Good morning, and welcome to the eighth meeting in 2018 of the finance and constitution committee. I remind members to put their mobile phones on a mode that won't disturb our proceedings please. The only business on our agenda today is to take evidence as part of the scrutiny of the UK withdrawal from the European Union legal continuity Scotland bill, which was introduced last week. I will be hearing from two panels of witnesses this morning. The first panel will consist of Michael Clancy, who is the director of law reforms Llywodraeth Llywodraeth, Dr Kirsty Hughes, the director of the Scottish Centre for European Relations, Professor Leanne MacArthur, the University of Strathclyde, and Professor Alan Page, Professor of Public Law at the University of Dundee. Welcome all. Professor MacArthur, you state in your view that the bill falls within competence of this Parliament. For the official report, I know that you have given us some stuff in writing, but, for the official report, can you explain to the committee how you arrived at that view, please? Okay, well the dispute as to competence as between the Lord Advocate on the one hand and the presiding officer on the other hand, and also we have, of course, the Welsh presiding officer taking the same view as the Lord Advocate. As I see it, it boils down to the question of whether or not it is competent for the Parliament to anticipate the possibility of deviating from EU law, whilst the constraint in section 29 to D of the Scotland Act remains on the statute book, in other words, the obligation to legislate compatibly with EU law. The presiding officer takes a view that that is not competent on the basis that that would be to anticipate an expansion of competence, but the Lord Advocate and the Welsh presiding officer take the view that, because any effect of the bill is postponed until such times as we will no longer be bound to comply with EU law, then this is not exercising competence in advance, but rather taking necessary measures to ensure an orderly withdrawal from the EU. The reason I and my submission was jointly with my colleague Dr Chris McCorchendale took the view that the bill was incompetent. On that point about how you interpret the Scotland Act, we recognise that there is room for disagreements there on the point at which you make the judgment about whether a bill is within competence. Is the postponed effect relevant or not? That really depends on how you approach interpretation. If you were to approach interpretation literally, then you might well say that postponed effect does not save the bill. If you were to interpret the Scotland Act in the light of its context, in the light of its purpose, then I think that there is a case for saying that the postponed effect does make a difference. What is the purpose of the requirement that the Parliament legislate compatibly with EU law? What is the context in which that provision was enacted? The context is one of continuing membership of the EU. The purpose is to ensure that the Parliament does not breach the UK's obligations under EU law. On that point, the issue is arguable. Where we found the tipping point was in the Lord Advocate's argument that it is not actually contrary to EU law to make provision for withdrawal. On the basis that the treaties article 50 provides a mechanism for withdrawing from the EU, it is a mechanism that anticipates a staged withdrawal that is supposed to achieve an orderly withdrawal. Therefore, as part of that, making adjustments to domestic law to anticipate the day after you leave the EU would itself be compatible with EU law. The Lord Advocate made the point in the Parliament last week that if it is incompatible with EU law to anticipate leaving the EU, then the withdrawal bill itself would be contrary to EU law. Is there any other panel member's wish to make a contribution in this area? I find it difficult not to regard this issue as the bill that is compatible with EU law, or is it not to view it as something of a red herring? People have found it convenient to latch on to it, but it does not really take us much further forward. My view from the outset has been that, if the Parliament has the power to give effect to EU law with interval competence, which it undoubtedly does, I cannot see any possible objection to the Parliament providing when the UK leaves the EU for that law with interval competence to continue to have effect, nor can I see any difficulty about the Scottish ministers taking power to adjust that law so that it continues to function properly once the UK is left with the EU. That is the view that I took initially, but that, in my view, is the easy bit. The difficult bit is when you start to try and work out what is with interval competence, what is reserved, and that is what the argument has been about from the very beginning in relation to this. It is a nice argument, but I do not think that it takes us much further forward in relation to the issue between the two Governments. Some of the questions that I had have already been covered in some of the answers, but I am just interested in the position between the difference of opinion between the Presiding Officer of the Welsh Assembly and the Presiding Officer here. How do you think that we have ended up in a position where two Presiding Officers of devolved legislatures have come up with completely different views on that? There are differences in the devolution settlements. There may be differences in the bill, although I have not seen the Welsh bill yet. Although I do not think that those are the reasons why they differ. The reason why they differ is because when a minister or a Presiding Officer makes a competent statement, they are not saying that I am absolutely 100 per cent certain that this bill is within competence or conversely that I am absolutely 100 per cent certain that it is beyond competence. They are making a judgment in areas where there is genuine uncertainty. As there is on this temporal question because it is not being addressed by the courts, we have had relatively few cases decided by the courts. Where there is no definitive answer, there is scope to view the balance of arguments differently. That is what a competent statement means. On the balance of arguments, I think that the bill is within competence or on the balance of arguments, I think that it is beyond competence. It is perfectly understandable that two different Presiding Officers might reach a different conclusion on the viaries of those bills. I think that it was Lord Hope who said, rather dismissively, at one point that this is just an opinion by the Presiding Officer. The final decision rests with, at that time, who is talking as a member of the UK Supreme Court. It is an opinion arrived at in the relative Presiding Officer's professional judgment on the basis of the advice that they receive, but it is not definitive and it is not conclusive. I completely agree with what Professor Page said, which is that the focus in both the Presiding Officer's statement and in the Lord Advocate's statement last week, narrowly, on this question of EU competence, is one important part of the question of the competence of this legislation, but it misses, I think equally, perhaps even more important parts to do with the division between reserved and devolved. I wanted to ask for your opinions, particularly the lawyers, including Michael, for their opinions about this issue. For example, how in your judgment is it within the competence of this Parliament to legislate for a different exit day from that, which is provided for in the withdrawal bill? When it is clearly reserved to the UK Parliament to legislate for international relations, including relations with the European Union? We have made it quite clear in our submission to the committee that this is a bone of contention between the two bills. If I can find my comment about that, it is in essence because the EUWB, the withdrawal bill in the UK Parliament, has already been amended to identify the 29 March 2019 at 11 pm exit day. One might wonder why the legal continuity bill, the LCB, as I am calling it, has a provision that allows for Scottish ministers to ordain exit day according to section 28 of the bill. That presents us with a difficulty. For one thing, in the EUWB, UK ministers can change the 29 March 2019 exit day. That date is chosen because it is two years after the notification required under article 50 of the UK's intention to withdraw. Under article 50, it is upon that date that the treaties cease to have effect, subject to any agreement that is made. Therefore, there is a particular difficulty if we are going to be thinking about a moving target there. I do not say that there will be a moving target, but in any event, I think that it is fair to say that there is a significant risk of a lack of clarity if there is an ordained date under the EUWB and yet under section 28 Scottish ministers where to ordain such other day, as by regulations they might do on the assumption that this bill passes and gets the royal assent. You have to think about what function the term exit day is performing in this bill. It is not performing the function of saying when the UK ceases to be a member of the EU. It is not performing the function of saying when EU law ceases to apply. It is a provision for the operation of the continuity provisions in this bill. It is a provision that governs the length of time for which the ministerial powers apply. It could have been called something else, in which the issue would not have arisen about whether that relates to our relationship with the EU. Clearly, it cannot, because that would be out with competence. You have to read the words in the context of the statute, what is its purpose. You also have to read the bill in the light of the competence constraints on the Parliament. The courts are, of course, directed to read the legislation as narrowly as possible to keep it within competence. I was just going to add to that where conflicting interpretations are possible. If