 Felly, fy ng gymaint o'r fannu. Fy enw i'w ddim yn gwybod, rwnaeth i chi ddim yn gwybod. Rwy'n gwybod i'n ddim yn homo i ddim yn gyflawn. Wyddaw'n mynd i dduggedd y cyfraddag o fel rhywbeth, i chi fydd yn bwysig yn modau a bod nid, ond yw i ddim yn cyfwilol ar gyfer Ymwil. Mae'n cyfriddodd, Amor Llyfrgell, yn amlwg, i gydag ar gyfer gyhoedd, i chi'n gyfriddodd The agenda item 1 is a decision on taking business in private. So if you agree to take agenda item 5 in private, those are yours. Agenda item 2 is our EU-Canada comprehensive economic and trade agreement discussion. This is our first evidence session this morning at a videoconference. With us this morning from the directorate General trade, We have Renata Baskar, who is the Deputy Head of Unit USA in Canada. Colin Brown, who is the Deputy Head of Unit Legal Aspects of Trade Policy, and Benjamin Van Zevrin, our Co-ordinator for bilateral trade relations with Canada. Good morning, panel. It's good to have you here on video conference. You'll realise there's a slight delay, so we will ensure that we build some time into our questioning to allow for that delay to happen and your response. We've had a wee bit of trouble with the equipment this morning, but hopefully that's now resolved and we can just continue on. Good morning, could you maybe just let us know that you can hear us okay? Yes, we can hear you perfectly. Good morning. We're going to go straight into questions because we have lost a bit of time this morning and we have a very, very tight agenda, so I'm going to go straight to our colleague Rod Campbell, who has a number of questions on the CETA agreement. If I can just perhaps start off with a rather important question is whether it's your view that this is a mixed agreement, meaning it contains elements of EU and member state competence, or is it not a mixed agreement? What's the view? I can start here. Colin will complement because clearly he can come on to this, he has a lot more experience in overall in the agreement. Right now, where we are is that we've concluded the agreement to end the process of scrubbing the text of the agreement, the text of the treaty, and once that is done, we send the agreement as it's done for translations into all the official EU languages. At the end of this process, we prepare a proposal for a council decision and it is at that point in time, and throughout the course of legal scrubbing, that the commission takes a view whether this agreement qualifies as a mixed agreement or an agreement dealing with issues only of EU competence. Colin, would you like to complement? I think that was very clear. The only thing that I would add is that you may be aware that there is an opinion requested from the European Court of Justice on competence for trade matters in relation to the Singapore free trade agreement. We expect that opinion to be delivered during the course of this year, probably the second part of this year, and that will clarify further all the issues of what is EU competence and what is Member States competence. Talking about a timescale of this year for that decision on Singapore, where are we with legal scrubbing? That's obviously been undergoing that for some while. Is anyone got a timetable for when that's likely to be completed? As I said, we are, I would say, not in the final stages, in the last stages of legal scrubbing, and after that, as I said, the translations also will take some time. We expect to be ready with the proposal for a decision to go to council by summer this year, so early summer we should be ready, and at that point in time, we will give a very clear opinion on whether TETA qualifies as a mixed agreement or not. Does anybody else want to add to that? Is that the last word on that aspect? I think that's the last word on that. The timeline would be early summer. I'll try to respond to that question. The first thing I think which is important to underline is that TETA, as negotiated, is already the most modern, the most progressive agreement dealing with investment protection and investment dispute settlements. You have already, with that agreement, full transparency. You already have very far-reaching provisions to deal with potential conflicts of interest. You have a system of appointment of judges which is far different from existing systems that is designed to avoid concerns around conflicts of interest. That was negotiated before the European Union decided to further develop its investment policy and develop the investment court system, and as you were hinting at Mr Campbell, we updated significantly the approach in the context of TETAP. We are currently talking with the Canadians to see with them to what extent those elements of the EU's TETAP proposal can be brought into the SETA agreement. Those discussions are still ongoing. They have to be very carefully calibrated because, of course, the rest of the SETA agreement, and we may well get on to this, brings a huge number of benefits for the EU economy. We need to be very careful not to get into a situation where we potentially reopen other parts of the agreement. Those discussions with the Canadians are ongoing. We don't have a clear timeline as to when we will be able to make public the results of those discussions, but they are ongoing. I appreciate the limitations of your mandate coming from the 28 member states, but the terms of the ISDS agreement, for example, do not include an appellite mechanism. What discussions are taking place at a member state level on this issue of ISDS and why you would want to have what I might describe as an inferior mechanism than that currently being discussed about and being proposed for TETAP? You're right that SETA has initially drafted this not having appellite mechanisms. This is something that the EU and the European Commission has been seeking and pushing for since 2010. Frankly, we have limited support from the member states when we started on this project with these ideas, and the original SETA text reflects that in the sense that it has a clause whereby the EU and Canada can consider setting up an appellite mechanism that doesn't explicitly provide for it. As you've seen in the TETAP text, the EU goes further. It puts in place an appellite mechanism. You might also have seen we have just released the Vietnam pre-trade agreement text, which is the first agreement which has the full new system, and it includes an appellite mechanism. So our policy now is very clearly to include, and this is accepted by the member states to include an appellite mechanism in our bilateral agreements. It is amongst the issues that we're discussing currently with Canada, and it's still frankly a little bit too early to see where we will come out on that particular issue. One of the issues we're looking at is whether we can upgrade the clause already in SETA that talks about establishing an appellite mechanism and actually go further than that. I have read a comment to suggest that the United States is not entirely happy with the proposals in relation to an investor court. So quite what the outcome might be of those discussions relating to TETAP are as yet uncertain, but is there any further information you can give us about the Canadian attitude to that general idea of an investor court? And to what extent do you believe that they will be happy to incorporate at the very least an appellite mechanism in ISDS? I mean, as Colin has just said, we are in the process. We have, the Canadians have seen the text proposal that we have presented in the TETAP negotiations. So they are aware of how far we want to go or what the EU's new approach is. And right now we are in the process of going through each of the provisions and see how these adjustments can be made in the scope of the legal review without, of course, upsetting the entire balance of the full agreement, including the market access dimension of things. This message regarding the importance of trying to go as far as possible in upgrading the already reformed investment provisions in TETAP has been made very clear from a political standpoint. Commissioner Maunström has discussed this with her new counterpart, Minister Freeland. She has had the occasion to explain to her that the EU's new approach is, I think we've been disconnected. I think they will call again. Hello? Hello, you're able to hear me? Hello, can you hear us? I can hear you, but I can't. You've locked the video. Will you be calling back? OK. I'll just carry on for the moment. Can we carry on? Can you hear us? Yeah. Yeah. OK. So as I was saying that at a political level, the message has been explained to the Canadians very clearly. The new Canadian government is aware of the political importance of our request. And at this point in time, that guidance has also been given at technical level. And now it is up to the negotiators, the experts to see how far we can go in making these adjustments. And that is a question of, I think, that we will know very shortly, but of course we don't have a precise timeline that we can share with you at this stage. Colin, maybe you want to give some details in terms of... I think the thing that I would add to that is that our partner of Canada has been very open to changes and to reform on ISDS in general. As I said in my first comments, the set agreement, even before we're looking at it again, is already the most advanced. Form of ISDS that has been negotiated. So Canada, in general terms, because they have a lot of experience of dealing with investment cases, is very much open to looking at potential reform. So we think that we are going towards, we're on fertile ground in that sense, but we're in the context of a negotiation and at a late and delicate stage in the negotiation. Can I just move on to the impact ISDS might have on the ability of member states to legislate in areas such as public services, environmental regulations and food standards? Would you comment on that? Well, maybe we start with... The text of the agreement, I would say, starting at the beginning in the preamble actually makes... There's a very clear commitment as to which both sides commit. There is nothing in the agreement which raises any obstacles to legitimate public policy objectives that either side may wish to pursue, and there's a list of such sectors, notably in health services and environment. So, as far as starting at the beginning, this concern has been recognized on both sides, and therefore both sides have affirmed their commitment to do so in the preamble of the text. But going beyond that, coming to the issue of, for instance, public services, we would say that given... I mean, there's in free-traded agreements that we negotiate, and that also applies to CETA and other ongoing negotiations. And there's nothing in the agreements that prevent member states or governments at the national or local level to privatize or to regulate a certain public service. And I would say, further, that decision, the decision for delivery of a public service or a decision to change the delivery of a public service. So, for instance, a public service which has been privatized and the government wishes to bring it back into the public domain, there is nothing in our trade agreements which impede governments from doing so. How do we do that? We do that with the use of what is called the reservation. And in the first instance, there's a very broad reservation for services for public utilities, notably with the possibility for governments at national or local level to have... ...to limit the delivery of these public services so it could be via the use of public monopolies or it could be via the uses of exclusive rights. And as I said again, over and beyond that, there are specific car valves or for cases such as health services and social services or water supply wherein the EU maintains full reservation as regards the delivery of these services. Any decisions on them are not impacted by commitments taken under a services chapter in the trade agreement. Colin, maybe you want to comment further? Yes. To be more specific on the question of investment in ISDS, first thing to be 100% clear, it is not possible for an investor to bring a case simply because a piece of