 Mwneud fwyaf i gyd yn y 13 ymgyrchu'r Gwladau Llywodraeth Yn Ymgrifesu Gweithdoedd Mhwyllol yw ydw i'w ddiwyd i ymgyrchu'r Gwladau Llywodraeth ymgyrchu'r Gwladau Llywodraeth ymgyrchu'r Gwladau Llywodraeth ymgyrch yn 2022. Yn ymgyrch i ddweud ymgyrch yn ystod i'r parlymenau partynyshwp ysgolion, ac yn y gweithgifeth ysgolion a'r ddechrau yn Bryswil. The first meeting of the assembly was very much a scene setting agenda and deciding a way forward and future topics that could come up. There is a paper that has been a note of the meeting prepared by the clerks, which will be distributed to the members and published on the website. I'm not spending too much time on this, but it's safe to say that the areas covered there was a very good debate on the Friday afternoon on the Ukraine. A lot of consensus across Europe about the work that's being done by both the UK and the European Union in that respect. Also a very interesting discussion on energy co-operation and energy security going forward. On the first day, I have to say that what was absolutely clear and I'm going to invite Donald to say a few words as well is that the complete impasse there was between the UK and Europe in terms of the Northern Irish protocol at that time. As an observer, my observation was that it absolutely dominated the two days and what was really disciplined wasn't a Northern Irish voice in the room. Even if our colleagues from the Welsh Senate were represented as observers as well, if our colleagues had been there, they wouldn't have had speaking rights at it. Everybody was talking about them, but very little actual experience from the people that were being talked about. It's very interesting and I'm looking forward to seeing how it develops going forward. I'll just invite Donald to say a few words. Thank you, convener. I'm not much to add to just to reinforce what you said about the event, certainly the first day being overshadowed by the dispute around the Northern Ireland protocol, which was a great shame, I think. But it was good to be there in person and to be in the same room as delegates from both UK Parliament and the European Parliament. There were some practical suggestions about how things might develop thereafter, rather than just there being a general discussion. So there was talk about working groups being set up to look at specific policy areas, which I think from my point of view would be a good thing. As a convener said, two very good sessions, one on EU-UK co-operation in terms of defence and intelligence when it came to Ukraine, and then another excellent session on energy and co-operation, particularly around things like new energy technologies. So all in all it was a worthwhile and fascinating visit. Thank you very much. As I said, that will be published on the website for anyone who is getting interested and committee members will have the opportunity to read that. Our second agenda item today, and could I welcome to committee, first of all is our colleague from the Delocated Powers and Law Reform Committee, convener Stuart McMillan, who is an interest in what we are doing today. Our second agenda item is on evidence from a round table format on legislative consent after Brexit. This is the first of a series of round tables that we have planned on post-EU constitutional issues. I am delighted to be joined by Professor Nicola McEwen, Professor of Territorial Politics from the University of Edinburgh and Senior Research Fellow UK in changing Europe. Professor Stephen Tairney, Professor of constitutional theory at the University of Edinburgh. Professor Eileen McCarg, Professor of Public Law and Human Rights from Durham University. And Acash Pong, Senior Fellow of the Institute of Government. And Professor Alan Page, Emeritus Professor of Public Law at the University of Dundee. And also online, so this is my first time managing a hybrid round table, so bear with me people. But Michael Clancy, director of law reform, the Law Society of Scotland and who is online with us this morning. So our committee adviser, Dr Christopher Bercorkendale, who is a senior lecturer at the University of Strathclyde, is also here. And I'm going to invite, we have four topics this morning. As always, I'm afraid that we have to have a sharp close because of FMQs on a Thursday morning. But we're hoping to have a discussion in around 20 minutes on the four topics. And I'm going to invite Dr Bercorkendale to introduce each of those. OK, so the four topics that the committee has identified of particular interest are first of all, what is the constitutional purpose of the convention, of the Sewell convention? And what principles and values underpin its proper operation? So I suppose underpinning this is that as some of the evidence is highlighted until roughly 2016 until the Brexit process, the convention operated largely uncontroversially. And one of the aspects of that is that on the one hand it got the business of government and legislation done. But on the other hand it meant that some of the key principles and values and meanings that underpin the convention never had to be stress tested. They never had to be unpacked. And now we're in a stressful situation and we're finding that there's lots of conflict and contestation around these things when we need them most. So some of the issues that might be covered in this 20 minute discussion, the first 20 minute discussion, there has been a shift in the purpose of Sewell from protecting devolved autonomy and facilitating shared governance towards the articulation and continuation of conflict. Can Sewell meaningfully protect devolved autonomy and meaningfully facilitate shared governance, particularly given its nature as a political rule? And following Miller in the Supreme Court, can the imbalance of political power between the UK and devolved be redressed by a political as opposed to a legal and justiciable rule? We'll then go on to discuss different issues. What is the meaning of consent in the context of the Sewell convention, which might include whether there is a shared meaning of consent across political actors? Whether that meaning is consistent across the proliferating consent requirements and to what extent is the meaning evolving particularly through the Brexit process? The third topic will be what constitutes a not normal context such that the UK Parliament needs not obtained devolved consent. Is that a normative exception to the general rule or is it a purely descriptive one? Is it enough to describe Covid or Brexit as not normal situations that justify the override of consent on its facts? Finally, to what extent has the behaviour of the Scottish Government and the UK Government towards consent impacted the legislative and scrutiny functions of this Parliament? To what extent has the trend in certain contexts to override the withholding of consent impacted the proper exercise of the Parliament's functions? To what extent has the Scottish Government's willingness to recommend consent impacted on the proper exercise of the Parliament's functions? And how significant, if at all, is the problem of consent as a means of post-Brexit constitutional regulation? Is this a fundamental shift in the application or is it a particular response to the heat of the moment? If those in the room could indicate to myself of the clerks, if you want to come in, we'll try to get everybody in time. For those online, if they could put an hour in a chart, they'll be really relayed to me by the clerks. I'm going to invite Mr Ruskell to open questions from the committee. I wanted to pick up on that final topic, because I was thinking about the comments from Professor McEwan about there being an age of former glory of use of the seal convention, obviously in very different political times. As Chris has said, perhaps at a time when it wasn't being stress tested quite so much, but interested in parliamentary scrutiny and your thoughts around the table as to whether there was more parliamentary scrutiny in the past, whether there's less parliamentary scrutiny today, and what the opportunities for parliamentary scrutiny might be going forward. Professor Page is nodding. You've invited yourself to make the first comment. The first thing that I would say is that it's possible to overanalyse the convention to get too worked up about what it means. The essential point is that it's very careful not to exclude the possibility of legislation in devolved areas being made without the Parliament's consent. If it did that, then we wouldn't be talking about devolution, we'd be talking about federalism. As has been said before Brexit, it was very difficult to imagine the UK Parliament legislating without the consent of the Scottish Parliament because of the political backlash that it would inevitably provoke. Brexit, as we've seen, has become not common but not uncommon. On the point about behaviour, another point to be borne in mind is that the Scottish Government and by extension the Scottish Parliament have always found it convenient to be able to rely on Westminster legislation, both primary and secondary, in the devolved areas. That was true before Brexit, it was true in the preparations for Brexit and it will continue to be true in the future. So talk of power grabs and the like can seal a great deal by way of active co-operation, and that seems to be true even of the less harmonious relations between the UK and Scottish Governments in the preparations for Brexit. On a brief reading of the legislative memoranda in this session, quite a lot of them refer to changes in bills that have been made as a result of discussions between the UK and Scottish Governments. Against that background coming to the question that you raised, the difficulty that Parliament faces and has always faced is effectively scrutinising lawmaking in the devolved areas other than by the Scottish Parliament and Scottish ministers. That has always been a difficulty. It was a difficulty in the first decade of devolution. It took 10 years to get a procedure