesting question. I think there are powers available to UK ministers which we cannot agree to and that's one of the core issues which is to change law in Scotland without reference to the Scottish Parliament so I think one has to make sure that those powers are equalised but I also think and we may want to come on to this in more detail later I also think we need a mechanism to make sure that these powers if they are to be exercised by Scottish ministers are subject to appropriate scrutiny and control by the Scottish Parliament and therefore we need a mechanism to do that. That's why my officials are in contact with and talking to parliamentary officials to try and find the way in which we can do that. I indicated that I think as you know in the statement I gave to the Scottish Parliament on the 20th of September that I'm entirely happy for those to be found. I indicated in evidence to the Finance and Constitution Committee and we are now putting forward constructive ideas about what those powers should be so I think and that's paralleled by views at Westminster of the powers to UK ministers. I think that these powers require a degree more scrutiny than this bill gives them. From maybe just a sort of an aspect of that I believe there's no procedure which allows Scottish ministers to make regulations urgently although there is such a procedure available to the UK ministers. Yes, I think one would require to have some evidence to hand that those powers were actually required and I think that's probably the emergency procedure issues maybe necessary in Westminster terms. We don't know it yet, there's no illustrations given. I think it would be if they are necessary in Westminster terms and we can have that proved to us then maybe that amendment should be made to the the bill but we don't really know that at the present moment. So would you suggest that Scottish ministers should have that? I don't think I'm in a position to do that because I don't think we know precisely what these powers are and how they're going to be exercised but if they were to be proved to us by Westminster ministers and through the usual official channels that there was a likelihood of these being used and there was a necessity for them to be used and I think it would be appropriate for Scottish ministers to be able to exercise them in Scotland in the way that UK ministers would exercise them in the rest of the UK. Thank you. Stuart, again. Minister, you mentioned a few moments ago regarding the co-decision making and certainly the bill provides the choice of three different routes to be exercised in terms of the powers of correction i.e. regulations made by the UK ministers acting alone, the regulations made by the devolved authorities, acting alone and also regulations made jointly by the UK ministers and the devolved authorities. What factors will determine the choice of the route to be taken? Well, that's intriguing and I think we would only know that in the light of the issue that arose but we've been clear that it's inappropriate for instruments to be made in relation to devolve Scottish legislation without the involvement of the Scottish Government or Parliament. That's the principle that we would apply. So we think one of those routes of being made by UK ministers without any consultation is not a route that should be followed. So you remain, you know, there are two routes that then remain co-decision making or individual decision making. On co-decision making I think we would, there are areas that we presently have involvement in terms of joint legislative or joint administrative action and we would apply those as required. I mean those are areas which I suppose taking another. We don't have a means of legislative consent to secondary legislation here but that does exist in Wales. I'm right in saying that. I think this is there for an ex-cathedra pronouncement without support from officials which is dangerous. I think there is a type of mechanism in Wales which allows legislative consent to secondary legislation because the Welsh Parliament has dealt more with secondary legislation up until now than primary legislation. We don't have that procedure. So maybe when we're required to develop that procedure to look at secondary legislation that had was being altered by joint decision making. In terms of our decision making then it's quite clear those decisions are made, they should be scrutinised. The issue which I've just been responding to Mr Bowman on is how we would scrutinise that and what type of scrutinise we would develop here which was perhaps stronger than the scrutiny being applied at Westminster. We'll work with the Parliament on those issues and we will obviously want to get those right. Section 57.1 of the Scotland Act allows EU obligations to be implemented in devolved areas. That's an example of how we might work. I thought it was a clarity of my argument that was making you look away but there we are. I'm very rarely accused of dazzling people but thank you for that. Certainly just on that last point Minister I mean you spoke there regarding the Scottish Government would be prepared to work with also the Scottish Parliament. Certainly how would the Government actually propose to account to the Scottish Parliament for its actions in choosing some of these positions to take and particularly in choosing if the UK Government would to meet provision in areas of devolved competence and also in giving consent for that to happen. I think what we're talking about we go back to this issue of developing appropriate methods of scrutiny within this Parliament that are acceptable to this Parliament. I'm sure this committee would have a significant role in making sure that those were developed and implemented and we are presently having those discussions and bringing forward ideas. I'm very keen that we actually do that. There are lots of issues in there. Just to touch on one or two of them. There could be pre-laying, there could be flexible use of existing processes, there could be new scrutiny procedures, there could be modification of committee structures and sitting times. All of them are possibilities to create opportunities for increased scrutiny. Those are the things and others which are being put on the table in discussions. I think the appropriate place for this is discussions between Scottish Parliament officials coming up with recommendations that both sides can support and taking that both through the Government and the Parliament processes. That would seem to be the right way to do it. The Minister mentioned section 57 of the Scotland Act, which is an existing example of the UK Government being able to implement EU obligations in devolved areas. That is at present only done at an administrative level after bilateral consultation and with the agreement, the formal agreement of the Scottish Ministers. Scottish Government guidance on the use of this section requires that the relevant portfolio minister, when giving consent to the implementation of an obligation through section 57, should write to the convener of the Scottish Parliament's subject committee that deals with the subject matter and also to the convener of the European and External Relations Committee. At present that is the mechanism by which ministers are held accountable for their decisions to agree to the use of section 57 in that way. I expect that these will be the sort of mechanisms that are being discussed at official level between Government and parliamentary officials to cover the similar issue that is raised by the proposal in the Scottish Government, Welsh Government amendments that Scottish Ministers consent should be required before the UK Government can make regulations in devolved areas. Can you explain for the record for our army of viewers out there what section 57 is? Sure. On devolution, most existing powers of UK ministers to make provision in devolved areas were lost and those powers were transferred to the Scottish Ministers. What section 57 does is it preserves the ability of UK Ministers to continue to implement EU obligations even in devolved areas. This is because an EU obligation applying the same way or very similarly between Scotland, England, between them reserved and devolved matters would apply very similarly. There's no parliamentary procedure provided for the use of section 57 in the Scottish Parliament on the