regulation or an action by a government might have an impact on the company's profits. That is not enough, and this is very important, that is not enough to found an ISDS case. In order to bring a case and to be successful with a case, an investor must prove that they have been discriminated against, so either as against foreign investors or against domestic investors. That they have been expo created without compensation or with inadequate compensation, and that is a protection that you will find in the European Convention of Human Rights, for example, or you will find very often under domestic law. Or they would need to prove that they have been treated in a manner which is unfair or inequitable. That last ground is something that has been left very open historically in terms of the way these treaties have been drafted. Here again, CETA is very progressive because CETA clarifies what types of actions fall foul of that provision. The types of actions are acting in a manifestly arbitrary manner, targeted discrimination, a denial of justice. Both are the types of actions that might trigger a case and might trigger damages under ISDS. I think we are very strongly of the view that any type of regulation or legislation provided that it is done on a non-discriminatory basis would survive challenge under ISDS. And we think also that the system of the procedures that we put in place are such that they disincentivise investors from bringing a case in order simply to try to put pressure on the government. We make it very clear, for example, that if an investor brings a case and is unsuccessful, it has to bear all of the costs and all of the charges that a government might incur in terms of defending the case. I think the answer to your question is that we think that the modern, clear system of investment protection that we have in CETA is on the table in TTIP responds to any concern that there might be an interference in the right to regulate through this system. All that is useful in terms of further elaborating legally the question, the response to the question that you posed. One more thing. I think your question was broader than public services and overall on the right to regulate. Of course, the same principle also applies in the area of food products or other goods that we might import under this agreement or which benefits from a preferential treatment. Nothing in CETA or in other trade agreements that we have doesn't anyway reduce, amend or eliminate certain standards that we have. The imports that come in from Canada have to meet all the rules and regulations that are in place, whether they are technical, whether they relate to food safety, whether they relate to even issues like GMOs, for instance. From a broader perspective point of view, I am going beyond public services. Can I touch on a special position, particularly of Scottish Water? If you have an exemption that deals with the provision of drinking water, that is a public service. What about the position of wastewater? Can you comment on that? We would say, I mentioned of course there are specific reservations at EU level and you mentioned the issue of water supply and there are other social services, health services, which I just raised. But there is also this very broad reservation that I mentioned, which relates to public utilities and the issue of wastewater, we believe it would be covered under that. This is a very broad reservation that we have on public utilities and it includes all services with the exception of I think computer services and telecommunications. Wastewater would clearly fall under that. There is scope for governments to take reservations. It falls under that category. What about the position of former public services, like the postal service, if it was decided to bring privatised postal services back into public hands? Again, it is the overall principle that the postal service could also be characterised as a public monopoly. Once again, I would go back to the initial statement that we made, that governments can decide or change who delivers a public service. If there is a decision on part of a government to bring back into the public domain or re-nationalise a public service that had been privatised in the past, the government has all rights and has full freedom to do so. There is still in civic society, not only in Scotland and the UK but elsewhere in Europe, concerns that the impact of ISDS in TTIP and also in CETA could lead to a regulatory chill effect. What is your comment on that? If I can respond to that, and it partly goes back to what I was saying previously, we have been conscious in negotiating CETA and in developing the approach also for TTIP of the concerns that have arisen with the current system as regards regulatory chill. That is why I think you are aware that there are already 3,000 agreements of this nature in existence in the UK. It is partly just under 100 of them. We have looked at the existing system and we have made a number of changes in CETA and TTIP that are designed precisely to deal with the issue of regulatory chill to make sure that there is no risk of regulatory chill coming via these agreements. That is, to a large extent, done through what I was mentioning before on the clarifications of the standards. So, as I said before, it is only expropriation, unfair or inequitable treatment or discrimination in two different funds that can form the basis for ISDS claim. By clarifying the standards of how those rules apply in detail, we think we have removed the risk of any type of challenge that could have a regulatory chill effect. The other thing that we do is through the work on the creation of the court system, through the improved procedures, through the provisions we have that make sure that the losing party pays all of the costs of the government that we disincentivise claims that are, if you want, not based on a solid basis. They are not well-founded and we will discourage claims that have as an objective to put pressure on the government or parliament to legislate in a particular manner. I believe that the collective system that we put in place is and will be effective in dealing with any risk of regulatory chill. Can I possibly take you to the economic benefits of CETA? We have evidence that the commission suggests that the agreement is expected to increase trade-in goods and services between the EU and Canada by nearly by a quarter. In terms of the benefits for the United Kingdom, the UK Government has suggested that the agreement will benefit the UK economy and businesses by over £1.3 billion a year. Can I ask the panel if we are still there? It is very faint. We heard you until the point on the overall benefit for the EU and then we have sort of lost your voice. Can I hear your reply from that? I am sorry, we did not hear the question. Could you repeat the second part of the question? I am really just looking for what economic benefits would be realised from CETA. At this point in time, what I can give you is an overall picture and some qualitative assessments of where the UK and Scotland could benefit, what would be the economic benefits of CETA. We do not have the breakdown by Member State, the precise numbers, but let's start with the classical parts of the trade agreement. What CETA brings for us is clearly new and improved market access for goods and services suppliers, for EU goods and services suppliers. Let's start with what are the tariff lines or duties. What we have in CETA is a very ambitious agreement which goes well beyond the past work that we have done. Shall I continue? We have the images now. If we have the liberalisation of over, it's over very, sorry, Ilonka, can I continue? Okay, yeah. So we have 100% of the tariff lines for industrial products that will be fully eliminated. A very important part, a little over 99% which will be duties would be eliminated and entry into force. The liberalisation on agricultural goods and processed agricultural goods is also very significant. The numbers are, I mean we have over 93% of tariff duties that are liberalised on agricultural goods and processed goods. Now on that particular part I would like to add, given the export profile of Scotland, this could be a particular area of interest, processed foods, and that also which includes processed food and drink and notably Scotch whisky. Another important part where we've made significant progress in terms of benefits for EU producers is in the protection of what is called known as geographical indications. We have achieved in CETA a very extensive protection for a long list of EU agricultural products. Also Scotch whisky is part of it. This is the first time that we've achieved this high degree of protection, the highest that Canada can offer with the developed country, and I think it sets a very important template in this regard. Beyond the goods or the classical parts we have also achieved important market access in the area of services. Maritime services is one example. We have also established in CETA a framework for mutual recognition of professional qualifications. This allows professional organisations and members in EU and in Canada to negotiate with their counterparts for recognition of professional qualifications. We know that is an obstacle to mobility of professionals. The professionals could be architects, accountants, engineers. Besides that, CETA also includes provisions for easier mobility or what is known as transfers between intra corporate transfers. It allows companies to bring their professionals in a facilitated manner. Either EU companies have an easier possibility for their professionals to travel to Canada and be first. That is another advantage in terms of economic benefits. Turning to the part of public procurement, which represents roughly 7% of Canadian GDP. I think here we have achieved very important progress in CETA. Canada has offered to us market access in public procurement contracts, which is what is not offered to any other country in any of its agreements. The new market access that we have achieved is not only at national level, but it is also at provincial level. Not only have we achieved market access, Canada has also taken commitments on transparency, which as you would recognise is very important to have a knowledge of what public procurement contracts are available for bidding. This, in some ways, also allows us to create a very level playing field, because that is the EU market, which is very open. Beyond these market access dimensions, the classical stuff we also have recognised that a lot of our trade with Canada is already very established. Some of them have peak levels, but most of the tariffs are quite low, so we have also worked on NTDs. We have established a separate protocol on what is called conformity assessment, which allows certification agencies on either side to facilitate... We have created a facilitated path by which certification bodies can certify for goods being exported to Canada, so as to avoid duplication and higher costs of double testing, etc. There is a pathway created to help in this area. Ben, do you want to add some more aspects? This is just an example of some of the things that are included in this agreement. Ben, some other details you might wish to add. I think these are the main benefits. There are plenty more, but I don't want to dominate the whole conversation. Are there specific fields in which you are more interested? No, no, that was fine. That was great to have an overall picture of what you have given. Thank you very much. Willie Coffey. I wonder if you could clarify for me and possibly for the other 500 million members of the European Union. Does this agreement include access to member state health services or doesn't it? I guess perhaps we come back to the issue of them. We would assume that you refer to public services, health services, publicly funded health services. Yes. Again, I would like to recall starting with the preamble of the agreement where both parties have taken very clear commitment that nothing in this agreement would act to impede or act as an obstacle to legitimate public policy pursuits, including, which include also health services. Going beyond