there is no conflicting interpretation possible, then section 101 does not come into play. I think that the question was a good one. Would you like to offer an answer to it? I am attracted by the answer, yes. I agree. I just wanted to make a general comment about the reserve that is devolved, and what I would call a constitutional stand-off. It is clear that Brexit, and Brexit's process, are in general disrupting, even undermining, I would say, our constitutional settlement. I am not only talking about the issue under discussion today. As there needs to be much discussion about the situation in Ireland and Northern Ireland, the Good Friday agreement, and just as the devolution settlement was drawn up in the context of EU membership, so was the Good Friday agreement. We are in exceptional territory politically, as well as legally. I am happy to talk about this more at some point if it is helpful. It is quite hard to conceive of any Brexit that does not put these constitutional challenges in front of us. I think that there may be one, but I do not think that certainly not the path that the UK Government is currently on, and arguably not the policies for Brexit of opposition parties, talking in the Westminster context, or other parties either. I think that, in terms of broader context, that is also worth saying at this point. I will offer you one other example to chew over. That is the provision in section 6 of the bill that concerns the ongoing status in Scott's law post-Brexit of the principle of the supremacy of EU law. Are you satisfied that that provision is within legislative competence in terms of devolved reserved? I want to chew over, and I am certainly happy to chew over it. We have not got much time for chewing, I am afraid, Professor Page. On to the point about exit day, because Aileen is quite correct, it is notionally a date that the provisions of this bill would come effectively into effect, but we have a commencement provision for that. If one looks at the explanatory notes relating to exit day at paragraph 119 on page 18, section 28 allows the Scottish ministers to appoint exit day, the day on which a number of provisions and powers in the bill will come into effect. The date appointed will be the day on which the UK seizes to be a member of the EU. Therefore, if the EUWB date of 29 March holds, we already know what the date of leaving is going to be and the bill should reflect that. However, that may be predicated on a belief in the Scottish Government that the date of 29 March will not be the date of exit. It is worth noting that that is what the explanatory notes say, but it is not actually what the bill provides in section 28. For completeness, I have just heard a note from yesterday's DPLRC committee, which the minister said that he would consider bringing forward an amendment to the bill to match up with the UK exit day. There is obviously a recognition that there is an issue there, so we are prepared to consider it. On your point about supremacy, we are talking about affecting only matters that are within DPLRC. I assume that your concern is about potentially changing the hierarchy of laws so that EU law would override previous UK legislation, but, of course, this Parliament can do anything that it likes to previous UK legislation that falls within devolved areas, so that must include the ability to subject it to the supremacy of EU law. You consider Professor Bacargo that this Parliament has that competence now. We are not talking about whether the Parliament would have that competence after exit day. We are talking about whether the Parliament has the competence now, because it is now that we are making this or being asked to make this law. I think that that goes back to the point that I started at, which is on that question of when the temporal question of when competence takes place is arguable. However, if there is no potential inconsistency with EU law, then I think that that temporal question becomes redundant. However, as a general principle, assuming that at some point the Parliament can legislate on this matter, whether it is now or whether it is post Brexit, of course that depends on what withdrawal bill, how that is enacted. However, I think that there would be no objection in principle to this Parliament providing that EU law takes supremacy as regards legislation from whichever Parliament enacted as of exit day. Just one final supplementary on the basis of what you just said, which is fascinating. What authority would you cite in favour of the proposition that the temporal point is redundant in those circumstances? It is redundant in the circumstances that there is no breach of EU law. Simply that, I would not cite any authority, I would simply cite logic. If there is no breach of EU law, then section 292d does not bite. Patrick Houghton, you missed the moment for your supplementary. Thank you, convener. Good morning. It was just a very minor point following up on the questions that Ash Denham had raised in relation to the different judgments that have been taken about competence between the Scottish and Welsh bills. I am aware that some people have reacted to the events of the last week or so, as though the opinions that are given by the Presiding Officer and the Lord Advocate are definitive rulings. You have clearly said that there is space for disagreement and that there are different approaches that can be taken to those questions. Just so that I was clear about what you were saying, is it fair to say that there is no single approach to those questions and to the balance of the arguments that could lead to the conclusion that the Welsh bill is competent there and that the Scottish bill is not competent here? Is it these fundamentally different approaches that give rise to those conclusions or to those judgments, or is there any way of reaching both of those conclusions consistently? I find what has been said, both by the Presiding Officer and the Lord Advocate, unsatisfactory. Professor McHarg and Dr MacCorkendill, in their written submission, made the point that this moves the quality of debate in this institution on, in the sense that the Parliament, the MSP, the EU committees can talk about these issues, but I am not sure that you actually have anything with which to debate effectively this question of legislative competence. I only glanced at the Welsh Presiding Officer's opinion, but I have to say that I thought that it was fuller, more comprehensive and more closely argued than what I saw from either the Lord Advocate or the Presiding Officer in this Parliament. I do not have that answer to your question. I do not either. To try and answer your question, it is potentially the case because that different conclusions could validly be reached and could be endorsed by the courts, because you have two different devolution settlements. The Terms of the Government of Wales Act and the Terms of the Scotland Act are different. They take a fundamentally different approach for the time being to the division of competence. There may be differences of detail in the two bills that make a difference, but as far as the reasons that have been given by both sets of Presiding Officers are concerned, I do not think that that is what their differing opinions turn on. I think that their differences turn simply on a different approach to an issue that has not been definitively settled. In mind, we are in uncharted territory here in the sense that we have a difference of opinion from the Lord Advocate and the Presiding Officer. It does put MSPs in a difficult position. What does the panel think of the suggestion from the Law Society that bearing in mind the uncharted waters that we are in and the public interest around it, that both the Presiding Officer and the Lord Advocate should publish their legal advice in full? Suggestion. Of course, characteristically, Law Officers do not give their advice and do not show their working, as it were. What one can say is that the Presiding Officer is supported by an extremely skilled and able team of lawyers in the solicitor to the Scottish Parliament's department, and that he will have received the best advice that he could provide. The Lord Advocate is also supported by an extremely skilled and well qualified set of lawyers in the Crown Office, and he too will have received the best advice that he can provide. The Law Society has taken the view not to comment on the competence issue, because that is ultimately a matter for the Supreme Court to decide if the bill passes and if it is referred there. Our view of asking for both the Presiding Officer and the Lord Advocate to explain their thinking is based on the idea that there should be an element of transparency about the question, and that we should be able to see the rationale that led to the two statements, the one by Mr Swinney and the one by Mr Macintosh. That is our point of view. I know that it is an extraordinary set of circumstances where law officers would do that, would provide their advice, and I would expect the same to apply to the Presiding Officer, but those are extraordinary circumstances. I can think of only two examples in the past where law officers have disclosed the advice that they have provided. The first was by Lord Hardie in connection with the mental health hang-on promote, as I recollect what it was called, the mental health public safety and appeals act of 1999, which was the very first bill published and enacted by this Parliament. I think that there is a point in the official report where Lord Hardie gives the background to his advice on the bill in the chamber. The other example that I can remember is Lord Goldsmith gave some idea of the advice that he had given in connection with the Iraq war. Well, I said previously in answer to a question that I thought that both the presiding officer's statement and the Lord Advocate's statement were incomplete, and I am sympathetic to the suggestion that normally if the providing officer says that this bill is outwith competence, that is a very good