face of the bill, but in practice the Scottish Government, Scottish Ministers write, as I explained, to both subject matter conveners and to the European and External Relations Committee convener. It's that reporting mechanism that is used to hold ministers accountable to the Parliament for the use of this power. Thanks very much. I'm going to come back to the point that you've just been talking about, Mr Russell, which is parliamentary scrutiny, which obviously this committee takes extremely seriously. You've suggested that we might need to come up with new procedures to deal with this. Have you given any thought, or has the Scottish Government given any thought, to how it might enable Parliament to decide between using negative or affirmative procedures for regulations under the bill? On the practical nature of what's coming down the line, we're not yet entirely clear about the scale of the instruments that will be required or the divide between those that are best decided on a UK-wide basis and those that are best decided on a Scottish Parliament. I don't think that we're going to put in place anything at this stage that's too rigid or too elaborate on this. We have to have some more information. We don't want to tire ourselves necessarily to this decision until we see what's coming. What we can do is look at issue by issue and decide where they're going to work for us. Under schedule 7 of the bill as drafted, the affirmative procedure is dictated in certain circumstances. If the bill is establishing a public authority, if it provides for the functions of an EU entity or public authority in a member state to be exercisable by a public authority in the UK, providing for the functions of a EU entity or public authority in a member state or making a legislative instrument to be exercised by a public authority, imposing a fee, creating or widening a scope of a criminal offence, or creating amending a power to legislate. So there's a set of criteria in the bill in schedule 7 that say how this decision should be made. Now, anything else should be subject to the negative procedure. We don't quite know the bulk of the work that will be coming through that can be judged by those criteria. So once we do know that, we'll be in a clearer position. It could be, given the development of the scrutiny procedures that we're talking about, that we will want to apply further criteria ourselves in agreement with the Scottish Parliament that allows us to make this decision. So that's where we are at the present moment. I think as this develops over the next few months, we'll be in a clearer position. Okay. And again, just for the record, the two procedures, affirmative and negative, allow for different levels of scrutiny by MSPs. But essentially, it's in your gift. It's in the Government's gift to decide which. In the gift defined by legislation, because that legislation is clear, that clause is clear if this bill passes, and of course, I'm just making all the assumptions it will pass at Westminster. If this bill passes, then that makes it clear. There are other qualifications we might apply which would widen the definitions, not narrow the definitions, but widen it. So it is clear already what some of those will be, there may be more. The Lords have suggested that you could set up a sifting committee to make that decision. Would you be open to that idea here? Well, sifting and prelaying is one of the issues that we're discussing. General might want to say a word or two about that. That's the sort of idea that's very much in the discussion. So we're having with our opposite numbers from the Scottish Parliament, the Clerks to this committee and others, with an aim of finding a sort of pragmatic balance between the statutory requirements and procedures that give Parliament enough confidence that it is able to scrutinise instruments that it wants to in sufficient detail. Recognising, I think, the potential volume that might be generated by this. So I think we are trying to, with the Clerks, find a range of proposals, including the sort of idea that the Lords committees have discussed, that would give this Parliament confidence that in exercising its criteria function and sufficient opportunity to see what the Government is doing in these areas. I say, while recognising the potential volume that might come forward and recognising the need for efficient use of Parliament's resources and the Government's resources to do the necessary preparations. Obviously, if you had such a committee, it could potentially create a mountain of work for MSPs. I think just getting the right balance in this as we laid out in the legislative consent memorandum and procedures that are pragmatic but do recognise the need for proper scrutiny and getting that balance, I think, is what the Clerks and others will be searching for and the necessary level of trust between the institutions as well. That's the range of proposals that we will want to produce with our opposite numbers, as I say. Can I perhaps say that, no matter what happens, there will be a mountain of work in this. I don't think that that's going to be avoidable. We're aware of that. Obviously, we want the right degree of parliamentary scrutiny so that ministers aren't accused of, shall we say, a power grab. Oh indeed. Well, I have to say we have no desire in that regard because we don't want to be in this position to start with. Okay. I'll move on to Monica Lennon. Good morning. The committee has heard from stakeholders about the need for early engagement on consultative drafts of regulations to be made under the bill, the importance of stakeholders and, of course, the Parliament in having opportunities to propose amendments to draft legislation has been emphasised to us. Minister, you've already put on record that you're open-minded about scrutiny. Is it a wonder if you consider that there is scope for strengthening scrutiny in some areas along the lines of a superaffirmative procedure? Well, I'm open to any suggestions and the discussions that are taking place between officials on both sides will be helpful. I think that the one thing I would caution is that there's going to be a timescale for this that has to be met. So, if we have superaffirmative procedures which take longer, then we may find ourselves with difficulty with the timescale. I'm certainly not against in any sense a wider involvement from stakeholders in this process. One of the virtues of this Parliament is the ability to bring in people to give evidence and information that can allow informed decisions, pre-legislative decisions to be made very often. So, we're at our best when that happens. So, let's try and make sure that that happens. But, if we tied ourselves too much to lengthy procedures, then we would lose both the necessity of this bill, because this is being discussed, because it has to be done in a shortage period of time, and we might find ourselves in a difficult position at the back end. So, if you're not in favour of the superaffirmative procedure, how do you intend to address some of these concerns? I think they'll come from the discussions that are taking place. I think that we have to bear in mind the necessity of ensuring stakeholder and informed involvement in the decisions that are being made. I'm not usually charging Gerald with doing things in the middle of a meeting, but I'm absolutely sure Gerald, in his discussions with the Parliament, will make sure that those points are borne in mind. Do you want to say anything about that? No, I think that the question of stakeholder engagement in the preparation of instruments is a way to one as well, and we would want to ensure that the Parliament was able to engage with stakeholders in the drafts of instruments as much as the Government, I'm sure, in looking at the options that we have. But, as the Minister says, it would be one of the issues that I think we will be considering in bringing forward proposals with our clerking colleagues to conveners and to ministers to satisfy the scrutiny requirements that Parliament has. Balance, as we say, with the need for progress and recognising the volume, as the Minister has pointed out, in relation to four more procedures. I think that we may save these proposals. I believe we'll meet again Friday amongst the officials, so we need to make early progress. We're very clear about that. Thank you. I look