 Fy flodd yw'r lleiwfaeth, mae'n gweithio gynnw'r cymuned lleiwfaeth i'r 27 am ystod yn 2017 ar y Cymru Cymru Llywodraeth Cymru. Mae'n gweithio'r lleiwfaeth i'r David Torrance i'r Monica Lennon i'r gweithio'r lleiwfaeth i'r Collin Beatty. Mae'n gweithio'r lleiwfaeth i'r Cymru Cymru Cymru 6, 7 a 8 yn ymgolodau. Mae'n gweithio'r lleiwfaeth i'r cymryd diweddau i'r lluniau a'r gweithio'r lleiwfaeth i'r Cymru Cymru Scotland. y Cymru's annual report and evidence heard on the European Union withdrawal bill. Does the committee agree to take items 6, 7 and 8 in private? The committee will return to public session for item 9 at 1 p.m. Gender item 2, European Union withdrawal bill. Welcome Professor Alan Page, Professor of Public Law University of Dundee to our meeting. Hello. We'll go straight to questions. I'll ask the first set. If I can ask you, Professor Page, the bill confers wide powers on UK and devolved ministers to correct retained EU law. Is the broad scope of those powers appropriate and necessary in your view? As you said in your question, it confers broad powers on both UK and Scottish ministers. If you will permit me, I would like to approach it from the point of view of the powers that it will confer on UK ministers. What the bill involves or will see or entail is a massive increase in the powers conferred on UK ministers to make subordinate legislation in the devolved areas in consequence of EU withdrawal Brexit. One of the key points to note about that, to which I think not enough attention has been paid so far, is that under the Scotland Act under the devolution settlement, the powers of UK ministers to legislate in the devolved areas—I am talking about the powers of ministers as opposed to the powers of the UK Parliament—are very, very limited. There is no executive equivalent of the sovereignty of the UK Parliament in relation to the devolved areas, but what we will see as a consequence of this bill, assuming that it is enacted in its current form, is a massive increase in these powers, which, for me, raises two questions. One, are they warranted? Are they justified? Are the safeguards to which they are exercised as proposed to be subject sufficient? To the first of those questions, I would say that I could see the case for conferring powers on UK ministers to legislate in the devolved areas in consequence of Brexit, but the safeguards, in my view, are completely insufficient. At the moment, they will be subject simply to a non-binding requirement of consultation with the Scottish ministers with no provision for Scottish parliamentary scrutiny or consent to their exercise. It would be very difficult to come up with a lawmaking system that is further removed from that envisaged under the devolution settlement, so that would be my starting point. Are the powers clearly expressed? For example, is it clear in clause 7 what is meant by the power to prevent, remedy or mitigate deficiencies? What is meant by retained EU law and what constitutes a failure in it? Will it be clear whether or not a deficiency arises from the UK's withdrawal from the EU? The question of clarity. Yes, I suppose that there is scope for argument as to how clear those powers are. As far as clause 7 is concerned to which you draw attention, I think that it states that deficiencies in EU law include but are not limited to. In other words, it is simply illustrative, but it is not an exhaustive definition. A failure of retained EU law could include a failure to operate effectively and then you have a wide range of other cases where the law does not function appropriately or sensibly. We could talk about how clear that is. Perhaps the thing to which attention ought to be drawn is that the ultimate test is whether or not the minister considers it appropriate to make provision. That is what lawyers refer to as a subjective as opposed to objective tests, what matters is the opinion of the minister. It is worth bearing in mind that we will maybe come on to this later on that we are not just talking about one minister, we are talking about a lot of ministers who may have differing views as to what is and is not appropriate. You can see scope for differing interpretations of what is or what is not appropriate and the consequent concerns about what exactly that might entail in terms of UK lawmaking or subordinate lawmaking in the devolved areas or more generally. As you say, it is down to the personal opinion of the ministers. That takes me on to my next question. What are the consequences of any ambiguities in the way that the powers are expressed and what might be the implications of those ambiguities? The principle consequence is that it creates scope for argument and disputes as to what is and is not warranted or justified under the legislation. A lack of certainty, if you like. In your view, the bill should always be cleared up. I am not pretending to have a concluded view on any of this, but if there are things that are genuinely unclear, which are genuinely ambiguous then, of course, then these should be clarified, the ambiguities ought to be resolved. I am slightly hesitant in saying that because I am conscious that this is taking place or that the legislation is being enacted against the background of what is actually a challenge on a scale that is actually unprecedented outside wartime. I think that it is important not to lose sight of just how big a task is, which raises questions as to whether or not it is in fact doable. It is understandable therefore that broad powers should be sought to address the consequences, not knowing what all those consequences are at the moment at which you are seeking those powers. Yes, if there are ambiguities, if there is a lack of clarity then, of course, we ought to resolve that. I am slightly concerned about the approach that emphasises or is it riskable for emphasising, in my view, simply making changes to the legislation. If we are talking about safeguards then we need to look beyond the letter of the statute, the bill as enacted, and think about what other sorts of safeguards we might be realistically looking at in relation to the exercise of those powers. In other words, we are not putting all our faith in the way in which the powers are expressed bearing in mind what I have already said about the subject of test and so on. Should any additional restrictions or limitations apply to the exercise of powers under clauses 7, 8 or 9 and the equivalent powers of the devolved authorities, as drafted, those clauses enable ministers to make such provision as they, as you have said, consider appropriate, and the limitations be made more objective? I doubt that you would get away from the subject of approach that I have talked about. You will not end up with an objective approach. There are additional restrictions that have been suggested or talked about, which reflect real concerns about the use that might be made of those powers. One is that they are exercised. This is all being presented or depicted as straightforward, and I put that word in quotation marks, a straightforward exercise in getting the statute book into shape as a consequence of Brexit and all that. If you like a technical tidying up exercise, if we simply convert EU law into UK law then, we recognise that it is not going to work simply in those terms. Therefore, we need to sort that out, and that is being presented or talked about in technical tidying up revision terms. There is a concern that one might want to address in the legislation about the possibility of policy, substantive policy changes being made under the guise of technical changes. We are tidying this up, but we are making decisions that might, changes that might, perfectly legitimately, be the subject of dispute, or we are going further than is necessary or is appropriate in order to achieve our particular goal. One might therefore talk about revising the legislation to make those kinds of restrictions clear on the face of it. Thank you. The final question from me for now. Schedule 4 confers wide powers to create or modify fees or charges in connection with EU withdrawal, and associated changes to public authority functions is the scope of those powers appropriate. This is not something that I have got a concluded view on. I recognise that it is something that needs to be addressed. I assume that, for a long time now, we have sought to recover the costs of various public activities from those who are subject to regulation and so on. I assume that applies in the EU context. I do not actually know, and this is about making analogous provision post Brexit, but I do not have a view as to whether or not those powers go further than would be appropriate in the circumstances. Okay, fair enough. I will move on now with Stuart McMillan. Thank you. Good morning. The bill provides a choice of three legislative routes to exercise of the powers of correction regulations made by UK ministers, acting alone regulations made by the devolved authority and regulations made jointly by the UK ministers and the devolved authority. What challenges do you see arising from having that choice of legislative routes? Well, working out which route is going to be used in a particular case, that is the key question. As to the three possibilities, I think that the joint exercise of powers, I would leave that to one side and regard that as something of a non-starter, if only because it will require scrutinally approval in two parliaments. Therefore, I think that the practical choice comes down to, is this going to be done by Scottish ministers in the devolved areas or is it going to be done by UK ministers? I would imagine that we would start with a presumption that exists. There is such a presumption in relation to the transposition of EU obligations in the devolved areas at present, a presumption in favour of corrections being made by Scottish ministers rather than UK