 Graff nhw, ychydig i gyn rywbeth y cyfnod wrth gwrs y cleif yn 2018 o Gwyrddol a Gwyrddol Argyn cyfnodol sydd gan geiddiwch am ddweud gan gyffredinol y panel i gynnydd dim ddigon nhw i cyfnodd yn dod i gyrddwch i dwy diwethaf i ddweud i ddweud i ddeinodd Fy raen nhw, efallai'r ymddai hynny gofodadoedd gan gyfnodd ym mwyhoch o'r beth oeddynt y mwyhoch ac oedau ddweud yn weld, os yn cael ychydig i ddweud. Fewn i'r penynau i ddwylau i ddweithio surfa chi i ddweithio ar gyfer'r ffordd ac ar gyfer perughun y maen nhw'n fannwch cerdd y ddefnyddio'r cyfeirio'r ffordd, agen i'r rhan fyddai gyda'r cylliw yn wneud am y llwyr y dda'i gwysigol oedd, ac os ydyn nhw'n urden nhw, yn ddweithio'r ddweithio ac yn ddweithio'r ond nid o'r ffordd o'r ffordd o'r ffordd o'r ffordd o'r teimlo. Professor Michael Keating, from the University of Aberdeen, Daphne Velasterie, from the Scottish Environment Link, Professor Colin Reid, from the University of Dundee, Jonathan Hall, from the NFU Scotland, Ian Wright, from the University of Glasgow, Professor Paul Bowman, from the Royal Society of Edinburgh, Michael Clancy, who's from the Law Society of Scotland, Lloyd Austin from RSPB Scotland, and Anthony Salome, who's from the Scottish Centre for European Relations. Thank you, everybody, for coming along and being prepared to contribute in our deliberations this morning. We've found, as a committee, that these panel sessions can work very, very well in terms of teasing out the issues, allowing people to contribute as freely as possible, and it's certainly intended to be a free-flowing discussion. If you manage to catch either my eye or the eyes of the clerks, please do so, and we'll try to get you in as much as we possibly can as part of the discussion that we have on-going. Today's discussion will be based around four themes. A different member of the Scottish Parliament will be leading on each one, and I intend to allow you about 30 minutes for each of these discussion areas now. As usual, there are a bit of crossover on these things, so if sometimes we stray into the areas that might happen by the natural processing, that's what free-flowing discussions do. Let's see who we get to. I'm really looking forward to this, and the person who's going to kick off the session this morning on the area of principles and policy areas of common frameworks is Willie Coffey MSP. Willie, over to you. Thank you very much, Bruce, and good morning everybody. I'm Willie Coffey MSP for Commander in the Irvine Valley. I was hoping to start at the very beginning, at the basic principles, and as Professor Keating and others said, it's as if we're working on the detail before the basic principles have even been worked out. I wanted to just test whether other members and contributors felt the same thing was in place. It seems to me that the policy areas that we're possibly discussing in the frameworks, it's kind of like a pack of cards, but we don't know who's dealing them, what the rules are for distribution of those, what the discussions will be, and contrast that, convener, with the experience that we had in Brussels recently, where we heard from a number of jurisdictions where there seemed to be clear and well understood agreements about the area of hierarchy of laws that are governed by principles of supremacy and so on that you mentioned, Professor Keating. Should we be starting there and putting a bit of effort in that area first before we even argue and worry about the detail of how the frameworks will all put it? Yes, I think that that is right. There are two processes that seem to be going on. One is about broad principles of what the internal market means, and at one level it seems straightforward. Once you get that down in the detail, the concept of the internal market is really extremely complex, and we have nothing like that in the devolution settlement because we didn't need it because Europe looked after that. Then there are these deep dives about individual policy fields that the civil servants have been working on. Those two are supposed to meet, and I'm not sure they ever are going to meet. Then there's the problem with the basis for EU regulation, whether you can download that EU model into the existing devolution settlement. I don't think you can without rethinking it. Finally, where we end up is I think where your point got to, is we're going to have a whole range of mechanisms for dealing with intergovernmental relations. We've got the existing mechanisms for non-EU matters. We've got frameworks, some of which will be legislative, some of which will be non-legislative. We've got the individual sectoral bills, like the agriculture bill, and then the environment bill coming up. Then we've got matters to do with negotiation of international agreements that hardly has been started, discussions hardly started, and then various ad hoc measures. The whole thing is so complicated that it's difficult to see how anybody could really understand it. The reason this is happening, of course, is the timescale. We're trying to address really important constitutional issues in a timescale which is very limited. We still don't know how long the timescale is going to be, how long this transition period is going to last, but whatever it is, even if it's three years, that is really not long enough to think through the implications for our constitutional settlement. We could end up with a terrible muddle. Who would like to chip in on this discussion in this area? Michael, I can see you're desperate to say something there, because I know that a lot of society have made some comments on this area, so would you like to give us your reflections on that? Thank you, convener. I think that you're reading too much into my expression, to be honest, but, well, you asked for it, now say a few words, Michael. Let's, for example, take the timescale. I agree entirely with that analysis that the timescale is far too short. I think that I've submitted something to another committee in the Parliament recently, which gave scenarios for how things would go if we had an October withdrawal agreement reaching over to 29 March next year. We had a November withdrawal agreement because, at the time when I was writing it, everyone was talking about the idea that it would be a European Council sketched into November, which would give us that arrangement. A December agreement, which, of course, is now, time has been allocated for that at the European Council, but that's looming, even though we are only at the middle of or towards the end of October. And then lastly, if there is no agreement on what happens, let's say at the last opportunity in October, what happens then? If it's 154 days today—I checked our Brexit law countdown clock this morning—154 days today until 29 March, then if you take out the various holidays and recesses, you're looking at not an awful lot of parliamentary time at all here or in London or indeed in Europe, because we tend to forget that under article 50 MEPs have the possibility of voting. So I agree with the timescale. The timescale is short and decisions made in a rush to try to meet a timescale can sometimes not be the best decisions, and they take an awful lot of energy and time and thought to get them right. On the idea of the detail before the principles, the 111 powers that the Cabinet Office identified and sent to the Scottish Government more than a year ago, more than a year and a half ago, seemed to me, when I was doing the survey of which the Law Society published off those powers, that those are very complex, very detailed areas of the law. They require a significant amount of specialisation to be able to understand them. The make-up of that list of 111 gave me the impression that a general call had been sent out to Whitehall from the Cabinet Office saying, tell us those intersection areas between the EU and devolved matters, and they got back various returns. Some of the returns are duplications, or the clustering of them might have come from different departments. I think that that is something where we are actually dealing with a thought process that was at the very beginning of the whole idea of withdrawal before the full consequences of that had been identified. Even after the referendum. In the 111, we also get the varieties of mechanisms that are currently used, so there is a memorandum of understanding in relation to certain agricultural matters. There is primary legislation in other areas, such as pollution prevention and control, and subordinate legislation across a whole raft of other things, too. That is important because those varieties of mechanisms make it difficult for us now, in retrospect, to start thinking about, how do you fit that into a concept of a common framework analysis when what we have been doing up until now has been anything but common? If you will indulge me just one more moment, convener, I think that in looking at the list of 111, firstly, we know that the total list was 153, and that some aspects relate to Northern Ireland, some related to Wales, and then there was a core group that is related across the UK. However, if you dig into the 111, let's say in food and feed law, our current analysis paper stretched to 125 pages, but if I were to add the food standards Scotland digest of food and feed law, it would be something like 500 pages, and who around this table has the expertise to tell me what the analysis of mineral water is all about? That is the level of detail that some of those pieces of law go to, and I've probably taken up too much of time already. I'm glad that that could be true, because that allows me to bring in Lloyd Austin from RSPB, because RSPB have also made comment on this area where you expressed some concern and respect to the Cabinet Office's provisional assessment, the policy areas. Would you like to just flesh that out, Lloyd? First of all, convener, I agree with both Michael Keating and Michael Clancy about the timescale and also the issue that devolution arrangements, in a sense, took account or were developed with the EU situation in place, and that if that EU level of governance is removed, there is a need to think about how that is replaced. So, we very much welcome this discussion about frameworks, et cetera, partly because environmental issues are inherently cross-border issues. The environment, whether it be airborne pollution or wildlife movements, et cetera, don't respect political borders, and one of the reasons why we very much supported international measures to deal with whether that be global or European basis to address environmental issues is because of that cross-border nature. In terms of that Cabinet Office paper, I think there were a number of things related to nature and the environment that we thought were not recognised as something that does require within the UK cross-border co-operation. We highlighted, for instance, invasive non-native species, which obviously is an issue that needs to be addressed in co-operation, at least if not in a common way. That illustrates an example of how the environment often needs to be approached biogeographically, rather than by jurisdiction. By that, you might want one approach for Northern Ireland and the Republic of Ireland, where species are different to those in Great Britain, England, Scotland and Wales. There are ways in which, in environmental areas, you need to approach things in a biogeographic way, which means that you need better intergovernmental mechanisms in order to address them. In order to respect the devolution settlements, each jurisdiction needs to have the authority and accountability that the devolution arrangements give those jurisdictions, but there needs to be a mechanism to ensure proper co-ordination consistency to deliver those cross-border mechanisms. There are ways in which we could learn from things that exist in the EU at the moment, such as intercalibration, which is a technique of setting environmental standards under the water framework directive. That's a way of working, which could be a form of a common framework rather than a legislation or a non-legislation. There are so many different forms of common framework. I think that that's probably what I will say as an opener. The question really started off from Willie as well, Lloyd, about whether there should be a set of common principles established before we get into the detail. Is that something that that SPB would support, or are you a bit more relaxed about that? I think that from an environmental point of view, if such a set of principles existed, we would like to see a recognition of the cross-border nature of the environment being one of those principles. Any other details about the contribute at this stage on that particular question? Sorry to convene, my