put in place whereby legislative consent memoranda and legislative consent motions are submitted to the Parliament. Before that there was a great deal of uncertainty about what exactly was happening, what was the substance of these negotiations, who was saying what to who and what were the results in terms of the legislation. Another example is Wales Westminster legislation in implementation of EU obligations, secondary legislation. I remember thinking in 2007, there was absolutely no information about what was happening there. All we knew was that there was a presumption in favour of Scottish secondary legislation, but it was clear that the Scottish Government continued to rely heavily on Westminster legislation in these areas. Change of government, all that will change. Not a bit of it. It continued to be next to no information about what was actually happening or there was a promise of information and then it was late and all the rest of it. I agree with what Dr MacOrgandale said about the importance of the Parliament being vigilant to ensure that its role is not hollowed out. Yes, you can say in relation to primary legislation, but I would have said that the real key is secondary legislation. I would therefore endorse what I think Spice said in your briefing paper about the need to get that sorted out. The statutory instruments protocol in its current form, the second version of it, is clearly incomplete and that needs to be addressed. I will leave it to my colleagues to talk about the secondary legislation aspect. I was thinking a little bit about Chris's point about stress testing. I would agree with that description in the facility. Aileen MacOrgandale made a helpful distinction about defence and facilities aspects of the sole convention. In the case where the UK Government was legislating in devolved matters with the consent of the Scottish Parliament and the Scottish Government, I agree with that. Aileen MacOrgandale said that it was quite stressful on the defensive side. I am thinking of that broader definition of sole around the one that is in the devilish guidance notes, which is about legislating with consent when it is about devolved powers, which is not a devolved matter. That is a reserved matter when you are legislating on the constitutional settlement, but the convention has in its use been broadened out to encompass securing consent before you change the powers of the devilish. That was quite stressful sometimes. I remember sitting around this table for Scotland at 2016, but it was also an illustration of where the Parliament and the Government could use the convention to get significant leverage in shaping Westminster legislation on that occasion on a reserved matter. Even though the EU withdrawal act was an incident to be repeated where the UK Parliament legislated without the consent of this Parliament, the process that led up to that still created the opportunities for influencing and changing that legislation, albeit not to the point at which the Parliament felt it could grant. I am not sure that we are in that place now. I worry that the opportunities for exercising that defensive aspect of sole have been diminished in part because of the number of times that it has been tested and then not. The sort of ambiguity around when it is normal and not normal circumstances, and I am sure that we will come back to that. For the sole convention to work, it has to have a willingness on the part of both Governments. It is essentially a legislative tool, but it is an intergovernmental process. There is enough of intergovernmental interaction that takes place prior to the decision to grant her withhold consent. If that is not working and if that is not functioning effectively, then you have a problem and I think that we have a problem. I suppose that I would begin by saying that, to agree with Alan, we have to be careful about reifying the convention itself. Conventions are a reflection of constitutional practice, and as constitutional practice changes, the nature of the convention changes. This particular convention is a pragmatic solution to policing the borders of devolved competence to some extent. That is common in any territorialised system, federal system, and what you find in any system is some long-stop power that lies with the centre. We see it in federal systems in supremacy clauses, in residual power clauses, in a right of preemption whereby, if the centre moves in a particular area, it occupies that territory and no one else can exercise it. I think that the Scotland Act is actually a more progressive approach in that it does not explicitly authorise that power and that power operates through this convention. One of the reasons why there is such a stress on the convention in recent times is to some extent because of the expansion of devolved power. We see that in 2012, in 2016 and now in some sense through Brexit with the return of powers. What we have found is that whereas the Scotland Act demarcated quite carefully the different areas in which devolved in central government operated, there are now many areas where there is a lot more shared competence. We see it in cross-border transactions through internal market. We are seeing it in the current procurement bill. There are many areas where there is a need for far closer co-operation in how to operate powers that are now much more clearly shared. I think that this is a real challenge for parliaments to return to the question. First of all, to identify just where those limits are in terms of managing the vast way of legislation that is coming out of Westminster post Brexit, just as a practical matter. Fundamentally, so much of the legislation is now secondary. The big gap is that the CO convention does not apply to delegated powers because of the extent to which EU law is now being repealed. It was introduced through secondary legislation that has been repealed or revoked through secondary legislation. That is where the real gap is. It seems to me that we maybe take our eye off the ball if we focus too much on this convention when the solutions have to be inter-governmental at the executive level and in particular inter-parliamentary in terms of better timing, more heads up, more stages in the process whereby amendments can be brought forward. I am sure that we will come back to all of that. We need to see the convention in a much broader context of the nature of devolution, where the residue power does lie with the Scottish Parliament and also in terms of just the pragmatics of far more shared powers post Brexit. I'll bring in a second, Mr Pony, and I'll go ahead and bring in Professor MacArthur first. I just wanted to agree with some of the things that have already been said but make a few additional comments. We talked about the constitutional function of the convention. I think what Brexit has revealed is the limits of its ability to manage shared rules. Where we are talking about standard policy issues seems to cope fairly well, but what was distinct about Brexit is that it is a change to the constitutional framework. It has impacts on devolution, yes, of course, very important impacts on devolution, but it has impacts for the whole of the UK. It is on those aspects of the shared constitutional framework that we have really seen the limitations of the convention. In my briefing, I think that there are lots of different kinds of questions that were thrown up in the Brexit process. On some respects, it was legitimate and acceptable to operate without devolved consent. In other respects, it is not. We need to be quite nuanced and careful about how we approach those issues. On process, I think that I would agree that the major issues are around secondary legislation. On primary legislation, there are good processes that operate in this Parliament and other devolved parliaments. Of course, those are often constrained by time, but that's a feature of the legislative process in general and difficult to cope with. Secondary legislation is really problematic. There are no general principles in play here. It's very ad hoc, the mechanisms that have developed. I think that there are different issues of principle that are applied to secondary legislation compared to primary legislation because the UK ministers are not the same as the UK Parliament. They are not in the same constitutional position. In any federal system, we have a long-stop position for the centre. We have that in the form of parliamentary sovereignty. That is not the same as saying that it's fine to be a residual right for UK ministers to act in devolved areas. That raises very different issues. On process, it is not just a matter of process in this Parliament, but there are also big questions about process in the UK Parliament. That is where there are really significant gaps. I know that the Institute for Government has made some good suggestions in that area. First time in over two years, I think. To go back to the question of the purpose of the zero convention, I also think the distinction between the core constitutional purpose of protecting the political autonomy of the devolved institutions and then it's maybe more practical purpose of facilitating cooperation and ensuring that there's a common standard of law in certain areas where there's political agreement. I think that that's quite a useful distinction to draw. As far as the sort of defensive purpose, as Professor McCargo has put it, is concerned, of course it was always known that the convention was framed in such terms as to mean that it wasn't judicable, that there was potential for exceptions in not normal circumstances and so on. Parliamentary sovereignty was retained. Everybody knew that all along. However, I think it's almost, it is hard to look back sometimes and remember how much perceptions of it have changed. I mean, I think prior to Brexit, sure parliamentary sovereignty was intact and all the rest of it. But the single convention was seen by a lot of people as being close to a veto, not a legal