ministers, which would in turn bring in Scottish parliamentary scrutiny of the exercise of those powers. At the same time, one can see a case for making changes, making corrections on a UK-wide or GB-wide basis, in other words, those changes being made by UK ministers. That happens at present in relation to the transposition of EU obligations. I can see it happening. I think that probably we will see rather a lot of it in relation to the correction of deficiencies, the correction of retained EU law following Brexit or in anticipation of Brexit under this particular bill. However, as I said at the outset, where that is proposed, it is simply on the basis that it will be done subject to a non-binding requirement of consultation with the Scottish ministers, and I think that that is unsatisfactory. Therefore, if that is the route that we are going to go down, then it should only be done with the consent of the Scottish ministers who would in turn be accountable for agreeing to that legislation to the Scottish Parliament. Those are the two basic routes that I think we will see. We will see a lot of UK or GB correcting legislation, but I think that that should be done with consent on an agreed basis rather than we will consult you, but we may forget in the peter at the moment. Would it be possible for two legislatures to pass valid but conflicting legislation in exercise of the powers under the bill? I think not, if I recall correctly. I am trying to remember which schedule it is, but it is a schedule that sets out the analogous powers of the Scottish ministers, one of the restrictions that is imposed on them in terms of the correction of retained EU laws is that they cannot modify it in a way that would be incompatible or inconsistent with the modifications made by UK ministers. In other words, the expectation is that changes made by UK ministers will be conclusive. You mentioned a moment ago regarding the joint scrutiny, and you said that you felt as if that was a non-starter. However, if it were to be the case, in what circumstances would you imagine that these regulations could be made jointly by UK ministers and devolved authorities? I am not sure, actually. I know under the Welsh devolution settlement that there is much greater provision for joint lawmaking than—I apologise, but it seems to be going. Can you hear me? Yes. Under the Scottish devolution settlement, there are concurrent powers, but those are powers that can be exercised by either Government. I do not think that I am open to correction on that, although there may be provision for joint lawmaking, but I am not aware of it. There is provision for things such as the joint establishment of public authorities and so on, so I suppose that that would be one possible context, because here we are talking about the possibility of setting up public authorities to exercise functions that were formally exercised at the EU level. Following that thought, you could have the joint exercise of powers to set up a cross-border authority that would assume functions that were previously exercised at the EU level. There are limitations and restrictions on the correcting powers in schedule 2, which apply to the devolved authorities, but not to the UK ministers under their equivalent powers. Examples include the more limited power to sub-delegate than is available to the UK ministers, and the requirement to obtain consent of the UK ministers in certain circumstances. Are those additional limitations on the Scottish ministers appropriate, and what view do you take of the Scottish Government's proposed amendments to remove those restrictions? More than one such restriction might be worth taking them separately. One restriction that you mentioned in your question was the restriction on the power to sub-delegate. It is worth recalling the basis for such a restriction generally, not just in relation to the Scottish ministers, which is essentially that we, the Parliament, are giving you the power to make law in a particular area. We expect you to exercise that power and you to be accountable to that Parliament, rather than giving it to somebody else, which is referred to as sub-delegation, and which is regarded as objectionable on those grounds. Therefore, I can see the case with saying that this is a delegation of powers to the Scottish ministers to make correcting legislation, which we expect them to exercise—assuming that we are not going to exercise—and not anybody else for them to pass it on to whoever. I think that that is understandable and is open to explanation on those grounds. Other restrictions that you mentioned, the absence of a power to modify, was a direct EU law that you mentioned. I think that the explanation for that is that the UK Government expects or does not want to have, if you like, multiple legislatures crawling over the retained EU law of statute with the possibility of multiple changes being made, which would in turn give rise to legal uncertainty. One of the principles of which legislation is based, which is probably what you are calling or highlighting or keeping in mind in the course of our discussion, is that it is intended to provide continuity of laws. If you had several, because of course we have four Governments in the UK, not just one, if you had four Governments changing the law then it could be extraordinarily difficult for anyone who was interested to actually work out what that law was. That, I think, is the explanation that could be justified on those grounds. I would hesitate at just objecting to that, as they can do, we can't. We should be able to, as well, because that is the potential consequence of everybody being able to modify a retained EU law. My final point of the question was that you have a view on the amendments that have been proposed from the Scottish Government. I could understand the amendments and I can't lay my hands on them. Did you have any particular amendment in mind? No, just in general. For the most part, I thought that they were entirely sensible, but, as I have indicated in general terms of my answer, I could see the reason why exception might be taken to them or they might not be accepted by the UK Government. In exercising the powers that devolved authorities may not modify retained direct EU legislation or make provision inconsistent with a modification of retained direct EU legislation made by UK ministers. Do you foresee any difficulties with those restrictions? No, I think that those are the two that we have already talked about. The expert or the rational for which I think I have already outlined. There is no equivalent for devolved authorities of the power in clause 17 to make consequential or transitional provision. Would it be usual for the UK bill to make provision within the Scottish Parliament's legislative competence to confer such a power on Scottish ministers? The tension has been drawn to clause 17. I think that too much has been made of clause 17. It is a power to make consequential amendments and not a power to start legislating afresh. It is not an unlimited power. It is consequential on other changes that have been made. We have changed this. It has this consequence that we need to sort out. It is not a self-standing or a free-standing law making power. It is about tidying up amendments of changes. Actually, there is a very good case, the name of which temporarily escapes me, in which a former Scottish judge member of the House of Law's UK Supreme Court, Lord Roger, gives an explanation of the nature of consequential powers and basically says that those are things that you would not expect to see in a separate enactment and which therefore can be accepted. Clearly, there is a risk of abuse, perhaps to put it too strongly, a bit of the misuse of this power, which takes you back to the questions of safeguards, but I wouldn't myself get too worked up about the fact that clause 17 confers this power and confers it on the UK Government rather than the devolved administrations for the reasons that we have already talked about. Do you think that it would be necessary for the devolved authorities to actually have such a power? For discussion, if you are talking about consequential amendments, then I cannot see any problem about those changes being made and it happens all the time under the Scotland Act under the existing settlement, where the Scottish Parliament passes legislation and there are changes that need to be made to other legislation, which they do not have power to do, and the UK Government makes those changes. The bill does not provide any mechanism for Scottish Parliament's scrutiny of regulations made by UK ministers alone, irrespective of whether the regulations are a matter of significance for Scotland or would have attracted the benefit of the sole convention had the matter been included in primary legislation. Does this represent a gap in the Parliament's ability to scrutinise the exercise of those powers in the bill? Thank you. This is where we started. The short answer is yes. It is a massive gap, a gap that is present, but it is considerably widened by the bill as drafted, so yes. With this gap, how do you think that could be filled? Yes, I have been giving this some thought. As I think I have already indicated, I am sceptical of the value of simply amending the legislation and seeking sufficient safeguards by that route. I also have reservations about the effectiveness of parliamentary scrutiny, not necessarily in this Parliament but certainly in the Westminster Parliament, and I think that the general point that I would make is that, in the absence of what I will call an effective system of internal control—by that I mean within the UK Government or the Scottish Government—external control in the form of parliamentary control is likely to be ineffective, it is likely to be patchy at best. The risk of this legislation, as I see it, is that