forward to getting updates on that. I'm sure you'll agree that the quality of supporting information on instruments will be crucial to effective and efficient scrutiny. What information minister do you expect to provide in support of instruments? We already have a good system in Scotland that we provide additional information with every instrument. I am absolutely open to seeing if more information is required. It may well be that there may be further information required, for example—and I'm only using this as an example—a statement of appropriateness or necessity, which says why this is being done very briefly. It might be a very helpful thing to make sure that everyone has, so there is at least an initial check that this is being done for the right reasons. I'm absolutely open to that. It has to be part of this discussion about how things are done, but whatever is needed. Thank you. I think that that kind of statement would be very helpful. In terms of providing that information, would that be at the point of laying the instrument before the Parliament? I would have thought so. I think that it's difficult to speculate before an instrument is laid. I think that the information coming in a package with the instrument, with the explanatory, the additional note that exists, and the statement that may or may not be necessary would come with it. One could also use those statements as a checklist to make sure that we know what's been in and why it's been in. A couple of ideas that we had listening to stakeholders was that that could include an explanation of the existing EU law, the reasons for and the effect of the proposed change, but also a summary of the consultations that have been carried out. Again, is that something that you were talking to? I think that we should make sure that people have as much information that we can give them within the timescale needed. I think that this idea of a statement of appropriateness or a statement of necessity could contain all that information so that we know why it's there, what it's trying to correct and if there are other people it should have been or are involved in it, then that should say so. I'd like it to be quite brief. We are going to have piles of paper as it is, so I think that we should have it as brief and concise as possible. Thank you. That's helpful. Thank you, Torrance. Thank you for being here. Good morning, Minister. On the sheer scale of your project, what information can the Minister give to the committee about the work that the Scottish Government is undertaking to prepare the anticipated volume of secondary legislation required in relation to the UK's departure from the EU? Well, I'm working very closely with the Minister for Parliamentary Business to make sure that we have an integrated legislative programme. We're not, despite the mountains of work that's going to come, that these mountains are at least not too scary, so we're trying to get that all together. Officials across the Scottish Government in each portfolio are working to identify the secondary legislation that we'll need to consider over the next two years, well, the next 18 months in actual fact. We need better information sharing from the UK Government, and I say this regularly. We're not having enough information sharing from the UK Government. If we get better information sharing, this would help us, because at the end of the day, this is going to depend on what the process is that's being adopted at Westminster, because some of this will depend on what Westminster's going to do. We're working on it. How will the Scottish Government work with the Parliament and the committee's task with the scrutiny of the legislation to keep them informed? Well, I've indicated to Monica Lennon some of the documentation. We obviously want to let the Parliament know as soon as possible what the anticipated volume is, and then to break that volume down. I know that the Minister for Parliamentary Business is due to give evidence to you later in the year. I would have hoped that he might be in a position then to let you know, because we're working on it presently, and I'm quite happy to make a commitment to keep you informed as this develops. The committee has heard from witnesses about the importance of the UK ministers and the Scottish ministers and the respect of officials working together on the handling of secondary legislation project, in particular given the potential for overlap and the sequencing of issues involved. Is there a cross-administration steering group? And if so, will the Scottish Government provide a commitment to keep the Parliament updated on the progress and decisions of that steering group? Well, we already have the GMC, which is essentially what you're talking about. The GMC structure is meant to cope with that. The GMC structure consists of a plenary of the First Minister and the Prime Minister and the First Ministers, and other ministers, as required. There's a sort of signed shoot of it at GMC Europe, which deals with the upcoming European Council. Every time there's a European Council, GMC Europe is meant to meet two or three weeks beforehand to look at the agenda and to sort of clearinghouse. There's a GMC-EN, the new part that was established last year, which is European Negotiations, which is the meeting that was held last week, but hadn't met for eight months. But underpinning it is a GMC-O, which is the officials group. Now, the officials group has lots and lots of different strands to it, and they meet and talk about these matters, so there is considerable work being done. However, I stress that until we get agreement on the bill, until we get agreement on clause 11 particularly, we're not in a position to take a lot of things forward, because we don't agree with the way in which things are going, and we can't agree to set up frameworks until we have an agreement of what those frameworks are going to be like. So, there's been a slight hiatus in that, but there is discussion going on about these issues in terms of the detail of the bill, and those will continue, and officials will bring that information to ministers, I presume, to UK ministers as well as to Scottish ministers, and we will react accordingly. When we know things, we'll let the committee know. We have no interest in hoarding that information because we recognise that the burden is going to fall on committees, so that's where we will go. Thank you. So, I guess the upshot of all this is we want to get to a point where the Scottish Parliament can agree the legislative consent motion and the Welsh Assembly, so everyone can agree to this. How confident are you that we'll get there? I don't know presently. There's a clear route to it, which is for the UK government to change the EU withdrawal bill, to remove clause 11 and to accept the amendments that we have put forward with the Welsh. In those circumstances, we can get there. If that does not happen, then we will not bring forward a legislative consent motion. That's where we are. We are talking. John Swinney and I have met Damian Green and David Mundell twice. I've spoken on the phone separately to Damian Green and David Davis, clearly. There's now been a meeting of the GMCEN, where I promised another one before Christmas. The bill is moving more slowly than had it been anticipated. It's not, I think, due now in the Commons probably until after the November recess in the Commons. It's a week in November that they're off, so the 13th of November is about the earliest date that will come in. It's going to be very tight to get that bill through before Christmas, which is what their stated intention was. We have time to resolve this, because we don't have to bring a legislative consent motion until the last amending stage of the bill. That's the House of Lords final stage. That, we thought, would be in January, but it's likely to be later now, could be in February, so we've got until then to resolve this. If we can get this resolved, then we can bring that legislative consent motion. If not, we can't. Okay. Obviously, a lot of amendments. I haven't seen them. You probably have, but I presume some of them deal with the points that you've been making. Well, let me just define clearly what we're talking about here. There's the joint ones between the Welsh and the Scottish Governments. Those are the ones that we're interested in. Those are the