veto, but more or less being an inviolable convention. There's a political and constitutional reform committee report that the committee might have seen from 2015 that was looking at the Scotland bill, or 15, 16 maybe, that the Scotland bill as it was going through that concludes that the way that Sewell was put into statute was legally vacuous as they put it, and that was obviously sort of proved to be the case when Miller looked at it. However, they also said that hardly anyone can envisage a circumstance when Westminster would legislate without, would deliberately legislate without consent. I think that was the view at the time and it's reflected in the fact that from what I can recall anyway, I mean the Scottish government in the negotiations over the Scotland bill didn't really put up much of a fight on the way that Sewell was written into the bill. I mean the focus was on the fiscal powers, the surrounding fiscal framework and so on. That's what most of the attention was placed upon. People thought that Sewell convention worked basically and it did. So it has been a big shift. I do think it's very significant. I mean people have talked about the ways that that have happened. I think that if you go back to the passage of the original, the EU withdrawal bill, withdrawal act in 2018, I think it's quite clear that the UK government really, really didn't want to breach the Sewell convention. There were, as Professor McEwen mentioned, lots of amendments made to address concerns of the Scottish government. Consent was secured from Wales. That was seen as a really big thing from the UK government perspective. They really didn't want it to end with an open breach of the convention. But I think having done it that once and the sky didn't fall in from a white or perspective, it's made it much easier for them to then justify it publicly and maybe to themselves as well on a series of subsequent occasions. And now we've seen really the commitment to it, I think, really watered down and the government talking about it much more as some of the papers note in terms of a good practice, a nicety, a courtesy rather than actually some kind of obligation. Thank you very much indeed, convener, and good morning, everyone. There's so much in all of this, and we've had so many diverse comments, but can I just pick up on a couple or so, because I know we're well over 20 minutes on this section. The first thing was that I was present in the House of Lords on that day in July 1998 in the Opposition of Advisors box when Lord Sule made the declaration that has become associated with his name. But of course, even in the context of that declaration, he acknowledged that there had been preceding precedent for such an arrangement in Northern Ireland, and I think it might be instructive at some point to look closely at the experience of the Northern Ireland Parliament from 1921 through to the 70s. I happen to have come across a comment about a treasury document for official use, which stated that, in practice, the UK Parliament refrained from legislating on matters with which Northern Ireland Parliament can deal except at the request and with the consent of Northern Ireland. It is recognised that any departure from this practice would be open to objection as impairing the responsibility that has been placed on the Northern Ireland Parliament and Northern Ireland Government. I think that that's an interesting take on the convention is that it's about this balancing of sovereignty and the restraints on its exercise by the sovereign legislative power, where the devolved legislature has been given, has been invested with making power and responsibility in defined areas and has a democratic basis for doing so. I think that if we look at this in a more contextualised way, we can see this cropping up, of course, in imperial law and the case, which is referred to in Miller of Manson Bouteau v Lardin of Burke about the Rhodesian Parliament. When we get to the point that was expressed by Professor McEwen about the intergovernmental relations aspect, Miller tells us that the application of the convention was adopted, as a means of establishing co-operative relationships between the UK Parliament and the devolved institutions. Following Dr McEwen's call to get back to basics on this, that might be where we have to re-address matters that, in the context of intergovernmental relations, the issue of ensuring that there is a co-operative relationship relating to the consent by the Scottish Parliament. The other devolved legislatures is important. Looking then at the 2016 Scotland bill, when it was passing through Parliament, I was also there and again in the Opposition Advisors box, the whole concept of the Sewell convention was narrowed down to that which was represented by Lord Sewell in July 1919. The additional aspects that we find in devolution guidance note 10 about the impact on legislative competence of the Parliament and executive competence of the Scottish ministers were staunchly objected to being incorporated into the bill by the advocate general on behalf of the UK Government. Anyone who was there and active and involved in analysing the bill, and most of the people around this table were, would be able to tell you that it was almost entirely predictable that the Government of the day then was interpreting the Sewell convention in a narrow way, which would then mean that issues about the bill, issues about competence of the Parliament and competence of ministers could be put to one side because they weren't even referenced in the declaration in the Scotland Act 1998, which came out of the 2016 bill. Thank you very much, Mr Clancy. I think that sticking to 20 minutes feature the topics, we've already had quite a fluid mix of all four, so I'm quite relaxed about that going forward, but I do have a number of members who want to contribute, so what I'm going to do is take contributions from Alasdair Allan and Donald Cameron and then go back to the wider group and then bring other people in later on. Thank you, convener. I'm glad to hear that you're relaxed about us wandering from subject to subject. In which case, I just wonder if people watching, if there are any people watching, are curious, as I think a lot of people are about the extent to which constitutional practice does rest on things called conventions. I'm conscious that word is used in different ways, but I'm interested to know, perhaps from Professor McEwan, Professor Tierney, since they're both sitting next to me, about where the Sewell convention sits in that food chain or that hierarchy if there is one of conventions. On the one hand, it seems to sit conventions that haven't been challenged for a long time, like the convention that the Queen has to appoint the Prime Minister, who has some support in the House of Commons. On the other hand, conventions like this one, which the Supreme Court seems to characterise as a political convention. So, where does Sewell sit in that hierarchy for those of us, myself included, who find the whole idea of the British constitution mysterious and sometimes offensive? Mr Cameron, please. He doesn't find the British constitution offensive. Alice makes a good point. I think there is a wider question about the utility of conventions, not just Sewell, and I'd be fascinated to know what our witnesses think about that. I was quite struck by something that Professor Page said, and this is perhaps a contrarian view, but are we in danger of overstating the problem here? Undoubtedly, we've had two, well, maybe more than two, but some very high profile examples of the convention under strain, particularly around Brexit. But day in, day out, when we're seeing the LCMs here in Parliament, mostly on secondary legislation, it is relatively uncontroversial. In fact, it goes through Parliament almost without a vote, and there being agreed between the Scottish Government and the UK Government, and it's just as a matter of administrative practicality in everyone's interest for that to happen. I just would put that to our witnesses. Lastly, this is really a question for the lawyers in the room, but we've had some recent decisions, particularly in the UNCRC case, where the courts have quite firmly taken the view that they've restated section 287 of the Scotland Act in terms of the UK Government's ability to legislate for Scotland, I think it says. I just wonder if that has a bearing, not directly on soul, but a bearing on at least the court's view of these various issues. I'm going to bring in order Professor McEwn, Professor Tierney and Professor Page, as well mentioned by my colleagues, and then open it up for wider contribution. I'm going to let Stephen deal with the point about where the convention sits, but I think if we were talking about the uncontroversial and technical and facility to function, then yes, we would be overstating a problem. I think that the Sule convention would be hollowed out considerably if it only worked when nobody disagreed. If you're talking about a problem where you reduce something to a technical exercise or there's no controversy anyway and it becomes an efficient tool for doing things, which is an important aspect of it, and if that's continuing to work, that's fine. The problem emerges when there is a matter of controversy and there is a matter of disagreement and there is a difference for whatever reason. It could be political reasons, it could be institutional reasons, it could be stakeholder divergences or whatever, where there is a desire to do something differently. I think what's coming up at the moment is it's more difficult to find the compromises that would enable something to be done on a UK-wide basis, where that might be desirable to do something on a UK-wide basis. Sule doesn't really work if the only way you can do that is if everyone falls into line. I was aware of an issue around, and I don't know the details of the bill, but what seems on the face of it to be a relatively uncontroversial thing around cultural