Welcome to the Environment, Climate Change and Land Reform Committee's 36th meeting of 2018. Before we move on to the first item on the agenda, I remind everyone to switch off mobile phones as they may affect the broadcasting system. The first item on the agenda is for the committee to consider whether to take items 5 and 6 in private and to agree that its review of evidence heard both in relation to the EU exit and the environment and relation to notifications arising from the EU withdrawal act 2018 should be considered in private future meetings. The second item on the agenda for the committee to take evidence on the waste miscellaneous amendments, EU exit regulations 2019, and this morning I'm delighted to welcome Elspeth Macdonald, Environmental Quality and Circular Economy Division, the Scottish Government and Emily Freeman, directorate of legal services for the Scottish Government. Welcome to you both. The first question relates to where the decision making powers is going to go in the event of a no deal Brexit around the waste regulations. We are reading that targets for Scotland should be set by the Secretary of State, our Secretary of State of the UK Government, rather than Scottish ministers. Could you provide any further information on why it considers this to be acceptable? I'm sorry, in what particular context, because there are targets right throughout the area. Specifically, I'm talking about the Wasting Emissions Trading Act. Yes, certainly. What the notification says, and I have to explain that this has been as carefully crafted as we can to give full information to the Parliament, so we understand there may be a need for further information, but we hope that we've covered it properly, is that the regulations operate to retain the power to set UK targets in future years. The power, as amended by the regulations, however, is not mandatory. The existing power is mandatory. In future, if there is a no deal Brexit, it will not be mandatory and can only be exercised with the agreement of all the devolved administrations. The effect of that is that we, as Scottish Government, can participate in a future UK allowance scheme if we so choose, but we do not have to do so. The other point that arises from what you are asking is that the retention of the power or the option to use this power does not affect the power of Scottish ministers themselves to set their own targets for the future. Ministers have already set a zero requirement for a biodegradable municipal waste, which will apply from January 2021. That was in fact set by the Waste Scotland regulations 2012, quite a long time ago, because in Scotland, on waste disposal, we're quite far ahead on targets. That came before this Parliament and any future Scottish regulations in this area would come before this Parliament. Regardless of that, when it comes to target setting, the committee will still be able to scrutinise the target set for Scotland, whether the same is the UK or the differ in any way. If the regulations are UK with Scottish consent, that would be something that would come to the Parliament under section 57 of the Scotland Act, so you would get the normal notification in that event and you could of course ask for evidence as a result of that. Do we see that situation changing? Is this just a temporary situation for a no-deal scenario that may change in the future? It's a temporary situation. This whole set of regulations is to deal with a no-deal scenario and it is entirely about keeping current systems operating where that is still appropriate and making changes so that there is no cessation of operability as the way we tend to express it within Government. We need everything to continue to run as it is now and that's what all of this is about. Stuart Stevenson. Just to be technical point, picking up on what I've just heard about requiring all four Administrations to provide consent, who at the moment would give consent on behalf of Northern Ireland is the first half and the second half is in the absence of a consent but also the absence of non-consent. Is it taken as consent? It requires proactive consent to answer your first question. I must confess that I don't know. The Northern Ireland Environment Department is making contributions to this process and I'm afraid that's as far as my knowledge at this point in time goes and I would imagine that it would depend on how the devolution settlement in Northern Ireland continues. If one Administration fails to consent and it requires active consent then no regulations would be made. You can see, convener, why I asked the question that we might want consent to be given by everyone but if Northern Ireland is unable to give consent under the way the regulations are framed that could be an issue for us. Given that we can't answer that today I suggest that we perhaps pursue that by other means. I agree. Just on that subject then, would the regulations just not continue? Would the status quo continue or life would go on? Suddenly there are targets set under the landfill regulations 2012. There is an on-going set of targets that all the Administrations are working towards and that will carry on until March 2020 because that's how long the scheme is set for already. After that date all the Administrations will need to consider how they are proceeding but there is no guarantee that there will be a future UK scheme. Equally there is no guarantee that there will not be agreement for a future UK scheme. Let me move on to commission decision 200532EC, which relates to hazardous waste. It's now the case that we're told that Scottish ministers will have the power to decide on the classifications of hazardous waste. It's quite a simple question, just what discussions have been had with SEPA. That's on the assumption that the advice on classification would come from SEPA. Of course you might tell us that it would come from elsewhere. You're quite correct, we would expect advice on hazardous waste to come from SEPA. We regularly engage with SEPA on the full range of waste-related deficiency issues simply because they are in the front line on all of this. That includes on hazardous waste. SEPA works with the other environmental agencies within the UK in the list of waste decision process and there is joint UK guidance on waste classification and assessment known as WM3. Going forward, the Scottish Government would work with SEPA in deciding when and when not further waste. You said that going forward, the Scottish Government would, have they already engaged with SEPA? Sorry, they do engage with SEPA and in the future they would. On this specific subject? Yes. Therefore, it would be reasonable to assume that SEPA has the necessary skills and personnel in place to deal with this. Oh yes, yes. That's right, thank you. In fact, because I was coming before this committee, I spoke to my contact with SEPA. Just to be double clear, I can come and say these things to you. But yes, they have a long history of being involved in all this. That's right, thank you. John Scott. Thank you, convener. Just in terms of the control of pollution amendment act 1989 to give you a reference point, section 2 of the notification states that carriers from EU member states will no longer be exempt from registration. Presumably, that means that because the EU system will no longer apply in the UK, then EU carriers will have to register to adhere to the UK system. Now, although that may not be a policy decision itself, and therefore not necessarily a deliberate policy change, but it has the effect of being a policy change, can the Scottish Government confirm that EU carriers will have to register to adhere to the UK system? Yes. If I can roll back from that a little bit and by way of preface say that this has been an iterative process with death over time and at the time I prepared and lodged this notice I said will no longer having dug further over time because we're doing our own Scottish regs, we discovered that the power to make that exemption had in fact never been used. That in fact EU carriers currently have to register with SEPA and I apologise, this was not meant to mislead the committee, it was the fact that that was the change that was being made, they will no longer be able to, but in fact they have not exercised that power. EU carriers have to register with SEPA or the other environment agencies in the UK and that will continue, which means that this will continue as business as usual, it's not only not a policy change, it's not an operational change. That's great, thank you. Does that have any border implications, especially if there's a no deal scenario but from what you're saying possibly not? That's for the operation of UK carriers within the UK, currently carriers would be able to operate outwith the UK as well and that is a position which is subject to on-going work with colleagues in the UK government and the other devolved administrations and environment agencies. In relation to reserved set of regulations covering trans-frontiers shipment of waste, which even the European Commission has identified as an issue that needs to be resolved and has come out with a very helpful notification recently. I seem to hear that if a carrier registered with the environment agency south of the border that that would provide registration for the whole of the UK. Is that similarly the case if there were to register with any of the environment bodies in the four jurisdictions that that would cover the whole of the UK? There is a mutual recognition of the registrations across the UK because they work to the same standards. That's fine, go on. The number of the EU instruments haven't been transposed yet and we're clearly running out of time. Do you anticipate any of those instruments not being transposed in time for withdrawal and if that's the case, what will the Scottish Government do? I'll take this in bits if I may. The EU regulations and decisions in this notification are already directly applicable. The EU withdrawal act operates so that these regulations and decisions become part of domestic law. What those regulations do is amend them so that they work properly within our domestic law in the UK, including in Scotland. That means that there is no need to do any further work to make sure that those work in relation to our domestic law. As regards directives, we're working through to make sure that anything that is not transposed is dealt with in our own Scottish deficiencies instruments and that work is reasonably well advanced. We expect to finish that and complete that if we're exit date. Right, you expect to. Can you guarantee that that will be in place and if it isn't in place what will be the work beyond exit date? If there is a no-deal scenario, what we're identifying just now with the deficiencies that need to be in place before exit date to ensure operability after exit date and why I say the words expect to, it's because nobody can guarantee everything totally in real life. The real ambition and hope that we expect to complete all that work ready for exit date if it happens. Any further changes that might be desirable flowing from directives or EU law would be possible if we have an agreement, if we have an withdrawal agreement. That agreement would be available for change under the withdrawal act, but that's not a scenario that we're actually working towards at this point in time. We need to make all the changes we need to before exit date. Can I just ask about another issue and it's in relation to incineration. Do you feel that there are gaps in the regulations and guidance in relation to the incineration of waste at the moment? It's an area that isn't explicitly covered. Apologise, I'm not able to answer that question. It's not something that I've dealt with in the notification process per se. Focs, it's a bit more than that. If this SI is approved, will there be scope within it for the Scottish Government to set targets, say a cap on incineration? Implicit in this SI is targets for recycling and ban on landfill waste and everything else. Would this SI allow a cap on incineration? This SI wouldn't change any law that already exists, so I'm sorry, I just don't have the specific knowledge of the area to which you're referring. Can you write back to the committee if that's okay? Yes, with a letter. I would love to say to you that that's correct, because I do think it's correct, but I don't know. I need to check that. Okay, that'll be fine. I'm happy for you to get back in touch