question was a slightly broader one. I was conscious that Michael and Lloyd had laid out a raft of detailed work that needs to be undertaken. I mean, there's an enormous amount of detailed work, but I suppose that what I'm interested in trying to get my head around is how much of a priority is resolving some of the details in and around common frameworks actually going to be given some of the evidence that we've heard from the Scottish Centre for European Relations, which, again picking up on the scenarios that Michael was beginning to lay out, that there's this broader negotiation and scenarios around deal or no deal, hard, soft, Brexit, transition periods. It would be quite good to hear from Anthony about is there going to be the capacity to actually prioritise some of the work on common frameworks given the broader political situation. I suppose to pick up on Angela Constance's question and building on what everyone else has said. Before, timing is quite important. As Michael Clancy mentioned, we're in the countdown to a deal or no deal scenario. Presuming that we do have a withdrawal agreement, clearly this will only include a political declaration on the shape of future relations between the UK and the EU. That means that even if we have a deal by October, November, December or even I think January, it could probably be the latest moment in which the European Council would be willing and able to endorse a final agreement. We won't know the shape of the UK's future relations and obviously that has concomitant impacts upon the way in which the UK and Scotland can prepare internally. The UK Government's current proposal is the checker's proposal, beleaguered as it is, that would see the UK remain ostensibly aligned to a number of areas of EU law, which might mean that in practice things may not change as much as we might expect. Internal configurations might be required to produce relatively similar outcomes, but otherwise we wait to see how those negotiations progress and we may not see the shape of a final settlement between the UK and the EU until months, if not years, after Brexit Day in March of 2019. The uncertainty that we have may well persist for some time and it makes it very difficult to prepare anything on that basis within Scotland or indeed the UK. In terms of the capacity question, I think that depends on the scale of the change which would be required and as I say we don't know what that will be. If I could just make maybe one or two other points building on from what other people mentioned, in terms of the European Parliament having a say on the Brexit deal, clearly it does. I think it's important to highlight that the European Parliament has set out clear priorities of what it's looking for and that obviously it may well reject a deal. It's not given that the Parliament would accept a deal, but I also think that the Parliament's overriding priority has been citizens' rights and the current withdrawal agreement provides a number of safeguards and provisions in that area, so it may well be that the Parliament does decide to vote through the deal and obviously it leaves the UK Parliament to decide what it wants to do. Maybe I could stop there. Thank you. I've got a couple other people who want to contribute. Paul, I think I saw you wanting to contribute. I think that it's true that a lot of things are unknown until we know whether there's a deal or not and what the shape of that deal will be and therefore how much priority might be given to this issue of common frameworks. I think that one of the key points relates to your theme 3, but I think that we need to make it even now. In order to identify the principles and the policies that should come within common frameworks, you need some institutional development, because who's going to do it? Who is going to identify what should be within these common frameworks? At the moment, what we have is a list prepared of very specific things, particular bits of legislation. Nobody has sat back and thought, well, what is the UK internal market? Conceptually, what should it be? Therefore, there's nobody doing the kind of fundamental research that's needed to think through what policies should be within any possible common frameworks, and that therefore points towards the need to set up an institutional solution before you decide on the substantive points. In a way, you cannot not come to point 3. That would be the RSE's position that you've got to have some kind of institutional solution. We recommend an independent secretariat because there needs to be someone whose job it is independent of the players—independent of the UK Government, independent of the Scottish Government, the Welsh Government and the Irish Executive if it function—who will sit down commission research, analyse research and really see what, in the future, a UK internal market needs to look like. Clearly, some of them, and even the UK Government acknowledges this, are probably in reserved areas, such as food geographical indications and state aid, which they themselves have identified. Even if the UK Government can identify areas that are within reserved powers, an independent body might identify quite a few more if they were conceptually thinking about what would be a good internal market. From our perspective, even in a time of scarce resources, even in a time of uncertainty, the first thing that a rational set of Governments in the United Kingdom would do would be to decide, even now, a very small secretariat together who would have just this task at the moment of focusing on what the future internal market in the UK should be, because, whether we are in the EU or not, those are issues that need to be considered. There is an EU market, but it does not necessarily translate identically into a UK market. The two things do not have to be identical. That is the way that we have perhaps thought about things up to now, because it has been easy and convenient, but it does not have to be like that. There are important issues about how we do business within the United Kingdom that could be different from the way that we do business within Europe. In any possible future political scenario, even if Scotland was independent, it might want to be in an internal market with the United Kingdom or with the remainder of the United Kingdom. I do not think that the conceptual work that would be done by such a body would be wasted in whatever scenario develops. It would be useful work and therefore worth investing, even at a time when everybody is stretched. That is helpful, but what I am going to do is, for the next discussion session, I am going to accelerate the area that Adam was going to be in and put it around the institutional governance and bring that forward, since we have introduced that now. Before we get to that, Daphne and Jonathan both want to make a point. If I can come in, thank you, convener. Just one quick point in terms of the issue of principles and process. I think that the Scottish Environment Link would echo the points that were just meant by Professor Paul Beaumont in terms of the need for a clear process that is transparent and involves stakeholders. On the issue of the types of principles that ought to be guiding common frameworks, I just want to note that there was an effort initially for the UK governments to come together and develop a future policy paper for the environment. That was actually being led by the Scottish Government. Obviously, it seems that that has been put aside because of other priorities, be it legislative, other or others. We would have found that exercise is very useful in terms of even the legislative bills that are coming on right now. Things like the EU environmental principles, solutions to governance gaps and some of these are joint problems, so we ought to be looking at how we can develop solutions to them. Those solutions might be different in the different jurisdictions, but there is definitely an element of coming together to address those issues. Obviously, the question being asked initially in this theme warns in relation to the UK internal market. What do we understand and mean by that? I would just like to make the clear point from the start that, in the agricultural context, at least, we do not play on a level playing field to begin with. We have four different settlements of the common agricultural policy already across the United Kingdom, and we do things in a very different way in Scotland than, say, for England, Wales and Northern Ireland. Arguably, we do play to the same rules just about, because, again, there are variations in some of the rules that are associated with the policy measures that Scotland operates as opposed to England, Wales and Northern Ireland. The internal market, I think that there is a very important question around that that is rightly being raised by Professor Keating and others. Level playing field is what we all aspire to in some ways, but, nevertheless, the level playing field does not exist in the first place. My really clumsy analogy on this is that we are on an uneven playing surface, but we are just about playing to the same rules. However, it is a bit like putting a rugby league team against a rugby union team. Some of the rules are pretty much the same. Sorry for those who do not know anything about rugby. Some of the rules are the same, but there are clear differences as well. How would you determine a fair outcome in a game of rugby league versus a rugby union? Nevertheless, that is where we are. The other point that I would like to make at this stage, which leads us into theme 2, is that we are talking about common frameworks. What we have always talked about as NFU Scotland is commonly agreed frameworks. There is a concept of common frameworks and what should be included in those common frameworks. To us, it has all been about the process in which you derive those common frameworks. It is the commonly agreed aspect and the process and the governance behind that, which is fundamentally important to us as an organisation. That kind of leads us into things that are happening now at Westminster in terms of things such as the agriculture bill and where powers might reside with the Secretary of State for the UK and how the devolved administrations fit into that and feed into that. There is a very important difference between consult with and consent from. The two things are being markedly different in terms of the powers that the Secretary of State might hold in the longer term. I will move on to the next area, Michael Keaton. I can just ask you to reflect on the internal market issue, because I know that you covered that in your own paper. I just did Professor Heal, I think. However, if you could just let us know how definitive you think this list of 111 policy areas actually are, because it seems to me that they are not written down anywhere in legislation, as far as I am aware, and therefore that 111 might well change as we progress. Indeed, the 24 areas that the two Governments are discussing in a lot more in depth at this stage may well change as we move on. The list seems to be derived from what happens at the moment, but, of course, things will change in the future. These are shifting policy fields, which is why, again, it makes it strange to nail this down to particular pieces of legislation rather than general principles. The internal market, in one sense—the UK Government started talking about the single market, and then they realised that was an inappropriate analogy with the European single market, so they started talking about the internal market—in one sense, you could say that's been there since the Treaty of Union, because that provides for free trade, but in a modern economy, maintaining market unification requires a great deal more than that about regulations, product standards, about state aids, about public procurement, which is a really big one, about what kinds of things might be sought to interfere with the market, about the boundary between things that are provided in the market and things that are provided as public services, which is highly controversial and very political. We know that this has come up in regard to international trade agreements, where the fear has been expressed, that if you have semi-marketised sectors, then you can't protect your public services, whether that's well founded or not. It is something that has been expressed. There's the link to environmental issues. Do we have to have common environmental standards for a single economic market? Probably, to some extent, we do. The issue of state aids has come up in relation to agriculture. Johnny was just mentioning the agriculture bill, which allows the Secretary of State for DEFRA effectively to lay down what permissible aids will be