objects that you would have dealt with. In the case of the Senate, I know that there was an issue there where they wanted it to be done on a UK-wide basis, but they had a problem with a particular aspect and struggled to get the kind of agreement in the intergovernmental space that would have enabled that to happen. That's why I stressed earlier about the need to look at the intergovernmental space, where those sort of decisions would be taking place. When you look at that space, obviously that raises issues for Parliament, because that tends to be a closed space that isn't as subject to scrutiny as it could and should be, arguably. It's helpful when we're thinking about Sule and its development to think about the different functionality of it. Sometimes, yes, it is a problem and sometimes less so. I think that the first point there is on the nature of a convention. The court in the Miller case said, this is just a political restriction, therefore we are not going to touch it. That underestimates what a convention is. A convention is a rule. It might be a political rule, but it is binding. The court could have gone further there and said, yes, we can't enforce this convention, but what we can do is say it exists. We can articulate its content and we can declare it's been breached. The court didn't go those steps, but the Supreme Court in Canada has done that in the past and that's an option open to court. That puts enormous political pressure on the centre not to proceed. It forced Pierre Trudeau to completely rethink how he was changing the constitution by the Supreme Court doing that in 1982 in Canada. The other question that you raised is about, is this more important than other conventions? I think it's a very interesting question. I think the problem is that it's so wide-ranging that if Sule is violated in relation to a public emergency in a very narrow area, a lot of people would sit back and say, well, actually, you know, that's fine. Whereas if Sule were to be used to completely rewrite the Scotland Act, one would imagine that the violation of that would be seen as equivalent of violating the convention of royal assent to legislation. The problem is that it's such a wide-ranging convention, so I think it really depends what the subject matter would be. On the rights of the child case, I think it's a very interesting point. The Supreme Court was unusually inflammatory and critical of that piece of legislation, suggesting that at least one section took no count of the limits of legislative competence as a matter of policy. I don't want to get into whether that's the case or not, but that's inflammatory language from the Supreme Court. What I would say, and I think this is the way I was talking about earlier, is that we're now in the realm of so many shared powers that the issue really is one now of inter-governmental and inter-parliamentary relations, and possibly to review from both sides whether they're stepping into reserved or devolved competence, possibly inadvertently, possibly self-consciously, but I think there's a debate to be had in both directions about violations of legal competence or convention respectively. On that, I think it's a very interesting point, because this often becomes an argument about is it reserved or is it devolved. We had an LCM in the chamber where on the nationality and borders bill, where the UK Government's position was that the consent isn't required because it doesn't touch on devolved areas. The Scottish Government's position was well in practice, it does. There was an argument and a vote about that here. I think often, as you said, this is actually not just about the application of convention but an argument about where the limits fit. In terms of the status of the convention or what is the convention, yes, it's more than just a statement of practice, it is a rule. In this context, I think of it in terms of degrees of bindingness. If we go back to the Scotland Act 2016, writing it into the devolution settlement, you could have said, at least I thought at the time, that this was setting the seal on a quasi-Federal relationship between Scotland and the United Kingdom, in which it would be inconceivable that the UK Parliament would legislate without the consent of the Scottish Parliament. Michael Clancy, in his evidence earlier on, captured that perfectly when he described the Treasury's summary of the position in Northern Ireland between something that simply wouldn't do that. I'm not sure, given what was actually happening in Northern Ireland, that was a particularly admirable position for the UK Government to adopt nothing to do with us. You could have said that it was on the point of crystallising, becoming a hard binding rule at that point. What's happened since has just become fluid. It's like there's been an earthquake and the ground suddenly becomes molten, which is why we're sitting here talking about how binding is it now. I would say that it certainly hasn't lost some of its force, but it hasn't lost all of its force, but it has lost some of its force. Professor Macarge, Dr Macarge, I can deal with him, Mr Clancy again. On Dr Helen's question, that really was an excellent question and please come on to my tutorials. In terms of how you determine its place in the hierarchy of conventions, I think that there's maybe three dimensions you want to look at in terms of the importance of conventions. The first one would be age. This is obviously not the oldest of conventions, but as we heard from Michael Clancy, it does have a prehistory that makes it older than you might think. Age in itself doesn't protect against controversy. The convention that the Queen always grants royal assent became contested during the Brexit process extraordinarily, but that would have been something you would, or I would have said, was absolutely beyond doubt, but it was questioned by people who had an interest in questioning it. Clarity is a second dimension and Sewell is, of course, relatively clear as conventions go because it is written down. It's in the Scotland Act, it's in the Wales Act, it's amplified in devolution guidance notes, et cetera, so that makes it clearer than some conventions and maybe not as clear as others. The third important dimension and the one that's really problematic for Sewell is the political and institutional context in which it operates. The other area in which conventions are very important is about the existence and accountability of the UK Government, the idea that the UK Government is drawn from and accountable to the Westminster Parliament. There are all sorts of problems about the operation of that in practice, but it is a convention that is not seriously contested, partly because it operates in a context in which there is reciprocity or a mutual interest in seeing that convention operate effectively. Both Government and Opposition have a mutual interest because they might switch places in seeing that convention operates properly. The Sewell convention is not like that because you're talking about a relationship between the UK institutions and the devolved institutions in which there isn't that reciprocity. They don't switch places. When contest arises, they're on opposite sides of a dispute rather than in a position where greater consensus over its meaning and operation might be achieved. I think that that is important for Sewell. On the UNCRC reference point, there are two points to make. The issue with the way in which the Supreme Court has used section 28.7 is not about its reassertion that parliamentary sovereignty still exists. We all knew that. It's the content that the Supreme Court has given to parliamentary sovereignty in its incarnation in section 28.7, and it's given it a very extended meaning. Such that mere pressure on the UK Parliament is now understood as compromising sovereignty, which is wholly unorthodox. If you go back to DICY, DICY would have made a strong distinction between political constraints on the UK Parliament's competence and legal constraints, and political constraints didn't count. That's how I've taught parliamentary sovereignty for decades now. The other point to make about the UNCRC reference point is that it has a direct implication for what the Parliament does in relation to the granting of legislative consent. What it told us was that when you're legislating for things like the UNCRC bill and you want to create framework legislation that captures everything within the devolved sphere, you cannot attach that to UK legislation. If you want things like the UNCRC or other international treaties to attach to lawmaking in the devolved sphere, that is going to have to be lawmaking from this Parliament or from the Scottish ministers. I want to come in quickly on what Donald had said about things basically operate fine, and there are exceptional cases where maybe overclaimings are being drawn disproportionately to those, but there's been some interesting developments. The Welsh Assembly has recently looked at that, or the Welsh Parliament has looked at this. A committee of the Northern Irish Assembly has been looking at that. Amongst those heated debates, they've also highlighted that when things become too efficient and too effective and it's too easy just to consent, then actually the legislator's function is cut out. The Welsh Parliament has been looking at issues such as the kept animals legislation. There are matters of great public interest here, and it might be convenient for the UK Parliament to legislate for all sorts of reasons, but this is an area that we should be scrutinising and debating. The Northern Irish Assembly is greatly concerned about UK Parliament legislation in devolved areas where ministers don't notify the Assembly at all that the legislation has passed, so the Assembly is operating blind. There's an extent to which we can overclaim for the efficiency of it, and we have to be vigilant when things are happening on an efficient basis, because we might be missing where there are important