with us and let us know. John Scott. Can I take you to the framework discussions? The notification says that there will be administrative changes. It also states that it has been engaged in framework discussions with all the Administrations of the UK and the relevant regulators, specifically looking at the waste regulations in the UK outside of the EU and its existing regime. Could the Scottish Government provide more detail on who is involved in the framework discussions and, given how wide-ranging the field of waste legislation is, what precisely the discussions are about and what role is SEPA playing in this? The focus to date has been on addressing deficiencies in legislation, and in doing that we have identified that there may be value in a common framework to support areas where co-ordination and co-operation would potentially be of benefit. The example that comes to mind is on producer responsibility provisions for end-of-life vehicles, etc., which are currently dealt with on a UK basis, but there are other areas. Those discussions are at a very early stage. We are slightly driven by the fact that DEFRA is concentrating on the SIs and that this is a subsequent development. We are at a very early stage and we are just going to continue with that work as soon as we can. As regards SEPA's involvement in it, it has such a wide-ranging remit across the waste management area. Of course, we would involve SEPA in those considerations. There is no doubt about that. What specifically? What would their role be? It would be their normal advisory and information-giving role. They also have powers to provide advice on technological changes, etc. We would look to them to provide a full range of supporting information and advice on those frameworks. Apart from anything else, quite often they are effectively operating in a framework in the UK, even though it has not been formalised. Are they adequately resourced to do all of this again? One has to ask, given the declining budgets and things. Yes, I think so. As far as I am aware, they are adequately resourced, but that is a question for SEPA. It is not for me to advise on that. Fair enough. The notification says that a number of EU regulations and decisions are to be revoked, but it does not identify them. Could you identify the regulations and decisions that are to be revoked? Certainly. I would ask if the committee wishes this kind of information to be included in the next notification. I am more than happy to do so. It is a list of 20 decisions and regulations and it is dry as dust. What I can do is read them through to you or I would be more than happy to send the list to the clerk. It would probably be a better idea in terms of efficiency. If you are happy, we will have that as an answer. In short, it is revocation of instruments that are either spent, that we have in fact transposed in domestic legislation or are reporting requirements that involve doing things to or for the commission. That is that genre of instrument, so I will send those on to the clerk when we get back to the office. Angus MacDonald. This is just a general point on the layout of the notification. After each of the herrings, EU regulations and EU decisions, there is a general paragraph that states that a number of EU regulations or decisions are to be revoked. Angus MacDonald will be amended. Angus MacDonald goes on to detail several specific regulations or decisions. Can you confirm that every regulation and decision that this SI concerns other than revocations is specified in the notification? Yes. The general paragraph was an attempt to explain the general process and the aims to be achieved by the regulations, and we have gone into each and every regulation that is dealt with. I am quite honest, it is somewhat out of my depth with this, but I will try it anyway. The notification mentions another notification in the subject areas anticipated in December 2018, where we now are. Why has the Scottish Government separated consideration of the notifications? Is it appropriate to consider the notifications in isolation? Those two. The notification is in respect of regulations that are subject to affirmative procedure in Westminster. Therefore, we have to satisfy their parliamentary requirements and also the protocol. We have had to take the notification forward much earlier than the notification for the second set of regulations, which is in a negative procedure. It is a parliamentary procedure point coupled with protocol requirements. I suppose that it is driven by timetables in DEFRA as well, but it is a technical reason. There is no intention to split them up for any other reason. That is very helpful, thank you. I have a final question. This is all in preparation for a no deal. This is a tremendous amount of work that has been done. Presumably, in the inventive ideal, is a case of going back and looking at all of these all over again. Is that what the case is? It would depend on the deal. First of all, if there was no deal, we would presumably have to go back and consider what, if anything, of this work is relevant to what we need to do going forward. It may be quite helpful, and it may not be. We do not know, but, as far as the work is concerned, if there is no deal, it is on a range from useful to a completely nugatory. The third item in our agenda today is to consider a number of requests from the Scottish Government to the committee to consent to the UK Government legislating using the powers under the European Union Withdrawal Act 2018 in relation to a number of UK statutory instruments. The first of those is the persistent organic pollutants regulations of 2018. Members will note that the deadline for consent from the Scottish Parliament is 5 December. Do we have any comments on those? No, we do not. Are we content to give our consent for UK ministers to lay those regulations in the UK Parliament? Yes. The second instrument is the control of mercury regulations 2018. Members will note the deadline for consent from the Scottish Parliament is 5 December. Do we have any comments on this? No, we do not. Are we content for the Scottish Government to give its consent to UK ministers to lay those regulations? Thank you. The third instrument is the equine records identification and movement amendment of regulations 2018. Members will note the deadline for consent from the Scottish Parliament is 5 December. Do we have any comments on this? No, we do not. Are we content? Yes. Thank you. The fourth instrument is the animal welfare amendment regulations 2018. Members will note the deadline for consent from the Scottish Parliament is 5 December. Do we have any comments? No, we do. I would like clarification from whom servers are appropriate that the UK has decided to continue to recognise transporter authorisations from the EU countries to the UK, but it is not clear if this is a reciprocal agreement with the EU. If we could have clarification on that, please. We can certainly make that point and ask for clarification when we send a letter of consent. That is in the transport section of the animal welfare amendment. Mark. A further clarification, convener. It is just in relation to the decision making powers of whether the practice of live animal export should be banned or not and whether this regulation has any bearing on that in terms of the mix of devolved and reserved responsibilities. It is a point of clarification perhaps for the Scottish Government about where they now see their powers lying in relation to those regulations. Two points of clarification. Beyond that, are we content to give our consent to the statutory instrument? Yes. We are. The fifth instrument is the fluorinated greenhouse gasses and ozone depleting substances. Regulations 2018. Members will note the deadline for consent from the Scottish Parliament on 6 December. Have we got any comments on that? Another brief comment, convener. I noted that effectively this regulation could allow the Scottish Government to go faster in terms of the phase out of ozone depleting substances. It would be useful to get clarity from the Scottish Government about whether they would continue to see reductions in ozone depleting substances in line with other parts of the UK or whether they would see any benefit in accelerating the phase out in Scotland. Do you think that that affects the statutory instrument or is that just a more general question about the Scottish Government's ambitions in this regard? I think that it is. I would find it useful context in relation to this regulation and how it will be used in a withdrawal scenario. We can reflect that in our letter. All that has been said, do we consent? Content, yep. The sixth instrument is the Nagoya protocol compliance regulations 2018. Members will note the deadline for consent from the Scottish Parliament on 10 December. Do we have any comments on that? No, we don't. Are we content for the Scottish Government to give its consent for UK ministers to lay these regulations in the UK Parliament? We are. The seventh instrument is the air quality regulations 2018. Members will note the deadline for consent from the Scottish Parliament on 10 December. Do we have any comments on that? We don't. Are we content for the Scottish Government to give its consent to the UK ministers to lay the regulation in the UK Parliament? We are. The eighth instrument is the air quality regulations 2018. Members will note the deadline for consent from the Scottish Parliament on 10 December. Do we have any comments on that? No, we don't. Are we content for the Scottish Government to give its consent? The ninth instrument is the marine environment regulations 2018. Members will note the deadline for consent from the Scottish Parliament on 11 December. Do we have any comments on that? No, we don't. Are we content for the Scottish Government to give its consent to the UK ministers to lay the regulations in the UK Parliament? The tenth instrument is the agriculture zoo techniques. Members will note the deadline for consent from the Scottish Parliament on 12 December. Members should be aware that the notification was also sent to the Rural Economy and Connectivity Committee as the proposed instrument relates to both remits. Each committee has been asked to consent only to the elements of the notification relevant to the remit. Members should note that no legal or policy issues were raised in relation to this proposed instrument in so far it relates to this committee. Do we have any comments? No. Are we content for the Scottish Government to give its consent for UK ministers to lay the instrument in the UK Parliament? The ninth instrument is the farriers registration and animal health amendment regulations 2019. Members will note the deadline for consent from the Scottish Parliament on 12 December. Members should be aware that the notification was also sent to the Rural Economy and Connectivity Committee as the proposed instrument relates to both remits. Each committee has been asked to consent only to the elements of the notification relevant to the remit. Members should note that no legal or policy issues were raised in relation to this proposed instrument in so far it relates to this committee. Do we have any comments? No. Are we content for the Scottish Government to give its consent to UK ministers to lay the regulations in the UK Parliament? We are. I can confirm that the committee will write to the Scottish Government in relation to all the instruments today and include the points that have been raised. We are going to suspend for a couple of minutes to allow our panel to change. The fourth item on our agenda this morning is to take evidence on the EU exit and the environment from the Scottish Government. I am delighted to welcome Rosanna Cunningham, Cabinet Secretary for Environment, Climate Change and Land Reform, and Fergus Ewing, Cabinet Secretary for the Rural Economy and Connectivity. They are joined by their officials, Katrina Carmichael, Deputy Director of Environment and Land Use Strategy, David Barnes, National Advisor for Agriculture and Mike Palmer, Deputy Director of Marine Scotland. I believe that both cabinet secretaries have an opening statement to make if I can ask Rosanna Cunningham if she would like to give her statement. Thank you, convener. I'll be brief. Both Fergus Ewing and myself are very concerned about the likely negative impacts that Brexit will have for both our portfolios. There are three specific points that I wanted to make about the expected impact