you will have multiple law-making bodies in the form of white-haul departments who will be making the provision that the minister considers appropriate in consequence or in anticipation of EU withdrawal. What I see the pressing need, therefore, as being, is to have in place an effective system of the co-ordination control of this massive amount of delegated law-making that we are going to be looking at. I would like to see a system whereby you had a high-level Cabinet committee that was responsible for this, on which the devolved Administrations would be represented, which would have oversight of departments' legislative plans for the exercise of those powers. What exactly are you going to do in the exercise of those powers? The division of labour between the UK ministers, as we have talked about, and the Scottish ministers. What do you see being done on a UK-wide basis? What is going to be done by the Scottish ministers or by the Welsh ministers or, assuming that the Northern Island Assembly is up and running again, by the Northern Island Equivalence and ensuring that the kinds of safeguards that we have been talking about in terms of the exercise of powers going no further than is necessary, being appropriate and so on, are in fact observed. I think that would provide an effective check on the exercise of those powers. I would like to see it sitting outside Government rather than within Government, but either way I would like its deliberations to be made public. It would provide a focal point for parliamentary scrutiny, so what you would be checking would be not just the details of individual instruments, but just how all this is working and taking a considered view as to whether or not the level of parliamentary scrutiny is appropriate, whether this is an appropriate use of the power and so on. You may say, well, that is just not realistic, but I think that it makes a lot of sense and gets to the heart of some of the difficulties that we are likely to face with the bill that is currently drafted. I would like to see an effective internal check coupled with parliamentary scrutiny on top of that. I think that you have got a supplementary on that point. Thank you. Certainly what you said, Professor Page, it sounds like a version of the GMC process, and there have been questions regarding how effective the GMC process has been. How would you strengthen, or what suggestions would you put forward to actually strengthen this position so that that effective scrutiny that you touched upon could actually genuinely take place? I acknowledge the criticisms that have been made of the inter-governmental working as we have experienced it today, and I certainly would not want to be going down a route that is perpetuated. My starting point would be that process, in many cases, is not unsatisfactory. What we need is a process that would be satisfactory, a joint working process, and what would that kind of process look like. However, I do not think that we can rely simply on leaving it to individual departments and then hoping that a Parliament will somehow come along and exercise effective scrutiny over the exercise of those parts. I would want a committee of prominent politicians, as I say, to be joint working so that it would include representatives of the devolved administrations. It would be back by a committee of, it would be shadowed by officials, you would have your best lawyers on it, who would be scrutinising this thinking hard about whether or not this is justified, and in that way you would have some prospect of getting a grip on the exercise of these enormous parts. Without making concrete proposals about how you improve inter-governmental working, I think that you would not simply seek to replicate that but recognise that it has been fallen short of expectations of what you would be looking for, and therefore it would be a system that would address those shortcomings, which built confidence—I think that this is a critical factor—in the devolved administrations that the kinds of fears that have been expressed in relation to what might be done in the exercise of those powers are not warranted or justified because there are effective checks in place. The UK Government appears to envisage consultation and agreement with the Scottish Government on the exercise of powers by UK ministers. This is also the position taken by the Scottish Government in its proposed amendments to the bill. This does not provide for the consultation or agreement of the Scottish Parliament. How might the Parliament hold the Governments to account in relation to any such agreement? Well, I think that the answer, leaving to one side what I have been saying about an effective system of internal control, is that if you change the legislation so that those things can only be done with the consent of the Scottish ministers, then the Scottish ministers will be responsible for giving or withholding of consent to the Scottish Parliament. That will provide at the starting point for the Scottish parliamentary scrutiny of a decision that should or should not be done at the UK level, rather than at the devolved level. Then, separately, if the decision is that it should be done at the Scottish level, then that is the starting point for the Scottish parliamentary scrutiny of what is proposed by a way of correcting—assuming that is what we are talking about—subordinate legislation. Okay, thank you. You can ask one more, and then we will move on because I am conscious of time and we have got other witnesses. Is there a role for formal Scottish Parliament consultation or consent to the exercise of powers by the UK ministers? If so, should that role concern the exercise of powers relating to matters within the Parliament's legislative competence or matters that would be within legislative competence, notwithstanding the requirement of compatibility with EU law? Or should it be something wider, such as the exercise of powers in areas of interest and importance to Scotland? How would you define that, please? I guess that there is a sort of stool question. If this was being done by primary legislation, then it would require the consent of the Scottish Parliament. I am—and you could, in theory, talk about extending the civil convention to subordinate lawmaking. I am not enamoured of that particular route. I would prefer to see a route whereby it is being done with the consent of all the Scottish ministers. I will think about this with the consent of the Scottish ministers. The Scottish ministers are accountable, as I have said, but it is perfectly possible to say that this can only be done with the consent of the Scottish ministers and, if it is an affirmative procedure, the consent of the Scottish Parliament or subject to rejection by the Scottish Parliament. In other words, it is not the Scottish ministers are one step in the process, but they are not the end of it. They are still a role for the Parliament over and above that of the Scottish ministers. Alison, I am going to allow you another one, because apparently I can be a slightly more flexing. I only have another two, actually. I wonder if we can go quickly. It may not be practical, in light of the timetable for EU withdrawal and the volume of instruments for the Scottish Parliament's consent to be required to all UK instruments that make provision within the Parliament's legislative competence. If workload does constrict the Parliament's ability to approach all such instruments in this way, in relation to what sort of matters should a requirement for consent be prioritised? That is a question for the Parliament to think about. However, you are clearly talking about exercises of powers that are significant of major, as opposed to minor, importance. As you know in the bill provision for parliamentary consent to certain kinds of instruments or instruments doing certain things, it is a pretty limited provision for the most part. The expectation is that instruments will be subject to the negative procedure, but, yes, I think that you would be wanting to pick out those that were most important, recognising the constraint with which you started your question that time is indeed limited. Thanks, Alison. Just one more for myself. The bill provides for an ordering council process enabling competencies in areas of retained EU law to pass to the devolved authorities by the insertion of new powers in sections 29 and 57 of the Scotland Act. Any orders must be laid subject to the affirmative procedure in the Scottish and UK parliaments, so there is a formal scrutiny role for the Scottish Parliament here. Do you foresee any difficulties with the mechanism proposed for the transfer of competencies? No, I do not think so. It is modelled on section 30 of the Scotland Act, which provides for the adjustments to the boundaries between reserved and devolved matters. This is what you are talking about in a new context, so I think that the mechanism by itself is not—there is no question about that—an issue is the lifting of the restraint in relation to the Scottish Parliament's power, the ministers' power to modify retained EU law. It is when those powers will be exercised and to what extent, rather than the provision for parliamentary agreement to their exercise. We will move on to some questions about scrutiny and Colin Beattie. Thank you, convener. First, does the bill contain an appropriate split between matters that require the affirmative procedure and matters in respect of which there is a choice between the affirmative and the negative procedure? I think that what I would say on that is that the bill takes a minimalist approach to the affirmative procedure. It makes provision for instruments to be subject to the affirmative procedure in a relatively limited number of areas where it might be expected to be used. The objection is that it pre-empts the question of the level of scrutiny to