that in the services section of the agreement, there are, you know, I mean, CETA is like any other trade agreement that the EU has negotiated or is in the process of negotiating. So there's nothing in these trade agreements that force member states at national or local level to open public health services to competition from private providers. Or they are not required to, they are not forced to outsource these services to private providers. Further, member states can take the decision on who provides the delivery of these services. And can also take the decision on the change in the delivery of the services, which in other words would mean that if a member state has decided to privatise certain services and if at a later date they wish to bring these services back into the public domain or renationalise them, they are free to do so. Nothing in CETA or any other trade agreements that we have negotiated would impede that approach. I mean, so over and above that, what we do, what technically, how do we achieve those? We do that via reservations in our, in trade agreements or what we have said in the schedules of the services. And we have, I would like to highlight first, there is a very, very broad reservation on public utilities as part of which member states can, nothing in it, member states can continue to services that they deem our public utilities. They have all possibilities to protect them and they do not have to, they reserve the right to protect them and they do not need to take commitments on them. Besides this broad reservation on public utilities, there are specific reservations at EU level on health services, which once again reserve where we know which, where the EU has taken a broad reservation which applies to all member states as regards health services. And then there is a third level of reservations which each member states can choose to take and I understand the UK has taken some particular reservations related to health services, notably in the area of ambulance services, residential health services and others. So there is, I would say, three layers of reservations which try to ensure that the principles that I have mentioned at the outset that nothing in a trade agreement forces the government to open public health services or forces them to privatize or outsource any of these or impede their decision to bring back into public domain what has been privatized. OK, I think that was a no. I really have to ask you to clarify this. If access to NHS services is not included in the principles of this agreement, why does it then need to be defined in a set of reservation lists to exclude it if it is already excluded in the agreement? I mean I would turn to the lawyers because at the end of the day I would say this is a legal treaty and what we need to do has, you know, it needs to be defined in legal language and needs to be, needs to cover all aspects of the issues to make sure that the protection is complete. Perhaps Colin you might wish to elaborate why trade agreements require such complicated sets of reservations. I think the answer is in some sense is relatively simple. This part of SETA looks like the World Trade Organization agreement on trade and services. What we are doing here in SETA is modeled upon the 1994-1995 W2 agreement part of which also deals with access to services. And at least in potential terms all services are covered by these agreements. So what one does is one builds in extensions and carve out through different layers of the agreement to ensure that, for example, public health services are not covered and nobody can use the agreement to get access to them. I don't know if that answers your question but the point is that we come from a very general scope of these agreements through which one needs to build out the systems that carve out some extensions and reservations. I don't think it actually answers my question. I'll try again in another way. Is it the case that the United Kingdom has not specified in its reservation list exclusions about access to its health service? There is a EU-vide reservation on health services and that applies to all Member States. I can refer you to page 1633 of the text where there is a list of United Kingdom reservations wherein there is a reservation of the UK on health services. And then it further goes into detail and defines the sub-sectors on the health services. So there is once again a reservation at the level of the UK on health services. I'll immediately go after this meeting and get the document in turn to page 1600 and whatever it was. I have to say to you that I'm still really unclear if an agreement specifically excludes access to a public service like the NHS. Why does it further need to be defined by an exclusion list that those two points seem to be contradictory in my view? I think I'll have to leave it there and hope and pray that you are able to clarify this for the public in some other forum. Perhaps maybe I can say as Colin was saying, we are perhaps bound is not the right word but there is a certain format of trade agreement and what you want to do is ensure that all aspects of the service should you wish to protect them like health services are covered. The United Kingdom has a general reservation on health services and then goes on to define the sub-sectors because what you want to be sure is that everything what you wish to protect is completely protected. And so that is why it goes on to health and includes health related professional services, including medical and dental services as well as services by psychologists, midwife services, services by nurses, physiotherapists and paramedical personnel, retail sales of pharmaceuticals and of medical and orthopedical goods and other services applied for pharmacists. And then there is an industry classification of these services. I'm sorry to be so technical but I just want to tell you that there is very clear reservation on the part of the UK on health services over and above the EU wide reservation on health services. If some aspect of, for example, the health service is not included in the reservation list because somebody forgot about it, then access is granted and available to that service within the health service. I would then come back to the broad reservation that I mentioned which is the level at EU reservation at EU level which covers publicly funded health care and social services including hospitals, ambulances, residential health facilities and so on. So there is a very broad reservation at EU level which covers health services and over and above that, as I said, there is a broad reservation of public utilities which covers all services with the exceptions of computer and telecommunication services. So the protections or the possibility for governments to reserve policy space are extremely wide in our trade agreements. We are quickly running out of time and we have another video link to try and set up which we need some time to do that. I had Adam who had indicated a while ago that you wanted an Adam. Do you still want in or has your questions been covered? No. Well, we've got literally only about two minutes that we can do this in. First question, I'll try to make them brief. What impact will SETA have on regulatory standards in the EU? Will there be a levelling up or a levelling down in areas like food standards or chemicals? What SETA does not do is through SETA because of SETA, none of the standards or regulations or imports conditions for requirements for food safety or technical standards, none of these can be changed or amended. So what is the legislative framework for those at EU level, they remain unchanged and the same applies for Canada. What we are talking is within our legislative framework, what is possible to do in order to facilitate, for example, the flow of goods and services. In this respect, what we have in SETA is we have set up a regulatory forum. Now, it is very important to say that this regulatory forum is a voluntary mechanism. It allows regulators the opportunity to exchange best practices, to exchange information on regulatory development. The discussions that take place are in no way binding for either parties to go back home and make changes in their regulatory system, even as is the case for food safety. So any discussions that take place in the scope of this forum and should the parties agree to go down a certain path and consider making changes to the legislative framework, those changes will have to go through whatever is the prescribed domestic path for changing or amending or making new legislation. So nothing in SETA changes the food safety standards, be it the case of GMOs, be it the case on hormones or on any other food safety issue. These standards don't change. What it does is it provides a forum for exchange for regulators. Thank you for that. There are also emerging areas for regulation. Particularly, we have issues around unconventional oil and gas extraction, otherwise known as fracking. Will SETA have any impact on regulation forming in this particular area? There are a few things I would like to highlight. To say over on nothing in SETA has an impact on the policies that either parties may wish to pursue in this respect. And start with there is clearly in the trade and environment chapter there is a specific provision on the right to regulate of parties. So nothing in SETA should impede or set up obstacles should either party wish to make changes to the regulation or have certain environment protection standards. Over and above that, the chapter includes references to the respect of key multilateral environmental agreements and allows each party to establish its own levels of environment protection and regulate in this area. If you refer to the case of fracking and they're in this respect I would like to say very clearly that the EU's fuel quality directive has not been part of the SETA negotiations and is not affected in any way by SETA. So there is complete freedom at EU level to regulate the issue of shale gas in any which way the regulation, the regulatory aspect of it is governed by the EU's fuel quality directive and the decisions are then for each member state. Nothing in SETA has any impact on it. We're really running over our time now for our next panel to come in. So we have a number of questions. We've had many questions from members of the public. We've attempted to try and ask some of those this morning but we may use some of those questions to ask further questions of the commission should we need clarity. I just thank you all this morning for being with us and helping us to understand and taking our questions and answering them in some detail. Thank you so much for taking part in our committee this morning but also to help us inform our procedures and ideas going forward. So thank you very much. I'm going to suspend committee for about 10 minutes to allow you to set up for the next panel coming in. Thank you. Hi, can you hear me okay? Yeah, good morning. Can you hear me okay? Hello, we're just adjusting some levels at the moment. Can you hear me okay now? Yeah, how are you fine? Good morning, David. Can you hear me? I can hear you. Excellent. Thank you. My apologies on two counts. Firstly, we've had technical issues with a previous video conference which is considerably delayed us getting to you. So thank you for your patience. Second thing is we've just been adjusting some settings here which is why we couldn't hear you immediately there. So I think everything is okay now if you're hearing us clearly. I can hear you perfectly, yeah. Can you just say a few more words please so that we can adjust levels? We're in our large committee room and we need to bring the volume up so that everyone can hear you. Yeah, testing, testing, one, two, three, testing. You can bring that up a bit if necessary. Yeah, I'm not going to PA on just for us, yeah. I'll do it again. I'll come back here. I'll pass to the left. I'll pass to the left, yeah. Okay. Cheers. Thank you. Right. Thank you very much, David. The committee has just taken a very short break between the two sessions where you're being seen in the room and you're being heard at the moment but the convener will come in