across my own portfolio and a very brief flag up as to how we're responding first. I think that it's clear that the current proposed deal is pretty bad for Scotland and the UK. It would severely damage our economy, including our exporting sectors such as food fishing and aquaculture, and in particular the political declaration fails to provide strong guarantees on the protection of environmental standards, leaving these vital issues for another day. Second, despite the uncertainty, I want to explain to the committee over the course of this session the scale, breadth and complexity of work under way across each of the Scottish Government directorates and public bodies that support my portfolio. That isn't just about the extensive secondary legislation programme, but it's also about a much broader programme of operational readiness planning and beyond the transition period about engaging with the UK Government on UK frameworks where they are in Scotland's interests and on the implications of EU exit-related primary legislation being brought forward by the UK Government. In light of that, I'm continually reviewing my portfolio priorities, and in some cases, including the development of a new environment strategy, I've taken the decision to slow our progress until such time as the main hurdle of the nodial preparations has been crossed. Thirdly, in a lot of important areas, we're still waiting on further clarity from the UK Government so we don't actually yet know what the full extent of that impact will be. That includes on how EU funding will be replaced after exit, which is an issue that goes off across both portfolios, and how environmental protections will be guaranteed in the future UK-EU relationships since the referendum vote. I've made clear the Scottish Government's ambition to maintain equivalents with high EU standards and for that to continue to be tracked. For that reason, I've decided to hold back publication of the consultation on environmental governance for a very brief period so that we can set out a more meaningful set of options for consultees to consider once the future picture is more clear. My officials will be continuing to develop the consultation proposals and to engage with the UK Government and other devolved administrations on respective plans for future environmental principles and governance. That is a live discussion that's on-going. I hope that that statement helps to set out for the committee both the extent of the work and, if you like, a current SIP rep in terms of environmental governance and principles. Scotland voted overwhelmingly to remain in the EU during the referendum leave campaigners, including UK Government ministers, promised that there would be no loss of funding. The UK Government must now deliver on that promise. If they renegan their promise, the potential consequences for rural Scotland are serious. Despite that, we are working responsibly on preparations for Brexit. We're doing so in a detailed and thorough manner. For example, we're working with DEFRA preparing statutory instruments to ensure that we have a functioning basis upon which to operate on exit day. This will ensure continuity of farm payments and of the European Maritime and Fisheries Fund, as well as fisheries management arrangements from next March. We're engaging with DEFRA on the agriculture and fishes bills. On the ag bill, we asked Mr Gove to make amendments that would bring the bill into line with devolution, where it is wrongly taking powers from this Parliament and also to deliver on the promises that were made during the referendum campaign, including the promise to replace all lost EU funding. The UK Government has so far rejected our amendments. As a second best, I asked Mr Gove to make a commitment on the record in Hansard in the House of Commons about future funding to date he has not agreed to either point. I still hope, convener, that we can find an agreed solution on those issues and we will keep pressing UK Government on them. The fisheries bill is at an earlier stage. We had sight of it only extremely late in the day. That's meant that we've had little time to work with DEFRA to improve it, although that's what we've done. We have managed to make improvements, but I remain concerned about a number of emissions, particularly allocation of fishing opportunities, funding for our coastal communities and the sea fish levy on which I'll be writing to Mr Gove this week seeking amendments. I want to raise our concern at the impact on Scottish fisheries and aquaculture of the UK Government's withdrawal agreement and the political declaration. Despite the Prime Minister's claims, a link between trade and access to waters has been conceded, allowing for exclusion of fisheries and aquaculture from tariff free access through a temporary customs union under the so-called backstop if a fisheries agreement acceptable to the UK cannot be achieved. To compound this, aquaculture has now been bound into this deal alongside fisheries, setting up one vital Scottish sector against another and showing a complete disregard for these key Scottish interests. This, we feel, is a disturbing development and one that occurred without any form of meaningful engagement with the Scottish Government. In conclusion, I will again be writing to Mr Gove this week to outline those concerns. Can I ask—we're just listening to both of your statements here—that the Scottish Government is having to cope with a hugely onerous amount of work on top of the work that you are normally doing in order to prepare for an old deal? What's actually happening in Government? Do you get any extra resources from civil servants to help you to cope with this workload or is it just a case of people having to put in this tremendous amount of work in the event of a no deal to prepare so that effectively Scotland still works? Well, yes, to all of that. We have some extra resources, but we don't have proportionately the same extra resources as, for example, Defright itself has, so that creates a bit of an issue already. Secondly, an enormous amount of the work that's going on at the moment is in preparation for a no deal, which has to be done because if there is no deal, this is work that's on the identifiable issues that will be a real concern literally the very next day. That work all has to be done in preparation for a no deal, notwithstanding that, in fact, if there is a deal, all of that work will have been in hindsight for nothing, but of course at this stage of the proceedings you have to do it. All of that is being done by the same people who are also doing the more proactive work, which might be for looking at how we would work into the longer term, but also the same officials who are also having the discussions with DEFRA officials about potential frameworks and all the rest of it. In our case, it's all of the same people that are doing it right across the board. There isn't a separate, discrete team doing SIs and a completely separate, discrete team doing frameworks, so that would be a misunderstanding of how it works. We have a really good, hard-working team of officials across both portfolios who are actually working on all of this. Yes, that is having an impact. There isn't any doubt about that. We are managing it thus far with careful and astute management, but in some cases it might mean, for example, our decision to just slow down on the consultation is more, is not so much about work quality. It's more about, at the moment we've got a set of question marks, so there needs to be some clarity there. In other areas it will be just trying to manage the workload so that you're making sure that things are done on time when they're necessary to be done, but that may mean other things will have to slide by a month or two. Officials are making these decisions all the time. Some of the decisions end up having to be decisions that both Fergus Ewing and I make at a ministerial level as well. At the moment, none of them are huge decisions. They're still working decisions, but that's kind of where we are at the moment. One of the real issues is that all of this is now an enormous part of our day job. It's part of the day job that nobody could have envisaged two and a half years ago. Of necessity, it is creating a problem. John Scott. Good morning, cabinet secretary. I've been wanting to clear an interest as a farmer and I've asked the questions on agriculture, unsurprisingly perhaps. Given that, unlike the Welsh Government and the era for Northern Ireland, the Scottish Government has not accepted the UK Government's offer to include a Scottish schedule in the bill, that means that the provision of the bill does not extend to Scotland. The UK Government states that the offer is still on the table for the UK Agriculture Bill. Is it still under consideration by the Scottish Government that a Scottish schedule will be added into the UK Agriculture Bill? If so, that's good and if not, why not? It is still an option. The Secretary of State has said that. That would require the consent of the Scottish Parliament. We have expressed serious concerns with the bill. The reason is that we understand that there are at least three respects in which it predates upon the powers of this Parliament. Those are in shorthand compliance with the WTO agreement, producer organisations and fair dealings in agricultural supply chains. We have set out, convener, the reasoning behind our assertion that these powers would be taken away from this Parliament. We have asked DEFRA in response to explain their reasoning for taking the opposite view. My understanding is that they have declined to do so, or at least they have not done so. That wouldn't be acceptable in a court of law. You can't just make assertions and not back them up. We backed up our arguments. They haven't backed up theirs. Nonetheless, despite that, we are continuing to seek to resolve those and working across at an official level at UK Government. We have worked in right relations with the ministers, Mr Gove, Mr Eustace and others. However, as matters stand and as members will know in the LCM, which we have tabled to the Scottish Parliament in accordance with the rules, it is not acceptable that the bill would predate on the powers of this Parliament, particularly since agriculture has been devolved for just about 20 years. I want to stress that putting it in shorthand for the farmer in the field, as it were, there is absolutely no problem in our continuing to make payments. There is no practical difficulty in doing that. It is an issue that has some legal complexity, but I want to assure farmers and crofters listening to this that that is not an issue. The presence or absence of a schedule in the agriculture bill, too, is not something that, in substance, makes any difference to our capacity to deliver for farmers and crofters the sustainable future. What is important is the issue of funding, because before elections promises were made, before referenda promises were made and the UK Government has signally failed to even repeat the promise, never mind a confirm that it will be implemented. That seems to me, convener, to be an extremely important point and I hope that the committee will agree. If agreement, nonetheless, the predation, as you put it, minister, I am not sure if that is a legal term, but if those matters could be resolved, cabinet secretary, forgive me, you might still consider there being a Scottish schedule in the UK agriculture bill or not. We want to be as co-operative as possible and, if we can make progress, that would certainly be welcome. I have had, as well as a face-to-face meeting with the Scott, I have discussed this over the telephone with Mr Gove.  