through the mechanism of the World Trade Organization. It has all kinds of ramifications. It would be simpler to, at one point, sit down and think about what the single market amounts to in general. This is the way that EU does it. They don't have a list of 125 competencies, which is a principle. As Paul said, and I'm part of the same committee of the RSE, so I share the parentage of this proposal, I have somebody somewhere who can actually provide and do the homework on these very complicated issues. Ultimately, many of these are matters of political judgment, but at least we need to have some common base. Rather than complicating or delaying matters, that would actually simplify matters, because then we could go to the 111 competencies or whatever it is and measure them against some kind of common standard. It would also deal with the problem that I raised earlier on, but four or five different intergovernmental mechanisms were dealing with this. A similar process or a similar set of standards against which to measure things. I understand that there is intergovernmental discussion at the moment about what the single market means led by the Treasury, but that seems to be going in parallel to the discussion about individual competencies. I think that it would be better to give priority to that one and then we know where we're heading and what the basic principles are. I think that that helps us to lead quite nicely into the section on governance and enforcement in common frameworks, which Adam Tompkins was going to lead to. Adam, do you just want to… Yeah, thanks, committee. Yeah, sure. Can I just ask a question directly on what Professor Keating has just said before going to launch into governance and enforcement? What strikes me about this argument that we've heard both from Paul and from Michael is that it might be seeking something that is not available. I'm wondering if it's available anywhere. Anybody who knows anything about comparative federalism knows the history of the American constitution with regard to the changing nature of the commerce clause, which is the provision of the US constitution that deals with precisely this question. To what extent is economic regulation required at the national level and to what extent can it safely be left to the States? The answer to that question, both legally and politically, has changed massively over the course of the 200 years of the US constitution without the principle that is articulated in the relevant version of the constitution having changed at all. We've got a very clear principle, but the sands underneath that principle have shifted massively from time to time. So I just wonder whether the RSE or anybody else has looked at whether there are any international comparators that we can go to and learn from and learn from other than just learning a lesson that, while it might be nice to have a really clear principle of understanding of what the UK's internal market is and what it requires, it's not actually possible. Because I have to say from my understanding of comparative federalism, whether you look to the US, Canada or Australia, three leading common law jurisdictions of federalism in the English-speaking world, the only lesson that you can draw from this is that what you're asking for is impossible. Adam makes a good point and wouldn't want to deny that at all. I think that the comparative evidence that you've already taken shows that it's very difficult. Any further comparative research will show that it's very difficult. I wasn't saying that there was a magic bullet out there. What I'm saying is that you need flexibility, and I was about to make that point anyway. We shouldn't be aiming for a level playing field. This is nonsense. There is not a level playing field in Europe. The single market is not based on a level playing field. That's a myth. Much of the single market is based on a principle of minimum harmonisation. The only way it ever was achieved was when we shifted away from maximum harmonisation to minimum harmonisation. This is precisely the sort of issue that needs to be dealt with by somebody. Which of those competences needs maximum harmonisation and why? Which of those competences only needs minimum harmonisation and why? I can't answer that question. I don't have the expertise across all these areas. I need somebody to do the work. We all need somebody to do the work, not the conceptual work of where the balance should be between the federal government and the states. No, that's an illusion. On every particular area where you think there's an internal market issue, how much harmonisation do you need to make the market work? How much do you not need? We can debate that, and that's where you need a political element. You also need the underlying analysis of the technical area to see what the reasons are, why you might have minimum or maximum harmonisation and then you have a political debate about which is the right outcome. That will change over time. It's about creating a structure where you can have the proper political debate about where power should lie between the central government and to use a bad word, regional governments. There's no magic bullet and we're not claiming there is. We're saying that you need institutions at least to try to tease out what the real issues are, rather than relying on people purely on a sectoral basis, jumping in deep. There's a need to jump in deep. We're not denying that, but somebody needs to also take the more conceptual approach and actually think what the issues are. That's a very helpful set of clarifications. Thank you for that. It's particularly important that we understand that what they ask here is for something that will necessarily have to be flexible. We're not seeking to ossify or fossilise a particular here-and-now conception of this is what needs to be reserved for all time, this is what needs to be devolved for all time, this is what needs to be shared and how it needs to be shared for all time. As the market changes and as our reaction to the market changes, there's going to have to be a degree of flexibility in this, which means that we're looking for very high-level principles so that a lot of the work that can be done, which is very politically contentious, can be done underneath the umbrella of those principles. You keep saying somebody needs to do this work and I want to get into that question. I want to get into the question of what kind of institutional architecture are we thinking about here? What kind of institutional structure are we talking about here? Are we talking about courts? Are we talking about committees of civil servants that may meet behind closed doors in the safe spaces that the Government says that they need to negotiate with each other? Are we talking about something a bit more transparent and open than that, that might even involve parliamentarians? Or are we talking about clangos and NGOs and experts in some shape or form, whether through think tanks or organisations such as the RSE or Government agencies? From the written evidence that we've received, there are three suggestions in particular or three questions in particular that stem from that. Do we need formally to adopt some kind of qualified majority voting in terms of understanding and analysing these problems? To what extent do we think that common frameworks will require to be judicially enforced, whether by the UK Supreme Court or by other courts and tribunals? To what extent can we as parliamentarians expect any meaningful input at all into the policing of the essentially intergovernmental bits of machinery? There's a lot there, but I'd be very interested in your views about that. What kind of institutional architecture is it that we think we're looking for? Paul, before I come to you, I'll just try to get—because I know that RSE has done some work on this—to pull out some other contributions. Michael, do you want to— Very interesting set of questions. If we can get the answer before 11.30, that would be great. I think, though, it's important for us to acknowledge how difficult these things are. The route from a form of unanimity to qualified majority voting is a long and hard route. As we saw through the Maastricht treaty process, it's not easy and the subsequent changes to that, the evolution of qualified majority voting, it's quite difficult. I know at least one party leader in Scotland, who, when I mentioned that three-letter acronym QMV, said, over my dead body. I think that we've got to appreciate that that theoretically is probably where one would land, but politically it might not be possible to achieve that in the world in which we live. What kind of people should be around the table? We have, consistently, since the referendum spoken of this being a whole-of-governance project—not a whole-of-governance project, a whole-of-governance project, and we've spoken—you have heard me in this—in this committee talk about getting together the Governments. In that, I mean all levels of government, getting together with those who have expertise in terms of academia, the professional bodies, civil society generally. Those are important components in getting the right answer, getting an answer with which everyone can live, because if common frameworks are to mean anything, if they are to have the permanence which Adam Tompkins talks of, they have to be rooted in a general acceptance and not simply some kind of formalistic political acceptance, which then breaks down over time as political priorities change. Therefore, I think that there is a role for parliamentarians and I think that administrations' Governments should not be the authors exclusively of these arrangements, and that goes to an element of transparency. The process of the JMC has been characterised by a lack of transparency generally. There's been more transparency in Scotland, much less transparency in Westminster, and I think that until laterally, when David Lidington has taken to the dispatch box, we've got to get to a point where there is much more transparency in these arrangements. I know that's a difficult thing for the Administrations to deal with, because things can be said in a room without other people there, which cannot be said in a room with other people there, but those other people are key to finding the answer here. Therefore, I think that there is a role for parliamentarians. I think that accountability demands that scrutiny requires that role for parliamentarians. Otherwise, we may end up with common frameworks that don't function properly. In terms of whether the decisions should be judicially enforced, you may think that there's strange coming from a lawyer, but I'm not entirely sure that judicial intervention is the best way, although it has to be there as a backstop. That was a popular cultural reference, convener. This morning, I had two different conversations with people using the word backstop, but I've never heard them using it before. It's amazing how it's got into our language. I want to see exactly where it comes from originally and what the translation is, but there we are. I think that using the quotes as a final arbiter is right, but in the memorandum of understanding, October 2013, the joint ministerial committee has the capability of having a complaints process that takes us to a group of civil servants so that you can see where the RSE is following in a respectable trail. The question is, is it correct that the civil servants then end up determining the arrangements that are made by politicians? There's something there that tells me that even the most independent of civil servants processes of appointment are essentially talking about a royal commission of civil servants to ensure their appointment. Much more detail would be needed to be able to sign up to the idea at this moment. Colin, I know you said in some of your stuff that I've seen about the role of parliaments, etc. Michael introduced that into that. Do you want to reflect on some of that at this stage, and then I'll come to Patrick and Lloyd? I think that in terms of the parliaments, it's over the years that was one of the big criticisms of the way in which EU negotiations were handled that the Government minister went from London, from wherever capital, did a deal behind closed doors, and then it was just presented as a fetocomple. The parliaments had very little input into often the negotiating position that was taken and the acceptability of the final output. That was the political process. That's where you ended up, because of the way that EU worked. I think that people have aspirations to do something better that is more open, more accountable, but it is a real difficulty in trying to balance that, because difficult compromises inevitably will have