reason for the Parliament simply declining to consider the bill any further, and that is what has happened with every private member's bill in respect of which a negative statement has been made to date. That is not happening with this bill, and the decision is to go on and consider it, notwithstanding the presiding officer's advice. However, I think that it is entirely within the legitimate expectations of all members of this Parliament that they should have a full view of the basis on which the different views have been taken, which are the moments that they do not have. Do any other panel members want to comment on that? Bear in mind that we could get in a position where this could be challenged, if past this could be challenged in the courts. What do you think that Parliament can do during its process of consideration and scrutiny of the bill to minimise the risk of any legal challenge? It is within competence, and the only way in which it can do that is by interrogating the statements that have been made more fully than has hitherto been the case. Ivan Euron, supplementary. It is thanks. Good morning, convener. I was just a short supplementary to clarify for myself and others, perhaps, about the point that Adam Tomkins was making on the dates. Just to be clear, as far as I can see, the intent is clear in the continuity bill that the date, the exit date that is referred to in that bill, is the same as the date that is referred to in the EU withdrawal bill. I am assuming that the way that it is written is that there may or may not be a change to the date in the EU withdrawal bill, and however small that likelihood is, you need to provide for that so that the legislation is coherent. If that is the case, is it not just a technical drafting issue? If there is a perceived issue there, how would you propose it, in terms of what I have to say in the continuity bill to make sure that there was no scope for making the argument that Adam Tomkins made that the continuity bill was stepping outside of devolved remit by perhaps suggesting that the Scottish Parliament had some say in when the exit date was? That is right, but I think that it also illustrates one of the difficulties with proceeding in this particular way of having complementary bills. How do you make sure that they actually match up with one another? A bill passed by this Parliament, a bill passed by the Westminster Parliament, how do you do that? The intention here clearly is to cater for the possibility that the exit date as set in the EU withdrawal bill has changed and therefore this Parliament can then change the date in this particular bill. Two minutes isn't the first time that a piece of legislation is referred to something else in a different piece of legislation? That's not quite what I was referring to. What I am referring to is the underlying strategy, namely that we will have complementary bills, we will have an EU withdrawal bill and we will have a Scottish continuity bill. On the face of it, that's a perfectly defensible idea. Why shouldn't you do that? One question that you might like to ask is why, in that case, have there been so few of those bills? How many bills can you identify that have been complementary bills? One reason why there have been so few is because it's extraordinarily difficult to get them to engage properly so that they produce the same result because you have two different legislatures legislating and there is no guarantee that what comes out at the end of it will match up. You are back in 2002. Again, I am not a lawyer so I am trying to be careful here but would that not be the case with respect to EU law at the moment when national legislators would pass laws that refer to EU law? There's no problem with EU law. There's a question of sequencing, I think, of the problem. If you're talking about implementation of EU law, you have a completed text so you know what it is that you're implementing. Right, so that shows that that both came out. The trouble is that they're both going through their parliamentary passages. We know that this bill closely mirrors the withdrawal bill in order to try and make sure it works. That means that it's retained some elements of the withdrawal bill that have been criticised. It's perfectly possible that, as the withdrawal bill continues to go through the lords, those elements might be changed, in which case this bill ceases to be working in parallel or, alternatively, this Parliament may make changes to the legal continuity bill that introduces new differences. It's because they're being done in parallel. It's the problem about trying to maintain coherence. In terms of section 28, you asked about, is it just a technical thing? Of course, it would be leave out such a deal, as the Scottish ministers may by regulations appoint and insert 29 March 2019 at 11pm, because that's what clause 14 of the EUWB says. Exit day means 29 March 2019 at 11pm, but even that bill makes provision for that to be changed because a minister of the crown in terms of 14.4 may amend the definition of exit day in subsection 1 to ensure that the date and time in the definition are the date and time that the treaties are to cease to apply in the UK. That's to take account of any further negotiations. To in the continuity bill? You could do that. You could refer to clause 14, which will become section 16 if the EUWB act passes. You could do that, but clearly the Scottish Government has taken the view that they want that to be as much of a comprehensive bill as they can make it. Building on Eileen's point about those two bills working in parallel, it is absolutely the case that, because I've been sitting through the process in the House of Commons and the House of Lords, there are a significant number of amendments that are being proposed by members in the House of Commons and the House of Lords. There are 80 groups of amendments still to go in a passage in the EUWB that has allocated 10 working on 11 days in committee in the House of Lords and 5 at report. That corresponds to 10 days at stage 2 and 5 at stage 3, to give you an idea of what's envisaged here. Although the Law Society may have proposed a significant number of the amendments in those groups, members are free to propose amendments as they see fit, but the Government, because Lord Keane has said it, is in listening mode and, therefore, one expects that there will be amendments at report. If there are no government amendments at report, I would expect that the members who are proposing those at the moment will seek to force those amendments on to the bill. One has got to be fleet of foot if one is a Scottish minister here, because the EUWB could end up to be quite a different measure by the end of its process from how it appears at the moment. It is not just the EUWB, because the trade bill, which is currently in the House of Commons, makes amendments to the EUWB. I could go on, but I would not. It sounds like I'm on the side. It's off. Time up the date. There is a technical solution there that you talked through that would work. I'm sorry, Ivan. It was supposed to be a supplementary, but it's gone a fair bit beyond that. There are others who wanted to get into the competency area. We've moved into the detail area now, actually. Neil? The competency is covered. Sorry, it's gone. Apologies. We'll move into the necessity area now. Willie Coffey. I wonder if I could ask for a comment or two on the overall timing for this bill, for the Scottish Government. Clearly, there's a view that there's an urgency attached to it and we need to do it now. There's an alternative view that we don't need to be so urgent and perhaps we don't need it at all. Could you say something about what the advantages are or otherwise of bringing it forward now and perhaps also what the risks are if we leave it to the last minute or, in fact, don't bring this bill forward at all? Can I take that? The reasons for treating it as an emergency bill are to ensure that it's enacted before the withdrawal bill is enacted. There are two different reasons for that, depending on what happens with the withdrawal bill. The Scottish Government's assumption, the Welsh Government's assumption, is that if the devolved legislatures don't grant consent to the withdrawal bill, the provisions of that bill affecting devolved competence would be withdrawn and then there would be a gap in relation to continuity provisions in devolved areas and in relation to ministerial powers to correct deficiencies. If there's a gap, then the possibility arises of invoking the exception to the Sule convention, the legislative consent convention, which says that consent is normally required. We don't really know what normally means, but it's reasonable to say that one situation in which it would be legitimate to dispense with consent is in circumstances of necessity. For example, the UK Parliament last November passed a budget bill for Northern Ireland because it was necessary that that legislation be enacted and the absence of an Assembly in Northern Ireland meant that devolved consent couldn't be given. If you get to the situation where there is a possibility of a legal gap being left as regards devolved competence in Scotland and Wales, then there is the risk that the UK Government could say that the absence of consent from the devolved parliaments has to be ignored. The alternative is if the withdrawal bill goes ahead in its current form because that would place restrictions on devolved competence. It would do so in a number of different ways, obviously in clause 11, if that's enacted in its current form, that would prevent in the future this Parliament legislating in relation to retained EU law. Also, as the minister pointed out yesterday in committee, schedule 3 of the withdrawal bill amends schedule 4 of the Scotland act to add the withdrawal act to the list of enactments that are protected from amendment by this Parliament. This Parliament wouldn't be able to go its own way at all on continuity because that would all be covered by the withdrawal