Are we not? Not by our words, no matter how courteously uttered they may be, and we are waiting for delivery of promise. I would also say that there is a bigger question in respect of the continuity bill and the Sewell convention. It is our belief, Mr Russell's belief, that this Parliament has not been respected. That is a wider issue that I think really needs to be resolved so that progress can be made. I imagine that Mr Russell would be a better place, convener, to explain the detail of that. We do not feel that this Parliament has been respected either in the continuity bill or in the agor fisheries bill, about which we have generally been consulted more or less at the stroke of midnight. Resulting in situations that I would have preferred to have avoided, I do not want to have discussions about technicalities. I want to get to the meat of the thing and sort out matters for farmers and crofters and people that work in the rural countryside, including gamekeepers, from which the term predation is probably more applicable than the law courts. As a point of information, cabinet secretary, can you tell us when it is likely that the Supreme Court will rule on the continuity bill or not? That is above my pay grade. I will take it that you do not know. No, I just wondered if you perhaps did. That would not be facetious. I do not think that they tip you off or not what they do. Does the Scottish Government think that it will be necessary to introduce a Scottish agriculture bill and when? We will do everything that is necessary to make sure that the day-to-day management of matters is dealt with. As you know, Mr Scott, I spend a lot of time including a conference call this morning on cap IT issues every week and every day, quite frankly. I am really focused on the day job and, as my colleague has said, it has been supplemented by Brexit. My old boss used to say, if you want something done, ask a busy person. So we have just got to get on with it and not really whinge too much about it, I guess. Having said that, if we need an ag bill, then of course it is up to cabinet to decide and parliament to consider, but we will have an ag bill and we have considered this in detail. There are only limited circumstances in which this would be required, but it would not be a complex matter. It would be a matter of routine legislation of which we are well familiar in this Parliament and dealing with things reasonably swiftly. Moreover, the deadline within which such a bill would need to be submitted is not one that would give us any problem at all. For 2019, no legislation is needed. For 2020, there may be a small technical issue needed. 2021 onwards is where we may need a bill for the stability and simplicity approach in our consultation document. Mark Ruskell had a supplementary question. On the legal basis for direct support, you seem to be saying, Mr Ewing, that there is a legal basis for direct support post 2020. That differs to the position of the National Farmers Union, who is still concerned about that. We have had detailed engagement with the NFUS, including a meeting with its president, Andrew McConnack, with whom we have a very good working relationship. I am not sure that it is correct. It characterises us having different views. Andrew McConnack was assured by the reassurances that I provided at the meeting when we discussed those matters in detail. There is a sound legal basis for making payments. The particular basis will depend upon the particular outcome of Brexit. I am not going to begin to speculate, but there are three broad scenarios. In each case, there is a clear legislative basis for continuing the payment. Rather than the technicalities—and I can confirm in a letter all the technicalities—it would take me about five minutes, but rather than doing that now, unless members want to spend their time on this, it is entirely up to you, please take it from me. There is no doubt about continuing the payments. The sole issue, to be fair to Mr Ruskell, which was subject to some debate initially, was whether post-Brexit changes that we may wish to make to CEP, for example, would require legislation in order to give them effect. The answer is that that may be the case, but we have plenty of time to bring in that legislation, if required. From my part, I would guarantee that anything that we need to do to make sure that we have been in a position to make changes, we would certainly do. If that included the requirement for legislation, that would be something that, obviously, I would pursue and I would have to approach it through Cabinet and follow the procedures for that, because it is a Cabinet decision. I can say that the Scottish Government is determined to do everything that we need to do, because despite all the archibarky about Brexit, which is absolutely serious, nonetheless we have a responsibility to make sure that whatever happens, we are in a position to do our day job. That is something that I can assure you, convener, that we take with the utmost seriousness. If you were to make changes, the opportunity to consult and design and make further changes is running away. There is a limited amount of time, if you wanted to put in a new subsidy system by 2020. No, there is not a limited amount of time to consult on that with stakeholders. The consultation of changes is a different matter, and consultation is something that we almost always do. Routinely consultation periods could be 6, 9 or 12 weeks or thereabouts, but there is no time issue. I can assure members of that. This matter has been raised in REC as well, and it has been raised in the UK Committee, Mr Wishart chairs. I am perfectly happy that Mr Barnes can give a very detailed technical explanation of members' wishes, but I am in your hands, convener. John Scott has one final question before we move on to Stuart Stevenson's question. I am just interested in what the shape and the thrust of the Scottish agriculture bill might be at the time that you deem it appropriate to introduce it. We are assuming that a bill is necessary for the purpose of making adjustments post Brexit to the current CEP. If that is the bill that we are talking about, and that is certainly what I am taking from this question session, then that bill would have a very narrow remit. It would be focused on the issue of powers. It would not really discuss the issue of substance. It would be enabling changes to be made, if you like, to the process of the payments, rather than setting out in detail the substance of the policy. We have in our paper Stability and Simplicity, convener, which we consulted on over this summer, set out various ways in which we, the Scottish Government, suggested might be worthy of serious consideration, namely changing some aspects of the CEP, piloting some changes, and we set out a timescale for that in the document. We would be absolutely able to bring in the legislation necessary to enable those or other changes with ample time so that they can be implemented post Brexit. Stuart Stevenson. I want to talk about the fisheries bill that the UK has introduced. In your introductory remarks, cabinet secretary, you highlighted three things, fishing opportunities, funding for coastal communities and sea fish. Let me perhaps turn to the fishing opportunities to start with. The UK fisheries bill basically aggregates to the Secretary of State the function of determining UK fishing opportunities in accordance with the UK's international obligations. What is the Scottish Government's understanding of what that means? Let me break that down to explain what I am asking. Is that simply saying that the UK Government is responsible for negotiating with neighbouring states the use of transnational quota allocations? Because there is always quota swaps, we know that existing system. Or is it also about how the quota may be allocated to individual vessels and to individual areas of Scottish waters? In other words, where are the boundaries of the power that the Secretary of State is seeking to take? It is a bit of a technical question. I will probably ask Mr Palmer to come in in a moment. The bill, as drafted, we felt contained powers with regard to the allocation of quota that appeared to us to predate on the powers of the Scottish Parliament to take those powers away. We used the word predate in that sense. To be fair to DEFRA and to UK ministers, we pointed that out and put it simply, they accepted the argument. That was a plus and they changed the original wording. That illustrates that the process of official to official work has had some beneficial results. Let's recognise that. We want to get the job done, not just score points all the time. In that respect, we felt that there were powers being taken away in relation to the framing of international law and quota and that some progress has been made. Unfortunately, we think that there are other aspects that are still not being resolved in the fisheries bill, which we did get at the last minute. Just so that we can make sure and do justice to Mr Steves' question, perhaps I could invite Mr Palmer to answer the rest of the technical parts of it. Certainly, as the cabinet secretary said, we managed to improve that part of the bill. It happens to be section 18 of the bill. The drafting is better in terms of protecting devolved competence, but it is still not quite there in terms of what we feel impinges on devolved competence, because there is a distinction between the reserve function, which is to make the international agreement, and then the compliance and the implementation of that international agreement, which, from our point of view, is clearly a devolved function and a devolved competence. There remains some wording in the bill that, for example, is that the Secretary of State may determine fishing opportunities for different areas of sea. We are concerned that that may lead to the Secretary of State being able to determine quota limits, for example, for Clyde Herring or Orkney Crab, and that would clearly impinge upon devolved competence in our view. We are still discussing this with DEFRA, and I should stress, as the cabinet secretary said, that our discussions have been positive and constructive. We are hoping that we can find a resolution to this, but it still remains a point of difference between us. Just to confirm an example that you used, Mr Palmer, was Clyde Herring and, of course, herring elsewhere, is it the case that, at present, the Scottish Government determines the balance of quota for Clyde Herring versus Herring elsewhere in an overall framework that covers the totality of herring in Scottish waters? What happens at present is that it is the European Union in negotiation across the member states that will decide quota limits and total allowable catches across all of these stocks. In terms of the Clyde Herring, Scottish ministers have a delegated function there to work with the European Union to determine that quota limit. Obviously, post-DU exit, we will then be moving into a situation where those limits will not be determined by the European Union. We are concerned about where the competence should lie. Perhaps my mind is working in quite a simple way, and I am not clear that, at present, the UK and Scotland get an allocation of herring, but who decides which of the areas that there are to which quota are allocated? Who decides that? Is that the European Union who says that 4A gets that, 4B gets that, or 7 or the different areas around it? Or is that something that the Scottish Government does within an overall framework of the species to be caught within our waters? The UK delegation, led by the Secretary of State, will decide what the UK-wide total allowable catch is for each stock right across the UK. There is then a process of allocation across the UK, which works according to very well-established administrative rules of how that quota should be distributed across the UK. You would imagine that there is a lot of sensitivity about respecting those rules. What we are concerned to do in relation to the Fisheries Bill is to protect the Scottish interests in terms of devolved competence in terms of how international determinations are then administered and implemented within the UK. You mentioned administrative rules that basically break down the overall UK allocation into the areas of water. Does the bill that is before the UK Parliament affect the operation of those administrative rules at all? No, it does not touch on that. Therefore, if the UK sets what the overall limits are going to be, although presumably there will be external negotiation associated with that, that the allocation to Scottish waters put the process of allocation remains unchanged. That is, I think, modusly helpful. Can I just move on, cabinet secretary, to the issue of funding for communities that you raised in your opening remarks on the extent to which the UK Fisheries Bill touches on that matter? At the present time, the EU funds through the European Maritime Fisheries Fund a substantial amount of funding that is used for a diverse range of purposes. For example, in processing, for ice-making facilities, for ports and harbours to affect improvements, for various qualifying projects for companies and other applicants throughout the country. The point that I want to