ones, if passed or equivalents passed, we will bring forward the motion. That's been clear. However, there are lots and lots and lots and lots of other amendments on a whole range of things. Charter of Fundamental Rights, for example, which I profoundly agree with, but we've been clear in our scope. There's a range of amendments. I'd be delighted to see passed, but as far as we're concerned, it's the Welsh and Scottish ones that we're focused on. Just out of interest, your amendments and the Welsh amendments, who submits those? They have been tabled. They were tabled by a group of MPs, Labour, representing Labour, SNP, Plyde, Liberals and Greens, who have all been involved in tabling them, so it's a cross-party activity. I was pleased to see Keir Starmer at the weekend identifying the six key issues in the bill, one of which was the devolved parliaments and their rights. Clearly, those amendments have the backing of the parliamentary parties that I'm talking about. You'll be aware, because there was a statement last week that there was a committee set up by the Lords of parliamentarians, including myself, from across the four nations, who are essentially saying we want to get to that point where we can agree that at LCM. I'm pleased that that's a case, and I think that if those who have influence with the current UK Government can bring that influence to bear, then all the better. Thank you very much. Members, any other questions? I thank you very much for your time. We'll suspend briefly to allow a change of the witnesses. Right, we'll start again. Our next panel this morning was arranged at a very short notice, and I thank the witnesses for attending today. We've got before us Daphne Vlastari, I hope I've pronounced that correctly. Advocacy manager from Scottish Environment Link and Isabel Mercer, policy officer from the RSPB, so welcome to you. Can I ask you, initially, just to genuinely give us your thoughts on the bill? Yes, so I guess firstly we'd just like to thank the convener for inviting us to give evidence today. I think it's kind of important to say both RSPB Scotland and Scottish Environment Link and other members of Scottish Environment Link. We're all coming at this from an environmental outcomes perspective, so we're obviously primarily interested in ensuring that all of the current protections that are provided to the natural environment by EU legislation and institutions will remain and that all that legislation will be brought over and there will be no gaps in the protections currently provided to the environment. So when we're looking at the withdrawal bill, we've been looking at three principal points to do with that, and one of them is ensuring that environmental principles are brought over alongside the entire body of EU environmental ackee. So EU environmental law is underpinned by a number of key international principles of international environmental law, such as the precautionary principle, the polluter pays principle, principle of sustainable development, and they play a key role in how EU environmental law is interpreted both in the court system and also how EU environmental legislation is developed. So all EU legislation is developed on the basis of those principles. Those principles are outlined in the EU treaties but they're not currently spelled out in any of the directives and they're not articulated in domestic law and at present the withdrawal bill does not make it clear whether those principles will be brought over. So that's one of our key issues that we're interested in. Shall I pass over to you? So indeed thanks for having us. Isabel I think outlined very clearly what some of our concerns are with regards to the bill. We see the necessity of it but at the same time there are some gaps that need to be addressed. The aspect of EU law that needs to be converted into domestic law is obviously very important and retained EU law as it will now be called needs to have the status of primary legislation. The issue of principles is also very important. These are international environmental governance principles that are enshrined in things like climate change treaties, reo declaration, sustainable development goals and the fact that they are in the legal text of the EU treaties has enabled EU law to be based on those principles. As we leave the EU we will lose those principles that have really formed the bedrock of all environmental but also consumer health legislation so we think this is something quite important to Leckinch in terms of the bill. The other aspect and I think there was some reference to sort of different bodies and duties is the fact that we have identified a very important governance gap with the sort of exit from the EU so the EU bodies at the moment perform a variety of roles from gathering and monitoring of data supported by the national agencies to really you know recourse to the commission and the ECJ when we find that EU law is not currently implemented. So this has been a very useful leverage to ensure that all governments implement EU law in the best possible way to deliver the environmental outcomes we're looking at and this of course applies to the you know the entirety of the EU a key. So we would be looking to have a discussion across the UK about what are the bodies that we would need to ensure that those functions are preserved as we move forward. The third aspect I think and this has been highlighted in the previous section of this committee was the fact of scrutiny and stakeholder engagement. I think going forward if it is about you know the different size that will need to be looked at if it is about the potential UK frameworks that we would be looking to implement what we would like to see is a clear mandate for transparency scrutiny in terms of the involvement of Parliament but also substantive stakeholder engagement and I think there were references to the joint communique earlier today. I think one of the points that really we would like to highlight is the fact that there is really no reference to stakeholder engagement and I think unless we can have a public and transparent dialogue we will not get at the best legislative outcomes. Thanks I'm just quickly looking through that communique and I think you're absolutely right. There was no reference to. I would hope so otherwise my reading skills are. Stuart, you have got a question. Yes, thank you. Good morning. In the Aris PBE submission the final paragraph highlights the issue of what you discussed there regarding the oversight and the clarity in the bill about the status of the retained EU law and obviously you've touched upon that a few moments ago and you've also suggested that in terms of when the law comes over that it should be done by primary legislation. In your estimation how many pieces of legislation would that actually be in terms of primary legislation? Well the estimates that we have is that about 80% of current environmental laws are EU laws. Obviously there are some that are already part of the Scottish statute into forms of directives there are other which are regulations. I think there was a communication by Michael Gove to the relevant committee in Westminster that provides some information about the statutory instruments and the amount of work that would need to be done. We haven't done we haven't collected that evidence ourselves but I would be happy to forward you or that letter which I assume you already have but we are talking about a substantive amount of statutory instruments that we would have to look into. I am very sympathetic to your suggestion in terms of the protection of the environmental laws generally I am very sympathetic but the aspect that I am aware of is that we have this one bill going through the process at the moment and it's anticipated about another 13 bills after that and then certainly for this Parliament potentially up to about 300 pieces of secondary legislation and if your cells are suggesting that environmental legislation should be primary and not secondary that would be over and above I would imagine what's already been discussed. So let me clarify perhaps that was unclear I think we're looking to ensure that the EU retained law that is part of our domestic system has is given the status of primary law so that it cannot be changed by secondary legislation in the future so that let's say if we decide that there's a need