areas of policy that ought to be given a certain look or a first look by this Parliament. The very interesting analysis that Professor McHarg gave us about age and clarity and so on, when one is looking at the sole convention, of course, it's not that old, although if one reaches back into legislation connected to the empire and even the Crown dependencies, such as the Channel Islands, you find it cropping up in various guises along the way, but clarity is one of the key points, and that's where the use of normality comes in and will come to that later. There certainly was considerable debate about whether the convention, as anunciated by-law, was clear enough to be put into a statute with the existence or the continued reference to normality. Seventy only made an interesting point about the Canadian example, and that, too, is referenced in Miller. I think that there is an interesting quote from the Chief Justice there. The very nature of a convention is political in inception. That's the starting point. I think that we've got to remember that constitutional conventions are political as tools for smoothing the way in organising the constitution and making life a bit easier for everyone. Depending on a consistent course of political recognition, that's another condition that is recognised by those who are operating it in the political arena, the convention developed over a considerable period of time, but that recognition is inconsistent with legal enforcement. I think that that's another leg to what a convention is all about, is that it's not capable of being taken to court and forced upon one of the parties. It is meant to be some kind of organic, very proto-legal issue, a political issue, which doesn't easily sit with being enforced by the court. I think that those are the things that one would think about. I would be very hesitant about creating, in my own mind, a hierarchy of conventions. I think that that would lead far too many internal squabbles. My convention is better, older, faster, stronger than yours. I think that it's important that we look on the concept of constitutional convention as being a necessary one, because when we start to try to bring them into law, it creates some of the difficulties that we see with the Sioux convention, but there are other conventions that have been brought into law. Most recently, the conventions regarding pro-rogation, which were abandoned with the Fixed Town Parliaments Act, have been, in inverted commas, revived by the dissolution of calling the Parliament Bill. I think that it might be an act now. However, it is a different creature, because it is no longer a constitutional convention. It is now a legal statement in an act of Parliament. There has been already some really useful discussion of what is a convention, how do we define one and so on. I was in answer to the original question on that point. My approach will be to go back to the classic definition of a constitutional convention of either Jennings. He said, what are the three tests of a convention? Is there a clear purpose for it? Is it based on established precedent and do the relevant actors involved feel themselves to be bound by the convention? In the case of Sioux, going back to the pre-rexit and the post-rexit context, I would argue that it was very well established as a strong convention. I don't know exactly where one would place it in a hierarchy. That's difficult to do, but on all of those three tests we've talked quite a bit about the purpose of it. For me, that goes back to, we needed the consent convention in order to, as the Supreme Court put it in the Imperial Tobacco case, to help create a system for the exercise of legislative power that was coherent, stable and workable. That was not a point made in reference to Sioux, but a point made by the Supreme Court about how devolution was intended to work, and I think Sioux was a kind of core pillar of that. In terms of precedent and practice, Michael Clancy has talked quite a lot about even the pre-1999 precedence going way back into history of relations with Stormont and Dominion Parliaments and so on, and then even post-1999 it had been used a couple of hundred times by the point of Brexit. On the question of whether actors see themselves as bound by it, well, I do think the government absolutely did, to a large extent, pre-Brexit. What's the situation now is really the key question, and I think there's countervailing dynamics in terms of the views on that question within Whitehall and Westminster. There are, I think, some people, including ministers, who are really trying to limit the breaches to the convention as much as possible, in particular to things seen as inevitable, necessary consequences of Brexit. But that seems to be getting broadened into legislation that is by no means an absolute necessity to make Brexit work, and there's also very much a kind of shift in political strategy, I think, coming from the top in terms of a much more expansive view of what the role of the UK government should be in terms of action and visibility in the devolved nations, and we can see that in particular, I think, through the Internal Market Act, the financial assistance powers established through that and the way that ministers are now really starting to get involved in what we're here or to seen as devolved areas. Dr Allen, do you want to come in briefly? Just on that point, thank you, convener. I was just interested in the point that you made about a sense of movement away from things that might be needed to cope with a Brexit urgent situation. As I saw in written evidence, Professor McEwen, you talked about, I think, a similar point you were talking about, how initially the not normal reasoning was used around the Brexit deal because it was an urgent, emergent situation, but you do a contrast between that, the senior evidence, between things like the Internal Market Act, Professional Qualifications Act, Subsidy Control Act. I just wondered whether either of you had a view on whether there's a contrast that they made between urgent situations, emergent situations and pieces of legislations that don't meet that requirement in your view when it comes to using this phrase, not normal. Yes, I think Aileen made the same point in her evidence as well. Yes, but even then I think it's difficult for me to conceive of a situation where there is clarity on what's not normal or what's exceptional and unique and urgent without even prior consent about that. So you can imagine, say, Covid might have been the perfect example where normal practice was set aside, in some ways, in many ways normal practice was set aside, but still functioned there. And there was consent for UK-wide legislation. But that was with agreement. So the problem for me comes in when you decide after the fact that something is so abnormal or so exceptional as to not require consent after it has been sought. So it seems to me that you almost need agreement prior to that process between the Governments that this is an unusual or so exceptional circumstance that we can set aside our normal practice or convention. And it's difficult to see in the current environment how you get to that point. I welcome everyone back and could invite questions, comments from Ms Boyack and Ms McMillan and then we'll open up the discussion again. Thanks very much. Can I just formally say thanks for all the paper that we've had in advance of this? Because it's really useful to get the different perspectives, even when you're actually saying similar things. It's still just good going through both the high level issues that you've raised and then the detail. The issues that I was quite keen on following up were what do we do about this. You can actually, even in the last hour, detect from members the committee differences and the emphasis and thoughts. But if you go back to the point that I think Professor McHarve made about the age of the convention, the issue of clarity, what do we mean by normality, and then the whole issue of political consent, and context, there's something about lessons learned 99 to 2022 with the 2016 legislation. What do we think now as a Parliament? I'm very interested in the two sets of recommendations that we've got from Professor McHarve and the Institute for Government on what would be your potential solutions, what would be the potential change. I would quite like to kick off with the fact that there's an issue about accountability, which was clearly not designed in by Sewell, which is at the UK level ministers can initiate a piece of legislation and not be accountable at the UK level. There's no structure there. So there's something about how do we hold the Scottish Government to account on secondary legislation, how is the UK Government held to account on secondary legislation, but at a higher level, in terms of primary legislation, there's no accountability there. I'd like to start off on that discussion, because maybe both Institute for Government and Professor McHarve, you've both got some really good, clear recommendations. I was wondering if you'd just give us a quick summary on high level and some practical changes. The question is mostly for Michael Clancy. I was a member of the devolution follow powers committee. Some of the discussion and dialogue is taking place. It's taking me back to 2015 and up to 2016. The issue of Sewell was something that the committee discussed at great length. I know that the law society has proposed amendments to the bill with the suggestion to remove the word normally from section 288, which is obviously in the act. My question to Mr Clancy would be if the amendments that were proposed by the law society were accepted at that point, does he think that we would be having this type of discussion in this committee today? Does he think that the situation between the two parliaments, the two Governments, would be better footing as compared to where they currently are? Is this right? Who might have actually solved some of the questions that we're