make is that the UK Government has not implemented the promise that was made in the run-up to the Brexit referendum that the EU funding would be at least matched. The EU funding in fishing is largely EMFF, and in agriculture is largely the CAP. In terms of rural funding, we are talking in the period 214 to 220 from the EU, funding of £5,000 million from the EU. That was funding that was promised. Here we are, Mr Eustis. Farmers will be better off if we leave the EU. Better off. There are also specific quotes. I will not go through them all, but I can provide them if you wish. The point that I am making is a very simple one. Before the referendum, there were promises made, but we have not had promises about the EMFF. That has been absolutely crucial for fisheries and the development of fisheries, the development of capacity in companies, the improvement of harbours all around the country, and it is absolutely essential to enable those vital projects to go ahead. I have proposed an amendment on funding to ensure that Scottish ministers get at least current EMFF monies. That, convener, will be a matter for the UK Government to debate. Colleagues will develop funding on more broadly-based shortly. Just one final small item. You mentioned sea fish, which is essentially a levy, which is taken to the UK, on which we get a limited share back. Does the fisheries bill touch on the issue of sea fish levies? Is it your intention that it should do if it does not currently? The answer is no, it does not. We have put an amendment, but perhaps Mr Palmer, who has helped to draft it, might explain what it is. At the moment, we believe that there is an omission in the fisheries bill with regard to the sea fish levy. The Scottish Government has, for a number of years now, been requesting the UK Government to devolve levy-raising powers to Scotland. We have proposed an amendment to the bill, which would provide the sea fish industry authority, which administers the levy with greater flexibility to exercise its functions separately and differently in different parts of the UK. The amendment would introduce a new clause, which would amend the Fisheries Act 1981, which is the act that enshrines sea fish. That would allow that authority to exercise its functions separately in different parts of the UK. In consequence of that, there would be greater flexibility for the way in which the levy operates in Scotland to be distinct to the way in which it operates in the rest of the UK. We are also proposing a new clause, which would require the sea fish authority to appoint a committee for the purpose of assisting that authority in the exercise of its functions in relation to sea fish industry in Scotland, so that we would have a statutory committee that would be tailored towards Scottish needs and circumstances in terms of how that part of the levy is delivered for Scotland. I may have a short supplementary question from Fincharsen on this issue. Thank you, convener. On the bank of the UK becoming an independent coastal state when we leave Europe, we've heard about fishing efforts, quotas and total allowable catches. Is it still the fact that wherever the quota levels are decided, Marine Scotland will still have the ability or control the licences for who can fish within Scottish waters? Yes, that's correct. That remains a devolved function. Most of Fisheries management almost all of Fisheries management is a devolved function and that will remain devolved. Let's move on to questions around funding. Questions for both cabinet secretaries because obviously the current EU funding streams affect both portfolios massively. We mentioned CAP, AMFF but also Horizon 2020, Life Structural Funds, European Territorial Cooperation Funding. Those have massive implications for agriculture fishing but also the environment as well. Can I ask if I take Cabinet Secretary for Environment, Climate Change and Land Reform first of all what affect a lack of certainty around funding, for example, R&D might have on issues around how the portfolio for rural economy and connectivity works with the environment, climate change and land reform around environmental issues in Scotland and how that funding, if it's not guaranteed, if a replacement funding is not guaranteed, what implications that might have? Fairly significant implications which I think we've been flagging up for some time. There's been a fair amount of recent publicity around Horizon 2020 in respect to the reliance of Scottish universities on that which can vary from institution to institution but, on average, it makes up about 10 per cent of their total research income so that would be a big collapse in that and I'm right in saying that the various research institutes which are not actually part of the university structure are similarly dependent on access to Horizon. We have information already that research proposals that involve our UK and, in our case, our Scottish component are just not getting off the ground because from an external perspective it's going to cause an issue and therefore they're just not getting anywhere as a result of that. Horizon 2020 is particularly important to Scotland because actually, because of the really good performance of our research institutes and research bodies we tend to get a higher level of income from Horizon 2020 as a result so it works out at 55 euros per capita compared with a UK average of 40 euros per capita so you can see there's quite a distinctive difference so that's an important consideration because even where funding in some way to be agreed at the moment we get a disproportionately higher level of that funding and is that going to be agreed because if that's not agreed then we're going to see a drop anyway which is a big concern. So there's also a slightly more indirect risk which is that loss of EU funding is also taking people out of networks and I'll give some examples of where joint funding projects are just not going ahead if there's a Scottish or indeed a UK component so you're then losing the network of research and research is now done across boundaries that are fairly taking place entirely within one institution in one country you're always going to have partners so that's a big concern there's also other issues that have to do with other bits of funding we've got Fergus Ewing talked about the cap being important for both portfolios and that is the case because obviously it also funds agri-environment schemes so that's not necessarily about research but that's about practical schemes on the ground and that's really important to us there's a European Regional Development funding which goes to SNH for the Green Infrastructure Strategic Intervention programme that's around £41.6 million there's a European Regional Development funding that goes to Zero West Scotland to support resource efficiency and the circular economy and that's around £26.4 million so it all begins to add up across a number of programmes impacting in a number of areas and will be a considerable loss to Scotland if there aren't real guarantees now there are some guarantees and I think at the moment as I understand it the guarantees are up to, well included within the 2014-2020 EU budget plan once you get past that you're into more of a no-man's land in terms of where things might go there is, as I understand it a shared prosperity fund which has been flagged up by the UK Government which I think is meant to somehow bring a lot of this under its umbrella but thus far despite reassurances that devolved administrations would be involved in the development that thus far that's not actually happened so we really don't know yet what that means what the calculations would be in terms of what it would cover and as I indicated at the start of this the recognition that Scotland punches well above its weight in being able to access funding therefore it isn't just about getting a share will we continue to get the share that we have been managing to get until now so in both your portfolios you've obviously identified quite a lot of areas where EU funding there's not a guarantee being replaced what action have you been taking in order to put these points to the UK Government around replacement of this funding and given that obviously you've been, for two years you've been asking for a guarantee for this funding to be replaced but given that you've not had answers on that and guarantees in the event of not having those guarantees fulfilled the UK Government would be responsible for, as the paymaster, following the EU and what have we been doing we have been pressing this issue myself and my colleague Roseanna Cunningham from the Brexit day the Brexit referendum day and we've been doing so in a concerted fashion and at numerous meetings we've attended with Mr Gove, Mr Eustis and other ministers and Mrs Ledson before him we've also asked for an amendment to the agriculture bill to guarantee funding I mean, after all there's umpteen quotes that George Eustis said the UK Government will continue to give farmers and the environment as much support or perhaps even more as they get now Farmers Guardian 26 May 2016 Now, you know Robert Burn said, in gathering votes you were in a slack, now stand as tightly by your tack and I claw your auger, fidge your back and hum and haw, but tell your crack before them all i.e. after the voting you've got to fulfil your promises so what we're doing is saying do what you promised you would do Now, I mean, on the EMF there's 243 in the UK 107.7 comes to Scotland of that, I mean Peter Head got £5 million for it's project, big project major project £1.7 million for the peer in Westry £900,000 for Seafood Scotland to showcase our produce international trade shows £6.5 million to Fisheries local action groups throughout the country, £2.5 million to act with culture innovation the only thing we know about the UK prosperity fund is those three words so, you know what are they doing, what are they playing at we've been pressing this, convener eyeball to eyeball person to person face to face letter endless letters and although we have received some limited assurances they'll really only take us either to 222 or in the case of non-farm support non-farm support pillar 2 payments to 2020 the EU funding schemes are in a 7 year tranche 2014-20 2020-27 and that 7 year is not an accident, it's because the EU I think recognises that in fishing and farming investments are long term you can't plan on a year to year basis, you need to take a longer term view so I do think that we have argued the Scottish cause in detail and rightly so for hill farmers and fishermen for the environmental schemes for forestry which is waiting for assurances quite frankly despite the fact that we do about 80-90 per cent of the forestry in Scotland and at some point maybe after if they ever go over the Brexit wrangling that's gone at the moment they're going to have to focus on the day job in a situation where you do get a guarantee and you're able to make plans for new payment schemes so that the Scottish Government's intention to maintain funding for climate and biodiversity projects under the CEP scheme should we have that guarantee of the replacement funding this funding at the moment comes from the EU that's where it comes from we can't magic up money if it's taken away by the UK Government because they don't implement the promises then the responsibility will very clearly lie on those who made false promises who over promised to get votes for Brexit that's where the response is we can't magic up money I can't say and it would be absolutely rash of me to say that somehow I would find money which we've taken as read will be there from the EU because we've put the benefit of the contribution we can't magic up money if it turns out that the UK Welsh is on its promises post Brexit so without that guarantee you can't make a commitment towards biodiversity programmes what we can do is guarantee that we'll pass on money that we receive to beneficiaries of course we do that and we have done that as a matter of fact but we can't pass on money that we don't get can I just make the point I flagged up the disparity the higher proportion of horizon 2020 funding that we get for research institutes in Scotland compared to south of the border but the global sums of money are actually quite significant the current horizon 2020 programme runs 2014 to 2020 and since it launched in 2014 over 533 million euros worth of funding has been secured by Scottish organisations to date