shortly and formally introduce you and restart the proceedings. So if you don't mind just bearing with us there for a few seconds, they shall be with you very shortly. Yep, okay, that's lovely. Okay, thank you. And if any of you, there's no delay. Yeah, the phone in the video world. So they can go up simultaneously. Yeah, this'll be here. This'll be right there still. Because this is pre-fade now. You were thrown in right at the difficult bit, sorry about that. I mean, some of the guys have done this a wee bit before and they know when it goes wrong what to do. It wasn't too bad. It wasn't too bad. Because I don't know, that's mislead to me. Well that, yeah, I'd got one part done and then it was just time to do that as well. No for next time. Okay, good morning and welcome back to the European and External Relations Committee. We are already running over our time a wee bit because of the earlier session. So we're going to go straight into it. As you see we have a round table approach today for our agenda item 3, which is our continued interest in any proposed changes to the Human Rights Act. So what I'm going to do is just do a quick introduction around the table. So I'm Christine McKelvie, I'm the convener of the committee. I'm Hans Lamaric and I'm the vice convener. I'm Tobias Luck, I'm from the Edinburgh Law School. I'm Willie Coffey, MSP, Comarant and Irvine Valley. I'm Simon Derulo from the Faculty of Advocates. I'm Roderick Campbell, MSP for North East Fife. I refer to my register of interest as a member of the Faculty of Advocates. I'm Alan Miller, outgoing chair of the Scottish Human Rights Commission. I'm Adam Ingram, MSP for Carrick, Comarant and Irvine Valley. I'm Paul Bragg, the associate agency representing the campaign for housing and social welfare alone. I'm Eamon Macaulay from Amnesty International. I'm Mick Taggart, MSP Glasgow. I'm Michael Clancy from the Law Society of Scotland. I have a video link this morning. We have Professor David Mead, who has joined us in a very strong video link for this session. Nice to have you here, Professor Mead. The sort of etiquette is if you just catch my eye and I'll let you in. If you've got things to say, then we're happy to hear them. Professor Mead, if you just sort of give me a wee wave or some sort of a sign that you want to come in and say something, then I'll make sure that you get your time to say what you need to say. Obviously, we've been doing a bit of work over the past few months on the proposal, which seems to have been a proposal to repeal the Human Rights Act, that now, after some evidence at the House of Lords the other day, seems to be something a bit less of a proposal to repeal the Human Rights Act and bring forward a British Bill of Rights. I think that Mr Gove described it as gloss. Moving from that point of view, I'm looking for some input from you all as to what your thoughts are on any consequences in Scotland. We have some very clear issues that we are interested in here is the function of this place, given that human rights and ECHR is embedded in how we do business in the Parliament, but also whether a legislative consent motion would be required or not, and the tensions between reserved and devolved areas where we do have responsibility in devolved areas for maintaining and extending human rights. That's a sort of a proviso that we're working on. Given that this may be your last official engagement, as I may say personally a superb commissioner for human rights, I wonder if you wanted to maybe kick off some of your thoughts and feelings and then we can come in with questions from members. Sure, thanks very much, convener. We had an earlier session a few weeks ago, so I don't think anything I'll say will be particularly surprising. My view hasn't changed over the last few weeks. The commission has published a paper and it will renew this once any consultation comes out on repeal of the Human Rights Act and its replacement by British Bill. With a simple test, would these proposals take us forwards or backwards? Beneath that, there are five tests that we put out as being objective criteria by which a judgment should be made, and those do with will this ensure that everyone has human rights and we don't begin to get a hierarchy of human rights amongst different individuals? Will it reduce in any way accountability of those in power? Will it improve the lives of people? Will it demonstrate international leadership? Those are objective tests that we would encourage the committee and others to take. I think that Scotland also has to ensure that its voice is heard during that debate and there are issues that I think the committee should explore about the timing of the possible release of the consultation paper in visa-visa pre-election period. It's very important that Scotland's voice is heard, in part because Scotland should be, and I'm confident, will defend the UK Human Rights Act, but not be restrained from its own onward journey in improving the human rights protection in Scotland and through Scotland's national action plan for human rights, exploring the public benefits by incorporating the wider range of human rights treaties to be found in the UN on economic social rights, rights of disabled persons, women, children, etc. So, in a sense, there's two debates going on. There's one to maintain the status quo of the Human Rights Act and Scotland should try and influence the rest of the UK to do so, but at the same time Scotland's onward journey to be forward-looking and more outward-looking should continue. Scotland's national action plan is a vehicle for taking that forward and we're very much welcome to First Minister's commitments on December 9 for an innovation forum to explore incorporation of UN treaties as part of Scotland's future journey and to hardwire Scotland's national action plan for human rights into the national performance framework for Scotland. So, those are pointers as to where Scotland needs to go and what the debate should be, and it shouldn't be restricted and parameters impose that it's either the status quo or some form of regression in human rights. Thank you very much. Professor Mead, we've got obviously a very keen interest in this room about the Human Rights Act and its impact on Scotland, but maybe from East Anglia you have maybe a more overarching view from a UK view, which obviously we would be very interested in. Two, would you like to give us some of your thoughts on that? Yes, certainly so. I'm certainly not qualified to speak about anything Scottish, but I think perhaps a couple of points to make generally about the Human Rights Act. I think it's largely misunderstood by the public and or perhaps mischievously understood by politicians either in the way that it operates or the effect that it has had on great swathes of life. What tends to make the headlines seems to me to be cases involving criminals, terrorists and such like. But if you bear down and I can't speak for Scotland but sort of thinking of generally across the UK but specifically probably with England, what I suppose I call the general day-to-day good that it has done for people. Social care, discrimination, even to the extent of protecting people who are not criminals but are victims of crime. And I think my evidence touches upon a couple of cases and I'd be happy to explore that a bit further if you thought it was appropriate. But there's a whole host of areas of life that are, for most of everyone, have just made life better for people with the Human Rights Act in place. And I think if we were to lose it, although I know the government's plans are even at the extreme, I'm not to lose it in its entirety but to lose it and replace it with what I don't know. If there is any shadow, I think, of losing what we have got so far, I'd be very worried. And I suppose I'd echo what Professor Miller was saying. If it can be used as a base to expand and extend in certain areas, I think that would be for the better. But I think there is also a misunderstanding in the way that it operates and perhaps the way that UK law acts with Strasbourg law. There is, and I think this is fairly well documented, a general tendency, perhaps less among politicians, but certainly amongst media, but some politicians as well, the ECHR and the European Union together as all being rather bad European things. And from that starting point, we get a whole spread then of misunderstandings about how it works and our relationship more generally to Europe, which I think is behind whatever clamour there is to repeal it, I think has probably been led by that. I know Amnesty International has some particular issues that they've risen, Naomi, I don't know if you want to come in at this point with that. Well, thank you and thanks again to the committee for the invite to extend on our evidence. This is certainly very timely for us to be looking at this, given the House of Law's committee meeting just the other day and our feeling that we will be getting the consultation paper through quite soon. Amnesty is very clear in its support for the Human Rights Act itself and for there to be no repeal to it. And this is on the basis of our analysis and advocacy at Westminster that we are simply not looking at there being any progressive approach to human rights coming from the repeal or instituting a new British Bill of Human Rights. It would be great if that was the terms of the debate that we were having at the moment, but we simply don't think that that's probably going to be happening. It's not something that's on the cards. We certainly welcome what looks like a rollback from the Lord Chancellor in saying that this is going to be very minor changes. It's simply a different gloss. And we do think we can thank quite a lot of the campaigning by organisations and institutions across the country for that movement that has happened in the last few years, including Amnesty activists who up and down the country have been writing their representatives and signing petitions about this. Because what we're trying to do with this campaign is not only to save the piece of legislation from any attempts to rollback or to have any lower human rights standards, but also to address the very toxic debate that there is around human rights, particularly at Westminster, where there is this misinformation, the misinterpretation of the Human Rights Act, but also for people to realise that the human rights does apply to them. It's not something that is just the preserve of terror suspects or prisoners. They're the stories that make the headlines and get to the front pages but, in fact, we're collecting a lot of case studies of where the Human Rights Act has been used by ordinary people and the kind of impact that that's made on ordinary people in Scotland and throughout the UK. So we're very, very keen to use this opportunity to actually progress the understanding of human rights and the Human Rights Act amongst the whole UK population. And one other, I think, main area of concern that we have around this is the implications that not only the potential repeal will have the potential disruption to the relationship between the UK, the Council of Europe, the European Court and Human Rights, but also the ripple effects that the legislation and the debate that we're having at the moment has throughout Europe and further afield. And we've made reference in our written submission to some of the comments that have been made internationally about this debate, how it's impacting on those who are taking human rights cases to Strasbourg from other countries within the Council of Europe. And I think it is quite important for this committee to also to consider the impact that the debate and the proposals are having further afield through Europe and our external relations, the standing that both Scotland will have internationally and the whole of the UK. Okay, thank you. Adam, did you want to come in at that point? I hadn't anticipated coming in, but I'm quite happy to do so. The points you are making are about misinterpretation, misunderstanding of what the human rights legislation is all about. Some of what we're hearing from Westminster in particular is that there has been a mission