which instrument should be subject. Therefore, there ought to be some sort of sifting mechanism, and you can go back to my proposal for a committee that would say that this instrument is such an order of importance that it should be the subject of the affirmative or supposedly negative procedure. In other words, that decision should not be a matter for the Government alone, but one in relation to which the Parliament should have a say. Leading on from that, say for the mandatory affirmative procedure categories that there is a wide discretion in giving regard to the choice of negative or affirmative procedure. Is that discretion appropriate and how can ministers be held account in respect of their choice? As I have indicated, I do not think that it is appropriate. There should be provision for parliamentary input in relation to the level of scrutiny to which an instrument is to be subject. However, that is being part of the sort of surrounding machinery of co-ordination control oversight that I have talked about, rather than something that is going to be necessarily nailed down in the legislation itself. In other words, we ought not to put our faith simply in the legislation itself. It is the whole surrounding machinery of government co-ordination control scrutiny that we ought to be taking into account as well, recognising the limitations, the weaknesses of parliamentary scrutiny and the need to ensure a meaningful degree of scrutiny of those instruments, which are most important in terms of this process. I take it into account what you are saying there. Can the Scottish Parliament scrutinise Scottish ministers' choice of legislative route in correcting deficiencies and retained EU law? How would they best do that? Just to explain that, that is the choice of regulations made by UK ministers alone, regulations made by Scottish ministers or regulations made jointly. As I have said, it is a matter of which the Scottish ministers should be accountable to the Scottish Parliament. That sounds like a very glib easy thing to say. I would say that it is not something about which the Scottish ministers have necessarily been accountable in relation to the transposition of EU legislation. In other words, they have, in some cases, I assume, agreed to the transposition of EU directors on a UK-wide basis, but kept completely quiet when it came to the Parliament. I have not said a word about it, so we need to be, because back to my earlier point, you need to be clear about who is doing what in relation to all of this. Is it being done on a UK-wide basis? What is the justification for that? Or is it being done on a devolved basis, in which case what level of scrutiny within this Parliament ought to be subject to? However, there is that prior question, not just scrutiny of the instrument, but scrutiny of the decision as to where the subordinate legislation is going to be made, if you see my point. Will you appear to be in favour of strength and parliamentary scrutiny? However, for example, how could a role be created for Parliament to be consulted on regulations that are laid in draft prior to final regulations being laid, and if so, which areas should be prioritised? Is this a sort of superaffirmative procedure? Yes, moving on. That has been talked about, but I think that because of the constraints of time, I think that there is understandable hesitation about an elaborate drawn-out parliamentary scrutiny procedure, which would involve effectively two stages, and would take up a lot of time. However, if I could just go back a step, we are talking, of course, about the Scottish parliamentary scrutiny here, and yes, you can build effective mechanism scrutiny at the Scottish Parliament level, but I would also like to see inter-parliamentary working. It is not just the Scottish Parliament committee on its own dealing with whatever comes down the line to it, but there is involvement at the UK level so that you know what decisions are being made about what is going to be done where and have input at that level. I would like to see that. You have partly touched on my final question, which was regarding the superaffirmative. If we had that process for some matters, would it lead to other matters receiving very little scrutiny, which you hinted at there, given the time available for the legislation to be passed, because it is a very tight time schedule? Yes. At the end of the day, there is a limited capacity for scrutiny, there is going to be an extraordinary volume of subordinate lawmaking. As we have been talking throughout this session about how much it is going to be done at which level and therefore the scale of the challenge that will be faced here, as opposed to in Westminster, but I would like to see parliamentary input at every level so that you are not just, as I say, faced with whatever it is. I thought that was time to be quiet, but... So you are not just faced with whatever... How shall I put it? Whatever comes your way with no... You are continually on the receiving end, but you have actually no influence or control or what is presented to you for scrutiny at the end of the day. That involves getting involved at being consulted having a say at an earlier stage in this process. Okay. Irrespective of the formal scrutiny procedures which apply, what accompanying information should the UK and Scottish Governments provide when laying regulations under the bill to enable Parliament to prioritise its scrutiny effort, and should a requirement to provide particular accompanying information be included on the face of the bill? Yes, I would... Well, as much information as possible so that you can actually make sense of it. What is the background to this instrument? What is it designed to achieve? Why are we doing it this particular... What will the result be? Why are we doing it this way? What sort of scrutiny do we propose that be subject to... Yes, all of that should be a requirement, and it should be a requirement that is policed, which goes back to my earlier point about the need for an effective system of internal scrutiny, which I might just add ought to extend to the quality of instruments, because you are going to face a big challenge with... All of these are going to be drafted within departments by lawyers who may or have only limited experience of drafting. You might have end up with instruments of variable quality. I think, yes, as much information as possible, and it shouldn't just be left to the good intentions of ministers, which then results in a sort of short note, which doesn't really tell you very much at all. That's a good point. This committee often has to correct drafting errors. So final question, you'll be relieved to hear. What areas or categories of changes to EU law should the Parliament seek to prioritise in its scrutiny? Well, where to begin. The devolved areas might be one, but the general point that I've been making, which is perhaps applicable in answer to your question, is that whilst there has been a great deal of focus on the powers that will be repatriated or not to Edinburgh, those that will be repatriated to London far exceed or far outweigh an importance to those that are supposedly coming the way of the Scottish Parliament. I would not close my mind to those other instruments and the possibility that they have implications for Scotland, not the standing they are in the reserved areas. So I wouldn't pursue a sort of rigid, we're only interested in the devolved reserves of no interest to us because you could well end up with instruments there, which are a mass of Scottish implications. Okay, thank you Professor Page for your time. Thanks for coming along today. I'll suspend the meeting briefly to allow for a change of witnesses. Okay, thank you. Okay, we'll start up again. So welcome our next witnesses, Kenneth Campbell QC, representing the Faculty of Advocates and Michael Clancy and Charles Mullin, representing the Law Society of Scotland. Now you gentlemen have had the advantage of hearing our questions, but you don't feel you have to give the same answers. So we'll just go through them as before. So I'll start. And by the way, just any one answer just to track my attention. The bill confers wide powers on UK and devolved ministers to correct retained EU law. Is the broad scope of those powers appropriate and necessary? Who'd like to go first? I'll go first. Yes, I think it is appropriate that there be broad powers for both the UK and Scottish Governments and the other devolved administrations in this particular field, given the wide range of subject matter that will have to be attended to. What may require attention is the level of parliamentary scrutiny of the exercise of these wide powers and whether these powers can be further defined to Titanium perhaps. Anyone else? Yes, I think that that's right. The rationale for having broad powers the committee has heard about and the key issues are how those then come to be exercised and scrutinised. That's really the issues of concern. You also heard from Professor Page about the way in which the power is formulated in terms of the minister considering an exercise of a power being appropriate rather than necessary. That's maybe something we'll come on to, but that also seems to me to be a real issue. Are the powers clearly expressed? For example, it's clear in clause 7 on what is meant by the power to prevent, remedy or mitigate deficiencies. What is meant by retained EU law and what constitutes a failure in it? Will it be clear whether a deficiency arises from the UK's withdrawal from the EU? I think that we've already made our comments to the committee. I think that they've been picked up in the press and in other places. We certainly have concerns about the meanings that can be attributed to words like failure of retained EU law to operate effectively. We're concerned about the use of the word appropriate in