that's the scale of what we're talking about now that isn't how do you step in and replace that amount of funding it isn't really an easy thing to do unless you are drawing down money from a different source and at the moment there is no obvious different source that is going to deliver on that same scale maybe this shared prosperity fund is going to be it but we don't know and there is no guarantee and I've indicated that already we are losing potential research contracts as a result thank you could ask you from an environmental perspective cabinet secretary if you have like myself particular concerns although there are major concerns about all the funding issues about the the life funding streams particularly in view of what's been highlighted to me by RSPB and other organisations that where such as in the shant islands you need a considerable amount significant amounts of money at one time in order to tackle something like removing the black rats which has been very successful and I just wonder in terms of a particular block of funding at a particular time if there are particular concerns about life yes there are issues around life funding it's one of the smaller segments it's not off the scale of horizon 2020 since up until now in that same 2014-2020 budget period Scottish organisations we think have received around £9.1 million in life funding and SNH has received funding for habitats and species work which will be getting spent out there there are also partner projects that involve SIPA and that life plus programme is for example helping on throughout the central Scotland green network so there's a lot of smaller packets of money which are currently being drawn down from Europe that are very significant another one I didn't mention of course was interreg so it's spread over quite a few areas and it isn't just the money because the money is incredibly important but it's not just the money it's the relationships that you begin to be impacted negatively once you're no longer part of this process because a lot of the projects that get set up will involve others from other places if you go to one of the research institutes the numbers of young scientists that come from across the whole of Europe to work in a lot of the work that's being done it's quite noticeable and it's worrying I think how that future will look if we begin to see them disappearing SRDP obviously hugely important for catchment level work between farmers meeting environmental objectives are you able to guarantee funding SRDP programme up to the end of the transition period and given that you have got a period now where you're looking at bringing forward a Scottish agriculture bill presumably you'll be looking at how SRDP is delivered as part of that as well just to flag up the figures again the aggregate environment schemes under the SRDP are around £308 million in that same 2014-20 funding period I would love to be able to say that we could simply match that if it disappears but the truth is I can't say that so and that's really within that 2014-2020 period what's the current state of the transition goes up to when I don't know The guarantees we've received this is a matter of record is that CAP pillar 1 payments for the 2019-20 scheme year CAP pillar 2 contracts excluding technical assistance entered into by the end of 2020 now that means there's no guarantee or certainty for farm support because the UK government commitment is to maintain the same cash total in funds for farm support until 2022 so that begs a question of what is farm support is forestry farm support I don't think so is the AIC scheme farm support I wouldn't have thought so there's an argument so the terminology used by the Treasury of this distinction about farm support really is not one that has clarity for the purposes of the variety of schemes under pillar 2 some of which have an element of if you like supporting activity in farms but perhaps designed primarily for other things such as key environmental things alleviation of flooding for example or in forestry is not really I don't think directed primarily to farm support so so really after 220 projects into entered into prior to 220 there's really no investor certainty and the trouble about that is that an awful lot of certainly the forestry schemes and I think the case in the environmental schemes are long term projects conceived in a long term over a number of years and therefore long term investor certainty is just a sine qua non for any investment decision so I think that we're now seeing the impairment of investment decisions as a likely increasing the likely scenario unless the UK Treasury decide to provide clearer guarantees than they have done at the moment and in any event the guarantees only take us up to 2022 we don't for that so only for pillar one we really have no idea what's happening after that except that the Treasury have said that direct payments for farmers have to stop by 2027 so the only thing we know for sure is that the UK Treasury want to stop the direct payments which farmers came to expect from Europe and were promised by Mr Eustace Mr Gove they would continue to receive after Brexit John Scott sorry we need to move on John Scott thank you convener just vent to suggest you making sorry Mr Ewing I would venture to suggest you making quite a lot of uncertainty and don't really want to get into an exchange with burns quotes with you but I would refer you to a louse and the suggestion that some power the gift to gears the power to see ourselves as others see us at what for money a blunner free is in foolish notion so just I think you are over emphasising might I suggest the uncertainty beyond 2022 and 2020 there is no certainty as I understand it in Europe beyond 2020 and therefore nor is there a requirement for there to be certainty at this time 2022 when is an assurance not an assurance from my understanding and certainly my knowledge and experience of the UK Government particularly the current UK Government when they make an insurance they have every intention good intention of adhering to it so just make that point so not a question then we will move on to questions on a no deal scenario from Finlay Carson thank you convener what are the key environmental risks of a no deal that we are not doing to a set and they manage those risks you are wanting environmental risks there are a number of concerns that we have about some issues on a no deal for day one readiness now what we have tried to do is map the most significant ones and one of those for example is shipment with the no deal, no plans there is a risk that a no deal exit and new customs controls could stop or slow down waste shipments and you would begin to see the implications of that backing up here quite quickly the other issue is on chemicals regulation where there is an issue about wanting to avoid barriers to trade and ensuring an effective regularity system a no deal effectively doesn't have that in place at that point and there are some real issues about unsafe materials entering Scotland I've also raised with DEFRA at the most recent DEFRA administrations meeting the issue of the cross cutting trade and customs rules and I appreciate these are not all decisions being made by DEFRA itself they too are subject to some of the concerns that would emerge around freight transport and shipping I had raised that at the DEFRA DEA meeting in Cardiff some weeks ago and I noticed there's now been the public domain that appears to have come out of a cabinet conversation around this very issue but that would obviously impact on us as well including again back to waste shipments and importing and exporting chemicals so the issue is around protecting supply chains and ensuring that imports and exports can continue in the event of a no deal exit so those are the key things that we've looked at at the moment I'm not going to pretend that's an exhaustive list but we are trying to prioritise the ones that would be impacted most quickly from terms of my portfolio I think food is the issue perhaps in the other portfolio and the other issue is just ensuring enforcement powers of public bodies on day 1 and there are some issues that have arisen in respect of water which I think have been fairly widely rehearsed in the press which has to do with the treatment the way we treat water at the moment and the chemicals that are required to do that but I don't pretend to be an expert on that water treatment but as I understand it it's very dependent on chemicals being imported from the EU so we're back to chemicals and the ability to get stuff in on day 1 so those are the things that we have to think about in terms of being ready for day 1 in some cases there's a bit of stockpiling can go on so Scottish water can hold several weeks of key supplies so that might be an answer in some places but it won't necessarily be an answer for example if we can't get waste shipped to where it normally goes it will begin to pile up in Scotland so those are all the things that we're trying to struggle with on the basis of there being a no deal when I go back to what I said right at the start of course all of the planning and all of the trying to get ready for the no deal if there is a deal or if we end up not Brexiting will have been a considerable amount of work done for nothing Can I ask you what the Scottish Government is doing to keep track of the additional functions and powers that will come to Scotland at our fault to the Scottish ministers or statutory organisations in the case of a no deal well if I can answer that just in respect of the fisheries bill there are minor respects in which it's being argued that we will acquire additional powers and these are of a technical nature we believe we already through other means effectively in practice deal with these masses already so that would not involve any additional imposition and in the ag bill the reverse is the case it's being proposed that powers be removed from this Parliament not conferred upon this Parliament so we're currently using the SI consent notifications process as a tracker we haven't set up a separate kind of setup for it we're using the consent notification process itself in the majority of cases functions will be able to be exercised by ministers in respect of Scotland and by the Secretary of State in respect of the UK where we consent there may be some instances where a consistent and coherent UK wide approach is the most appropriate way forward and that may be in relation to chemicals and some of the regimes that might need to be in place but it's a constantly evolving scenario the Scottish Government relying on the UK Government to track the additional functions of powers that may be coming we're working through the consent notifications and we're using that as the basis on which we're making it understanding what will continue to be exercisable here as opposed to Westminster that's not really relying on somebody else it's just this is the process that is working between the two Governments at the moment okay okay, thank you I'd like to talk about common frameworks and I take that both of you have made mention of common frameworks and any kind of regulatory alignment in your opening statements I have a particular question for Fergus Ewing because it strikes me that regardless of what the common frameworks are across the UK with regard to any kind of movement of trade across the UK a lot of that is going to depend in terms of food and food production is going to depend on the international trade agreements that the UK Government may make with other countries and what locus does the Scottish Government have in those decisions around those trade agreements that are presumably maybe being made as we speak well sadly whilst we seek to play a partnership role in respect of these matters the UK Government take the view that these are reserved matters in which they deal with and therefore they don't seek to involve us for example in the negotiations on the political declaration and the Brexit deal on respect of fishing where aquaculture and fish will be excluded from the backstop we learnt about that after it was negotiated by the UK there's a particular pressing problem actually for trade at trade and the question really is about trade as far as foodstuffs go as far as fish and fresh and perishable with a very short life in the event of a no deal we understand that there's a requirement for the UK to obtain a specific permission for the continuance of any exports