creep in terms of human rights and the way that the UK has imposed on human rights and the European courts and the like. And they're imposing on our own legal system and affecting judgments in our courts. Could you perhaps give us some arguments or counter arguments to that? If indeed, is there any evidence to support these statements of mission creep or the like? Yes, I'd be happy to try to answer that question. It's quite clear from the press and media campaign over the last few weeks on the armed forces issue that this is something, and from Michael Gove's statement in the House of Lords earlier this week, that doing something about this mission creep and armed forces is one of the justifications for repeal of the Human Rights Act. And if you just try and unpack that very, very quickly, this is a situation where the European Court of Human Rights has said, looking at how life and society has developed over the last period since the court was established in the middle of last century, it can't be a fossil that has to relate to what's actually developing in the world and in the region. And it's saying that where troops of any country, including the UK, are engaged in military action out with their territory, not when they're actually in combat, but when they have somebody in custody, someone who's being detained under the effective control of that state, the UK, then the European Convention should apply. Why should it apply? In order that any credible allegations that that person who's in custody is being tortured or killed, then there should be an investigation by the home state. Is that sacrilegious? Is that something that's completely beyond the pale? And because of that decision of the European Court of Human Rights, the flip side of that is any soldier who's in combat, including any Scottish soldier or any soldier from anywhere in the UK in the armed force, who has given ill equipment to protect his life and is therefore at an unnecessary risk to losing his life, that soldier in combat has the protection of the European Convention on Human Rights and has an obligation and an accountability to the Minister of Defence to make sure that when the equipped soldiers to go into combat, then they're properly equipped and as far as possible their lives can be protected. And that means that the victims in the UK of families have the result of negligence on the part of the UK Ministry of Defence. They have protection, they can demand an inquiry and measures can be taken to ensure that no one's life is lost unnecessarily. So it's not that difficult to dispel some of the mythology that's created and the armed forces is clearly a very hot issue but it's one that I would welcome a public debate and raising the level of understanding of the vitality of the Convention intervening in that area. The fact of the advocates, I've got some evidence that you've produced that it would maybe back up or give us a different insight. I agree with what Alan has said in relation to, I mean, the question is, is the court guilty of mission creep as far as the faculty is concerned? We can't see any justification for that proposition that all the court has done since it was founded has been to develop a law which is what you would expect it to do and the examples that we've given in our response relate to protection of homosexual relationships or children born out of wedlock. Those are examples where the court has developed perhaps beyond, the law of human rights beyond what might have been thought would have happened when it was founded and we would expect the court, any court to do that. So, as far as the faculty is concerned, I'm unable to point to any example, particularly any example affecting Scotland where one could say that the court has been guilty of mission creep. Rod Campbell. The other side of the coin is the concept of the margin of appreciation whether Simon or anybody else can comment on how that's being developed in the European Court. Tobias, did you want to comment on that? Maybe I can try, because they are related. I think the allegation of mission creep comes from interpretations of the convention in a modern way in a modern understanding. For instance, the case of children born out of wedlock maybe in the 1950s, it would have been perfectly acceptable to disadvantage them compared with children who were born to married parents. That is no longer acceptable in society. What the Court of Human Rights tends to do, it's not to say that the European Court of Human Rights doesn't make past judgments that are wrong sometimes or that we might not agree with, but every court does that. As a highest court, it's in the very nature of things that one way or another and somebody will always disagree with the outcome. What the Court of Human Rights is doing in terms of methodology, they try to justify this type of interpretation. They don't just say, well I think we think here in Strasbourg things have changed and we have to give certain rights to groups that wouldn't have had rights before. They look at what they call the consensus method. What they do is they look at how the law in the countries that make up the Council of Europe, the 47 countries, has evolved, how it has evolved internationally, how society has moved on on the ground and then they might say, we can see that there is a European consensus on this. For instance, in a case concerning Turkey, it wasn't allowed for Turkish women to keep their maiden name after getting married and it was the only country that said, look guys, you have to move with the times. We can justifiably say, this is a violation of article 8 of the right to family life because everyone else has moved on in that sense. The flip side to this is the margin of appreciation where there is no such consensus where European countries do not agree and an example at the moment is same sex marriage. So there have been cases brought to the European Court of Human Rights. People, saying we're being denied same sex marriage in Austria and other countries. We would like to be given that as part of our human rights and the Court of Human Rights, a lot of people have criticised that, but nonetheless it's said, society hasn't moved on that far yet throughout Europe. Some parts, yes, and other parts not and therefore member states have a margin of appreciation and they can still deny same sex couples the right to get married and so on. Paul, you have another aspect to this. I want to come back to Professor Mead after you, Paul. I'm just going back to the question of armed forces. I think it's important to bear in mind that the European Convention, Legal Committee, was chaired by Maxwell Fife who was a major at one of the prosecutors in Urenburg. I don't think it's even conceivable ond i llwyais cy Pattyon a Ginoeddfaeth gennym iawn eich debyg, cyflandj shouldwadu'n Gש reading o Gisledd Gwydtekadau Re ulithabed hwnnw gynag that England kennw sydd dai yn eich debyg rha w видимon hen ondiariaeth e hon yn zeidio hefiamaetau arweinydd yg sydd wedi cabinet People Need to engage in that in a much more vital way I also think that it's important to bear in mind tell people that's correct that's a human rights principle so if we take all these issues people possibly be able to better appreciate the really extensive change of culture that human rights act has had not just through the courts but also through the way organisations operate so I think that's really important. If you like we become more populist we lawyers have possibly been seen as the people who talk about human rights and that's wrong it's it's something that is there for a we need to really propagandise about that. I think that the issue that you raise is very important. I want to come back to Professor Mead and then pick up some of your points, Paul, with Michael Clancy, because I think that that's where that comes in. Professor Mead, in your written evidence you described something called the worthy victim. I think that maybe some of the evidence that we've had this morning is separating out some of the more alarmist and red top headline stuff that you get is compared to the actuality of what the Human Rights Act actually does for ordinary people. In your analysis about the worthy victim, you extend the argument that maybe that's a route that we're going down. Can you maybe give us some of your thoughts on that and how we can halt going down that route of determining people as worthy victims or not? Yes, I can. The term worthy victim is not mine. It's a term that's used in media studies to denote which people both are portrayed and then gain sympathy. But I suppose the problem I've tried to identify and in brief set out is that the headline news, and that's what people think that the Human Rights Act is about, tend to be not necessarily the people that the Human Rights Act is actually helping. So I'm just to give three examples, perhaps, of some slightly different spheres. Stephen Neary is possibly very, is probably not well known to anybody, but he's the father of a 20-year-old, 21-year-old autistic man to his son, taken away from him ostensibly for a few days to give his father some respite. And that turned into a year's worth of being taken away from home. And his father was able to use the Act to use the right of, in article 5, liberty to ensure that his son was brought back to the family home. There is a narrative around criminals and several of us this morning have sort of touched upon this of criminals and terrorists, but I think it's really important that we take account of the fact that the Human Rights Act is as capable of being a victim's charter as it is for being a criminal's charter. There was, in my view, a monumental decision of the Court of Appeal last year, which for the first time established that whether police fail to investigate allegations of crime and people then suffer from that crime, they're in charge of compensation. The case involves the Metropolitan Police and the usually called the Black Cab Rapist, John Warboys, and several victims of his were able to sue the Met. There's a sense in which that's a readjustment of that usual narrative about criminals. And I think if we take account of that more widely and to take the point that was just made about public education around what the Act does for people, and this has been started in the last year perhaps with the Act seemingly about to go, so there's several campaigns and amnesty has obviously led some and there are others as well, but I think people are an idea of what the Act can do for them in their everyday lives, that it isn't something for nasty criminals or suspected terrorists, that it can help readjust the balance between the individual and the state, make the state more accountable, allow people to claim things that are there. I mean, human rights are ours from the day we're born, but sometimes we need to claim them, we need to go to court, and that sort of any readjustment of that narrative I think would be incredibly welcome. That leads on to the points that Paul made about the understanding of the impact this has, whether it's on a Scottish constitution. We've obviously got keen interest in how we legislate in this place, given that the Scotland Act, the ECHR and human rights are intrinsic to that, and that brings us to that argument, Michael Clancy, because that's an argument that you have been talking about for a while now in reference to how do we understand the impact of this on this place, but also the impact on generally people understanding what their rights are. I wonder if you could give us some of your thoughts on that. Thank you, convener. Well, of course, Lost Society has, for a very long time, been supportive of the Human Rights Act and human rights in general, and indeed in our priorities for the up-and-coming Scottish elections, you will find a reference to the fact that we are calling upon or reminding people that we call upon politicians to protect human rights, to support convention rights, and to stay within the jurisdiction of the European Court in Strasbourg. So, this sets the framework for the way in which the society approaches its work in this area. A very interesting discussion. All of us could be accused of