to change something about environmental protections that this would need to go through the full process of parliamentary procedure rather than be amended kind of without any scrutiny so we're not seeking to kind of pass by primary legislation all pieces of EU law but rather to grant them the status of primary legislation and the same securities that come with that. Okay so in terms of in terms of that then what how many how many pieces of legislation would you expect that to be? Again we don't have a firm number as you probably know very well the majority of EU environmental law is you know it's about 80% rather of environmental law it comes at EU this is a complex sort of matrix of directives regulations and other decisions so it's a bit hard to give this a number as I said before the approximate estimates that about 80% of our legal sort of texts come from EU when it comes to environment. Sure so I guess just to kind of emphasise the the key point is more just we're interested in the future safeguarding of those pieces of legislation making sure that you know any future government isn't left able to make changes to secondary legislation which could then have far-reaching implications for the environment. In terms of my final question on this idea in terms of that would you accept we can have an interim position whereby in order to get the legislation transposed over firstly and then with maybe a period of time just for talking sake within a five-year period of time then anything that has been transposed over in terms of secondary legislation would then go into kind of a primary legislation aspect would that be something that you would consider or accept? I think we would need to perhaps get some legal clarity on this and what are the possibilities because the withdrawal bill aims to bring over all EU law. Obviously if the withdrawal bill itself includes clauses that means that we cannot amend with very limited scrutiny the content of that EU retained law that means that we're opening ourselves to a lot of potential changes intentional and unintentional and so I think our point is that to meet the goal of the bill the withdrawal bill will choose to keep the protections when comes to environmental protections then we need to ensure that EU retained law is given the status of primary legislation. To our understanding this doesn't mean that we sorry that we have to sort of pass again legislation to give it that status but perhaps that is a point that we can get some legal clarity on in terms of the possibilities. I do like to stress I am genuinely sympathetic to obviously what it is that you're suggesting but I'm also conscious of the work that goes through this committee and the scope of what's ahead of us not just here but certainly the UK ride in terms of this legislation. I think perhaps what we can take back as a point is to come back to the committee on this point just to clarify the implications of that request also in terms of the workload so we can come back to you with a sort of more precise response. Okay that would be helpful thank you. Do you have a fear in this process that some of the environmental laws that you cherish could be lost? Obviously in any sector at the moment there's a worry that there will be gaps in the regulations that are brought over and as we've kind of laid out already our main concern is to ensure that the entire body of EU environmental legislation including those underpinning principles is brought over because where it not to be brought over in its entirety there could be far reaching consequences of the environment as you've just indicated and that's why we feel in particular that the issues to do with scrutiny and stakeholder engagement are particularly key to ensure that so also I think one of the areas we're quite concerned about is this issue of technical and non-technical changes and that there's not necessarily there's not a good definition of what would be what would constitute a technical change we do not feel that that definition is there at the moment and that there needs to be much more clarity about the types of changes that are going to be carried out so for instance in the explanatory notes to the bill one of the technical changes that they kind of use as an illustrative point is the removal of a reporting requirement and rather than transferring that reporting requirement to a UK public authority or body they've just suggested that the requirement be removed altogether and if that for instance was a requirement to report or monitor on the status of the environment in some way for instance air quality or trends in species and habitats populations and that that requirement was removed that would go far beyond what we would consider to be a technical change whereas at the moment the bill suggests that those kinds of changes would go through without what we would consider to be an appropriate level of parliamentary scrutiny and stakeholder engagement. The other aspect to highlight is you know you mentioned policies and pieces of legislation of course um you know recent sort of data has suggested that an overwhelming majority of the UK population do not want to see these EU laws lost in any way and in fact I think there was great support from citizens across the UK for the birds and habitats directive refit that was only recently closed at the EU level but I think apart from the text of the legislation the directives regulations I think we're also very concerned about the loss of functions of EU bodies so monitoring collecting the data and comparing that um is one aspect which is rather mundane and technical but very important for actually measuring process but also the other aspect is the implementation and enforcement of EU legislation um so there's been I think there's been an acceptance from the UK government um by Mr Gove regarding the fact that there is such a governance gap as it has now been called and I think what we're looking to do is to develop different solutions for that um again I think the um legal system in the UK um and Scotland um doesn't allow for those functions of the commission in the state to be replicated quite in the same way so we would be looking to see what the potential solutions to that are if that involves you know giving existing bodies new functions or actually creating new bodies to address that um sorry okay what what sort of bodies are you talking about so at the EU level that would have to be replicated here the ECJ for instance um has been kind of the guardian of the EU laws in terms of ensuring that there is proper implementation and being able to enforce that at a member state level um this has meant that when civil society businesses citizens felt that some piece of EU legislation was not adequately implemented they had recourse to the European Commission to address that in bilateral discussions with different public bodies of that member state concern they would have seek to understand whether actually there was an issue and of course you know if you take that towards you know the entire process that does mean then involving the ECJ um so I guess what we are very concerned about is who will be the guardian of the retained law um and I think our concern is that parliamentary scrutiny process or the existing um space that is provided by the UK and Scottish legal systems don't quite replicate in the same way the functions of the commission and the ECJ and practically so practically what would that mean so I think um the environmental sector is looking at different options and this is something that we're doing with colleagues across the UK so it's not a Scottish only exercise um so there's a variety of potential solutions um and I think we wouldn't be looking for a silver bullet I think it would be different functions going to different bodies perhaps that could help it out but I think we're looking potentially at an environmental commissioner or ombdansmen um potentially for helping with issues on access to justice um environmental courts which would mean that we can address issues in a more affordable way with the relevant expertise um and of course that would be in addition to the kind of current you know parliamentary scrutiny and accountability mechanisms that we have in place and do you think this commissioner in courts would exist at a UK level or would it be Scottish level I think that well just