whatsoever and in order for every business to be able to continue to be allowed to export to register quite a lot of information with the Food Standards Scotland or the UK with the FSA and that this information which has just been imparted by the FSS in Scotland to relevant businesses must be provided within fairly short order I think by Wednesday of next week although it's been explained that that deadline is not one enshrined law so on a very practical basis I'm being asked to amass an enormous amount of information in stipulating every consignment of produce that they've done for some companies that will be tens of thousands of consignments we're also concerned about export certification if Britain is a third country as it will become then exporters of food particularly perishable food will be faced with having to satisfy the requirements of the EU in respect of border inspection points and to estimate that in respect of agriculture this could lead to I think we're talking about 40-45,000 certificates so in short we would wish a formal place given to Scotland in international fisheries agreements and negotiations involving food and drink in agriculture and with respect the last point I'll make is that some of our officials for example involved in fisheries negotiations are regarded as amongst the most professional best qualified and informed people of the EU and certainly no far more about Scottish fish than their counterparts down south because they're steeped in it day to day so we're ready to play a positive and progressive part in international trade deals whether or not Brexit happens but if Brexit were to happen it becomes particularly important that the Scottish voice is heard in an informed and effective way it's not just that trade agreements might have an impact on acceptable food standards of the kind of food that we're importing from countries that we previously haven't had agreements with how do you think that might impact on the agriculture sector we've all heard about the chlorinated chicken for example, we've heard about the types of meat that might come into the UK that previously haven't had a route into our markets how might that affect the ordinary beef producer in Scotland? Very substantially indeed and I should explain we have sought an amendment on that but it hasn't been accepted it's a matter of practicality the process of exporting whether it's beef whether it's fish whether it's farm fish there are well recognised logistical patterns using trucks, ports in some cases airplanes and these are all time critical in almost all cases particularly in respect of perishable goods obviously where the a loss of a few hours could mean that shellfish becomes valueless so that's one worry another worry convener is that where Brexit to happen and Britain becomes the third country many of the EU countries have their own shellfish sectors their own beef sectors and one could imagine that they would give preference to their sectors in respect of technical issues about the correct process of importation of Scottish produce and that could cause very practical problems I know that for example the representative of the Scottish Creelfish Federation has spoken out very clearly on issues that would affect particularly Mr Carson's constituency and others I expect about the risks that you've outlined being very practical and very real one so part of our job is to prepare for the worst whilst hoping for the best and as I mentioned the Food Standards Scotland is involved quite heavily in that at the moment and moving on to environmental standards the Scottish question for the Cabinet Secretary for the Environment Scottish Government and UK Government in agreement about where powers to set environmental standards is currently set to the European Commission but the post-Brexit scenario are all the policy areas an event of a no deal have we got any guarantees about if they're going to be coming to the Scottish Government or has that still been something that's been I don't think I would argue that there are any actual guarantees about anything at the moment where there is agreement is whether there's agreement between both Governments about where powers to set environmental standards lie there's broad agreement that they will return to Scotland if that's where they've come from through the current joint SI programme that's the broad agreement but there are a number of areas where there's a real disagreement between us and the UK Government about the split between reserved and devolved competence and I've just written to the committee about CITES as being one of those areas where there is a difference of opinion in respect of devolved and reserved and I've written to UK ministers making the position clear so at the moment while there's a broad agreement in principle on practice assertions are being made about what is reserved that aren't necessarily decisions that we agree with and that will continue to be that will continue to be an issue in respect of the broader issue of environmental quality some issues around environmental quality are subject to framework discussions as well but I need to make it clear that neither with the rural economy nor with this portfolio no actual frameworks have been agreed at all so the conversations have been going ahead in my portfolio there's discussions about frameworks on chemicals two on environmental quality one about waste and producer responsibility one about ozone depleting substances and F gases and of course the fourth one the one about which the committee has taken quite a lot of evidence on the EU ETS which is not a DEFRA related one it's a base related one so conversations yes no actual agreement on frameworks no actual agreement yet on how if there is a framework it can't simply be it's not a framework if there isn't an equality sitting around the table in terms of the framework so those are still fundamental issues that are bedeviling even those areas even those areas where on EU ETS for example I've been banging on the door about a framework for nearly two years now so come on we could have done this already don't see any response from base that was in any way meaningful any questions from Angus MacDonald Ok thanks convener if I could turn to the issue of environmental governance I thank the cabinet secretary for the environment for the letter that we received yesterday which gave us clarification on environmental governments Felly mae gennymd y deall fwy taeth y flynedd aiynau, tw bawb y Cymru. Gwaddoniwch am rhai o'r gwaith o'r eisteddau ynglyn â'r eu Llywodraethol. A dwi'n siarad i'r sgrifetigau i hawl i ddechrau unrhyw un o'r datblyguwr. Rwy'n fawr, dydw i'n fflaenu'r propozyl yw'r unulion rhywbeth UK Government, ac yn achos i'n gweithio'n artistrwyr. Rwy'n fflaenu'r defnyddio'r propozyl eich fflaenu ddych chi'n ddiolch yn Llyfraniaeth, be'r willeg iawn i'n ddigon dechrau. Mae'n ddigon wedi dod i ddifolio'r trafodaeth ben ymhyn am hyn oedd oedd unig rydw i'r cyfrwyng yn eich 24-hau i meddwl emfearIAw yn gawr o hefyd, ond allun o'r ddau i'r ddau neu o'r ddau i ddweudion ddymarau, wrth bli'r c wynig o'r ddau'n ddau iawn i eu cynsteilio? Felthat i'r cynsteilio i'r cyflawn i gael y bobl eflagol, o'r Aenol i Angl Ùl? Felly, yn ni'n gwneud y byddai Llywodraeth newydd o maen nhw, y gweithio yn gweithio i eich ysgol lleoedd yng Nghymru? Maen nhw'n rydw i ddangos o ddymian gwaith y sydd yn ddigonol. Dwi'n dangos i ddegonol ei ddweudol am y brosalen bwysig o'r swyddiad gyda'u buddyn yn mynd arall i ddweudol ei ddweudol, ac felly nid oeddwnaeth fych â gyda'u bwyllwch with an awful lot of what emanates from Westminster. At the moment, the projected consultation that we have doesn't start with, here's the proposal, now we're going to consult on it. It will work on the basis of getting people to respond on the basis of what is required, and we will use that consultation to develop a longer term proposal if that is necessary, but there will also be some issues that are required in the very short to medium term. The proposal that is coming from DEFRA will not be there on day 1, even if they stick to the timetable of their environment bill and all the rest of it is unlikely to be in place for a couple of years down the line anyway. They will have the same day 1 issues that we will have, and I'm not at all clear what they're doing in terms of day 1 issues. I don't know if Katrina knows. No, not really, no. If I may just make a general point, frameworks don't mean uniformity across the UK. I think that there's a danger that the term framework contains an implicit assumption that somehow it will be designed to ensure uniformity of policy application throughout the UK. Fisheries and the environment and agriculture are devolved, so we do things differently here. Parliaments agreed that, for example, less favoured area schemes is something in Scotland that is still extremely important and vital for constituents of Mr McDonald's native heath, for example, and that 85 per cent of the landmass in Scotland is elfast, but they decided to stop that particular scheme, convener, seven years ago down south. That's just one example, one obvious example, but frameworks don't mean uniformity, but they do mean dealing with things like state aid and internal market and how it applies. The key for me is that they should be agreed but not imposed upon the Scottish Government and the Scottish Parliament. Okay, thanks. If I could go back, cabinet secretary, to the consultation in your letter, you've given us notice that the consultation will be delayed. However, you mentioned earlier this morning that that would be for a brief period. You'll probably find this question somewhat infuriating, but can you give us an indication of how brief is brief? I'll tell you what one of the problems is. There was no advance warning from the UKG of the proposals in the backstop protocol for, I quote, an independent and adequately resourced bodies in respect of environmental governance. We knew nothing about that until we were basically confronted with it. Officials are currently engaging with DEFRA on its plans for legislation to establish a governance body for England and reserved matters only, but also to try and bottom out what's meant by that phrase in the backstop protocol. We need to get a little bit of clarity in and around some of that. The delay in the consultation is that I'm not talking about six months, we're talking about a relatively short period of time, while we try to get further clarity on some of that, which appeared with no advance warning or consultation. Okay, thanks. Clearly you'll have to look at new engagement proposals. I was wondering how you plan to engage with stakeholders, including statutory agencies, to develop plans for environmental governance. Well, there's considerable engagement already happening. Obviously, the consultation will be an engagement in itself, but it itself is built on the roundtable work that was done prior to that. We're engaging across the public sector with bodies such as SEPA and SNH in the development of the consultation, and we've also ensured that wider stakeholder interests have been engaged on an informal basis. That's been going on throughout the summer and autumn, so that they know what's happening and understand what's going on. Some of that work has been very consistent over that lengthy period of time, so that engagement is already in place. I don't think that anything that we are discussing is going to come as a huge surprise to stakeholders because they have been pretty much engaged in the conversation with us all the way along. And one final question was again with the consultation. Are you considering the option of other new Scottish institutions such as introducing an environmental court or a tribunal? I believe that if memory serves me correctly, an environmental court was in the SNP manifesto a couple of elections ago. I can't speak to the manifesto a couple of elections ago. Obviously, we've still got to finalise the consultation paper. It will have to cover general questions about the longer-term future of enforcement needs, but any such proposal could not be in place immediately. My concern is to ensure that people focus also on what's needed in the short and medium term as well and make sure that everybody is thinking across the board on that as we will continue to try and engage with DEFRA about anything that they are talking about at a UK level and clarifying what they mean in that backstop