committing a crime today. I mean, it could happen. I could, in a fit of rage, punch one of my colleagues in the office when I go back to say, why wasn't I told about this or that and find myself being taken into custody. Of course, the case of Saldws, which was a case relating to Turkey, had implications for Scotland in the case of Qatar. So, very directly, something that happens at the other end of Europe, as Europe merges into Asia, can have impact here in Glasgow, or in Edinburgh, or in Cambus Lang, even. So, that sort of approach to recognising that we are all in this together and that these rights are not some kind of theoretical, jurisprudential discussion between people of eminence, like Tobias Locke and his colleagues, Simon Dorolo and others. It's something that is real and concrete and affects us all. The fact that Alan—sorry, he's not around at the moment to hear this— the fact that Alan was able to highlight the two edges of the coin in respect of human rights and the armed forces, I think, is quite significant. The MOD has paid out significant sums of money to many hundreds of people because of defalcations in connection with their human rights, while meeting up with the armed forces. So, if there wasn't a case to be answered, the MOD would not have paid. As regards mission creep, well, the court can only deal with the cases that come before it. I haven't seen any judges from the European Court of Human Rights wandering around the streets of Edinburgh saying, have you got a problem with human rights? Why don't you come to Strasbourg? That just doesn't happen. So, where do we find those cases? We find them because these human rights are being infringed by public authorities. In our paper, we have talked about what is a public authority, and we can go into that perhaps later. We can see that the need for having an effective remedy, another point that we raise in our paper, is something that is extremely important. You have focused, convener, on the idea of education, and Paul is quite right. I know the work that Naomi does with Amnesty in promoting education about human rights, along with other organisations, is very significant. We all have our kind of responsibility for that. The conflation and confusion between the European Convention on Human Rights and the European Union is something that I have tried to deflate on numerous occasions with politicians, because politicians are one of the groups that apply that conflation and members of the media. For some people, it suits to have confusion in that area, because you can then paint it all as one vast European conspiracy against the stout-hearted women who live in this country. That is where I stand on that. I do not know if we want to go into the constitutional issues at this moment, but you may want to park that just now and we can come back to that. It is extremely important, especially in these days, especially when the Lord Chancellor says that the paper is coming out soon. I was told that it was the spring, and I was saying to Paul, Naomi and Anne earlier, that spring can go up to the 21st of June in this country. We may have time to elaborate the arguments further. We did expect it last autumn, and we are now nearly at the end of autumn. Hans-Alla, you wanted to come in at this point. You referred to the armed forces and what happens there. I am just wondering if you have an opinion about the European Union's human rights or the so-called British human rights in terms of the clandestine flights that took place between Scotland and other parts of the world, where some of the passengers were sent to places where we know that human rights would have been infringed. How did that place ask us? Did we breach anybody's human rights there, and if we did, who was responsible for doing that? Is this the extraordinary rendition flights? Yes. I think that that is an issue that I have not necessarily prepared for this morning, but off the top of my head, there is a general proposition that the courts have held good that they cannot put someone into a position where they may find their rights infringed. That applies not only in terms of membership of political groups, religious affiliation, sexuality and gender, but in a number of protected categories that we would acknowledge as protected characteristics under our Equality Act. It would be in play to say that if someone is put into a particular situation by being returned to a war zone or even a town where it is known that that person will be the subject of violence or assaults or imprisonment because of who they are or what they believe, that would be an infringement of that person's rights. The difficulty is that if we do not know that extraordinary rendition has taken place, that is difficult to prove. We may have to... There is quite a lot of case law on this, so if you want, we can take that back. There may be other views around the table, and we could come back to you on that. I think that it has taken a slightly off topic for this morning, and we have a sort of a security of professor. Mead, do you want to come and take us back to a position before extraordinary rendition, possibly? I did. Can I just take up a point on the armed forces, which we have touched upon several times? Although it seems a very small matter, in some ways it is indicative of the whole problem, because the Human Rights Act has been blamed for the possible risk to British service men and women serving overseas. Just two very quick points. The first is that none of the cases that have been decided in this country or before the European Court have involved claims against service personnel for the death that they have caused. They have all been, as Professor Miller was saying, the failure to investigate the death or the failure to investigate torture or the failure to supply proper equipment. And on that particular case, which was decided by the Supreme Court, what is usually forgotten about that case is that there were two limbs to the challenge by the parents of the various personnel who were killed in the snacks around Landrovers. The first was under article two, the failure to take proper measures to keep them alive. Effectively. The second is that there was a claim in ordinary negligence, which was allowed to proceed as well. And it was allowed to proceed because the law was changed in 1987, specifically to allow the MOD to be sued. And so the issue is not solely or particularly about the Human Rights Act. It is about the ordinary common law. And there haven't been any discussions, as far as I'm aware, of seeking to change that position to render the armed forces immune from suit in negligence. And that is as much of a problem as... But the Human Rights Act has been blamed for everything. That does all the work that I wanted to say. On to a slightly different theme. Whatever kind of proposals for a British Bill of Rights actually emerge, we still have the EU Charter of Fundamental Rights. I just really would like the panel's views as the impact of that in terms of perception of rights generally and particularly in relation to Scotland. Dubai's lock. Yeah, I mean, there is the Charter of Fundamental Rights which contains all of the rights that are contained in the convention, plus a good few more. The Charter of Fundamental Rights is binding on the UK. There is a protocol number 30 to the Lisbon Treaty that had been sold to the public, perhaps, as an opt-out of the charter. But at least as far as the civil and political rights are concerned, the European Court of Justice has decided that it does not mean an opt-out. So Britain is bound largely by most parts of the charter anyway. The charter is, however, of limited applicability within the member states. It's mainly designed to bind the European Union's institutions to human rights. That's the main purpose of the charter. As far as the member states are concerned, they're only bound when they're implementing European Union law. That, of course, is a somewhat vague term and it is not entirely clear yet under what exact circumstances an implementation is taking place. This is being determined by case law now on a case-to-case basis in the Court of Justice. But a clear example would be, for instance, if an authority, if, for instance, a court in Scotland were to decide about claims under the working time directive or under discrimination law, they would be acting within the scope of EU law because they are applying those pieces of legislation, the same for authorities. So where we've got the charter applying and only in those cases, it is fairly strong. Obviously it doesn't make a huge difference because section 29 of the Scotland Act says that the Scottish Parliament, for instance, must legislate contrary to EU law and the charter is part of EU law, so it would be ultra-virus such legislation. But even when it comes to Westminster legislation, which is, of course, immune from being struck down on human rights grounds under the Human Rights Act, because the best you can get as a claimant is a declaration of incompatibility, when you can base your claim on the charter as well as on the Human Rights Act, you're on to a winner because European Union law is stronger, it takes primacy over national law, it takes primacy over Westminster legislation, so that would force a national court and it has indeed in the past forced national courts in this country to dis-apply, not to declare invalid, but to dis-apply in the concrete case of this particular provision of a piece of Westminster legislation, so that the charter cannot supplement the Human Rights Act because it's only of limited applicability, but where it applies, it applies very strongly. Rod Campbell. That's fine, but for me, I just want anybody else to comment on that. Michael, you refer to that in your submission. Well, of course, article 51 of the charter applies the charter to the European institutions and to member states, and I think there was some discussion in the House of Lords committee earlier this week over where the charter stood in the hierarchy in connection with the European Convention, of course. The charter actually contains most of the articles of the convention, so one could say that there is a subsumption within the charter of the convention, but the interesting debate between Baroness Kennedy and Lord Chancellor about what trumps, I think, is the lead to considering this from a Scottish point of view, and as Tobias has explained, because the charter is part of EU law, therefore it has primacy, and in that sense, the charter trumps the convention. The charter can provide a better set of remedies and could, following the factor team decision, result in UK legislation being struck down. In the confines of how far a factor team goes, but it cannot be used independently to assess national law. It has to be on the back of something else where there has been an engagement and perhaps violation of EU law. Paul Brown, you gave us some additional evidence to the committee on some of the gaps that you have highlighted. Do you want to expand on that? I think that the whole human rights, post-war human rights tradition, was based on the Universal Declaration, which I think is an inspiration, and it's inspired a lot. I see the charter as being another source of ideas and inspiration for how we can develop, because the charter includes within it environmental obligations to refugees, rights of children, just to name three areas that aren't explicitly addressed in the European Convention. I would see that as being a useful, compare-and-contrast exercise, because when you read the charter's provisions, we should be thinking about expanding the human rights act's scope and not reducing it. When you read them, those principles seem eminently sensible, and you think, why aren't they in our constitution in the human rights act? Maybe they should be. It's not something that's going to happen overnight, but we've flirted with the idea of incorporating broader and much more chewy international agreements. Alan Miller mentioned that. Maybe a step in that direction might be just to take the provisions that have set out and think about incorporating them into the human rights act, because when you