bill. The urgency is a tactical urgency. A couple of comments here. I think that there is a general urgency both on this issue and on Brexit talks in general. Obviously, we are moving towards the target of an agreement by this autumn, the full withdrawal agreement, including an outline framework on the future relationship. Perhaps it's pertinent to think of what the EU chief negotiator, Michel Barnier, said recently, as the European Commission introduced its draft withdrawal agreement text that now is the time for texts, not for more speeches. We haven't talked much yet, and I don't know if that's what you want to come on to in the detail section, but in terms of the common frameworks and whether there's consultation or agreement on how those common frameworks would run, which I think is a highly problematic question. However, if you're going to establish common UK frameworks in some areas of agriculture and fisheries at the same time as you are negotiating a new relationship with the EU in those areas, there's also a sequencing issue here. We're extremely late in the UK Government coming to any position on that future relationship. Obviously, we're expecting the EU draft trade guidelines this morning or this lunch time, I believe. We're in a quite extraordinary political and legal process of negotiation that isn't entirely consistent in terms of policy positions, therefore in terms of democratic accountability. I'm not anticipating that the outcome of this process is that Scotland and the Scottish Parliament have a say in trade policy in the way that Wallonia does, for instance, but I think that there are interactive questions here between the common frameworks and future UK positions. I think that there's a broader urgency, but that also speaks to the urgency of this bill. One other point, if I may, obviously the withdrawal agreement will be implemented if there is a deal. We still could face no deal territory. If there's a deal, there will be the withdrawal agreement and implementation bill in the autumn. That may also then cut across some of both of these two withdrawal bills just to add to the complications that we've already been discussing. Of course, there are transition arrangements, assuming that there are transition arrangements. We'll go into that withdrawal agreement, and that's not per se likely to impact on the actual exit date from leaving the EU, but it impacts on timing and sequencing as well. Mike O'Hugley, you'd wanted to make a quick question about the need for proper scrutiny, and that there is a tension between emergency legislation, which restricts time and the opportunity for scrutiny, and that balance between speed and scrutiny is something that we think can be problematic because at a pace of effectively three weeks to put through this legislation, which by any stretch of the imagination is a significant bill with many moving parts, all of which could cause difficulties in the future. We need to be very careful about that. I asked Mike O'Hugley to look at how many emergency bills have been passed by the Parliament since its inception, and eight bills have been passed. The average time between introduction of those bills and getting passed is, for example, that very first bill that I was talking about. It's about four days, eight days. The point is that each of those emergency pieces were effectively single-issue bills, and that's why we've got to be cautious about just applying an emergency procedure to such a significant measure. I get that, Michael, but the Parliament's already decided that that's what it wants to do. Indeed. Yes, I know that. Willie's question was more about the sequencing of other events elsewhere. Was the proposal of the continuity bill a reasonable one at this stage? Have I got that right, Willie? What's the significance of doing it now, as opposed to waiting until around or near exit day, or perhaps not at all? Is it what your views on doing that might be? It's about putting pressure on the UK Government at saying that we're deadly serious about this particular issue. With a view to either having the EU withdrawal bill amended, as the Scottish Government would like to see, or alternatively, in the event that it's not having those provisions to which objection is taken, excise from that bill, which would then leave you with your gap, which this bill would, in theory, at least fill. Which, if any of those things are going to happen, is impossible to predict at the moment? Convener, given that we're taking evidence from the Law Society, I should remind members of my interests that I am a member of the Law Society, although I'm not currently practicing. I've got a couple of points around timings that I wanted to pick up, particularly from what Michael Clancy was saying a moment ago in his exchange with Ivan McKee on the whole question of the interplay between this bill and the EUWB at Westminster. Clearly, the Scottish Government has said that, in effect, it wants to see this on the statute book before the EUWB completes its parliamentary passage. From what you were saying, Mr Clancy, is that not an inherent risk, because the EUWB is likely to be subjected to significant change? How can we complete this bill before us and make it truly complementary to the EUWB if the EUWB may be subjected to further change? It may be subjected to further change, meaning that it's up to the UK Parliament, and amendments passed in the Lords may, through the process of ping pong between the House of Lords and the House of Commons, be rejected by the House of Commons and not make it to the final bill that is put forward for royal assent. There is an inherent doubt in that, but if you work through the process that is currently going on, there are six days left of committee, five of report, and that takes us effectively after Easter. By the time we're done with ping pong, it's into May, maybe even June. At each of those stages in the future, there is possibility of amendment. There is a risk that the catch-up will not be the case, and there will have to be some amendment to the legal continuity bill as a result of what happens to the EUWB. That is a possibility. Taking the point that the Parliament has agreed that there should be emergency legislation, I wasn't trying to argue that it shouldn't be considered as emergency legislation. I am simply making the point that speed and scrutiny are two things in tension. However, when one thinks that there might have to be some amendment to the LCB, that creates yet another issue to be considered. Just on the impact of amendments to the withdrawal bill, you have to distinguish between two different kinds of scenarios. There is a situation in which a lack of symmetry between the two bills, of which there already is a lack of symmetry in some respects, is a problem in so far as it causes complexity. However, there might be a different scenario in which amendments to the withdrawal bill cause problems of effectiveness or workability. Those are the ones that are more problematic. If some change is made to the withdrawal bill that renders the approach that is taken in the bill, it is simply unworkable, as opposed to amendments that increase the complexity arising from different approaches in devolved and reserved areas. To my mind, that latter kind of complexity is a problem in itself. However, in terms of the bill, it is things that are done that make this simply not work, that are more serious. To pick up Professor MacArthur on Mr Clancy's point, Mr Clancy's point was that the Scottish Parliament might complete the passage of the continuity bill, but with subsequent changes to the withdrawal bill at Westminster, we might have to revisit that legislation subsequently. Yes, there are regulation-making powers, aren't there? Am I right in thinking that there is equivalence to the powers in section 17 of the withdrawal bill? There are certainly some regulation-making powers in section 34. Schedule 2 contains consequential transitional and transitory and other saving provisions. It would be possible—we would have to look at it a bit more closely, perhaps, to give a definitive opinion, but it would be possible to change some aspects by virtue of regulations. However, as Aileen has pointed out, if the amendment to the EUWB is one that creates a significant change that causes a knock-on effect for the legal continuity bill, that creates an enormous difficulty for the functioning of the measure. There are also the time issues that affect the bill, because when it passes from this Parliament, it would be sent to the law officers to look at it and they might take a different view about its future. It is not the inevitable conclusion of the argument, and I am not suggesting that some of this committee around elsewhere would be supporting it. That means that ministers should take more powers for regulation to make it a consequence of that potential situation, and that would leave less time for scrutiny. Well, yes, it would leave less time for scrutiny. That flexibility would allow ministers to sort things if there was a problem that emerged that would have been described. One more question on timing to Mr Clancy initially. I read the law society submission last night. Clearly, there are a large number of points in it and a large number of areas of concern that you have highlighted where you believe the bill requires amendment. You make a comment in your introduction, where you say that the Scottish Government should be permissive with suggestions to improve or clarify the bill as it passes through Parliament. Clearly, it is your view that the bill requires substantial amendment in order to fit purpose and be good law. We are therefore in a situation under emergency legislation where the deadline for lodging amendments is this Friday. Does that give the Parliament enough time to create good law to ensure that the bill gets the proper scrutiny that it is required from all those might be interested? Secondly, is there sufficient time for amendments to be properly drafted, lodged and