to be made, which may not all be palatable, and trade-offs do have wins and losses in any individual thing. I think that it's not going to be possible to have complete accountability between transparency, because then every decision is going to have to go back to be approved by every different parliament and so on. That's a recipe for absolute forgetting nowhere. At the very least, announcements of what's going to be discussed, the possibility for some discussion of at least possible policy positions that are going to be embarked going in and then fuller reporting on what's happened after. You can do something around those areas that goes some of the way to solving what was identified as a big gap. You commented in some of this area as well, if I remember correctly. My background would be in utility regulation, working in cross-border markets and cross-border businesses on the island of Ireland. We're quite used to spending a lot of time looking at EU directives and trying to understand what the implications would be for how we run a business. One of the things that's very important is that we want to avoid diversity in standards being used as barriers to trade or competition, because if we're talking about an internal market, you have to be able to run a business in it. You have to understand why you should invest and what the risks are and what the potential rewards are. It's very important not just to look at the theoretical mechanics of how it's done but also the effect on economic players. One of the two things that I identified in the House of Commons report were about trust and lack of deep and widespread understanding of devolution issues. That's the reason that I would have supported the idea of a single body that could build up expertise and become the go-to organisation whereby individual departments who want to produce some frameworks could go for advice on process. It's extremely important that there is transparency, not that everything is said necessarily in an open forum, but that the process allows for consultation so that people can point out where issues are different in different places, different people have different experiences and are able to bring a broader diversity of understanding to what should be in frameworks. Transparency of process doesn't necessarily mean that everything is done in public. Governance is important, so people who are trying to work in the market need to understand what the route of legislation or whatever is from a policy idea through to legislation or a directive equivalent. It's really about people understanding what is being done, how it is being done and being given the opportunity to provide meaningful feedback. The only thing about MOU versus legislation, etc. I am not a lawyer, so I don't have any opinion on that at all. From experience, the single electricity market on the island of Ireland was set up on the back of an intergovernmental non-legally binding MOU, so I know that it's possible for that mechanism to deliver. On the other hand, the intention to deliver an all-island gas market crashed and burned. There didn't seem to be any top-down driver to make it happen, so I think that it's very important that there is a framework to make sure that outcomes are delivered. I think that it's still relevant. I appreciate the suggestions and ideas that are coming forward. It's important to remember, though, that we're not just engineering a rational system. There will always be the potential for a situation where there is strong rational reason to have a common, co-ordinated UK-wide approach and, at the same time, sufficiently strong political disagreement about the direction of policy that multiple jurisdictions in the UK think that their divergence is more important to them than the advantages of a shared approach. In relation to the architecture of institutions, the comparison that I would like to make is with the UK Climate Change Committee. That's an advisory body, not a regulator. It doesn't have enforcement powers, but the two jurisdictions in Scotland and the UK each passed climate change legislation. The UK one came first, set up and defined the advisory role of the CCC. The Scottish legislation then gave ministers the power either to designate a body for its advisory function or to create a separate Scottish one. That second power has never been used after nearly a decade of the CCC performing its function, both in relation to the Scottish context and in relation to the UK context where UK ministers have UK-wide responsibilities but also devolved powers in England and Wales only or in England only. That could have been a real mess, particularly because there are differences of policy on some of this, but I would make the case that the voluntary nature of that relationship is what created the advantage and the potential for a relationship where not only the CCC has an incentive to take Scotland seriously and take account of political differences or policy differences but also where the Scottish Government and with the agreement of the Scottish Parliament has been content to keep that body as the UK-wide advisory body as well as the Scottish advisory body. Of course there are differences with a regulator or a body that has enforcement powers in relation to government, but is that general idea that the voluntary nature of an arrangement, the non-binding nature of an arrangement could result in a stronger outcome rather than a looser one? Lloyd, I know you want to do that again. I hope it's not moved on too fat. Paul, I'm going to come back to you at some stage, Paul, because I don't actually probably address a lot of these questions by getting to you specifically, but you've heard a lot of contributions around about a nice place to come back to. Lloyd? Thanks, convener. I'll come back to the climate change committee in a moment, but I wanted to make some general points about governance. First of all, I think that I would strongly support the view that this is about governance, not governance. It's about governance as part of wider governance, if that's not too much of a tongue twister. There is a need, I think, that is generally acknowledged for better intergovernmental relations. It's an area where, as environmental organisations, we hadn't had much experience in the past, before the last couple of years. One of the things that we did was ask the Institute for Government to produce a report about this in relation to environmental matters, and that's referenced in our evidence. I would certainly commend that report about the various failings, as we see it, in terms of the way in which the JMC's work and including some proposals for how it may be better. I completely agree with Ian that it highlighted the need for process, and as part of that process, I think, as a stakeholder, we and probably business as well, think that transparency and proper stakeholder engagement in these matters is a key part of that governance. In terms of the various areas, obviously it's about intergovernmental process, it's about inter-parliamentary process, scrutinising the intergovernment process. Governments obviously have officials or agencies working for them, but it shouldn't be beyond the wit of man to create some kind of institutional arrangement to support the intergovernmental organisation. Some form of secretariat that is responsible not to any one of the individual governments, but to the collective, some kind of secretariat of the joint ministerial joint governmental process. I think that that has happened in previous Anglo-Irish agreements, for instance. I think that there are ways of doing it. I think that the key thing that such a secretariat could do, from the point of view of stakeholders, is ensure that that process and transparency and stakeholder engagement and in-depth analysis is available to the governments who are making the decisions. At the moment, the governments meet and the communicates just simply say they met and they discussed X, Y and Z. The support and the information that's provided for those discussions appears to be lacking, and the organisations affected, whether it's businesses or NGOs or citizens etc, have no idea how they can influence or even feed in views. I think that the key thing I would say is that it applies, in a sense, whatever happens constitutionally, whether we're talking about Brexit or whether we're talking about an independent Scotland or different models of devolution. All of the principles of better intergovernmental governance apply irrespective of long-term political constitutional decisions. I think that, just finally, under the Climate Change Committee, I agree with Patrick's analysis of how it has worked well in relation to the climate change advice. One of the key areas of governance that environmental bodies are concerned about goes beyond advice. It's about the implementation and it's about the regulation and enforcement mechanisms. I know that the Scottish Government is committed to consult on that before the end of the year. Westminster Government in relation to England and reserve matters have had a consultation and are deliberating how to act. However, I think that the possibility of, in other areas, as well as advice, having a joint or agreeing to operate through institutions that share support, that may be a better way of putting it, enables greater transparency and understanding amongst stakeholders. I commend the Climate Change Committee as a model to explore whether or not that can be applied in different areas. I had a long time ago asked a lot of questions. I'm not sure that I'm going to be able to remember to answer them all, but I'll try to deal with what I can remember. The RSE position relates to the development of policy, the development of the common frameworks. That's where we've reached a kind of agreed position, so I can speak to that. Other things then I'll speak more personally to some of your questions. In terms of development of policy, I think that what we are suggesting, the RSE is suggesting, is indeed to have an independent secretariat that would be made up, essentially of civil servants with experience from Northern Ireland, from Wales, from Scotland and from the UK, appointed to then speak, as it were, for the United Kingdom in the abstract, not the United Kingdom Government, and they would bring that range of expertise to the table, which is perhaps lacking at the moment. Nobody's brought that expertise together, so that's point one. That grouping having been established, which is probably pretty small at first because let's not over exaggerate the significance of it. I think that public expenditure priorities and all the rest of it is probably going to be a relatively small body, but it should have some budget, shared cost of the budget across the UK Government in an appropriate way, not for me to decide each of the players contributing to their budget. Once they've got that budget, they have independence in how they use it, but they would be free to commission some research, which would go through the usual procurement process to get, hopefully, the best people to produce good research. The secretary would have to decide what the priorities are for that research. Some of it would be conceptual, some of it would be very technical, detailed stuff. Transparency is a key. How do you have transparency? I think that the key thing for the secretary is to publish all the research that comes in, all the papers that they're producing on the broader issues. You do need a degree of privacy from my experience of negotiating both in the international sphere and in the European sphere. You need areas where everything isn't in the public domain, and I think that's just sensible that you can have free and frank discussion at a certain level before you go into the public domain. I don't think that transparency should be confused with everything being done in the public domain, because I think that that leads to bad decision making rather than good decision making. Transparency is about making as much as you can make available so that you have an informed debate, but some of those debates need to be in private. Then you have transparency so that people can feed in—this is where Lloyd is correct—the way you get good governance is if the people who really know about the subject that's being discussed have inputted all the relevant data. If you don't ask them, you don't get it. The advantage of an independent secretary is that, hopefully, they will see their role as the commission in the European Union when it does its job well—it doesn't always do so, but when it does its job well, it really does seek out all the relevant expert input before it makes its proposal. Again, you would see an independent secretary who would, at