clause 7.1. Even the idea of deficiency as a concept is something that one might quibble with. I think that the approach that we've been taking in terms of the representations that we've made to the Finance and Constitution Committee and to MPs in Westminster is that we should aim towards looking closely at clause 7 and seek to amend, for example, the use of the word appropriate to being one of necessity. I think that that fits in with the House of Lords Constitution Committee report, which I looked at at that very point. The requirement for ministers to bring forward not only orders that are clear and understandable but where the minister has to make some kind of assertion that the order is necessary in his or her opinion. Does anyone else want to come in? I broadly agree with what Michael has said about the text around appropriate. I've indicated that already. I can see why the phrase operating effectively might have been chosen in the sense that the withdrawal bill generally is trying to set a framework that is going to cover a very wide range of circumstances. That's why I think that most of the evidence that the committee has heard so far about the necessity of having broadly raised powers is accepted. One can see that that's perhaps the thinking behind that form of words and of what's standing. It's perhaps slightly unsatisfactory at texture. There is some kind of compromise built into that. The issue is scrutiny rather than the way in which some aspects of the clause are articulated, it seems to be. Can I just come back to you, Mr Clancy? Isn't replacing the word appropriate with the word necessity necessary or necessary to decide that something is necessary is still taking a judgment as is to decide that it's appropriate so it will just end up in the same place? Well, I think that there might be rather more objectivity in what is necessary rather than what is appropriate. Your view of what is appropriate, convener, might differ from Stuart McMillans and might again differ from Charles Orr Kenneth's view of what is appropriate. But necessary is something that I think might be capable of more support by way of evidence as to the necessity for a provision. Remember that behind all this order making power lies the spectre that if the minister gets it wrong, there could be consequences. If the minister acts outside or is found to have acted outside the competence that has been given by the act, then that could be discovered in an action for judicial review, and there could be consequences for government in that. Anyone else want to comment on that? If you use the term necessary, you would have to demonstrate a particular need for the provision as opposed to something you simply want to do. As Michael has indicated, you could support that with evidence as to why there was a need for something to be done in order to avoid something that would be undesirable. Should any additional restrictions or limitations apply to the exercise of powers under clauses 7, 8 or 9 and the equivalent powers of the devolved authorities? As drafted, those clauses enable ministers to make such provisions as they consider appropriate, which I have discussed. Can the limitations be made more objective? We are back to where we started a few moments ago. It is fair to say that not only looking at clause 7, but also at schedule 2, it is worthwhile to comment on the fact that devolved authorities are also in the position of UK ministers where they may by regulations make such provision as the devolved authority considers appropriate. That is a reflection on the bill, which applies not only at UK level but also at the devolved level. I hope that Scottish ministers would be sympathetic to the view that ministerial power ought to be restrained in some kind of a way and not given the kind of licence that the bill seeks to give to both UK and Scottish ministers. That takes us again to the territory of whether it is simply a matter of tidying up the statute, which is how the overarching purpose of the bill has been presented by the UK Government. Undoubtedly, there is a need for that to make the long work, but as the committee is aware, there is also a concern about whether more policy-driven changes might be made. That underlies the evidence-based approach, which Michael Russell was suggesting if the test were necessity. It is rather more difficult, arguably, to change the direction of a legal structure under the heading of necessity. I do not see it being done, but rather than appropriate for the reasons that Michael articulated a moment or two ago. Schedule 4 confers wide powers to create or modify fees or charges in connection with EU withdrawal and associated changes to public authority functions. Is the scope of those powers appropriate? We haven't, to the law society, formed any particular views on that schedule. I'm in the same position about that. The bill provides a choice of three legislative routes to exercise the powers of correction regulations made by UK ministers, regulations made by devolved authorities and regulations made jointly by the UK ministers and devolved authorities. What challenges do you see arising from having that choice of legislative routes? I think there is an immediate question as regards the possibility of the joint exercise of powers between UK and Scottish ministers because it is not specified in what circumstances and for what purpose this power would be exercised jointly. One could contrast this kind of broadly stated provision with the provisions of the Scotland Act, where in relation to concurrent powers that are there, the Scotland Act is very specific in the circumstances in which there are concurrent powers that can be exercised, therefore either by the Scottish ministers or by the UK ministers. But there is no such specification as regards the exercise of joint powers here and raises the question what is the objective? Is this to deal with the situation where there may be a need for regulations that stray into both reserved and vault areas of policy? If that is the case, it would be helpful if the bill were to express what the purpose of this joint exercise of powers was. It seems to me that it is quite unclear at the moment when and why it is envisaged the exercise of joint powers might be required. There are, as Charlesle said, circumstances in which the Scotland Act makes provision for the exercise of powers in that way. They are clear and they are relatively limited. It may be that this is simply an exercise of extreme caution that all of the possible combinations need to be there in the mind of the drafter, but it really is not clear how this would operate in a practical way. Would you want to provide any possible circumstances as to where the joint provision could be utilised going forward? It might be, as Professor Pages indicated, that there might be a GBU approach that might be desirable where all ministers are involved in putting together a uniform approach to a particular problem. It might be that it would be useful in circumstances where there are reserved and vault areas and the UK ministers think that it is appropriate to have Scottish ministers also involved. One can foresee various possibilities, but it would be helpful to know from the Government what is intended by this power. Have you raised that particular point directly with the UK Government for clarification on this? In the law society's publications that have been submitted to Parliament and the UK Government, then this question has been raised. Is it also worthwhile pointing out that there are something like 14 order making powers under the bill and of those six are affirmative, four negative, three attract no procedure and one order in counsel, so that the whole spread of current treatment of subordinate legislation is in the bill? One omission is superaffirmative, which does not appear there and is something that we have argued for in our representations on the bill that that should be taken into account in certain circumstances. Yes, indeed. You might come to other questions, but we looked in particular at the House of Lords Select Committee and its suggestions of having a triage procedure whereby a minister would specify exactly what his regulations do and it could then be assessed by the relevant Parliament as to whether they agreed with the level of scrutiny that the minister was proposing and to allow for an affirmative procedure to be taken instead of a negative procedure where the Parliament considered that appropriate. There was also the possibility of perhaps allowing for an amendment of statutory instruments that are coming before the Parliament in a way that is not possible at present and in a way that allowed amendment without having to restart the process again. In terms of the bill, would it be possible for two different legislatures to pass valid but conflicting legislation? I think that it would be possible for this Parliament to pass valid but conflicting measures because there is a provision in the bill which limits devolved authorities, including the Parliament, from making legislation inconsistent with a modification that has already been made by a UK minister. I have not been able to find an equivalent going the other way. I do not know whether that is that. I will touch on limitations. There are limitations and restrictions on the correcting powers in schedule 2 which apply to the devolved authorities but not to the UK ministers under the requirement powers. Examples include a more limited power to subdelegate than is available to UK ministers and the requirement to obtain consent of UK ministers in certain circumstances. Are those additional limitations on the Scottish ministers appropriate? And what view do you take on the Scottish Government's proposed amendments to remove those restrictions? I think that one has to ask the question to the extent and I am looking