considered? I have drafted some amendments. I think that other people who will be thinking about amending the bill will have already been doing that for some time since introduction. I have every confidence that the Parliament will rise to the occasion and that the members will give the bill the proper scrutiny that it requires and that it needs amendment that it will amend it. Obviously, we are discussing the necessity for the legislation, the principle of legislating here at stage 1. The reason for legislating is that there is no agreement on the EU withdrawal bill. However, the Parliament and the public have been touched on earlier. I do not know the areas of disagreement between the UK and the Scottish Government. They were reported to be 25 areas of disagreement. The minister said yesterday at the Delegated Powers and Law Reform Committee that he could not publish those areas because he did not have agreement from the UK Government. Do you think that that is an acceptable position, a sustainable position, and should we not know or the Parliament and the public not know now what the areas of disagreement are that are bringing forward this legislation? That follows on from what has been said previously in relation to the law officer presiding officer's opinion. There is a massive imbalance or asymmetry of knowledge surrounding this process, an international governmental negotiation that has been conducted behind closed doors. There are various statements in the press that may or may not be well founded. As an outsider, I have said before that it is impossible to know what is going on. I wonder to what extent members of this Parliament are any better informed about it. Yes, I would have thought that we started with 111 EU powers that intersected with the devolution settlement. Where have we got to in relation to that? What are the 25 outstanding ones? That is what the argument is about. I think that it is not satisfactory. It suits the minister to say, I can't because I need to get the agreement from the others. Oh yes, Friday is the date for amendments as well, so I couldn't get it to you in time, but it is not good enough. As a general point, the intergovernmental negotiation of amendments to bills affects quite significantly the normal legislative process. If amendments are agreed and therefore amendments are made to the withdrawal bill, I imagine that the UK Government will be extremely resistant to any attempt to amend them as the bill completes the parliamentary passage to the UK Parliament. I agree that this is not a desirable situation to be in. I would like to know more about what is going on, but it is not surprising in the context of international governmental negotiations that this is what happens. It sidelines parliaments and imperatives. I agree with what Alan Page said. Transparency is highly desirable, it is democratic and, as various people have said this morning, in these quite extraordinary circumstances that Brexit is creating, and in this particular constitutional stand-off, I think, certainly. It is desirable and I am not meaning to keep referencing the approach of Team Barnier, but obviously what they have done since last summer has been an extraordinary degree of transparency in publishing, negotiating documents and positions, and I think that that has been enormously helpful for both sides in understanding this extremely difficult and, in my view, damaging process. We have, from the very beginning, advocated that there should be a whole-of-governance process, that it should include not only the UK and Scottish and devolved administrations, but civic society generally. I can only say that Cursy is absolutely correct. The TF-50 website that the EU commission has set up allows for us to see all the documents in quick order, although some of them are rather more truculent than others. If you ever look at an agenda of a meeting, it is not exactly a full agenda, as we would understand it, but it is very important that there should be as much transparency as possible, and that is, unfortunately, not the case at the moment. The question that I wanted to ask about in this section of our discussion has already been covered by Professor McCarg. It was a question about the extent to which all of this talk about exceptional circumstances, abnormal circumstances and so on and so forth means that, effectively, the Sewell Convention no longer applies to the passage of the withdrawal bill, because the Sewell Convention applies only in normal circumstances. I think that Professor McCarg has already covered it. Thank you. That is exactly what I said, Adam, but nice try. In that case, would you like to clarify for the record? The question is to what extent do members of the panel think that the Sewell Convention continues to apply to the withdrawal bill, given that the minister said last week in moving the motion that the continuity bill should be fast-tracked, that this is a novel situation in normal times, such a bill would follow a normal timetable, but these are not normal times. As a quotation from the official record of the minister last week, that seems to be, in my view, a concession by the S&P that the Sewell Convention no longer applies to the withdrawal bill. It depends on how you understand normal. As you know, Adam, conventions are normative statements. They are not descriptive statements. Of course, we are descriptive in abnormal times, but that does not necessarily mean that, as a normative statement of a constitutional rule, the normally exception to the Sewell Convention can be invoked. In my view, there is very little discussion and little experience of what that normally exception means under the Sewell Convention, but, in my view, it can be invoked either in circumstances of necessity, which may arise if there is a potential gap in the statute book in relation to the continuity view law in devolved areas, but we are not there yet. It may also be invoked in circumstances where a devolved legislature is clearly attempting to abuse its powers. In Harry Calvert's work on the constitution of Northern Ireland, which I am sure you are very familiar with, he talks about the legitimacy of overriding the predecessor of the Sewell Convention in circumstances in which the Northern Irish Parliament was abusing its powers and that was in the context of discriminating against the Catholic minority. You can make an argument for reading the normally exception in those two circumstances, but it is very important to say that normally is a normative statement and not a descriptive statement. Just because we are in unusual times does not necessarily by itself justify overriding devolved consent. I assume that the convention continues to apply if only because, at least my understanding is that the possibility has not been ruled out, but the Parliament will consent to the EU with draw bill. I do not think that we have reached a definitive conclusion on that yet, or at least that is my understanding. I think that it continues to apply for the moment. I have a point on timing. Bear in mind the Scottish Government's argument for treating this as an emergency legislation is that it needs to be passed before the withdrawal bill at Westminster. I know that there are some disagreements on that, but I accept that for the minute. Noting that, we have already agreed to process the legislation as an emergency, but bearing in mind the points that have been made about the importance of scrutiny, and the fact that, as Michael Clancy has described, the withdrawal bill at Westminster is going to be at least May or June before that is completed, is there not the case within the confines of still treating it as an emergency to at least extend it at the timetable into April to allow more transparency, more scrutiny and to give MSPs proper time to consider the significant issues at stake here. Something that you need to bear in mind is the four-week period between the Parliament passing the bill, so after stage 3 and royal assent. I cannot comment in detail on how the parliamentary timetable works, but that four-week period has to be taken into account. Is that not the similar process as the case at Westminster? Once a bill has passed both houses in the UK Parliament, it then goes on for royal assent without the need for any four-week lying period where law officers check it or may have a view on it. Therefore, that is a significant distinction between the way in which UK legislation works and Scottish legislation works. Bearing that in mind, can building on your earlier answer, can you give an indication as to what you think the timetable would be for the passing of the withdrawal bill? I think that I would indicate that 10 days for report, 10 days for committee, we are already at day 4, at 6 days left, going on to 5 days for reports, so that takes us through the Easter period and well into April. In May, there is a recess, so things might have to be done quickly in order to get, but ping pong between the houses is the essential issue here and that can be a long ping pong or a short ping pong. The way that that works, as we know, members of the House of Commons have said that they are going to seek to make amendments to the bill, which may or may not be agreed to by the House of Lords. That could take a little while to get through. One could estimate that the EUWB might be law by the end of June. Ivan, you still have questions in this area? Just to clarify on that point, I said that it could be the end of June, but, if things go smoothly, it could be a lot earlier. The point that I wanted to get your reflection on was what we have heard in terms of the discussion between the Scottish Government and the UK Government as it is coming down to one word, consent or consult. That is probably a very simplistic way of putting it, but that is a line that has got traction. That sounds very as if they are very close, but, in reality, I just want to get your reflection on that. It is much more fundamental and substantial in that, because that really comes