to take a step back I think Scottish Environment link and other environmental NGOs have been calling for environmental courts in Scotland for quite some time um so there is scope to have that at Scottish level um however I think the final constellation of whether we're talking about UK bodies or um you know bodies but at the devolved level will really depend on how the withdrawal bill progresses and you know how the different competences are set I think what we would like to see is for all governments regardless of level to be held accountable in the same way on any cold footing did you want in I was well I suppose just to build on Daphne's point a bit that Scottish Environment link members have been calling for environmental courts for a very long time and it's worth kind of just mentioning that these governance issues do already exist to some extent with our current domestic arrangement and there are gaps um for instance in access to justice on the environment and there was a consultation on environmental justice carried out last year by the Scottish Government um so it's kind of worth flagging that because these issues do already exist they're going to be exacerbated much more through the loss then of EU institutions and oversight mechanisms um so as kind of Daphne's outline there will be instances where in Scotland particular to the Scottish judicial and parliamentary system there might be areas where we've already outlined the gaps and those gaps could be filled and there might be instances where there's a larger problem caused by the loss of EU oversight and accountability mechanisms that might necessitate a UK type governance arrangement um we've heard from witnesses including yourselves um that there are problems with the breadth of the powers in the bill and in particular the wide reach of the term deficiencies um so can you explain why you think the powers are too wide and how you think the powers could be improved and do you consider the reference to what is considered appropriate means that the powers are too broadly drawn you'll recall the evidence previously this morning yeah so um as as you've already mentioned quite a few of these points have already been made today but just to reiterate um from RSPB Scotland and the Scottish Environment Link point of view um our three main concerns with the scope of the powers have been the definition of what constitutes technical or non-technical change the um fact that um the definition of deficiency is not appropriately limited and is extremely broad at present and the fact that the bill leaves open changes that minister considers appropriate which we are quite concerned um given that the Scottish the UK government has given reassurances that the bill will only be making what they consider to be technical amendments to ensure that um the the law continues to operate on on exit day however as those three issues that I've just outlined essentially leave leave the open so that those powers could be exercised in a way which do create substantive policy changes that's our view um and so as we've kind of outlined already we believe that any non-technical changes that are made so what we might consider substantive policy decisions should be only made by primary legislation and in order for those to be identified um as has already been kind of suggested today there might be some sort of sift and scrutinised mechanism that's put in place so that different statutory instruments can be sifted through and it can be identified where some where they are just a technical change and where there may be a non-technical change and in those instances where there might be a non-technical change they could be given increased scrutiny we've got some questions on devolved authorities powers I wonder if one of the members would like to take that perhaps yourself bill a different question if you if you don't mind I'm just listening to what you were saying are you saying that the the EU law that is now here and there's now will be transferred into UK law and I'm presuming we're not really speaking about Scotland here we're talking about the general UK law can't operate without scrutiny of you know without having these European bodies in place I think what we were saying that for to be operating on the same level as it does today you need to also replicate the mechanisms of enforcement and monitoring that are currently exercised at an EU level through EU bodies I think you know copy pasting the text if you like is it exists as it does at the moment in effect well it also relies on a lot of EU bodies carrying functions I think this is why there's a relevant clause in the withdrawal bill about assigning functions currently exercised by EU bodies to new or existing bodies and I think that actually hints at the fact that there is a bit of a governance gap there however that power also allows them to abolish or remove those functions entirely which is obviously something that we might be quite concerned about if some of those functions were being proposed to be removed so if it might help to give an example of the type of functions that we're talking about obviously something that's been had quite high profile in the media is air pollution air quality regulations and client earth has twice taken legal action against the UK government through the EU institutions in order to ensure that they do withhold their commitments under the EU legislation and so one thing that we are quite concerned about at the end at the end of the scale of looking at enforcement and compliance and at the other end of the scale is things like monitoring or reporting but if you're talking about enforcement and compliance there will be a gap when you're looking at how the executive has held to account on its commitments because they won't will be losing things like the mechanism of the EU commission for citizens and organisations in the EU to bring free complaints forward that there isn't really a mechanism that exists in Scotland or in the UK as a whole a kind of forum where NGOs like ourselves or individuals could bring a complaint about the executive not withholding not standing up to environmental commitments I thought it was the UK courts that took the government to task on the air quality it was european so it was done through the UK courts but using the european legal system and you said you want to replicate so you would put the exact same procedures that was I think definitely said I think we're looking to ensure that the functions that are useful and you know have been helping us actually improve our environment but also in terms of public safety because really these things apply to a wide variety of kind of sectoral legislation but I think what we'll be looking to do is try and see where we can replicate some of the functions we're not saying you know bring this everything back to the UK or the Scottish level we would like to see how those functions can be replicated at a domestic level and whether existing agencies such as c power s and h for instance could take some of the you know responsibilities carried out at the moment by EU bodies whether other bodies would be needed to carry out some other functions I think what we are doing right now is highlighting that there is an important governance gap a gap has been acknowledged also by the UK government and I think what we need is to look into the potential solutions to ensure that you know we will have a functioning statute book as of the date of exit okay so who would like to take questions on devolved authorities powers in your evidence that you you've given that you're calling for a robust security system and more engagement with stakeholders so would you consider that a scope for strengthening security in some areas and the lines of a super alternative process by which I mean consultation period on a draft order before the order is laid before the Parliament and subject to approval so I think that would be one of the options as you can appreciate we would be looking to maximise the potential for stakeholder engagement I think this means maximising the time that the committee has any committee has to look into the instruments that are being laid before it opportunity to you know just as we've done today you know bring stakeholders to engage with them ask them questions provide evidence equally you know be able to call on ministers to