here at schedule 2 paragraph 1.4. What is the rationale for prohibiting regulations made by a devolved authority not conferring a power to legislate? You can see there that there is one exception from that and that is the power to make rules of procedure for a quota tribunal. Acts of sedent and acts of a journal and procedural rules of tribunals will be allowed to be made in this term. Our view of the Scottish Government's amendments is that they are currently a matter of political discussion between the UK Government and the Scottish Government and it would be inappropriate for the law society to seek to influence either of the parties even though we cannot. We cannot comment on those amendments. We are thinking closely about the provision of not conferring a power to legislate because other bodies than courts may need to make changes to their subsidiary legislation. Local authorities, statutory bodies and perhaps even the law society of Scotland as a statutory body, might need to make some changes so that one could envisage that in terms of some EU regulation as yet unidentified. However, you can see that there are a number of organisations in Scotland that may benefit from having a power to make further rules. I am exploring that a bit further. That is very interesting. Could you maybe expand on that? Well, now that you asked me to, I was not prepared to, but I will do my best. Thank you, convener. I will remember this moment. I am trying to expand on this. Let's say that a local authority may have the capacity to make bylaws on planning or licensing, which may have some change in scope in terms of an item of retained EU law because it affects food hygiene or some aspect of health and safety or something like that. It would strike one as being quite useful where the local authority to be able to be dealt with by the Scottish Parliament and the Scottish Government in the ordinary course of events as we ordinarily do because that is within devolved competence. There might be other authorities that may have similar constraints, perhaps the Scottish Medicines Consortium or something like that. There are issues around about subsidiary law making power and that might be perfectly happily dealt with by a UK minister who issues an order. That is a fair possibility and representations could be made to that minister. That seems to cut across the established structures that we have in terms of devolution. What we are saying in layman's terms is that at the moment a council, local authority, could make a bylaw. That would be referred to Scottish ministers. What you are saying is that that would no longer be the case. What I was saying is that it is not that it is referred to Scottish ministers, it is that the power to make the bylaw depends on law that is made by this Parliament. The Parliament, as a devolved authority, would not be able to make a provision that gives the local authority law making power to deal with a matter of retained EU law. In exercising the powers that devolved authorities may not modify the retained direct EU legislation or make provision inconsistent with the modification of retained direct EU legislation that is made by UK ministers. Do you foresee any difficulties with those restrictions? There are obviously policy restrictions that the UK Government has in this bill in that they wish to retain control over the whole framework of retained EU law and how it is modified. You can see that as a very deliberate policy choice of theirs. It obviously put constraints on the Scottish Government and Parliament. However, it seems inevitable from the point of view of the policy that has been implemented as a question of policy as to where one is going on this. In its wake comes the question of the level of scrutiny and engagement and how the various devolved institutions might have a place in that and we will no doubt come on to that. We might juxtapose the provisions of paragraph 3 with the provisions of paragraph 1 where a devolved authority is given power to make regulations but that this change in paragraph 3 seems to contradict that. There might be some inconsistency within the terms of the bill in that respect. There is no equivalent for devolved authorities of the power in clause 17 to make consequential or transitional provisions. Would it be usual for a UK bill making provision within the Scottish Parliament's legislative competence to confer such a power on the Scottish ministers? I would have thought that it would not be controversial normally to allow and to devolve the authority to legislate for those purposes. As you say, clause 17 was restricted to the UK Government and to the extent that consequential provision can be made it's in the rather limited circumstances of the Scottish ministers making law that is designed to deal with the issues raised in clause 7. I agree broadly with what Charles Le Sabre, but it is important to put it in context that this is not an additional freestanding change the law provision. That truly is a tidying up power and in that sense it ought not to be controversial that there ought to be scope for doing that, because one can clearly envisage that if the Scottish ministers did exercise the powers conferred elsewhere in the act, there might well be consequential tidying up things that would need to be done. The bill does not provide any mechanism for Scottish Parliament's scrutiny of the regulations made by UK ministers alone, irrespective of whether the regulations are a matter of significance for Scotland or would have attracted the benefit of the sole convention had the matter been included in primary legislation. Does this represent a gap in the Parliament's ability to scrutinise exercise of the powers of the bill? Yes, I suppose it does in that sense and it reflects, I think, as Professor Page noted, the fact that, at the moment, we do not have any equivalent of sole motions in relation to subordinate legislation. That would be a continuation of that. Perhaps the kind of ways that Professor Page suggested might be avenues that could be explored in terms of different levels of co-ordination, first of all, within Governments, be it the UK or the Scottish Government, and then at joint ministerial committee level as well. It is important to get a sense of the way in which co-ordination would need to work on a practical level. It seems likely that there needs to be intergovernmental working. First of all, at the stage of deciding what needs to be done, and then having some realistic conversation about who is going to take responsibility for dealing with particular issues. The co-ordination issue is key for two things. First of all, making it work and secondly, working out how the scrutiny is going to best be exercised. I pose a similar question to Professor Page in the earlier session. You will be aware that, in the past, the Parliament has had discussions regarding intergovernmental working and the GMC process in particular. When the Scotland Bill was going through in the last session, it played a large part in the discussions. Do you have any suggestions in terms of what type of process could be introduced that could certainly deal with the situation, in terms of whether there is a strengthening of the GMC or some other type of process? The GMC has certainly been the subject of some criticism over the last few months. Criticism from parliamentary committees in Westminster and indeed here. I think that the DEXU committee in its report on devolution and Brexit made some criticisms of it, as did the House of Lords constitution committee. There is a recognition that there is something that is not particularly functioning well there. How does one make that better? Of course, there were meetings just in the last couple of days between Scottish ministers and UK ministers to re-establish the GMC and put it back on a firmer footing. I think that we will have to watch and see how that process proceeds. Could one make it stronger? Well, perhaps there could be a statutory basis for the GMC. However, that might not find favour with ministers. It is the sort of thing that could be quite a shift in doing business. Intergovernmental relations might not work particularly well on a statutory basis where a committee has to be created and functions attached to it and to be financed. I think that between there being simply an intergovernmental relationship and some form of statutory requirement, there would have to be some kind of middle way. Maybe that means extending those who attend the GMCEN to those who may be affected by issues raised on its agenda. The UK Government appears to envisage consultation and agreement with the Scottish Government on the exercise of powers by UK ministers. That is also the position taken by the Scottish Government in its proposed amendments to the bill. That does not provide for the consultation, however, or agreement of the Scottish Parliament. How might the Parliament hold the Governments to account in relation to any such agreement? I cannot comment on the Scottish Government amendments, but this is ultimately a political issue between you and the Scottish ministers to sort out, I think. I think that that is correct. It is a matter for a political discussion. There are, I suppose, models of reporting and laying material before the Parliament. Those might provide a starting place, but beyond that, I am not sure that I can say much more. Is there a role for formal Scottish Parliament consultation or consent to the exercise of powers by UK ministers? If so, should that role concern the exercise of powers relating to matters within the Parliament's legislative competence or matters that would be within legislative competence, notwithstanding the requirement of compatibility with EU law? Or should it be something wider, such as the exercise of powers in areas of interest and importance to Scotland? What do you