read them, you can see no reason why you shouldn't. It is interesting, and gathering the evidence for this committee that we have little or absolutely no dissenting voices as far as support for the human rights act and lots of evidence as to how it should be and could be extended. That's been quite an interesting debate. I fear maybe that same debate is not happening in the Commons or in the Lords, and maybe part of our role is to inform that debate. One of the other questions that we have, and I think that Michael Clancy raised it earlier, and we can maybe touch on this sort of constitutional challenges that we have coming forward, is we met with the Human Rights Committee with Harriet Harman's Committee a few weeks ago, and one of the questions asked of us as a committee was, if the consultation period starts soon, because that's the closest we've got to any sort of a concrete, if it starts soon, it's likely to be running through the period where we are in dissolution and this committee no longer exists. Therefore, a voice from Scotland, from this point of view, from a parliamentary point of view, would not be heard. That's a real concern that we have got. Obviously, part of our role is to ensure that organisations like yourselves and individuals like yourselves will take that opportunity to make sure that voice is heard. However, we have a very serious constitutional challenge in the fact that we do go into dissolution a few weeks' time. This committee will no longer exist and we will no longer be MSPs and how much does our Government then have to impact on that in a period of perder. That preamble takes me to Michael Clancy's submissions that we've had before on the constitutional challenge that that gives us in this place. Michael, I don't know if you want to extend some of your arguments on how that would play out and some of the arguments that we fear around an LCM or not an LCM, if that be the question. It's nice that you're celebrating Shakespeare's anniversary this morning in this kind of a way, in this anniversarial year. The issue of whether or not there requires to be a soul motion is something that we've touched on before in another context in relation to EU law prior to Christmas. I think that the considerations are similar but not the same and there are a couple of reasons for that. If you watch those proceedings in that committee in London over the last couple of days you'll have seen the discussion about the extent to whether the Human Rights Act was devolved or reserved and is it neither. Of course it is neither because schedule 4 to the Scotland Act calls the Human Rights Act protected and if one looks at the Human Rights Act in that context through the prism of competence that takes you to section 29 and it talks about the competence of the Parliament, section 53 the executive competence of Scottish ministers and that revolves around convention rights and convention rights are as defined in the Human Rights Act. So where does this take us? I suppose if the proposal from the UK Government is to repeal the Human Rights Act 1998 then that would necessitate a change to schedule 4 in the Scotland Act and that is where we find the protected areas and those are referred to in section 29 out my old and other care worn Scotland Act that a provision is outside the competence of the Parliament if it is in breach of the restrictions in schedule 4. So if the Human Rights Act is taken out of schedule 4 and not replaced then this extends the competence of the Scottish Parliament. If schedule 4 finds that the Human Rights Act has taken out and is replaced then that creates a different restriction on the competence of the Scottish Parliament and I think when we consider what that means of course the Sewell Convention which is being legislated on by the Scotland Bill currently in Parliament in the committee stage in the Lords committee which I know has been put off for two weeks I wonder why that is it says that in putting the Sewell Convention a statutory footing but it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament if my analysis is right that the Human Rights Act is not a devolved matter but is a protected matter the Human Rights Act not convention rights but Human Rights Act is a protected matter then it's not a devolved matter and so therefore the Sewell Convention as expressed here in the Scotland Bill would not apply but that's not the whole story is it because devolution guidance note 10 tells us that the practice has been for a legislative consent to be required if there is a change to the legislative competence of the Scottish Parliament and the executive competence of the Scottish ministers and in paragraph 4 3 and paragraph 9 of devolution guidance note 10 it's quite clear that one would expect there to be an LCM if there were to be a change to these fundamental competences and that's why it's necessary for that argument to be put now that argument could be put and indeed has been put to the Ministry of Justice by the Law Society and by other bodies but I think it's quite essential that if the committee agrees with this perspective that it sends this message to the Ministry of Justice to reflect on these considerations if the consultation is published at a time when the committee is not sitting of course if the consultation doesn't come until after the election and after the Parliament is recalled then that's another matter you'll get a second bite at the cherry but I would say something now I have a very clear message in our legacy paper if that is indeed the case Simon de Rolo did you it would probably be helpful to the committee Mike I don't want to usurp the convener if you've got any additional thoughts beyond your existing submission on that issue to give us a supplementary paper would that be possible? Yeah Soon Okay We could do that Someone will remind me a road map through the whole thing Simon de Rolo, I think maybe the fact that advocates have got some comment to make here as well The only point I'd like to pick up on something that Michael said in the course of his remarks just now which he was talking about repeal of the human rights act and that not being the whole story it seems to me that going forward one of the difficulties could well be with all of this and leaving aside the political issues which I don't particularly want to get into but the legal problem that's going to arise in due course, potentially at least is a fragmented system a situation where the Scottish Parliament which has the ability to legislate over a whole range of areas and can legislate in a way that chooses to do so using and applying convention matters and it would be entitled to do that irrespective of whether or not the human rights act was in force or not that could produce potentially at least a very or it could produce a fragmented position in relation to human or in relation to rights which would be confusing for those of us who are involved in trying to understand what the law actually is I think we met with some Irish colleagues recently on some other matters but the issue about human rights and the Good Friday agreement and the Northern Irish Assembly legislation came up is a very strong concern given some of the outstanding issues that are still to be resolved in Northern Ireland right now it's not only Scotland where we have some real challenges and concerns but there's other parts of the United Kingdom where a much more sensitive issue arises should there be any repeal or change as well Naomi Simon didn't want to get into the political issues I'm happy to do so I think that what is very important as well aside from the legal competency of the Scottish Parliament is to show a very strong view coming from the Scottish Parliament we already have the view of the Scottish Government but to push this through Westminster against the wishes of all the devolved nations and all of them have spoken out against this I think would be politically very damaging and one thing that I think is key as well is for there to be a cross-party support for this too and that's something that I think came out of Lord Chancellor's evidence was trying to make this quite party political between the Scottish Government and his department whereas it has regularly been shown in the Scottish Parliament that there is cross-party support about this we know that there are many members of the Conservative Party who also reject repeal of the human rights act obviously been working closely with Dominic Greve MP and we hope that members of the Scottish Conservative Party will also go public on this too in terms of the consultation again one of our main aims in our campaigning is to mobilise and support civil society to contribute to these consultations and did so before this inquiry held a seminar together with the Glasgow Human Rights Network on civil society organisations, academics and legal experts to share information so that civil society organisations felt empowered to submit to these types of consultations or inquiries because again it's the usual suspects for Amnesty obviously to have this position to be campaigning very hard on this but we've been working across organisations in Scotland to ensure that they know the ramifications of repeal of the human rights act for the people they work with we've had for example on panels Children in Scotland, Enable Scotland SCVO, those organisations who are working with a variety of people and vulnerable people in Scotland as well and know very well the impact that repeal of the human rights act would have on their client group so I think a very strong message come from the Scottish Parliament and from Scottish Civil Society will be pivotal in this as well as well as whatever the legal situation of repeal or bringing in a new Bill of Rights might be Obviously we don't know what the UK Government will be proposing but Mr Gove did suggest that one of the areas in their sites was section 2 and that one speculates that possibly they'll try to slarmy slice rather than just repeal the whole thing and I would have concern about that process but section 2 basically says when you're looking at a convention right you've got to have a look at the European law on the subject that doesn't mean you have to apply it I find it really difficult to understand many of the objections that some politicians including him as a very subtle speaker on the committee I really don't understand what possible objection there can be to that sort of provision and I think we possibly need to make sure that the politicians are really pressed about quite what their real objection is because it's often very unclear it seems to be very much tabloid-led and that needs to be exposed just going briefly back to the political issue that it's not very long ago that we had a referendum in Scotland which decided to remain part of the UK I mean there is a political issue that many of the people who voted no no independence might well have done so upon the basis that Scotland had a human rights constitution I think there's a considerable political concern that that appears to be being changed without proper regard to the issues involved and that's not quite the same as the Good Friday issue because that was a very fundamental thing that some people had a great deal of difficulty working out their minds about to suddenly discover that the constitution is getting changed because basically some tabloid journalists have decided so I think is a matter of considerable concern I'm not going to stray down some of those avenues I've got very clear strong views on that but I'll remain impartial as the convener of the committee that that tax into something that you said at the beginning of your evidence and also some of the evidence from Michael Clancy about the conflation of issues here and this debate whether it's workers rights in the trade union bill whether it was the gagging of charities and their ability to lobby or whether it's a repeal of the human rights act it all seems to be conflated in this it's the big bad Europeans that are doing this to us and I just wondered whether you wanted to extend any of your arguments on that point we see a lot of tabloid headlines in Scotland but I have