down to the issue about the devolution settlement and who has the authority to legislate in which particular sphere. It might sound in the public realm, but we know that they are coming closer together. However, if that fault line remains, would you agree that that means that, fundamentally, there is still quite a difference between the two parties? There is certainly a difference between consent and consult—no question about that. However, going back to what we said earlier about the complete lack of transparency surrounding the process, we know what is described as quotes on quotes. A considerable offer has been made by the UK Government, which has been rejected by the Scottish Government. We do not know what that offer is. We have not seen any form of word. As we were saying earlier, it is very difficult to, apart from recognising that there is still a fundamental disagreement to get any sense of where exactly, the source of that disagreement or what exactly it is about, where indeed it lies. I think that that is the difficulty. Sure, but if that distinction remains and the parties have not agreed on what those two words are to use, then that really is the fundamental issue. The bottom line is that the Scottish Government insists and has insisted from the outset that any common framework, or those powers that are governed by common frameworks, should be a matter for agreement between essentially the two Governments, or if you like, between the two legislatures. That is the agree part of your formula, and that is clearly different from what we are going to do, we being the UK Government, we will consult you about it, listen to what you have to say, but then we will go ahead anyway. Briefly on that, there is obviously a very big difference between consent and consult, but if that was opened up in a way that, as Professor H says, it was actually possible to have a serious and substantive discussion of how common frameworks would work, how the decision making process would work, then it would be a more illuminating discussion and a more democratic one. It does not necessarily have to be simply a stand-off between saying, well, we are going to consult as in existing JMC structures versus your demanding a veto and we are not going to give it to you, but you would have to look into immediate procedures. If you look, and I think Professor Michael Keating has made this point in a blog, he wrote some time back. If you look at how the single market runs at EU level, obviously you have developed complex procedures for how you agree common EU frameworks, including qualified majority voting, but that would be a completely new constitutional step for something like that to be established in the UK. I am not particularly suggesting it. I am just trying to show that there are gradations here, but they would be quite complex and constitutionally challenging to set up. We are in the realm, it seems instead, of a rapid and messy compromise, which is largely going on, or no compromise, being debated behind closed doors. It is not only the distinction between those two words, it is the potential to consider what the arrangements could be that would draw some gradated line between them. Michael Russell said last week that the UK Government is going to publish its amended text next week, and it will be easier to comment once we have seen that. Whether that happens remains to be seen. Thank you, convener. Good morning, everybody. Just before I ask my question, I think that it is interesting that you bring up the point about agreement versus consultation. That is actually quite an important point that has been made. I am interested in parliamentary scrutiny in this continuity bill, compared to the EU withdrawal bill. Does the continuity bill go further to allow parliamentary scrutiny of subordinate legislation as it moves forward? Do we have a better ability to then scrutinise if we have this continuity bill moving forward? The answer to that is yes. There are two ways in which the scrutiny provisions are better than they are for devolved issues under the withdrawal bill. In the first place, the legal continuity bill provides for a superaffirmative procedure for some types of regulations, so that would require that regulations are laid in draft for 60 days rather than 40 days and that there is mandatory consultation both with the Parliament and with other interested parties. There is a heightened scrutiny provision. The other way in which scrutiny is improved is that the explanatory statements requirements that were added to the withdrawal bill in the Commons, which under the withdrawal bill only apply to UK ministers, are now applied in the bill to devolve ministers. That is the two improvements in scrutiny provisions. There are also changes in terms of the scope of the powers. They are subject to necessity tests, at least in part, and there are more substantive constraints on how the provisions can be used. The only thing that I would add to that is to bear in mind that the EU withdrawal bill says nothing about the scrutiny that should be applied to the exercise of powers by the Scottish ministers. It leaves that question effectively to the Scottish Parliament. I am not aware that anything has been said about what the Scottish ministers propose in the event that they end up exercising powers under the EU withdrawal bill rather than the continuity bill, but one would expect what is being proposed in the continuity bill to apply to the exercise of powers under the EU withdrawal bill if that is the position in which we end up. In other words, that is the first site that we have had of the kinds of scrutiny that might be applied regardless of which bill the powers are being exercised under. I would like to pick up on the point that Aileen made about the regulation making power. Yes, it is improved in part, but if you look at section 11 on page 7 of the bill where the Scottish ministers were talking about dealing with deficiencies in devolved EU law, that is when it is being transposed. There are deficiencies such as mentioning EU agencies and things like that. Ministers have to consider whether there is a failure or a deficiency and that it is necessary to make provision. By regulations, they may make such provision as they consider appropriate for that purpose. If it is necessary to make provision for the purpose of preventing it, it has to be the case that it makes such provision as is necessary for that purpose. The issue of necessity has to flow through to both of those aspects. We talked about this last time when we were looking at the bill at the EUWB and at the same point arises there, both for ministers of the Crown under clause 7 and for Scottish ministers under schedule 2. It is still an issue to be picked up on. Disagree with that? Yes, it can be necessary to make changes. Question number one, we are agreed on that. What changes are appropriate? I think that it would be perfectly possible to separate these two things. I can take the point, but it is also a discretion for Scottish ministers to make these necessary arrangements and I think that that might be something to be looked at too. I think that I am just trying to be clear that the continued to bill actually has an advantage and it will allow further scrutiny of secondary legislation, whereas the EU withdrawal bill does not have that. Yes, but it also creates additional delegated powers. There is an entirely new delegated power in relation to keeping pace with post-exit developments in EU law, so that is something to bear in mind. The powers that have been taken across from the withdrawal bill are narrower, but they are then balanced by this entirely new power. The criticism of the EU withdrawal bill is that it involves a massive irrigation of powers by ministers at the expense of Parliament to make laws, which is justified by the scale of the challenge that is being faced. Exactly the same criticism can be made of the continuity bill in relation to the powers that are being taken by the Scottish ministers to deal with the challenge here. I will come to you a minute, Patrick. Alexander has not been in yet at all, so I need to make sure that he gets an opportunity to ask his question. A very brief question. A question on cost and probably more one for the minister. Does the panel have any views on the cost of its legislation and whether there is precedent for a bill to be passed in the absence of such detail? No precedent? No, I do not have a view either. I wanted to ask some questions as well on scrutiny of the powers that are created under the bill. We can make a comparison with the EU withdrawal bill. We can also judge the bill on its own terms and ask if we can improve what is proposed there. Would it be reasonable to suggest that, as well as specifying particular types of regulations, there ought to be subject to the affirmative rather than the negative procedure, or the super-affirmative rather than the affirmative procedure, that there ought to be some kind of sifting mechanism for Parliament to require Scottish ministers to publish a draft of an instrument, and for Parliament then to decide if a measure needs to be bumped up from negative to affirmative or affirmative to superaffirmative. Would that be, in your view, best done by a specific sifting committee or a job given to subject committees of Parliament? Would that be any different than simply lodging a motion to annull a negative instrument and therefore requiring some greater discussion around the instrument? One of the crucial things here, and there was a reference to it yesterday, is the scale and the timing of the subordinate law making programme, so you know what is actually being talked about roughly when, and you can either have possibility number one, a committee whose job it is, to look at that programme and say that these are the instruments that deserve a heightened degree of scrutiny, possibly in consultation with subject committees or you can leave that task to subject committees, but I would have thought that a