come in and provide evidence and also the possibility for that committee that would be looking at the relevant documents to be able to recommend ministers to relay with recommendations taken into account from that committee so these are some of the sort of issues and points that we would like to see forward thank you any other questions on that on scrutiny David no it's just I can do that sure okay thank you it's certainly that the committee notes that the Scottish ministers have no power under the bill to modify retained direct EU legislation and it's been suggested in evidence that it would be that we give rise to legal uncertainty of four sets of governments in the UK we're able to modify retained direct EU legislation for example it would make it very difficult to identify what retained EU law was with a potentially detrimental effect on the continuity of which the bill aims to provide for as what is your response to that particular argument and also the power in part one of schedule two enables the the Scottish ministers to make changes to retained EU law which is EU derived domestic law are there restrictions on ministers ability to revisit those changes later and make further changes so I think that's a long question so I might ask you to repeat some of parts of it okay I think just generally our starting point is that this is a very unique process that we're going through it's never been attempted so obviously we're identifying issues that as they're coming up our starting point however is that we want the devolution agreement to be fully respected and that we want that any policies coming forward to be jointly developed and agreed this is just something that we think is very important in terms of ensuring environmental outcomes we feel that when governments have a stake and invested in a policy process then it makes them all the more likely to be successful and well implemented in the future which is really where we are coming from at this point I hope that was helpful so I think that certainly I would suggest and it goes back to what we heard earlier from the minister regarding the clause 11 and discussion and also the amendments that have been placed down at the House of Commons I would assume that you're obviously lobbying the relevant the MPs and and UK government on this particular area as well yeah so RSPB and well Scottish Environment Link and the other environment links in the UK we're all part of a greener UK coalition of environmental NGOs and so it's through through that organisation that we've been doing most of our engagement with MPs and we will be we have been calling for any common frameworks that are agreed on environmental matters to be jointly agreed between all four countries jointly developed and agreed because as Stephanie has outlined we feel that that's most likely to lead to the most beneficial environmental outcomes legislation is more likely to run smoothly if it's been jointly agreed and negotiated rather than imposed that's all for you certainly mean are there any powers available to the UK ministers under the bill that that you should think that would also be available to Scottish ministers so I think our position is that we don't feel there's enough clarity provided in the bill about where Scottish ministers and the Scottish Parliament are expected to play a role and where they will be expected to create statutory instruments so as you kind of already outlined there's issues around certain types of retained EU law like EU regulations and whether Scottish ministers will be expected to create statutory instruments to amend efficiencies in that type of retained EU law so we're calling more generally for more clarity on where the Scottish ministers and Scottish Parliament are expected to play a role and then again going back to our kind of headline points any delegated powers under the bill need to be subject to an appropriate level of scrutiny and that's kind of where we're coming from certainly it's I mean there is no procedure which allows the Scottish ministers to to meet regulations urgently and I also heard about that from the minister earlier on although there is such a procedure available to the UK ministers do you think this is something that that could cause problems for ensuring the continuity of law and environmental law and if so what would you like to see happen? I think if the minister was unable to provide with a very concrete answer I think it would be unfair for us to expect us to provide one I don't think that this has come up as an issue I think our general concern is to do with the level of scrutiny and stakeholder engagement that we would want to have going forward as regards statutory instruments there is one specific aspect that does link back to the issue of the governance gap we've identified I think in clause seven five that the bill gives ministers powers to sign functions currently exercised by EU bodies but there's no obligation to do so Isabel mentioned that there needs to be an obligation to do so and we need the equivalent powers to be conferred on Scottish ministers so the same can be done at the Scottish level so this is one quite specific but important point to be taken forward Are there any other points you would like to any other areas of a governance gap you'd like to highlight? Without providing really I think any type of solution I think it is quite important to sort of take into account the sort of open-ended and far-reaching powers of the delegated powers that are conferred I think we're particularly worried about some of the powers that would enable ministers to actually make changes to the withdrawal bill itself I think there needs to be some sort of level of confidence and certainty about the clauses and the status of the uretain law going forward the other aspect I think that we are not entirely clear at the moment is there are references where there is a sort of the UK and Scottish ministers would be jointly acting jointly and I think we would want to see a bit more certainty about how this process would actually be delivered what would be if any the role of the Scottish Parliament and again going at those really basic principles of decision making and how this functions in terms of transparency and stakeholder engagement and again we mentioned earlier the aspect of UK frameworks there are provisions in the withdrawal bill about how some of the powers can be redevolved if you like at the Scottish level I think there is no real clarity about how this process will be taken forward what will be the involvement of the different governments and administrations and parliaments and I think to move forward in a as constructive a way possible we would need to see that more clearly laid out I mean just on that one point you mentioned there in terms of the joint approach and obviously we had that discussion earlier regarding either the Scottish ministers or a joint or the UK ministers taking the decision here what aspect or what factors would you consider should actually be the determining reasons for the choice of route to be to be utilised out of these three so I'm not sure we would have a very concrete solution to this obviously the withdrawal bill has some quite specific provisions about how things could be carried forward I think as far as we are concerned is that we want to ensure that environmental protections and the legislation that support them are taken forward and that looking into future legislation we're in the best position possible to actually deliver on all the ambitious targets in terms of biodiversity loss, resource efficiency and climate change that the Scottish Government has committed to. Any other members wanting? Just sticking to scrutiny you know the Parliament is going to have a big job to do we all know that and it's going to be important to prioritise our work. Do you have any suggestions about what the Parliament should be focusing on and do you have a view on there being a sifting committee we raised that earlier with the minister? We're very pleased to hear from the minister that that's something that they're considering and it is something that both Green UK and ourselves and the Scottish Environment Link have all suggested as an option as a kind of time limited parliamentary committee that would be able to sift through those statutory instruments and as kind of Daphne already said earlier