feel about that? We have suggested on a number of occasions that consultation exercise should start as soon as possible. There is going to be an unprecedented period of law reform and policy development over the next few 18, 20, 24, 48 months depending on whose version of the future you ascribe to. I think that we know that the Government, both in Whitehall and here in Edinburgh, has been working on the orders. None of this comes as a great surprise that civil servants are thinking about the transposition, the deconstruction of the supranational legal order and its creation within the national legal order. That is not a surprise. Therefore, why should the Government not start consulting now on the draft orders, rather than leave the process until sometime when the bill has been passed, which might be March 2018, when the clock has ticked even further? I am sure that Barney's clock ticks perhaps at a different rate from the rest of us. The time becomes shorter and shorter the longer that we leave the process. Relatively uncontroversial orders will be brought forward by UK or Scottish ministers that could be consulted upon with relative ease. The more techie, tricky and controversial ones, of course, could be left until later, when there is a more settled view about the policy route. I think that it is something that we have said before and that we would say again. Consult now, do not wait. A little further, there is the beginning of a road map for that. The committee will be aware that the Scottish Government Minister for UK negotiations on Scotland's place in Europe wrote to the convener of the finance and constitution committee last week with not only the Scottish Government's proposed amendments but the current list of areas where powers are returning from the EU. Work is being done to identify those subject areas. Following on Michael's suggestion, which I agree with, there is the possibility of getting some work under way now identifying key stakeholders in those subject areas and identifying the legislative base, which in some cases might not be large, in other cases it might be very large indeed. Okay, thank you. It may not be practical in light of the timetable for EU withdrawal and likely volume of instruments for the Scottish Parliament's consent to be required to all UK instruments that make provision within the Parliament's legislative competence. If workload does constrict the Parliament's ability to approach all such instruments in this way, in relation to what sort of matters should a requirement for consent be prioritised? Do you have any thoughts on that? I think you're quite right that you are going to have a problem of volume and therefore having to prioritise as to what you really want to look at. Obviously, the creation of new bodies, the expenditure and the kind of issues that are raised in the bill itself as regards the kind of issues that should normally attract affirmative resolution procedure would be one and I think the House of Lords select committee also suggested that you could broaden that to include having a considerable degree of scrutiny in respect of any significant policy interest or principle that Parliament or the Scottish Parliament would see was of value to them. But as you say, it will be important to be selective as regards the range of instruments that you're looking at so that you can scrutinise them effectively and without getting bogged down. Okay, so last question. If the bill is not amended to require formal consultation with or consent of the Scottish Parliament in relation to the UK regulations, which make significant provisions as regards Scotland, what other routes would you suggest should be pursued to influence scrutiny of such regulations? Well, then they would be passing in the UK Parliament and we should be in a position to make sure that the concerns that might be raised by institutions and individuals in Scotland should be referred to MPs and peers as the bill and those instruments proceed in their parliamentary passage. That's all my questions, gentlemen. One for myself. The bill provides for an ordering council process enabling competencies in areas of retained EU law to pass to the devolved authorities. Any orders must be laid subject to the affirmative procedure in the Scottish and UK Parliaments, so there is a formal scrutiny role for the Scottish Parliament here. Do you foresee any difficulties with the mechanism proposed for the transfer of competencies? I can't even say that word. Well, I think that as Professor Page indicated, this is modelled on the kind of procedure that's followed in respect of section 30 orders under the Scotland Act and that seems to have been a process that has worked satisfactorily, as from your point of view. It's doing comparable things as regards the competencies of the Scottish Parliament and that heavy procedure would seem appropriate for this very important kind of issue. I think that you would find that ordinarily transfers of powers are done by orders and counsel. As Charles has mentioned, this is quite a usual thing if one looks back over the history of the Parliament. There have been transfers of powers from the very earliest days and everyone knows about section 30 orders in the same way as everyone knows about article 50 of the EU treaties. Those are numbers that are graven in our hearts, but it's quite an ordinary process. If one looks in the bill, you can see that the amendments that relate to the order in counsel stem from clause 11, which is changing the structure of the competence of the Scottish Parliament and Scottish ministers, and they are type A orders. The order in counsel is a type A procedure, so that's approval by both houses of Parliament and this Parliament. That does seem to be the appropriate form of procedure for doing something like this. The bigger issue, of course, is the scope, but that's for a policy discussion. Structurally, that must be the right way to do it. Just looking at the scrutiny procedures, does the bill contain an appropriate split between matters that require the affirmative procedure and matters in respect of which there is a choice between the affirmative and the negative procedure? I think that the bill does highlight the kinds of issues for affirmative procedure that are going to be of importance. I would imagine to the Scottish Parliament and the UK Parliament as I mentioned, the House of Lords had suggested that you could extend it to allow for some wider considerations of principle and policy that would require affirmative procedure as well. There should be discretion in relation to that procedure being applied. Are there any other views on that? I certainly think that the topics that are listed in the schedule as requiring the affirmative procedure are absolutely correctly identified. There may well be, as others have suggested, in certain circumstances, which we can't immediately foresee, cases in which that might be appropriate in regard to their importance. I think that that brings us back to the issue of co-ordination and identifying the issues and whose responsibility it is to deal with them and to take legislation forward and the process for identifying what procedure should be adopted in a given case. Leaving aside the mandatory affirmative procedure categories, there seems to be wide discretion given regarding the choice of negative and affirmative procedure. Is that discretion appropriate and can ministers be held to account in respect of that choice? I am not sure that the discretion is terribly great. The provisions of schedule 7.2, which provides the list of topics that are required to be dealt with by affirmative resolution procedures, is followed by schedule 7.1.3. Any other statutory instrument containing regulations is subject to annulment and pursuance of a resolution of either House of Parliament. It seems to me to be quite clear that affirmative resolution is listed for those under paragraph 1.1 and 1.2, but, when it gets to 3, those are negative resolution procedure orders. The key to it is that parliamentary discretion in the type of procedure to which orders should be subject has been taken away by this provision. There should be some kind of a way in which Parliament should have a greater role in being able to determine which procedure should attach to which order. I think that that is where I would go to. I am saying that, far from there being a wide discretion, there is, in fact, almost no discretion. There is a discretion between choosing a negative and affirmative resolution. I am prepared to be corrected, but I do not see it. Interesting. How can the Scottish Parliament scrutinise the Scottish Minister's choice of legislative route in correcting deficiencies and retained EU law, by way of explanation, the choice of regulations made by the UK ministers alone, regulations by Scottish ministers or regulations made jointly? As regards the exercise of discretion, Michael has answered the question previously. As regards your second part of that question, you were talking about how can one identify or hold to account ministers in relation to their choice of whether the fit is going to use jointly exercise powers or just exercise it individually. As I say, it is unclear present as to the circumstances in which ministers would exercise joint powers. If that were clarified in the first place and tightened up, it might be a much more certain basis for ministers to proceed. The two parliaments would also know where ministers are likely to be going and why they are going in that particular direction. The best way to call ministers to account is to invite them to defend their regulations before the committee and before the lead committees for policy questions. Is there a role for strength and scrutiny, for example, to enable Parliament to be consulted on regulations laid in draft prior to final regulations being laid