the early stages, be getting all this data before it makes its proposal as to how to deal with some specific aspect of a common framework. It's that kind of learning from the best, if you like, of the European Union, whilst not just mimicking it. That brings me beyond what the RSE has said to other issues that Adam Ass asks. Should you have a qualified majority voting or consensus? I've worked with both within the European Union and I've worked with consensus in an international environment. My personal preference is consensus. I'll be quite frank about that. I think that, at least initially, and the reasons that Michael mentioned, even in the EU, it had to be on the basis of consensus initially. At least initially, this framework within the United Kingdom, in my opinion, should, personally speaking, should be based on consensus. Therefore, if you don't have political consensus, you don't have a common framework. You go back to whatever the legislative position is under the current constitutional settlement, which, of course, does run a risk. I realise that, if the UK Government and Parliament behave badly, they can upset that settlement by driving through legislation without consent on the basis that it's just a convention. Of course, again speaking personally, I would say that that would be a disaster from the point of view of the long-term United Kingdom constitutional settlement. Therefore, one would hope and, indeed, personally pray that the UK Government wouldn't get into the habit of breaking the convention. It would only be a very rare thing and that the normally provision would stick. If it didn't, then the whole thing wouldn't really work in the long run. That would undermine the whole system. However, if you have a sensible use of the current constitutional settlement, common frameworks can be developed purely on the basis of consensus, and you rely on the normal operative rules if there isn't consensus. However, it shouldn't be seen as an excuse for the UK Government to dominate the agenda because it has the trump card. If the UK Government gets into that frame of mind, it will undermine the whole system. Do we need courts? Good question. Again, all the examples are, if cooperative federalism, if we want to use that dangerous word that the Germans use, if it's to work, it works as the name implies on the basis of co-operation rather than on the basis of legal frameworks where you fight it out in the courts. Again, if that is to move forward in a way that will be good for the United Kingdom as a whole, it should be on the basis of consensus and then people making things work, such as the All Ireland electricity market making it work because there is a common interest in making it work, not because some court tells you you have to do it. Of course, they are not the best people to determine those questions, in my opinion. I am a parliamentary sovereignty guy at heart, and I think that the politicians need to be making the decisions, not courts. What role for parliaments? That's the last part of the question. Yes, there has to be a role for the parliaments. The parliaments should be the ones that try to make sure that the independent secretariat does its job properly, that it doesn't get captured by any particular interests or any particular lobby groups. It does maintain an overall perspective on those difficult political questions where you are balancing different interests, whether it be the environment, for example, is one very strong lobby groups—very well represented in this committee, by the way. It's interesting, isn't it? It's got its act together. There are other interests out there that haven't got their act together so well. Politicians need to be careful not just to listen to the strongest lobby voice—nothing against the environment, by the way. However, there are other balancing factors in a single market. Where are the business voices today? Where are the business voices? Honestly, and COSLA. COSLA is excellent evidence, but where are they today? I am just saying that that's the job of the politicians in the end to ensure that the different vested interests are properly balanced in making final decisions. That's why it's not the secretariat that makes the decisions. The secretariat just creates a framework. I'm going on and on, but the problem with the GMC is that some of our members have been involved in it. The problem with the GMC is that it doesn't automatically meet, it doesn't have clear agendas, it doesn't have clear outcomes. If you have the system we are suggesting, the advantage is that the secretariat makes sure that there are regular meetings of the ministers. It makes sure that those meetings are not just a talking shop but are dealing with something concrete, and there should be outcomes from those meetings. That's a whole different ballgame to what the GMC is and has been. Paul, thank you very much. You raised the issues about who was here and who wasn't here. I can assure you that the variety of people who were asked from across a number of sectors, and for various reasons, couldn't be here today. Neil? Adam's question. We've obviously heard a lot about the need for a new independent secretary at Greater Transparency and scrutiny. Members will be aware that those are proposals set out by the Welsh Government as part of the UK council, their proposal for a UK council of ministers. I know that we've touched on some of the issues around qualified majority voting, but I welcome any further contributions, specifically on the Welsh Government's proposal for a UK council of ministers, because, as we've discussed, timescales are tight. There is obviously a proposal from the Welsh Government that is worthy of discussion and debate. Professor Michael Keaton will pick up on that point as he makes his contribution at this stage, and then we'll need to move on to some other areas. Can I first just pick up a point that Adam mentioned earlier on about the single market or the internal market not being a fixed principle? Of course not. It's a living principle. It changes over time. The European market changes over time, and that's really new to have a mechanism. It changed with the welfare state. It will change with international agreements and so on. So, again, that's one reason not to write in these 111 competence or whatever it is these days as the solution. The solution has got to be something that's open to social change on the Welsh proposal. I'm one of the few people around the various tables in which I sat that actually likes the Welsh Government's proposals, because at least it provides some kind of ultimate, I was going to say backstop, tiebreaker where you get conflict, because in most of these issues I think we're going to get consensus. Some issues we won't. Issues like public procurement and so on can become quite contentious. Therefore, as a last resort, it would be useful to have a system in which the UK Government cannot always play the trump card. That will have a feedback effect. Knowing that it can't get its own way all the time, it can't play that trump card, the UK Government will be obliged to engage seriously in a discussion with it. Probably we don't have to vote. The Council of the European Union doesn't vote on most issues because they know that voting is there and that provides an incentive to agree. I think we've got to bring in the question of power. That's really what I'm saying here. It is a power game ultimately. The other thing that we discussed in various places, including in the RSE, is where does England come in? If there is any UK councillor ministers, there must be an English minister representing England as well as the UK. This applies to a lot of things we're saying. Will England be bound to common frameworks given that both the English Government and the UK Government are the same thing? That's important. It's not just important for England, it's important for the whole of the UK. It's important for Scotland that there is a separate English presence, so we know who the partner is in this negotiation. We've got to do that without resolving the question of English Government, because we're not going to resolve it. That's a bigger, separate issue that's not going to be resolved tomorrow. Within the frameworks argument, we need to think about England. I'm going to move on to James now, because we just moved in quite neatly from what Michael said into issues about negotiation effectively. Before you do so, you mentioned the issue of power. I think that that's quite an important aspect of what we're discussing, but it's so culture. One of the things that struck me in the most recent visit that the committee members had to the European Union, to visit the Port of Canadians, Norwegians, Germans and Swiss, was every time we got into discussion about conflict resolution, they were shocked at us, because they looked at it the other way around, about how you can find solutions, rather than looking at it about what dispute mechanisms need to be in place to resolve the issues. It was quite an interesting cultural difference between how we are approaching it currently in the UK, compared with the way we do, and we seem to be putting all of us how we resolve conflict first, before actually sitting down and talking about it when actually the conflict might not exist in the first place. That was quite an interesting learning point for me, and that's all about clever negotiations. James will hand over to you to the next section. That's a very pertinent introduction to this section, convener. If everybody understands the need to work properly, we need a clear process for negotiation, agreement and implementation of common frameworks. A lot of the issues here have already been discussed in the previous section. It was really interesting to listen to Paul in terms of the different forums for resolution, consensus, qualified majority voting or courts. I think that convener brought it all to the fore in the sense that when we did go to Brussels, the key to all this is really about relationships between the UK government and the devolved Governments. When we spoke to people from other countries, there was a different culture. There was a culture of people having been sitting down to discuss the issues and to try and seek solutions. Even when there were big disagreements, they understood that they needed to try and resolve the issues and come up with solutions. It's not unreasonable to say that the current position in the UK is that we don't have that culture and we don't have a starting position of trying to find a joint solution. My question is how do we change the way we organise the relationships and the way we have relationships between the UK Government and the devolved Governments in order that we can then achieve the objective of achieving common frameworks and have a clear process for negotiation, agreement and implementation? How do we change that culture? How do we reset this relationship? That's what I think. From experience, my view would be that if you have an effective process, then you can avoid issues of trust and conflict arising. That's heading off at the pass, if you like. For example, the intergovernmental MOU setting up the single electricity market in Ireland defined how the market would work, but it also said that the Governance body would have three people from one regulator, three people from another regulator and also a representative from someplace else entirely. That has worked very well. You need to look at the design of the process to try and say in what areas might conflict arise and then try and find a mechanical solution to try and avoid that. I think that one of the areas where people sometimes have suspicions of one another is when they feel that the scope of what is being asked for is starting to creep, so, as it looks like, there is more power or more regulation or something being brought in and imposed and people feel uncomfortable about that. It is very important to define the scope of what is being discussed and what can be discussed. When you look at a European directive, for example, it always starts off with something like, this is based on the treaty of the functioning of the European Union article, whatever, so that comes up front that says, here is the authority that we have for doing it. I think that the overarching agreement framework, whatever structure that has, should actually have something that defines the scope very clearly so that everybody understands that some things will be ultra-virus and other things are part of what has already been agreed. I think that in terms of resetting the way in which negotiations and discussions go, the point that Michael has made is hugely important. That is the presence of a separate English voice