asking about? I will put it up. Mr Clancy, first of all, please. Thank you, convener. Thank you, Mr McMillan, for such an interesting question and for giving me zero time to prepare for it. That's another matter. It's fair to say that one of the reasons why the law society sometimes promotes amendments is to ensure that the Minister of the Day can give an interpretation of an ambiguous provision in a bill that will satisfy the requirements of the case of Pepperby Hart. We will then mean that the parliamentary record could be referred to, should that matter ever come into litigation. That is one of the reasons why we would promote an amendment. Partially, that was the impetus for putting forward amendments to the 2015 bill because, of course, the Government had a majority in Parliament and would be able to achieve its intentions in getting the bill to the statute book. That, having been said, there was a debate, a considerable debate, in the House of Lords, particularly on the question of normality. What did it mean? Lord Lange of Monkton referred to it as special circumstances, Lord Cormack referred to it as that it should be fair to times of war or national emergency. Lord McCluskey was in his best tradition of being someone who pointed out things with that twinkle in his eye. He was able to say that normally means usually, but norm means a standard. The mean definition in some dictionaries is of conforming to a standard, but it was quite clear that the Government was having none of it. The Advocate General was very gracious to Lord McCluskey to say that he did not accept the proposition that it would be for the court to say that Parliament decides whether it is normal to legislate for Scotland on a devolved matter. Instead, normality means just that, no more or less. It is for the courts to say that it is not for the courts to say that we do not think that the situation was abnormal. That is a political decision. Of course, that is the nub of dealing with normality. It is the creation of a political nexus in the convention about what is determined to be normal or not. If we removed normal from the terms of the Scotland Act 2018, then it would be the case that Westminster would not legislate with regard to devolved matters. That would be quite an absolute provision. I am not going to comment on the political implications of that, because that is not my role and I am not a politician. The important thing is that having absolute protection for the Scottish Parliament in these circumstances to prevent the UK Parliament from legislating under any circumstances could be problematic. We have talked about Brexit as being an exceptional set of circumstances. In legislative terms, we are certainly not normal, possibly the biggest, most intensive reorganisation of legislative competence that the UK has seen with legislative and policy arrangements with so many bills on so many issues. We have also touched on Covid as being a not normal situation. Of course, we know that, for the Coronavirus Act 2020, the four Governments were in the deep conversation prior to the bill being introduced into the UK Parliament. It went through in very steady time without any issues being raised about consent to the matter being legitimate or not. I do not know if that answers your question, but you can see where we are leading. Having something that would take account of exceptional circumstances, not normal situations, is, I think, quite important to have that in the latest session. I will pick up briefly on what Michael Russell said before I come on to the specific recommendations that I made, because they are linked. Michael Russell is right to say that not normally is clearly non-justiciable. It is something to be determined in the political sphere, but that does not mean to say that it has to remain completely vague and undefined. Michael Russell referred earlier to the dissolution principles that are attached to the Dissolution and Calling of Parliament Act. It is a political mechanism with a statutory underpinning, but it is trying to concretise conventions that previously existed there. It is possible through non-statutory, non-legally binding mechanisms to try to clarify what we mean. The Scottish Ministerial Code is also further examples of that kind of mechanism. In fact, the first of the four recommendations for reform that I made was some kind of statement from both UK and devolved Governments, an agreed statement, first as to the bindingness of the Sule convention and what they understand it to mean, but also to the extent possible and not in excessive detail, of course, some kind of indication as to or unpacking of when. It might be justifiable constitutionally to make an exception. I would think that both parliaments would want to be involved in scrutinising and endorsing that. The second thing that I think is important but difficult to achieve is some kind of mechanism for settling disputes about when the convention is engaged, because we've got these two sets of problems. Is devolved consent required at all? Does a bill or provisions in a bill relate to a devolved matter in some sense? Once you've decided that it does, there is the second question of, well, if we can't achieve consent, can we proceed anyway? We don't have any mechanism for resolving those disputes about whether the convention is engaged at all. That is what the Lord Advocate was asking the Supreme Court to do in the first Miller case. The Supreme Court just said, no, we're not going to get involved in that. I think that they could have done if they wanted to. I think that it's understandable in the particular context of that case why they didn't, but I think that it is regrettable that they didn't, because it's very, very hard to try to replicate some kind of independent, impartial, authoritative mechanism for resolving those kind of disputes. Probably the best thing that we can hope for at this gets to my third recommendation is improving the procedures in the UK Parliament. I think that it is important to note that, whilst they are still rather deficient, they have improved somewhat recently. At the final third reading stage of a bill usually in the House of Lords, there is an express statement about legislative consent. You at least have that acknowledgement that we are going to proceed without consent here. I personally found the statements usually empty, so there's an expression of regret that we haven't managed to get consent, but no real articulation of why it's necessary to proceed without consent. It's better, but it's not ideal. There are also, on the UK Parliament bill pages, links to the various legislative consent memorandus and motions, which again is an improvement, but a very slight one. The House of Lords constitution committee has made some recent recommendations. Stephen can probably say more about these, about how you could improve scrutiny at the UK Parliament. They suggested a role for the constitution committee itself. That would be a way of forcing a justification, having an in-depth look at questions or disputes about consent. It wouldn't be a perfect mechanism, but at least it would be a process by which a body of practice, a body of commentary, a body of criticism could be developed. The last of my recommendations was doing something about secondary legislation on a consistent, and I said, also, mandatory basis. Again, it's very difficult to do because we know in both this Parliament and the UK Parliament that when we try to regulate secondary legislative processes, they operate on an opt-in basis. It's difficult to mandate that a particular approach is taken across the board. That's where conventions can be useful, because if you can't mandate in a legally binding sense, you could at least try to create an expectation of how things should work. I would like to see agreed statements about the operation of devolved consent being extended to secondary legislation. I'll pick up on the question from Ms Boyack about what can be done about this. First of all, I agree with your characterisation that the core problem in how this operates in Westminster is the lack of accountability for decisions taken by UK ministers about whether to proceed without consent in certain circumstances or sometimes failure to engage properly with the Scottish Government and the other devolved administrations during the process of developing the legislation. Also about the problem just referred to by Professor Macargof, whether or not consent is even required for a given piece of legislation because there, on that front, UK Government can often just, you know, actually determine based on its own internal legal assessment, one assumes whether or not consent should even be sought. So there's those, yes, I think those are the underlying problems and then it's exacerbated by the fact that legislative consent really isn't visible in any meaningful way, as we've just heard, in the procedures and proceedings of the UK Parliament with small exceptions and there has been some improvement. So those were absolutely the problems we were trying to suggest solutions to in our report. The proposals are summarised in the paper that you'll have seen. I won't go through them all in detail because there's quite a few, but the gist of them was there should be much more transparency about what the UK Government has done to engage with the devolved administrations, to resolve disputes earlier or avoid disputes earlier on in the process and then in situations where there's a view that ministers want the UK Parliament to pass a legislation without consent, there should be much more transparency about that. And then the UK Parliament should take a decision explicitly on that basis, that yes, consent is required, no consent has not been received for these reasons, but the bill should be passed anyway. That shouldn't be something that just sort of happens without people noticing, which is what I think has happened on some of these occasions. So I won't, as I said, read through