to either ask stakeholders or the minister to come and provide further evidence on that instrument or to recommend substantive changes to the instrument if that was felt necessary and so that's something we'd definitely support. I think that I had a point that you made that I was quite interested in. You said that the Scottish Environment Link have been calling for an environmental court in Scotland for some years given the importance of what you've set out today. Are there other things that the Scottish Government could do now in the short term to I suppose put a focus on environmental protection and some of the issues that you've raised? I think you talked about environment commissioner or the court as well, so are there things that the Government could do now in your opinion? Yes, so obviously the fact that we have a bit of a closed door in environmental courts even though that is not 100% closed door is not something that we think can help the sort of the conversation go forward. As far as we are concerned we would like to see kind of an open debate about how this governance gap can be addressed. There is a lot of good work that is being done I think in the First Minister's Standing Council for Europe, so perhaps this could be a topic that is taking forward within that context. There's an environmental subgroup. Obviously this is also an issue that perhaps the Scottish Parliament and some of its committees can look into in terms of what are the possibilities, what will be the positives and negatives of different solutions. We are working with some academics to try and suss those things out. I think in other aspect that would be quite important for the Government to take forward and I appreciate what the minister said earlier about their focus being really on the Scottish and Welsh amendments. The Scottish Government in Scotland has traditionally made a lot of use of these environmental principles as we mentioned earlier when it comes to the precautionary principle in food repays. I think that it would only be fitting for the Scottish Government to actually support the maintaining of those principles at the UK level but definitely at the Scottish level as well and make that a key argument in their position. Are they doing that strongly enough at the moment again in your view? I think that stronger would be better. Obviously I think that we've heard from Arizona Cunningham, the Cabinet Secretary for Environment, Climate Change and Land Reform that there will be no turning the clock on environmental protections, which is very important, that we would want to continue looking at what the EU is doing in terms of environmental protections in law and emulate where it is applicable and where it makes sense. I think that Minister Michael Russell has made similar commitments. I think that this is a fantastic starting point. I think that now we're getting to the point in the negotiations where we need to start fleshing out what those commitments towards environmental protection and consumer health actually mean in concrete, almost legislative terms. I think that that would be quite important going forward. Thank you. Thank you very much. Any other members? Okay. I'd like to thank you very much for your time this morning and we'll suspend the meeting briefly. We'll move on to agenda item form for instruments subject to affirmative procedure. The next item is consideration of those instruments. No points have been raised by our legal advisers on the draft telecommunications restriction orders, custodial institutions, Scotland regulations 2017, the draft budget Scotland Act 2017 amendment regulations 2017, the draft pollution prevention and control Scotland amendment regulations 2017 and the draft fishing vessels and fish farming miscellaneous revocations Scotland scheme 2017. Is the committee content with these instruments? Okay. Agender item 5, instruments subject to negative procedure. So, common agricultural policy, direct payments etc. Scotland amendment number two regulations 2017, SSI 2017 317, the regulations amend the common agricultural policy direct payments etc. Scotland regulations 2015. The amendments make provision to extend the deadline for relevant applications under the voluntary coupled support scheme for ovine animals. The regulations were laid before the Parliament on September 28th and come into force on October 9th. They do not respect the requirement that at least 28 days should elaps between the laying of an instrument which is subject to the negative procedure and the coming into force of that instrument as required by section 28.2 of the Interpretation and Legislative Reform Scotland Act 2010. As regards its interest in the Scottish Government's decision to proceed in this manner, the committee may wish to find that the failure to comply with section 28.2 to be acceptable in the circumstances. The reasons for doing so are outlined by the Scottish Government agriculture and rural economy directorate and its letter to the presiding officer dated September 28th. Does the committee agree to draw the regulations to the attention of the Parliament under reporting ground J? As the instrument fails to comply with the requirements of section 28.2 of the Interpretation and Legislative Reform Scotland Act 2010. Public and private water supplies, miscellaneous amendments, Scotland regulations, 2017 SSI, 2017 321. The instrument corrects errors in two earlier instruments, the public water supply Scotland amendment regulations, 2017 and the water intended for human consumption private supplies, Scotland regulations, 2017. It fulfills an undertaking given by the Scottish Government to correct errors in these instruments at the earliest opportunity. The regulations were laid before Parliament on October 3 and came to force on October 26. They do not respect the requirement that at least 28 days should elapsed between the laying of an instrument, which is subject to the negative procedure, and they are coming into force of that instrument as required by section 28.2 of the Interpretation and Legislative Reform Scotland Act 2010. The committee may wish to find the failure to comply with section 28.2 to be acceptable in the circumstances. The Scottish Government's Energy and Climate Change Directorate has outlined the reasons for the breach in its letter to the presiding officer dated October 3. Does the committee agree to draw the regulations to the attention of the Parliament under reporting ground J because the instrument fails to comply with the requirements of section 28.2 of the Interpretation and Legislative Reform Scotland Act 2010? No points have been raised by our legal advisers on SSIs 2017, 323, 324, 325 and 329. Is the committee content with these instruments? Agenda item 6, instruments not subject to any parliamentary procedure. No points have been raised by our legal advisers on SSIs 2017, 322, 330 and 332. Is the committee content with these instruments? Agenda item 7, child poverty Scotland bill. We have got a paper before us that considers the delegated powers contained in the bill following amendments made at stage 2. One existing delegated power has been amended in line with the committee's recommendation in its stage 1 report. As a result, the power to make regulations changing the base date for the absolute poverty target in section 3 is now subject to the affirmative procedure. This is a higher level of scrutiny than the negative procedure previously included in the bill at introduction. Two new delegated powers have also been added as part of the new schedule to the bill. The paper before us suggests that the scrutiny for the power to make regulations in paragraph 3 to C of the schedule to the bill on access to information should be subject to the affirmative procedure rather than the negative procedure as currently provided. Does the committee agree to welcome the Scottish Government has commended section 3 of the bill in line with a recommendation in the committee's stage 1 report? Does the committee agree to report to the Social Security Committee along the lines that are detailed in the paper? In particular, is the committee content to recommend that the power to make regulations in paragraph 3 to C of the schedule to the bill is amended to be subject to the affirmative procedure rather than the negative procedure. I now move the committee meeting into private.