at these issues because dealing with colleagues in various English bodies and so on, they are perfectly willing to think about devolution and they are very happy to have people talking about, well, that is different in Scotland, that is different in Wales and so on, but it is just not part of their consciousness the same way that it is to people up here. By having UK Government bodies that are whole UK, GB, England or Wales, England, depending on different matters, often very finely divided within particular subject areas, I think that that really makes things difficult. If it was much clearer that in the discussions you were having to talk about the four nations coming together, that would help things a lot. The bigger problems are obviously political, macro-political issues. There are always going to be disagreements about those, but raising the awareness that we are talking about needing to reach settlements, agreements for all four parts of the UK, I think would be important, and having a separate English voice is crucial to that. How do we go about that, creating that separate voice? I think it is possibly beyond the powers of this committee. Let's generate some ideas. Have you got any ideas on how that might enable it to come to flour? I think that it's very hard. You've got to somehow try to—it may be trying to persuade the UK Government of the advantages of separating out their role as UK as having an overarching role compared to dealing with the details, but that involves—it would involve extra money, a certain amount of duplication. I can't see any great appetite for us at present, but in the ideal world, I think that in terms of resetting the way negotiations happen, that is a crucial element. I was rather crue at you there, Colin, other than that. Michael. English votes for English laws. I think that if one went back to the standing orders of the House of Commons when English votes for English laws was set up, you would find there that the word devolution and devolved powers occur frequently. I remember when those debates were going on, because I participated in them to a certain extent. I think that there was an evidence session before the committee of the House of Lords. The whole point is that English votes for English laws applies where the law would be a devolved law under the devolved systems of either Northern Ireland, Scotland or Wales. That is where we've got to remind ourselves that there is already a structure that takes into account laws applicable to England as a component of the United Kingdom, but in its own right. That is where I would guide people to look. If we get to that point of understanding, it would be the House of Commons, consisting only of its English MPs, who would then nominate someone to participate for the English voice. Building on that, I had wondered if there was some learning, and the panel might have used that specifically, about how the British Irish Council works. Obviously, the English voice is absent there, but you have arrangements where all the devolved Administrations participate. The UK Government is obviously present as well, and there is a structure and format around that with bilaterals feeding into plenary sessions. Johnathan MacDonald asked the question about how we overcome the lack of trust, and that is clearly a fundamental question. The first thing is to create the independent secretariat, which then becomes the container of trust in the sense that, if that is a body, we say that we should command the confidence of each of the relevant players. It should command the confidence of the UK Government, the Welsh Government and the non-Irish Executive, if it is functioning. They all should then have some confidence that this group of civil servants with different backgrounds are, at least, honestly preparing the ground for work. If you take a bottom-up approach, rather than a top-down approach, from my experience, again in Europe and in the world, if you start with the people who actually know what they are doing and they do all the hard graft, politicians only get involved when there are a few problems left, that is the way that the EU works. It is also the way that international negotiations work—I have done both. What happens is that the people who have the expertise slave away for a very long time, months, years on technical details, they have the trust in each other because they are all experts, they get to know each other, they work together. They build the consensus gradually and then they need some political leverage usually at the very end to tease out the few remaining issues that are more political. If there can be an agreement, there's an agreement. If there isn't, there isn't, but that's the point. You build it from the bottom, you don't start with the politicians sitting around saying, this is an intractable, difficult problem, how are we going to solve it? Sorry, they don't have the expertise to do that for a start, nor the political will necessarily to try to do it at the start. The real answer is to be much more systematic, instrumental, start from technical work through, but also with proper foundational, as we've said earlier, foundational context for that technical work, so you know what you're trying to achieve in a broader context. Once you've laid those foundations through your secretariat, through then some kind of agreement that the political politicians can reach about, the virus, you're right, what the overall scope of this endeavour is, then it's up to trusting that kind of properly prepared work that has gone through consultation with stakeholders. Again, I would point out when the EU works well, I've seen this. The UK is very good because generally the UK comes to negotiations with a carefully prepared position, which is based on extensive consultation, which has gone through a lot of stakeholder input. This is not true of every Government in the EU, I can point out, who often come just with civil servants' own personal agenda or their political agenda, not with a carefully teased out, carefully crafted position that reflects strong stakeholder input. Again, if you want to learn how to do it well, it is indeed to do it on the basis of each of the entities having their stakeholders advising them on what's needed for them. In the agricultural field, Scotland needs to be heavily advised by Scottish stakeholders giving the Scottish position so that the Scottish voice is properly taken account of in reaching some kind of common framework. I'll tear Daphne up for later, because I want to come to stakeholders' engagement, and I know that S.E. Linker has said something specifically about it. Before we get there, I still have, first of all, Willie. Bruce, thank you. There's a good example in place at the moment. Forgive me for giving a plug to the British Irish Parliamentary Assembly, which I bet most of the members have probably never heard of. It's a great assembly of parliamentarians from the UK, from Doyle-Earn, devolved administrations and crown dependencies, and it works really well. It was set up in 1990 convener principally to assist the peace process, but the point of it is that it meets collectively. There are extremely diverse views on that assembly, but the good thing that comes about from it is that everyone gets the opportunity to share. Believe it or not, we agreed unanimously on a motion in Brexit over the weekend, so it can be done if people can get together in some kind of common forum to achieve those kinds of purposes. Perhaps that's a model for the future that we could have a wee look at. Willie, thank you very much for that. Jonathan? I was going to pick up on Paul's points in particular. I think that we have an opportunity here, whether it's through the independent secretary or some sort of council of ministers. I think that one of the biggest problems that we've got in terms of how we break this culture and trust issue that we're talking about here is that, in the past, particularly when it's come to big, big decision-making processes around the common agricultural policy, it's been the UK as the member state who's had the one and only seat around the table at the council of ministers, so it's always been the UK secretary of state for DEFRA, particularly leading on those particular issues. That has always caused attention and an issue, particularly for Scotland, when the discussion might have been revolved about less favoured areas support, for example, or coupled support, which are clearly very much of major interest to Scottish agriculture but aren't so for particularly English agriculture and so on. I'm sure that it's happened in other spheres around fishing policy and all the rest of it. We must have an opportunity here somewhere to say that that was in the context of the UK being a member state of the European Union. We've now got the context of the devolved administrations being part of a united kingdom and looking at how an internal market operates in the common frameworks that are acquired. From a personal point of view, having a separation between the UK Government and then four devolved administrations, including an English administration, is really quite important. That provides some sort of council of ministers, with the UK effectively being, if you like, the commission in that particular role. But arguably, that role obviously is quite political because it's elected, it's a Government, but that might be where Paul's suggestion of an independent secretary comes in and actually provides all that solid groundwork and engagement stuff. Just to finish off, the point about proper input from stakeholders from devolved regions has always been a frustration. If we get this right, it could give us a stronger voice in those sort of negotiations and getting to the right outcome. I think that it's absolutely right to raise the question, why do we start from the point of conflict resolution? Why don't we find the common interests and common goals first? Then some issues might fall out of that. We need to turn that on its head a bit, so I agree with that. I've got other people who want to come in, but I'm anxious before we finish this particular section where I'll talk about there is no council of ministers yet, there is no secretary yet and, therefore, how are we going about involving stakeholders currently in the development of common frameworks? So, Daphne, can I ask you just to deal with that so that we can get some of that explored as well? Lloyd, I'm going to come to you after that and I'll let you pick up on some of that as well as meet your other contribution as well. In some ways, I just want to highlight that this is not about reinventing the wheel. I completely agree, and I think that Scottish Environment Link members would completely agree with the points made by Paul earlier, but if we compare that great process to what is happening currently within the UK, we know that there are JMC discussions about principles that should underpin common frameworks, common resources, being one of the principles that are part of this. In parallel, we know that civil servants, experts in their fields, are doing the deep dives, but we have not seen the outcome of these processes, and I think seeing that and being able to comment on that and deliberate on those on a truly UK-wide basis would be a very helpful thing to do at this point. I think that it would help resolve potentially some of the impasses or clarify a lot of the areas of potential concern, and that is why we have been calling for a true engagement on this topic from all the UK Governments. In some ways, those UK-wide discussions about frameworks, how do we go ahead with a different EU legislation coming back to domestic law, we are replicating those discussions internally within the ENGO community, and we have found solutions, we have found principles for working together, and what would make most sense in terms of environmental aims. From our point of view, perhaps we need a better intergovernmental process for the UK going forward, but it does not mean that at the moment there is no route forward in the interim. I would endorse everything that Daphne said, but I was going to come in and comment on Angela and Willis's point about the British Irish Council and the British Irish Inter-Parliamentary Forum. I think that is very important, because if you think back to why environmentalists are interested in common frameworks, it boils down to the issue of the environment being that kind of cross-border issue that I referred to right at the beginning. For different parts of the UK, we abut different parts of other jurisdictions, the Republic of Ireland being one, but equally the Isle of Man and the Channel Islands who are all involved in those processes, and some common