all of these obviously, but I think just a couple of specific things we'd be keen to see and pleased that the House of Lords constitution committees come to some similar conclusions. One key thing, I really think, is at the point of introduction of a bill, the UK Minister and the Department responsible for that bill should lay something like a statement, a devolution statement, as we call it, that sets out in detail whether and why consent is required, what engagement has taken place and whether there are outstanding areas of disagreement. That should I think be a kind of core part of the process. We'd then like to see proper select committee scrutiny of that, the devolution implications of each bill. House of Lords constitution committee probably would play that role on the Lord's side. There's different options about how you might do it in the commons. And then ideally there'd be reports back to the House earlier on in the process, rather than just that final third reading stage, so that, as I say, the Parliament can proceed in full knowledge of whether or not consent has been given and potentially there should be a dedicated extra stage of the legislative process at which that would happen. That's something I know the Welsh Government has proposed as well. Those are the kind of core aspects of what we would propose. I would just say something briefly on the point that Eileen expressed so well. I should declare that I do serve as legal adviser to the House of Lords constitution committee, but I speak in a personal capacity. It seems to me that in the passage of primary legislation there's a lot that can be done to build in more stages for consent through the process. The LCMs are taken very early in the life of a UK bill, and there should be opportunities later on to amend legislation, as we saw in the Scotland Acts, and I think that that's possible. One problem is that there's so much fast-tracking now with UK legislation, and this is a problem that we're facing in the constitution committee of trying to deal with bills that are going through so quickly, and it's not just the coronavirus bill, it's a lot of stuff. As far as secondary legislation goes, I think that the 2018 European Union Withdrawal Act is a model of good practice. It's not best practice, but it's good practice. As you know, the initial plan had been to take all the powers back from Brussels and solely disperse. There was a rebellion against that, and the principle now is that delegated legislation in devolved areas requires processes of attempt to get consent and definite consultation all the way through the process. In the end, there's a final step that the UK can take, and what the constitution committee is now doing, bill after bill after bill, is recommending that that 2018 act model is in every single bill where there's any attempt to step into devolved competence by way of secondary legislation. It's entirely doable, and those wins are being achieved. They're not high profile, but they are being achieved. Can I say something about the normality point, because you asked me about that. It seems to me that attempts to define abnormality can come down to things like public emergency or national security. I don't think that's what the action is now. I think that the abnormality we're talking about is Brexit. What it is, it's filling the gap, the single market gap that has been left in the UK. What the UK is doing through all of these bills, and it's not simply the withdrawal bills, it's all the bills that have come since, including the procurement bill, everything else that's going on at the moment, is attempting to fill an internal market for the UK in its various different ways. It seems to me that that's really essentially an issue of inter-governmental relations, and it raises all kinds of questions about whether Sewell is still fit for purpose. Other federal systems would say, well, these are areas where there's no necessity measures going on, there's general welfare interests, there's the commerce clause in the US, and they would allow great licence to the centre to legislate for an internal market. The Sewell convention doesn't allow that. Arguably it's a good thing, but insofar as there are federal solutions to that problem, they all tend to be far more centralising, ironically, than the current system, in my view. One other thing about the convention is that it stops dead at what won't normally legislate without consent. What about the possible question of unreasonable withholding of consent? I just put that out there as something that has to be discussed. In other federal systems, it would say, look, legislation on an internal market has to well tread into devolved or federal areas. It's inevitable, it's inevitable consequence of overspill. We don't really have an allowance for that. We don't even have a preemption, so it's possible for the Scottish Parliament to come back later and re-regislate in the same area, unless that legislation overtly takes away the competence of the Scottish Parliament. Also, what happens when one devolved assembly consent and another doesn't, as we saw in the EU withdrawal bill 2018? That's just the way it goes. The Scottish Parliament still has a right to refuse consent, but it does raise that question about how Sule begins to come under strain when there's not a united devolved voice in relation to UK legislation. I'd be careful in arguing for legislative solutions to replace Sule, because one might find that when we look at international precedents and international examples, they tend to be far more centralising in nature than in the system that we have. It strikes me that Brexit could be categorised as not a normal event. Covid's not normal, Ukraine would be not normal. Therefore, legislation as a result of those not normal events would involve devolved competencies in the not normal space. Nonetheless, as Professor McEwen pointed out, some legislation could be as a result of those not normal events, but it would encompass other parts that are not required as a result of those events. In addition, there becomes a point where, if there's a series of not normal events, then does that become the normal? I hope not, but potentially. We've heard some excellent ideas around disputed avoidance. Governments, wherever they are in the world, are usually and often quite late in introducing legislation for a variety of reasons. I'm interested to explore how we can put in a system that allows for dispute resolution almost outwith the political sphere. We've heard a lot about Governments of devolved Administrations and the UK Government being involved in dispute resolution, but it strikes me that that often involves a political space and that is never a good place to resolve disputes. Is there perhaps a role for a new body that encompasses parliamentarians and its inter-parliamentary rather than just inter-governmental as a potential mechanism for resolving disputes? I'm going to bring in Ms Boyack, and then I'll open it to the floor to Mr Clancy's already indicated he wants to come in. It's really helpful, because Morris has just triggered the point that I was very keen to get a response from, because it's point six in the Institute for Government's recommendations, which I thought was a really interesting one, which is about dispute resolution. Morris has just suggested inter-parliamentary, which should be one way of holding Government account, and you've suggested an independent advisory panel, established as a standing body, to consider the competence issues in terms of disputes, so I'll be keen to get your view on it and maybe also Michael Clancy, about different ways that you could do that. What are the pros and cons? Thank you, convener. Thank you. From one point of view, I'm very interested in this area as well. Obviously, the inter-parliamentary forum has started up again, and those links are there. I would say that the scrutiny of decision making is a concern across all devolved parliaments at the moment, and for the House of Lords, indeed, as well. The Constitution Committee has raised those issues. It really is an interest in how we go forward with that. As Morris said, a formal inter-parliamentary forum is an informal grouping of the parliaments, and as we move forward, we are in danger of not formalising something for future-proofing for dispute resolution in other areas. It is also in terms of common frameworks on how the parliaments can possibly scrutinise those points. I want to bring in Mr Clancy, and then we'll put up those points for the wider group. Thank you, convener. The inter-governmental relations annual report talks about some aspects of consent to legislative consent motions, but it doesn't deal with anything in relation to subordinate legislation. If the committee is going to be setting about making recommendations, we should be looking at the inter-governmental relations matter, and we acknowledge that it has taken a long time to get to where it is. On the inter-parliamentary aspect, that is something that is extremely interesting. I recollect that Lord McFall, before he became Lord Speaker, was very energetically trying to get the parliaments in the UK together to talk about matters of genuine importance for each of them. That was in the throes of the Brexit legislative maelstrom. By far the best way to proceed is to have the inter-parliamentary forum, which is on an informal basis, and to get to the point where we can have some more formalised arrangement. Of course, that mirrors what is going on in terms of the inter-parliamentary partnership that you dealt with as item 1 this morning. If it is good enough for the TCA, it should be good enough for us. If we can use the model of the partnership as a springboard for being more energetic about bringing parliaments together and legislatures together in the UK, that would be, I think, an alloyed good. I better stop there, because you've only got a few moments left. Mr Pond, did you want to respond to Ms Boyack? Sure. I think that