dedicated committee would be the right way to go about it. That would probably be the best way to do it. It would be focused on the instruments before them. I think that they are of a different character from the kind of ordinary instruments that people might come across in other contexts. I think that the important issue is something that we've been talking about since the very beginning of this process, which is proper consultation on these draft orders. Time is getting very short now. I think that waiting until either the EUWB, so that is addressed to UK ministers, to wait for it to become law before starting consultation on draft orders is, I think, a waste of time, because departments are doing this and the same are drawing up draft orders and looking at them even as we speak. I think that that would be something that I would address also to Scottish ministers, so that there would be proper consultation on these draft orders as soon as possible. Regardless of what happens with this bill or the EUwithdrawal bill? Yes. Can I just make an additional point there, which I think follows on, both with the EUwithdrawal bill and with the continuity bill, which, as a number of also the Westminster select committees have said, just simply transposing EU law, in many cases, not least in the environmental area, does not work very well unless you have the appropriate regulatory structures as well and the appropriate regulatory agencies. There are also clearly major timing questions in establishing those and deciding how they will function and the transition period, if there is a transition period, or if there is a deal, presumably there will be a transition period, is currently debated in terms of December 2020, clearly very short. A couple of other points on scrutiny. In section 31, the power is created to introduce regulations under urgent cases without prior approval by Parliament and, subsequently, laying an instrument before Parliament and Parliament being required to pass a resolution. Is that adequate or is there a case for perhaps giving Parliament an emergency break on that power, suspending that power if we feel it has been misused, or perhaps requiring a time limit between the making of an order and the laying of it before Parliament, which I do not think is included at the moment? We criticised the analogous provision in the EUWB because it gives ministers a significant amount of power. I think that what would be useful would be to discover what is considered to be an urgent case. That is something that ministers consider by reason of urgency. It is necessary to make the regulations without being subject to the affirmative procedure. What are the parameters of this urgency? That might be one, convener, very perceptive of you. You might suggest that as an amendment to the but once we start describing urgency, it becomes what is not included in the list. One other area is section 17, which gives Scottish ministers the ability to consent to regulations that are made by the UK Government. Should that consent power lie with the Scottish ministers or with the Scottish Parliament? In my written submission, I think that this power is open to objection, or this attempt to fetter the power of UK ministers, the powers granted by the EU withdrawal bill, is open to objection. You need to only imagine the converse situation in which an amendment is passed to the EU withdrawal bill, which says that all the powers that it is proposed to be conferred on Scottish ministers under the legal continuity Scotland bill should be subject to the agreement of UK ministers. How would this Parliament react to that? I think that those powers should be subject to the consent of the Scottish ministers. In some cases, yes, possibly to this Parliament as well, but I think that the way in which to achieve that, as I said, is by amendment to the EU withdrawal bill rather than by trying to use this vehicle. If this bill is passed by the Scottish Parliament, if the continuity bill is passed by the Scottish Parliament, and it includes some provision for the consenting of UK-made regulations that touch on devolved areas, is there a reason why that consent should be given by ministers alone without the consent of the Scottish Parliament? In case to case, you could imagine cases in which she would want parliamentary consent, as opposed to just ministerial consent. I don't see why not. I can't think of anywhere that ministerial consent alone would be enough, can you? I'm not going to object to heightened scrutiny at all.  I think that Neil originally had a question on detail. Has it been used, Neil? It's on secondary legislation 6 and 13. Do you want to do that first then I'll come back to that. I'm just on section 13 of the power to use secondary legislation to incorporate new EU law, which we've touched on. Professor Page, you said in your written evidence that ministers taking these powers would be a potentially major surrender by the Parliament of its legislative competence, and one that under the bill was introduced may be extended indefinitely. I was concerned by the phrase major surrender by the Parliament. Can you explain further about what you meant by that? It would simply be leaving to ministers the discretion to decide which EU instruments to give effect within Scotland. At this point, Scotland and the UK will no longer be a member of the European Union. I would be frankly astonished if we were to be, as I said and I chose a word deliberately, surrendering the competence of this Parliament to not just Scottish ministers but to institutions in whose deliberations we have absolutely no voice. I think that if we're going to do that, then that should be a properly discussed, argued and decided matter. That's my objection to it or my surprise that this provision is in the bill. Thanks for that. It's been mentioned earlier that the Government said there are similarities between the continuity bill and the EU withdrawal bill, and that may concern people concerned about parliamentary scrutiny and legal certainty. Can I ask also the other witnesses for their views on the appropriateness of this power? Could this section of the bill be interpreted as a power grab by Scottish ministers and specifically why should the power be extended after five years, as is made out in section 30? The obvious analogy to draw with this power would be section 22 of the European Communities Act, which gives ministers power to implement EU obligations by secondary legislation. As Alan said, that is much harder to justify in the circumstances where we are not members of the EU. If this is simply a way of allowing ministers to more easily implement changes that they think are desirable, then I think that it's quite hard to justify. However, if we get into a situation whereby we actually have to, as a consequence of whatever deal we negotiate for withdrawal, we have to keep pace with developments in EU law in certain areas, then some kind of keeping pace power is much more justifiable. As with much of the stuff, it really depends on what the post-Brexit constitutional landscape and post-Brexit relationship with the EU looks like that will affect the justifiability of this power. I think on that, it's a rather bizarre situation following on from what Professor Macarre has just said. If you think of something like the European Economic Area, which Norway has been called a fax democracy in its own review of the operating of the European Economic Area, it has said that there is a major democratic deficit. As Professor Page has said, at least in the EEA you have some ability to comment on EU law, but it's rather minor compared to being an EU member state. On the other hand, in this case, you're not obliged because you're not depending on what any final Brexit deal says, but you're not obliged to implement that law, so it's optional and you can pick and choose. Again, why the Scottish Government, rather than the Scottish Parliament, would decide that is one question. At the moment, as I said near the start of this session, we're heading to a free trade agreement. We're heading to some sort of perhaps Canada style deal. What happens if Westminster votes, for instance, for a comprehensive customs union with the EU? Would that cover agriculture and fisheries, for instance? What if you added the single market into that, then you'd transform the context of this particular debate. I think that at best it's rather curious and at worse it's a strange power to give to the Scottish Government, not at least the Parliament. We don't really saw what happened, though. In these circumstances, it might be unusual, but if it were to arise, if the Government were to say that it has to come to an agreement with the Parliament on what legislative process would be used in such circumstances, and then it would have to agree with Parliament whether it was secondary or primary legislation, et cetera, if there was going to be that sort of change. But the provision allows for Scottish ministers by regulations to make— I'm suggesting that that was amended, would that be? If it were amended, I would advance in response to Mr Harry and also to Mr Bibby that the Parliament has to have the central role here. If Scottish ministers in the future, once the UK has left the EU wish to adopt provisions in EU regulations and other aspects of EU law, then the appropriate way to do that would be to have regard to EU legislation and then bring forward Scottish legislation that matches that in whatever respect provided that it is within devolved competence. That could be done today with the succession regulation that we are not opted into in the UK. We could create a law in Scotland that looked like the succession regulation. I think that that would be where I would park this. Alan, do you want to say more? No? No, I think that it was a consensus. It's a thoroughly bad idea. Okay, fair enough. Now, I think that that takes us to Patrick, who is a slightly different area of Patrick. I think that this is the final question that I've got that