frameworks will need to be a mixture of all jurisdictions or some jurisdictions. From an Irish point of view, there are many reasons for the Northern Ireland and the Republic of Ireland to work together on environmental issues as well as energy markets and so on. But fishermen in the south-west of Scotland will obviously have a very interest in working with the Isle of Man, as well as Northern Ireland, so inclusion of the Isle of Man in these discussions is important. It just does seem to me, I think, that I would completely endorse Paul's point about the Secretariat working from the bottom up, because all of those different relationships could be identified and mapped out by a Secretariat for offering up to the kind of political masters that they have and so on. Whilst we would want to include all of those, what I would call the English-speaking jurisdictions of the British Isles, we also need to carry on working with the other EU and non-EU jurisdictions around those, whether that be through building relationships with or obviously the EU through whatever agreement we reach, as Anthony was describing earlier, but equally with Norway and Iceland, perhaps through the Nordic Council or whatever. I think these kind of inter-jurisdictional arrangements, whether they be common frameworks or others, are important in all dimensions. I think we need to think about some things being simply the four jurisdictions of what is the UK at the moment, but equally we need to think about the issue for the reason why we are having it. In a sense, from an environmental perspective we think we need these cross-border arrangements because the environment is cross-border. Energy is a similar one and there are other areas and that leads to different groupings of jurisdictions needing different solutions and I think a Secretariat could map out those kind of challenges. Michael? I was thinking when Jonathan was speaking about the Concordat on Coordination of European Policy matters and yes it is true that there is a lot of UK ministerial involvement in that, but the Concordat goes to try to create a mechanism where the devolved Administrations can put their points into the pot and that an agreed position can be reached. Certainly, in justice and home affairs councils, Scottish ministers have sat representing the UK view and in law officer meetings as well. That is a basis upon which to build. I am not in a position to say that the Law Society would approve the RSE proposal at the moment because we have not considered it in those terms, but what I can say is that if we have no agreement on 29 March 2019 then we will have to have some form of common frameworks in place at that date. The comfort of being able to create this, I hesitate to use the word Byzantine, but I will because I do not believe that the Byzantine Emperor has done everything badly. The idea of creating this structure within that timeframe is fine, but the comfort of thinking that we are going to have a withdrawal agreement, which will give us until 31 December 2020 to create these common frameworks, which is a much more realistic proposition. We have to bear in mind that the issue is now and that prudence dictates that we are prepared for 29 March 2020, not that we rely on the comfort of a hoped-for withdrawal agreement, which takes us back to the idea of the joint committee under the withdrawal agreement and the specialised committees, and that mechanism that Jonathan had identified under the Concordat could easily be transported over to apply in the context of the structures in which the withdrawal agreement anticipates. I bear in mind what Anthony was talking about in terms of the political agreement for the future relationship, which one would hope to be part of the result of the negotiations that will go on. Then there is the governing body and the joint committee as well, and you can see how that corresponds to commission and council of ministers. These things are never going to go away, and we have to come up with something that Governments, bearing in mind that they are the primary actors here, have to come up with something that we can all be consulted upon and which we can hopefully approve. Hopefully, some of the discussion that I am hearing today can stimulate some of that activity in Governments to create some of this forward movement. Certainly, there is a very sobering moment when you reminded us that it might be from March next year. I need to move it on to the final topic, which is about funding arrangements for common frameworks. Emma Harper, MSP, will start off that discussion in this topic area. Good morning, everybody. It has been really helpful listening to everybody's contributions so far. I am interested in funding arrangements for future common frameworks. In our briefing papers that were submitted, Brexit and Environment academics all observed that the guaranteed funding at an appropriate level would be necessary to ensure long-term effectiveness of any Government arrangements or Governance arrangements. I am interested about the impact that Brexit will bring further complexities to the devolved financing system, partly as a result of the differences in per capita funding across the UK's four nations to achieve the same policy results. They highlight the risk that one outcome to guard against is given financial levers to the UK Government, which would then result in micromanagement of the devolved finances, so that would negate the strengths of the 1999 fiscal settlement. Given the differences that the economies and the funding arrangement across the UK have, Johnnie described the four different cap policies that are currently in place. I am interested to hear about how the frameworks could be fairly funded and what mechanisms should be used to ensure that the financial levers of each administration currently have. How can they be preserved? There have been quite a few comments made by some of the academics involved in this, as well as RSPBS, E-link, et cetera. Colin, did you? Our comments were primarily about the funding arrangements for the Secretary of State at whatever institutional structures are, rather than the substantive funding arrangements that would flow in relation to agriculture or other areas of support. If you are going to have any institutional structure that is meant to oversee compliance with common frameworks, to provide the backup to ensure that common frameworks are properly researched, properly backed up beforehand, that structure needs funding. There is a whole set of issues on the substantive matters. Johnnie, you are probably the one representative in here who has got two others, but the area that you cover, there are specifics there that you might want to pick up on. Obviously, RSPBS would say that I am sure that E-link would want to make some comments, and MDL would also want to, as well, please feel free. Johnnie? I will comment. Almost regardless of the Brexit process that we find ourselves in, there has always been a debate and discussion about how agricultural funding via the common agricultural policy comes into the UK and how that should be allocated across the devolved administrations. That was brought to the fore back in 2013-14, when the UK was awarded what was called the convergence uplift, predominantly because of Scotland's extensive areas of rough grazing, therefore bringing the UK's average payment below the 90 per cent threshold, which then allowed the United Kingdom to receive further funding from the CAP. Pretty complicated stuff, but at the time the UK Government took the decision back in 2013 to allocate that uplift in funding to the UK on the same historic basis that funds were already allocated, so that Scotland only got 16 per cent of the uplift, yet Scotland was by and large responsible for the 100 per cent of the uplift, and therefore the argument being that it should have come to Scotland. That ignited a whole debate about the basis for allocation of funding. That particular process goes on with Michael Gove, Secretary of State for DEFRA, announcing just very recently that, eventually, finally, a review of CAP funding would take place. It was being promised for a number of years, and that is now going to happen. The terms of reference of that review were not what we were promised in the first place. It will be very limited. It will take us to 2022, or the lifetime of the Parliament, and it will not do much to address issues of how funding might be allocated beyond 2022. In fact, it will do little or nothing. A couple of, I think, really important points on this, which are really, really live issues right now. One relates to the agriculture bill, which was introduced to Westminster in September, which is going through the committee process now. In that agriculture bill, there is section 7, which relates to the UK's commitments to WTO obligations. As part of that, it effectively gives the Secretary of State the power, because the UK is the signature to the WTO agreement, the power to, essentially, in theory limit the amount of spending on different types of agricultural support measure. Therefore, that would, in theory, limit Scotland or another devolved administration's ability to spend how it would see fit in terms of the policy objectives that it sought to achieve. That is causing a great concern for ourselves and a great concern for the Scottish Government as well. We are seeking to try and have that addressed as the agriculture bill goes through the process, because it is about an issue about the Secretary of State for the UK having a significant power over devolved administrations, and the Welsh and Northern Irish should and are equally concerned about that. In terms of Emma Harper's point about population size and all the rest of it, another interesting point has been made just in the last week or so by Michael Gove, and then reiterated by David Mundell as Secretary of State for Scotland, that agricultural support would not be barnatised. There was a statement a week or so ago in the sense that, in effect, as we receive about 16 per cent and a bit per cent of the current cap allocation to Scotland, the rough equation is that, and this committee has discussed it before, that that would see a reduction in funding as a consequence if it was based on an allocation of population alone. However, the problem is that that statement, or that commitment from Michael Gove, again, I do not think can hold water beyond 2022, or the lifetime of this Parliament, whichever might come sooner, and who knows. Therefore, in many ways, it is just a restatement of what the UK Government has already said, that funding will be committed until such time as 2022. So, as an agricultural industry, and this applies to farmers in England, Wales and Northern Ireland, the uncertainty around future funding levels in terms of the quantum, and then the allocation of that across the United Kingdom remains a really important issue. It is not just the direct support into agriculture, it clearly interacts with agri-environment measures and other spending that is important in the delivery of public goods as well. Johnny Daffney, do you want to pick up on that, then I'll come to the lead? Yes, I suppose just to echo some of the points that you just made about public goods, and Emma Harper, you mentioned the fair funding. In terms of the environment, we've done some studies about the private funding that is available in Scotland for environmental issues, and what we have found out is actually that fewer investors see Scotland as a destination for doing projects for the environment. Essentially, there's a lot less funding opportunities in Scotland compared to the rest of the UK. If you couple that with the fact that we rely on dedicated EU funds for environmental projects, particularly for life funding, the future of that specific stream is very important for conservation in Scotland. At the moment, Scotland benefits about 21 per cent. It uses less than 21 per cent of the UK-allocated funds. If you were to look to barnitise that, or if there was another mechanism of distribution, that would probably create some consequences in Scotland. What we would like to see is perhaps a formula or some sort of mechanism that takes into account how much more of the environment Scotland has. If you look at the biodiversity, if you look at the important habitats that Scotland has, we've got quite a big proportion from the UK total. You could carry on that line of thinking when we talk about the future of the farm payments. Again, there would be a great scope for Scottish farmers to benefit from a system that would reward them on the basis of the public goods, including environmental goods, that they could deliver, which would be of great value to Scotland. Of course, we