to say when we compare them with some of the tabloid headlines in England we actually have quite a supportive attitude to the human rights act to Europe to trade union rights to rights of individuals per se is part of common law probably for Scotland going back centuries and not just the timescale of the human rights act I just wonder if you've got a different perspective from your lovely part of East Anglia that could give us a bit of a view of how it's seen there because it seemed to be in the House of Lords committee the other day a misunderstanding almost that there was a suggestion made oh we've had objections from Scotland well we've not seen them I can try and take some of those points on I suspect certainly yes there is a conflation between the two and I've documented this in some of my own research I'm currently working on media portrayals of human rights cases and portrayals of the human rights act and there is both a conflation of what I call the two Europe's that they're both bad but I think also the evidence points to I did an empirical study which shows quite a shocking misrepresentation of some of the case law that's before the domestic courts very heavily skewed towards criminals not being able to be deported and the statistics so far as I can tell from the Home Office are almost exactly the opposite so there's this massive disjuncture in several of the newspapers two or three specific newspapers I mean I did a study of the Daily Mail but others fall into that trap as well I think another problem that we have and again my researchers has identified is a a misunderstanding of Strasbourg because of a misunderstanding of its case law I think most of the submissions of evidence or several of them to this have pointed out the statistics that broadly the UK loses round about a percent of the cases that are lodged so I think the last year we had was 2014 and they were just under 2000 applications 14 judgments 4 violations and on my very basic maths that makes it a nought point to loss rate for want of a better word I've also done some work looking at the types of cases that are reported and the ones that are reported are Vinter which is the life sentences decision but several either interesting or almost or several losses are not reported so the skew that we have when we read the newspapers is that we see the UK is always in the court we see that the UK is always losing cases and they're always losing cases about criminals, pedophiles, terrorists etc the reality is is massively different if you bear down into the statistics I mean the second point which doesn't really go to this but it's something that came up from a couple of the points that have been raised in the discussion again I don't think the those that are trying to move towards a different position so those that are advocating repeal and replacement I don't think either fully understand or properly convey the very different relationship that the UK and most Member States now have with the European Court I haven't done a trawl of every single case for a period of time but I was just flicking through some yesterday and through my general knowledge of things and the broad thrust of the European Court is trying to accommodate Member States I mean it very much sees itself as a subsidiary a last, a supervisory jurisdiction where there is no other alternative and I think my evidence reports a few cases but from most areas of law we could probably look at cases that have gone from the UK have reached the Strasbourg Court and the Strasbourg Court has effectively held there's not a violation much to the surprise of most people involved in that area and they are accommodating far more in the last few years four or five years perhaps perhaps than they've ever done I'm not a sort of historical expert of the ECHR but I'm just one case in particular I think my evidence is the Animal Defenders case of three, four, five years ago where this is the broadband the ban on political advertising on the media and the great the view of almost everybody was that that case would lose, the UK would lose when it got to Strasbourg because the cases that had previously been decided almost exactly the same issue had all held there to be violations of article 10 and the court decided there wasn't a violation that the UK law the absolute ban was perfectly compatible article 10 because it had been discussed by Parliament and a position had been reached so I think this sort of rapprochement perhaps dialogue between the UK courts and Strasbourg is also quite well documented but this idea in which the Strasbourg Court just bosses us is very far from the truth as somebody said earlier there are of course cases that we lose I think Tobias said this of course there are cases that we lose of course there are cases that we think are bad cases but that is just what a legal system the legal system is it doesn't justify wiping the whole system and removing yourself from that European pan-European supervision because of a few arguably bad apples in the barrel on to a final question we have Rod Campbell on constitutional courts Rod I'd just like to ask the panel for their comments on the suggestion that the Supreme Court might function as a constitutional court in the UK and the rationale behind that and the general thoughts on the implications of that particularly for Scotland Tobias Being a German by nature I should maybe try to elucidate a little bit As far as I can see the idea is that there is a German constitutional court which has a lot of power and it is often paraphrased to be able to say we don't want this bit of EU law because it's unconstitutional and therefore we're going to not apply it in our legal system so why shouldn't the UK Supreme Court have the same power the first problem with this is that it exaggerates the legal position of the German constitutional court the German constitutional court has so far never exercised that power that it has and has a very limited power it will only review EU legislation as to whether it's been passed ultra virus but only in very extreme circumstances and only after having asked the European Court of Justice by way of a preliminary reference whether the European Court of Justice doesn't think it would be ultra virus and therefore has the power to declare it void and it will also review whether German national constitutional identity has been violated which are things such as human dignity democracy the existence of the German states fundamentals now arguably I think there are two problems the first is should the UK Supreme Court be given this power or a similar power arguably it already has a similar power if you look at the HS2 case if you look at the case of FAM you can see that in Opeter Dicta by Lord Mans that he says well in those extreme circumstances the European Communities Act does not force us to apply European Union law for instance it's clearly an ultra virus act it's clearly been adopted by EU that says will abolish the monarchy in Britain or something ridiculous that wouldn't be applicable and I think that's a fairly sensible solution and the second question of course is how do you provide first such an express power in the absence of a written constitution that takes precedence over acts of parliament because I think that is the clue that's why Germany has the German Constitution Court has the power because the constitution is higher than acts of parliament but if you want to retain sovereignty of parliament it's very very difficult to legislate for something like this so it's probably best to just leave it to the Supreme Court waiting for comments to elsewhere on the panel anybody else want to chip in on that quite lengthy one at this stage when the Scotland Bill 1998 was being wending its way through parliament the ultimate court for dealing with devolution issues was the judicial committee of the privy council and for those who remember those days it was unusual I think to have seen the judicial committee picked as the body that would deal with devolution issues because it up until then had had effectively a colonial jurisdiction and a jurisdiction over some professional bodies so the law society actually proposed that we shouldn't adopt the judicial committee but rather that we should be thinking about some kind of constitutional court of course that's a long time ago now and the next time that the idea of a constitutional court came up was when the Supreme Court was announced as being the next thing, the next progression in our constitution in 2004 2005 when at the same time the office of the Lord Chancellor was abolished and on one day the Scotland office the Wales office and Northern Ireland office were all abolished until Peter Hain said what I'd been abolished and I think that that tells us something about making policy decisions on the hoof a proposal to create a constitutional court system in the United Kingdom should not just be a sort of sideline to solve some kind of perceived problem it should be a carefully thought out proposition which is carefully consulted upon deeply thought about and then moved ahead only if there is a clear consensus because it does involve significant constitutional change if we were to have a bundesfer Fassinsgricht here in the UK we might have to have a bundes we might have to go federal if we're going to have a federal court kind of arrangement and if you've got different laws in different parts of the United Kingdom you may have to have a different arrangement for the judges who hear these cases so I think it's an interesting proposition it's something where that concept of a constitutional convention would be extremely well suited to consider but I don't think that simply for the purposes of fixing something which looks like it might be a problem to some people to come up with a grand plan is the most clear answer and of course the Supreme Court the UK doesn't have a universal jurisdiction in matters because criminal law appeals stop here in Scotland so there's one issue which would have to be thought about if we were going to deal with a constitutional court it also doesn't have the it doesn't take these cases in criminal areas other than through the route of devolution issues under the Scotland Act so there's a lot to be thought about before we immediately jump to creating a constitutional court I think we've now run out of time again this morning Professor Mead wants to come in Professor Mead have you got a very very quick final remark to make it's probably almost certainly repetitive of what's just been said so I'm happy to leave it thank you very much given that we see how complicated this whole matter could be it seems an awful lot of business for a bit of gloss to use someone else's terms but I think we Professor Clancy and everyone else who has helped us this morning your advice on careful thought and consideration is certainly the way that we will proceed and I thank you all very very much for your written evidence for your oral evidence today and if there's anything else that you think we should be considering please don't hesitate to get back in touch with this Scotland to East Anglia a lovely part of the world Professor Mead thank you so much for joining us this morning I followed with great interest your analysis of some of the newspapers that you mentioned a very very interesting work indeed so thank you very very much indeed and we're moving on to agenda item 4 which is the Brussels bulletin just very quickly through the Brussels bulletin it's pretty lightweight this week nothing on the Brussels bulletin nope yeah and sorry can be now if we just move on oh no no here it's here page 6 the Brussels bulletin and it's really just to highlight that Glasgow has been shortlisted among 8 other EU cities for the European capital of innovation award 2016 and just really to say that people make Glasgow people indeed make Glasgow and anything else in the Brussels bulletin nope happy to share the Brussels bulletin with our other committees in the Parliament yep thank you very much indeed so I now suspend the meeting to go into private to have a quick discussion about our evidence we've heard this morning I now suspend and go into private