and, if so, which areas should be prioritised? The superaffirmative procedure, which is currently within the scope of the committee. The superaffirmative procedure is not structurally in the bill, so the best way to ensure that would be for amendments to be made to the bill. As you are saying, as the bill stands at the moment, the superaffirmative would not be possible. Yes. What I am saying is that it is not within the structure of the bill. Does that mean that it is possible or not? No, I do not think so. I think that you would be presented with the orders in the way in which they are mandated under the bill. That makes my next question a bit tricky, but nevertheless I will still ask it. Assuming that a superaffirmative type process is possible, for some matters at least, would that lead to other matters receiving very little scrutiny given the time available for the legislation to be passed? That is inevitable. The volume of work that this committee and possibly other committees of the Parliament are going to be engaged with in the coming months, whether it is 12, 24 or 48, will be significant. The UK Government White Paper estimates that its estimate is more than 1,000 legislative instruments are going to be required. That may prove to be an underestimate, and, if that is correct, even taking a proportion of that as the legislative work of this Parliament, in addition to other legislative work that the Parliament will be engaged with, I think that it is inevitable that some areas will receive less scrutiny. As Ms Harris's questions raised, there was the issue of prioritising as to what you would really be interested in in terms of scrutiny. If you wanted innovative forms of scrutiny of delegated legislation, that would require amendment of the bill. The publication of the Law Society has referred to the House of Lords Select Committee's suggestions and to other suggestions as regards how you might have innovative approaches to scrutinising the legislation that you were really interested in. However, there must be limitations of time as Kenneth has indicated. What was that publication that you referred to, House of Lords? The House of Lords Select Committee on the Constitution. I can get your reference to that. I can provide reference to the clerk. We can provide reference to the clerk at the end of the meeting. I believe that we have a link to that, so I will have a look at that. Thank you very much. Just a couple of questions from myself. What accompanying information should the UK and Scottish Governments provide when laying regulations under the bill to enable Parliament to prioritise scrutiny effort? Should there be a requirement to provide particular accompanying information being included on the face of the bill? Again, in our suggestions and again referring to the House of Lords' suggestions, we thought that it would be useful for Ministers to specify in explanatory notes with any instrument exactly what is being achieved by this instrument. If one were to amend the pass, why it is necessary in these particular circumstances, whether it is making a policy or purely technical change, I thought that would greatly help Parliament's scrutiny of any such legislation. I think that that is absolutely right. The only way in which it would be possible to do the prioritisation that we spoke about a moment ago is to have a clear idea of whether an instrument is simply doing what the policy of the withdrawal bill is supposed to be, namely, moving the legal basis from the EU to domestic law or whether there is some more substantive change being made to the domestic legal order, and it should be incumbent on the Minister, whether it is a UK Minister or a Scottish Minister, to identify that. After all, the vast majority of the instruments will be dealing with purely technical changes, which probably will not be of interest to anyone, but the key will be in identifying the ones where some policy or substantive provision is being made that you will want to have a look at. What areas or categories of changes to EU law should the Parliament seek to prioritise in its scrutiny? It is easier to say what you should not prioritise, because purely technical issues are of minor importance. It is easier to put those to one side and look at them afterwards. Clearly, things that would fall within the affirmative resolution procedure provisions in schedule 7, such as establishing a public body or widening the scope of criminal law or imposing some kind of fee, but we are thinking about widening the scope of a criminal offence or imposing a fee. We might think in terms of fines, but there are also civil penalties that might apply. Things like that might be the sort of thing that, although it is not in the list, you might want to think about prioritising. I think that those are the kinds of areas where the liberty of the subject is at stake or where there is some financial implication. I think that the affirmative action, affirmative procedure or other cases, is probably going to be the more controversial or contested areas anyway. Given the discussion that we have already had about available time, that would be my suggestion for a starting place as well. Members have any other questions that have not come up? I will close this session. I thank Mr Clancy, Mr Muller and Mr Campbell for your time. The clarity of your answers. I was glad to have given Mr Clancy his moment to remember. I will suspend briefly to allow you to leave. We will move on to agenda item 3, instruments subject to affirmative procedure. I would like to declare an interest at this point. I am a registered landlord and I would point members to my declaration of interest. No points have been raised by our legal advisers on the draft Scotland act 1998 specification of devolved tax wild fisheries order 2017. The draft private residential tenancies statutory terms Scotland regulations 2017. The draft private residential tenancies information for tenant Scotland regulations 2017. The draft public appointments and public bodies act Scotland act 2003 amendment of specified authorities order 2017. The draft land reform 2016 supplementary provision regulations 2017. The draft land reform Scotland act 2016 supplementary consequential transitory and saving provisions regulations 2017. Is the committee content with those instruments? Agenda item 4, instruments subject to negative procedure. Public water supplies Scotland amendment regulations 2017 SSI 2017 281. This instrument amends the public water supplies Scotland regulations 2014 to implement provisions of commission directive EU 2015-1787 on monitoring requirements for drinking water and of council directive 2013-51 Eurotom on radioactive substances in drinking water. There are a few drafting errors in this instrument. In new schedule 1A to be inserted into those 2014 regulations paragraph 4 3 of part E on radioactive substances provides that where indicative dose requires to be monitored the frequency of the monitoring must be determined depending on the screening strategy adopted pursuant to part B of schedule 1A. The Scottish Government has confirmed that the reference to part B is an error and that the reference should be to part F instead. In table 1 in part B of new schedule 3 to substitute it into the 2014 regulations in the second column of the table headed uncertainty of measurement the value given for polycyclic aromatic hydrocarbons is 30 the Scottish Government has confirmed this is an error and that the value should be 50. In table 2 in part B in new schedule 3 in the fourth column of the table headed limit of detection the value given for oxy disability is 25 the Scottish Government has confirmed this is an error and that the value should be 10. It suggested that the committee could report the instrument order under ground I as the drafting appears to be defective as I've just outlined. The committee could welcome the Scottish Government's intention to correct the instrument by making and laying an amending instrument at the earliest opportunity. Does the committee agree to report the instrument to the Parliament under report in ground I as the drafting appears to be defective? Does the committee agree to welcome the Scottish Government's intention to correct the instrument by making and laying an amending instrument at the earliest opportunity? Teachers superannuation and pension scheme additional voluntary contributions Scotland regulations 2017 SSI 2017 283 regulation 148 contains a superfluous reference to regulation 12.5 of the instrument. The committee could note that the Scottish Government has undertaken to correct this error in the next set of regulations to include amendments of this instrument. Does the committee agree to draw the regulations to the attention of the Parliament on the general reporting ground as they contain a minor drafting error? Individual learning account Scotland amendment regulations 2017 SSI 2017 288. It's intended by regulation 67D to substitute quotes training a cramped account administrator for learning account administrator comparably with several other substitutions in the instrument. However, in error, the provision specifies a training account administrator and a learning account administrator. Does the committee agree to draw the regulations to the attention of the Parliament on the general reporting ground as there is a minor drafting error in regulation 67D which amends regulation 46 of the individual learning account Scotland amendment regulations 2011? No points have been raised by our legal advisers on SSIs 2017 286 295 296 297 and 301. Is the committee content with these instruments? Agender item 5 instruments not subject to any parliamentary procedure. No points have been raised by our legal advisers on SSIs 2017 294 298. Is the committee content with these instruments? Okay, and now move the meeting into private session.