know from a public survey that we did that this would actually be favoured by a majority of Scots. One other funding stream that we haven't really touched upon—and I don't think that there's been as much discussion perhaps in Scotland—is the Shared Prosperity Fund, which will be the new structural funds that the UK Government is currently delivering on. Again, perhaps just a highlight about how Scottish stakeholders are involved in those UK-wide discussions. While that has been an issue that we've raised again and again, we've only just found out that next week there will be some stakeholder meetings held in Edinburgh and Glasgow. Again, that is fairly short notice and doesn't allow for a lot of time for consultation, so it just speaks to the better co-ordination that is needed on UK-wide issues. Both Johnny and Daphne have said a lot of what I was going to say, so I'll just add one thing and then draw out what I think is a principle that the committee might want to discuss. In terms of environmental funding, I think that it is incredibly important because we think of the environment—Scotland's landscape and wildlife—for something that is just given to us, but it needs investment. Farmers and crofters who benefit from agri-environment schemes deliver quite a lot of our environment. It's not given to us. It's something that needs investment. It is, in fact, one of the internationally agreed HE targets under the Convention for the Conservation of Biodiversity. The most recent report from SNH, the Scottish Government's Conservation Agency on how we're doing on meeting those targets, indicated that only one target were we moving away from target. We were doing quite well on 19 of the 20 targets, but on the 20th target, which was funding for the delivery of the environment, we were moving away. So I think it's very important that this is something that's addressed. In terms of the overall principle, I think there's a bit of a dilemma here for politicians to consider because many of the areas that EU funding has supported over the years—whether it be hill farmers in uplands, as Johnnie described, or environmental bodies delivering projects for wildlife—are not distributed around the UK in the same pattern as human beings, for obvious reasons. That means that the funding has not been distributed in the same way as other political funding streams over the years. For instance, Scotland, as Johnnie says, has a disproportionate level of CAP funding, and as Daphne said, we have a disproportionate level of life funding over the last decades. Therefore, this Parliament and the Welsh and Northern Ireland politicians and the UK Government have got to consider whether, in terms of how these funding streams are going to be replaced, are they going to be focused on the outcomes? Are they going to be distributed according to the outcomes and the issues that they are trying to address, or are they going to simply leave it to retain the autonomy of every jurisdiction and put every stream of money into a kind of central pot that has a single formula that divides it up? That is something that has not been decided, and that is a result of what Michael Keating said earlier on, that the devolution settlement was developed at the time when the EU was in place, and there was no question of that changing. Therefore, all of these EU type of funds were distributed according to EU rules that were, in fact, focused on the outcomes. The CAP funding went to where the farmers were, and the life funding went to where the environment was. If we take away that EU outcome-focused funding, we either need to reinvent that wheel within the UK or lots of areas of importance, including agriculture and the environment, will suffer. I want to pick up on the point that Johnnie Hall made about agriculture funding that touches on wider issues. The point was that there is no certainty post 2022 as to where the funding streams might go, which is a consequence of the fact that under our constitutional arrangements no Parliament can bind its successor. We do not know who will be in government post 2022. There might well be a change. Is the suggestion that common framework funding should be detached from the political cycle? How would that work in practice? Surely, those are political choices, surely it will be up to the voters to decide who goes into government in 2022 and on manifesto setting out funding, or is the proposal for many of you Scotland that somehow this should be separated from politics? I am just curious. I will answer that, Jonathan. I will come to Ian Wright. I think that he made comments in regard to the impact of further complexity to devolve finance as a result of where we are going, if I have got that right. David Heald's very… I wonder when I saw the terminology if it was you or David Heald. If you wish to comment, please feel free, but Jonathan, in the meantime… I guess in response to Murdo's question, agriculture is a long-term game as it is managing the environment. Unfortunately, politics is a much shorter game and it can be very short for some people. What farmers and crofters and others land managers in Scotland are desperate for in many senses now is a degree of certainty as to what is going to happen next. One of the things that the common agricultural policy has actually afforded us is a very consistent seven-year cycle, both in terms of funding and in terms of policy. There is the multi-annual financial framework, which is basically the funding settlement for the CAP and other elements of EU spend. That is agreed through the European process and the next round of that will effectively kick off from 2020. It will chime with common agricultural policy, which will run through from 2021 through to 2027. Having that sort of window whereby there is a much higher degree of certainty, regardless of other political changes, is really quite important. How each Government utilises the funds is another question, because clearly the choices are how those funds might be spent within Scotland or other parts of the UK or other member states is down to those Administrations. That is where Lloyd and I will agree and then suddenly disagree on what the emphasis of funding might be in Scotland. However, the fact of the matter is that there is a higher degree of certainty through that mechanism because of the multi-annual process that the EU lays down. In some ways, as an agricultural organisation, we would like to see something like that replicated so that you could have a change of Government, but by and large there would be a longer-term commitment in there that the Government might shift the emphasis of how the money is spent, but the money and the broad agricultural and rural development framework that we operate is a given for a longer period than maybe the lifetime of a Parliament, because lifetimes of parliaments can be very short. The constant chopping and changing of first policy and then, because of that, where money is then distributed and what it is spent upon is a very unsettling process when we are talking about long-term investment in agricultural businesses and long-term investment in the environment that Lloyd referred to. Maybe a bit of a fudge, but I think that if we are going to deliver the outcomes that we want from the public investment in farming, forestry, environmental management and all the rest of it, that longer-term certainty is an absolute requirement because it is not a short-term game. We are talking generations sometimes. Michael, I think that you have some comments to make on that. There are huge amounts of uncertainty about this funding business. One thing that we are pretty sure of is that agricultural spending in England will fall and anything that links Scottish spending to English spending, whether it is Barnett or whatever, will have an effect on Scotland. Scotland has decided pretty much that it wants to keep direct support for farmers. England and Wales have both decided that they do not want to. That is going to cost money. There is a huge implication there. The Welsh Government and civil servants on behalf of Northern Ireland have bought into the UK agricultural bill, which provides some kind of framework. Scotland has not. We do not know what will happen to that or what will happen to Scottish funding. I think that indications that have been coming out more recently would suggest that, in agriculture, there will probably be more latitude for the distinct administrations to do differently than we might have thought a few months ago, but we really do not know. Then, again, to go back to the internal market, that could cut across agriculture, although the agricultural bill is separate, nevertheless, any single market principle could cut across that, therefore, that would have implications for what Scotland could do. Johnnie mentioned this little clause in the agriculture bill that we both spotted there that actually does give the Secretary of State extraordinary powers to determine, using the WTO mechanism, what funding will be available in Scotland. That is a huge amount of uncertainty. The shared prosperity fund seems to come out of the structural funds and probably pillar two of the agricultural funds, which is also to do with territorial spending. I have been trying to work out for 43 years, that is, since 1975, how the structural funds and their predecessors work and whether the money is additional. This Parliament has done at least two inquiries. The answer is that we just do not know whether this money is additional to what would come anyway and how it links with the block allocation funding formula. Since we do not know what we are getting at the moment, it is very difficult to know what we would get in the future. It has been suggested that there will be a shared prosperity fund. That raises issues about the shares of how that will be distributed and whether it will reflect the previous spending on structural funds plus pillar two of the agricultural policy. We do not know. The question of how that will be managed seems to be likely that this will be used in the way that the existing EU funds or city deals are used, that is to lever funding from devolved and local governments. There will be matching funds and intergovernmental programmes. Some people think that that is a wasteful way of using public money. How yet another set of intergovernmental mechanisms on top of what we have already got, city deals and all the rest of it. I know that some people in the UK Government are very doubtful about it, but politically it is extremely attractive to the UK Government to demonstrate that it is spending money in Scotland and Wales and all and it has a presence there trying to lever funding from the devolved Governments to get common UK priorities. That might be an instrument to get common policies around various fields. That is all that we know at the moment and there are very substantial amounts of money involved. I know that I have come to you. For a dooser, there is a quote in the paper that you were given about some of the comments made by either yourself for David Heald. Giving financial levers to the UK Government result in micromanagement of devolved finances, thus negating one of the strengths of the 1999 fiscal settlement, yourself or David Heald? That particular one was David Heald. I know that his concern was the interaction between Barnett and whatever comes out of funding common frameworks. However, there are two other very short points that I would make. One is in relation to the MFF. We have been looking at that and wondering if there might be some way to adopt a similar kind of process, notwithstanding the fact that the UK has never, as far as I know, been involved in a multi-annual type of budgeting. On the other hand, the payment of the divorce bill should that ever actually happen. I understand that there is a mechanism whereby certain elements of expenditure are not included in the budget because they just go through and perhaps somebody with expertise in that area might like to comment. Thank you, folks. I think that that kind of brings us to the end of that remarkable discussion. I thought that it was very useful. I would like to thank our witnesses for their contribution, which was, as I said, a useful contribution. I have no doubt that it will be helpful in helping us to form our report when we come to that. Given Michael Scansey's warning about timescaling, we will need to do that quicker than I originally thought. It has been a very useful and educational and informative discussion. I thank everyone sincerely who has attended to contribute today. I now suspend this meeting because we are going to the next bit of the meeting that will be in private to allow for witnesses to leave. Thank you very much.