this few avoidance and resolution is absolutely a crucial area to try and improve in various ways. Just one point to clarify, as others have said, there are two different types of potential disputes that we are talking about. One is the question of whether or not a bill falls within the scope of the Sewell convention, where there is disagreement about that boundary between reserved and devolved matters. We know that, on quite a number of occasions, the UK Government has asserted that this bill, in our view, does not require consent, so the whole issue of going through the consent process doesn't arise from their perspective. In that type of dispute, and then there are disputes about proceeding without consent where it is accepted that Sewell is invoked, the former type of dispute, ultimately that's a legal question, but it's not one that the courts can settle as far as a UK bill can't be, of course, referred to the Supreme Court because we have parliamentary sovereignty and so on. There's professors of law around the table who maybe can explain this better than I can. What we were suggesting in that sixth point is that, first of all, if you were to have a more formal process of scrutiny of the devolution and consent issues relating to legislation by the House of Lords committee on the Lord's side and perhaps a new devolution committee on the common side, perhaps where this issue arose, we could set up either a new advisory panel or just have capacity for independent advice to be commissioned on that question of different assessments of where that boundary lies. That's what we were suggesting there. On the other type of dispute where the UK Government wants to proceed without consent, having accepted that the bill is within scope of Sewell, I do think the revised dispute resolution process in the intergovernmental relations review is one way in which this can be addressed. There is scope for independent mediation, for example that I don't think they've tested out those new processes, but this is one place that you could try and resolve such issues. I think also we don't have any formalised systems of inter-parliamentary relations, as you say, but I think, again, if committees in Westminster take this stuff more seriously during the passage of legislation, one thing that I would encourage them to do, and it is in our report, is to engage with the relevant committees in the devolved legislatures, take evidence, all or written or whatever, and ensure that those devolved views are fed in at the right point of the legislative process. On the Brexit is not normal thing, I think there's a useful distinction to be drawn between domestic legislation, which is implementing something already agreed internationally, and then I think there is more justification to proceed on a basis that that's not normal. Although Brexit in general is in many ways not normal, I think when it comes to reshaping the United Kingdom as a result of this major constitutional change, to do that without consent is a bit more problematic if you're looking for a longer-term, sustainable situation. Really interesting suggestions on inter-parliamentary opportunities, because I think a lot of what we're talking about is deficiencies in the process at the Westminster end, and that's not really for this Parliament to determine, that's something the UK Parliament will have to think about. Some of the procedures that are appearing in more recent legislation that talks about consent in a different way, in a less meaningful way in many ways than Sule, but does have some procedures set out there that could perhaps be useful in applying to a Sule context. I'm thinking of the professional qualifications legislation where there is a responsibility and obligation, to report on the consultation. So there's nothing like that when Sule applies, but that might be useful to understand more what went on in the inter-governmental space and what is the nature of the justification for proceeding without consent. I think that in terms of what this Parliament can do vis-a-vis the Scottish Government, I think that it would be useful to know more about what happened at the pre-legislative and because that's where I think some of the difficulties that emerge could be headed off if there is more pre-legislative engagement. So understanding a little bit more about that. I think that the IGR review offers opportunities to the devolved Governments to use the new machinery where they have much more opportunity to do so now as rotating chairs and setting the agenda and so on to get some of these issues onto the table and to use the new dispute resolution function if necessary if there is a dispute which would then help to get in sort of impartial expertise on some of these issues where the IGR review failed completely was in the transparency issues and in a role for Parliament. But that doesn't mean that Parliament has to accept that. I think that using inter-parliamentary channels will be much, much more effective if you are working collaboratively to make sure that the issue of where Parliament comes in makes it onto the agenda, particularly of that middle-tier inter-ministerial standing group which is looking at Sule and issues surrounding it. Because there's an observation, it was interesting at the PPA if they do decide to go round the route of subgroups that are likely to be around policy areas and, obviously, subject committees of this Parliament and the other devolved parliaments have no role in that but the expertise would be there for devolved areas. So just absolutely have something that we need to be working on. Professor Macarque. Thank you. I just wanted to pick up on the point about dispute resolution. There are, in other systems, precedents for parliamentary committees having a formal role in deciding on the constitutionality of legislation so that would be one route to go down. I was also reminded in the UK context that there are precedents for seeking judicial advice on parliamentary matters. I don't know what the system is now but there used to be a mechanism for the House of Lords Committee on Privileges to seek advisory rulings from the judicial committee of the House of Lords. So the most senior court on matters which engaged its privileges and there's a couple of really important decisions, for instance, about the status of the Scottish and the Irish acts of union as they pertain to the status of Scottish and Irish peers. So we do have, even in our own systems, mechanisms for seeking advice, not binding rulings, but highly authoritative advice on these kind of legal questions, which for reasons of parliamentary privilege in that case or parliamentary sovereignty in our case cannot be subject to binding judicial resolution. So when I said earlier it's really difficult to resolve this problem actually on further reflection, we do have some precedents that we might want to think about. I'm going back to our initial starting point which was secondary legislation. I think one of the things I would want to stress is the need for much greater consistency in the framing of procedural requirements governing the exercise of ministerial powers to legislate in the devolved areas. What it seems to me we have at the moment is a confusing mess. There's no great surprise about that, but it needs to be sorted out. Are we talking about exclusive powers or concurrent powers? Are we talking about powers subject to consultation or not? As a matter of law or not? Are we talking about powers which are subject to consent or not? As a matter of law or not? So instead of just having a sort of pick-and-mix, choose what you want in relation to whatever piece of legislation it is you're promoting. I think there needs to be a model and a green model which is the sole equivalent, if you like, in relation to subordinate lawmaking powers in the devolved areas. I was intrigued by what Stephen said about the EU withdrawal act if I understood them correctly being regarded as a gold standard and the assistance now that this be replicated in other bills. Is that correct? I said it was a big improvement and it did set a model for how you would attempt to arrive at consent in relation to the making of secondary powers. Is it being used? The standard approach to... If you are making secondary legislation in devolved areas, then the consent and consultation process is there. Having said that, it is about consultation. In the end, it's something that the UK can do, even if consent is not there. That's always the backstop on the withdrawal act. I think there's a need to go back into that area and just clean that legislation up once this has been resolved and have an agreed way forward in relation to future enactments. I'm very conscious of time. We only have a few minutes left. I don't have anyone else desperate to come in. Get out. Sorry, Mr Clancy, I missed that. Thank you, convener. Just quickly, on that point of subordinate legislation, of course, it is true that there's no provision for consent for subordinate legislation, but subordinate legislation has to be in accordance with the diaries of its parent act. It is at the point where the parent act is being enacted that that is where we have to focus our attention to make sure that the powers loaned by Parliament to the ministers are proper and can be exercised in a way in which it satisfies everyone. It's that one step back from dealing with the subordinate legislation. Thank you. I think we've exhausted time this morning, if not our questions and interests in this area, but I just wanted to say an echo, Ms Boyack's comments. I thank you to everyone for the submission to the committee. It was extremely helpful. Professor Maccorkindale for his continued support and for the sessions. As I said, it's a series of roundtables that we're having in this area, and I'm sure the committee will be reporting on it at some point in the new future. Thank you to everyone for attending this morning. On that note, I'm going to close this committee session.