protocol. There has been a recent suggestion that an environmental court could be tagged on to the land court for example. The danger is that if everybody rushes to the end point, everybody forgets that there's a period starting potentially on the 29th of March this coming year that we will need to immediately try to manage into that shorter and medium term. Some of the long-term proposals would take a considerable amount of work, and as I indicated, although the UK Government is suggesting that there's England-only body, there's no indication that I can see that that would be up and running within the next two years or so. I don't know if Katrina's got any further information on it. I understand that the proposal that the UK Government has put forward is designed to put something in place for the end of the implementation period if that goes ahead. Claudia Beamish Thank you, convener. I will discuss the statutory environmental principles, which are very important in underpinning the way forward. How would you envisage the requirement to have regard to environmental principles and whether they are relevant to the provisions that are being made? Claudia Beamish All our existing domestic environmental legislation is already based on those four principles. The continuity bill includes mechanisms that would embed that for the future. Keeping pace power in the bill would enable us to keep our environmental legislation in line with the standards of EU law. That was important because it won't be enough simply to mirror the state of EU environmental law as at the point of departure, but for us to be able to find a way to continue to reflect the changes in EU law as we expect them to be progressive and that we would want to continue to ensure that that is what happened. That is what we are talking about in terms of the legislation. Making them statutory, although we already have regard to them and all the domestic environmental stuff that we do, but also embedding that commitment to continue to reflect the change and making that a statutory commitment as well. Claudia Beamish Do you have concerns about the potential implications of the UK withdrawal act and our own continuity bill in the Scottish Parliament containing different environmental principles and, of course, potentially the UK's written agreement? Claudia Beamish Obviously, the implications of that are perhaps a little difficult at this stage to say. Officials are engaging with DEFRA on the implications for devolved Administrations and Parliaments of the UK Government's proposed approach on principles. Obviously, there is continuity. A bill applies to Scottish ministers and includes the commitment on the basis of the four EU environment principles, which I think we all agreed at the time was the right thing to do. The commitment in the EU withdrawal act includes duties on the Secretary of State and Ministers of the Crown in relation to the four that we already know about along with five other principles, and it is the implications of that that we need to do some work on, because it is not quite clear what those implications would be. Claudia Beamish Of course, the implications within our own continuity bill in relation to animal welfare requirements are recognising animals as sentient beings, which is not in the UK. Claudia Beamish I think that the other thing to keep in mind is that I think that everything that the EU does is operating on the basis of the four key environmental principles. It is like trying to work out exactly how those proposals are going to work from the perspective of devolved versus reserved, but also from our perspective of wanting to mirror what the EU is doing and as the EU progresses that we do as well. Claudia Beamish Can you just finally, although I appreciate from your previous response about environmental court enforcement, make any comment at this stage about how the environmental principles will be monitored and enforced as we progress? Claudia Beamish I think that that is one of the things that we would be expecting to see discussed in consultation. I do not want to prejudge what is in the consultation and I do not want to prejudge the outcome of the consultation either, so that would be something that we would try and use the consultation to come to a decision on. Finlay Carson Thank you. There is an argument that there is a need for bringing together the work on principles and governance, as well as provisions for the Scottish environmental strategy. Is there any thoughts or potential for combining the two processes or at least looking at the consultation results to bring them together? Claudia Beamish In a sense, I expect that the consultation will do that anyway. I do not think that people are going to see an enormous differential between the two. Now, the continuity bill discussions were about principles and governance and that was a very specific decision that was made in terms of the continuity bill, which is why we tend to talk about principles and governance because the commitment that we made out of the continuity bill. The development of the environmental strategy was a different commitment. I suspect that it would be difficult to keep the three things in separate places, but the process of the environmental strategy has not been quite the same as the process that we have been undertaking in terms of governance and principles. For that very obvious reason, one has arisen directly out of a legislative commitment, which, albeit that the legislation has not been finalised yet, we do not quite know what that position is going to be. We have decided to proceed anyway and separately on the environmental strategy. I do not think that we are smooshing them all together deliberately, but I suspect that it will be quite hard to separate them out. Mark Ruskell The environmental strategy has been delayed. How can we develop an agriculture bill without the underpinning of an environmental strategy? There is not a fixed commitment to an agriculture bill at this point, so we are first. I am not quite sure—I mean, if Mr Ruskell wants to explain why he thinks it is necessary to do, perhaps, because an agriculture bill may or may not be necessary for specific limited purposes. I am quite happy to try to answer Mr Ruskell's question if he would not mind perhaps expanding on it a bit. Perhaps one point would be around the redesign of agricultural subsidies. We have taken forward in the stability and simplicity paper convener, which I have mentioned before, proposals for providing the stability and certainty, which I think that farmers and crofts would wish to have. We have set out already a vision whereby over a period of five years, not to 2022 but beyond that, starting from 2019 to 2024, a period of stability and simplicity. We have set out our vision in a plan that we think is the most detailed plan that there is in the UK for proposals about how we move on from the CAP. I very much hope that we will have a chance, convener, in Parliament to debate that if business permits before the end of the calendar year, although Brexit is having a predatory effect on our parliamentary timetable as well as other things. Perhaps I could focus, cabinet secretary, on one area where we are clearly failing in terms of biodiversity. The committee took evidence in June this year. We took evidence that seven out of our 20 biodiversity targets were failing to deliver. One of those key targets was around habitat loss. We know that a major driver of habitat loss is agricultural intensification and that there are opportunities here. When we asked your officials about what progress has been delivered in the Government around considering the redesign of agricultural subsidies to deliver biodiversity, your official said back in June that the thinking has just started now and that Government would be coming back to this at some point later on this year. Where are we, cabinet secretary, in terms of a response to that particular issue, that particular target in relation to agriculture policy? I was going to say that I worked very closely with my colleague about all these things. I am very pleased, for example, that we have recently announced that the AICS scheme will continue for further funding round. On a practical matter, that will make a substantial contribution to the sorts of things that Mr Ruskell and the Scottish Government wish to see. The question perhaps does not seem to be directly related to Brexit, which I thought was the primary focus of the debate today, and not a general discussion about what our agricultural and environment policies should be. However, I am very happy with my colleague to write to the member to bring him up to date on what is contained in our various proposals across the two portfolios. The Environment Act. I do have questions around the environment strategy. If I could just continue by saying that the post-Brexit legislation that will emerge, so potentially an environment act, potentially an agriculture act as well, we have had comments from Mr Ewing previously through the Food Commission where he says that a silo problem exists around Scotland. We have had a response from the agricultural champions report where, again, they say that there is fragmentation between policies, again a silo mentality. How do you intend post-Brexit to take forward an integrated policy between environment and agriculture? How do you ensure that the environmental principles that we have just discussed that will be in an environmental strategy will be embedded in the post-Brexit subsidy regime that will emerge? I think that that is necessarily a fair characterisation of the whole of the findings of the agricultural champions. We work very closely together. We are looking for, for example, at what more we can do to improve environmental practice in farming. We are working very closely on these matters. We are doing a great deal, and I have mentioned aches. There are many other schemes to promote biodiversity in the environment. I think that we are achieving a lot of progress, in large part due to the good will and desire of farmers and crofters to farm sustainably, convener. After all, they are looking, in most cases, to pass on their land to future generations. We do have a discussion on going about environmental strategy right now. The intention is that that strategy will give that strategic statement of ambition, and that strategic statement will apply across Government. That would not just be for me. It would be an environmental strategy across Government. It would help to co-ordinate action and guide future activity. At the moment, we have a conversation on going along those lines. We are considering responses to the online discussion on that. We are engaging with public bodies and stakeholders, as I indicated earlier, to help to inform the development of it. That is a current and ongoing process that will be gone through before any legislative decisions are made in the future, either about a possible agriculture bill or an environment act, which I have absolutely no plans to bring forward. There will be no strategy finalised. Can this be a final question? I am sorry, I just said that we are discussing the strategy right now. The letter that we have had to committee says that there will now be a delay in the completion of the strategy. For a very short period of time, because we have to clarify what is happening right across the board in terms of governance, principles and strategy with respect to the deal that is currently being discussed in Westminster and what the implications are in respect of that, so that we do not prematurely publish something that then turns out to be of limited use because of a situation that is not under our control. Thank you, everyone. We have run out of time. We have actually gone over time, so I am going to bring this session to a close. I want to thank both cabinet secretaries and their officials for their time this morning. That concludes those items of the committee's agenda and public session. It is next meeting on 11 December. The committee will hear from a round table on biodiversity funding and implementation. The committee will also hear evidence from stakeholders on the reach regulations 2019 and from the Minister of Environment and Wildlife legislation functions regulations. As previously agreed, the committee will now move into private session and I request that the public gallery now be vacated. We will suspend briefly to allow the cabinet secretary to leave. Thank you.