right, unless there's any supplementaries. Thank you. Section 5, the general principles of EU law and the charter of fundamental rights are part of the Scots law, on or after, exit day, etc. This is one of the areas of difference between the continuity bill and the EU withdrawal bill. We've seen significant debate at Westminster about to what extent the EU withdrawal bill is acceptable and should, in particular, some of the environmental principles of EU law be specified and set out in relation to things like the polluted pays principle, the precautionary principle, issues around animal welfare and sentience and so on. Is the approach in this bill clear and adequate in simply saying the general principles and the charter apply, or does it need to, or is there a case for it going into more detail about what those principles are and how they should apply? The starting point is to point out that probably the more important difference between the two bills is not necessarily the direct incorporation of the charter of fundamental rights because there is the argument that the rights contained in the charter, so far as they are justiciable, are incorporated by the withdrawal bill anyway. It's a question of accessibility rather than substance, at least arguably, but where there is a very important difference is in relation to section 5.2, which for devolved matters would retain a right of action based on failure to comply with the general principles and the charter of fundamental rights. That is missing from the withdrawal bill. To my mind, that is the much more significant issue, because unless there is a right to bring actions based on charter rights, it doesn't make a huge amount of difference whether or not it's incorporated. That's the important difference. In relation to the principles of EU law, section 5.3 says that the first part of section 5 applies in relation to the general principles of EU law only if it was recognised as a general principle of EU law by the European Court in a case decided before exit day. Is it the case that there are some things so widely regarded as general principles of EU law that they have never been brought in a case? Do we need to specify what we mean by those principles, or can we rely on that definition to have full effect? I am a sponsor your initial question. I was sympathetic to the idea that there is a case for elaborating and explaining what we mean by general principles. As regards your question that you just asked, I think that it's highly unlikely that there are general principles out there that have not been recognised in judgments of the Court of Justice of the European Union. We said in our submission that if we believed that it would be helpful if the Government were to set out what general principles are to be retained in the Scottish law and the fundamental principles, we enumerated them, proportionality, subsidiarity, et cetera. I agree with Alan that it's unlikely that there's a general principle that we're not aware of at the moment. Your question further, because you have started talking about principles of environmental law and so on, which would need to be separately provided for them, because they wouldn't be, I don't think, be covered by the idea of just general principles of EU law. And just finally on this, there's a flip side to the argument. Michael Clancy just mentioned subsidiarity. I think that even though subsidiarity, you might say, it's never been as applied as rigorously or as clearly as it was intended to be, I would still regard it as a loss, personally, if we didn't have that principle recognised at some level. Does it make any sense for it to be recognised in Scotland but not at UK level? Does subsidiarity mean anything if it isn't applying throughout the UK? How could subsidiarity only apply at one level of government? We have more than one level of government in Scotland. So it could be used, it could be invoked by local authorities to protect their spheres of competence. I don't know if it has been used in that way at EU level. I mean, the subsidiarity principle is about the relationship between EU law and member states. As a principle, the principle is that decisions should be taken at the lowest level appropriate. As a principle, it's potentially more broadly applicable, but that would probably require some creativity on the part of our courts post Brexit. I thank you very much. That concludes this particular session. It has been a very good session, covered a lot of ground. I am very grateful for you coming along. I know that this has been a short notice, but I thank you very much. I think that we should probably suspend for about 10 minutes and then begin again with the minister in 10 minutes.  Colleagues, we begin again. We are joined for our second evidence session on the UK withdrawal from the European Legal Continuity Scotland Bill by Mike Russell, the Minister for UK Negotiations in Scotland's place in Europe. Mr Russell will be supported today by a range of officials—Alice in Cool, Grail and Fisher, Luke McBrackney and Jenny Brough. I am not ready what you all do because I am trying to cut some time down here. I welcome our witnesses to the meeting and invite Mr Russell to make an opening statement. I really have not a statement to make. I think that everybody knows my position on this bill. By now, I am quite happy to comment and to respond to any questions that you have. We are going to cover three main areas around competence, necessity and detail on the bill. I begin by asking the minister a question on the competence issue. Can you explain why, in the light of the president's statement on legislative competence that remains the Scottish Government's view that the bill is within competence? We can go into—I will invite my colleagues to go into some of the legal detail if you wish—but I thought that the previous panel, and I watched it with great interest, expressed the issues very well. There is a genuine difference of opinion, and it is done with respect between the Presiding Officer—who has one view—and the Lord Advocate, who has indicated what the Government's view is. That is the Lord Advocate's function, and he is entitled to do that under the ministerial code. Then, a range of other views—the Welsh Presiding Officer has a view on their bill, and I heard the panel differing views. Those who framed the original Scotland Act anticipated the circumstance. It is unique, but it is not unanticipated. There could be a time in which there was a difference of opinion between a Government and the Presiding Officer. Indeed, there has been academic study of this in 2017, when Macawkindale and Hybert looked at some of the issues in a very interesting paper in the Scottish law review. In the circumstances in which there is a disagreement—and there is a disagreement here—the Government is permitted and entitled to bring the bill in, and that is what it has done. The debate will no doubt continue. I unsurprisingly sighed entirely with the advice that I have had from the Government and the Lord Advocate. I think that some of that was well explained by others today. Professor Tomkins has taken a different view and is supporting the view of the Presiding Officer. We then move forward on that issue. In terms of the central issue of the compatibility with EU law and the necessity that is laid upon us, I think that it is in a logical sense—and I was very struck by this by Alison McHarg's appeal to common sense—it is in a logical sense very difficult to understand how we could not legislate in this way up to and including the afternoon of 29 March 2019. That would be an unreasonable position to be in, but that is the inference of where those against this particular competence put themselves. However, it is a genuine debate and that debate will continue. We will obviously have to have it between lawyers and experts, and then between laymen such as myself and others. Obviously, this morning, we were speaking a little bit about this incompatibility argument. That is the one that was advanced by the Lord Advocate last week, where he said that if the Scottish continuity bill is incompatible with EU law because it contemplates this post-Brexit scenario and departure from EU law, then the same argument would equally apply to the UK's withdrawal bill. However, if you watched the session earlier that you were seeing Professor Page or he said what he thought it actually hinged on was, does the Scottish Parliament have the power to enact the legislation? If it does, it is within competence. What would be your view on those two? I do not believe that it does have the power to enact the legislation. That is where I stand. I know that Professor McHarg drew attention to another point that the Lord Advocate made, which I think is very telling. There is provision made for the orderly withdrawal from the EU of a member. Therefore, actions taken to facilitate that orderly withdrawal cannot be contrary to EU law, because provision is made in those circumstances. As one of the legislatures of those islands, we are in that position. However, there are different opinions. We weighing in yet again to repeat the advice that I have had on Lord Advocate does not take us very far. There will continue to be a difference of opinion in this matter. I think right through this process, and we will have to live with that, but it was allowed for within the Scotland Act. That is extremely important. The people who framed the Scotland Act clearly anticipated that this was a possibility. Therefore, we are operating within a rulebook, essentially. We are doing what we are allowed to do. At the end of the day, there may or may not—this is the issue—and again, there will be a difference of opinion. There may or may not be a reference to the Supreme Court. I hope that there is not, but I did not want to be in that position. I made that clear last week at the chamber. I will make it clear again today. I would rather not be in that position, but we are in the position, and therefore we accept it. We are in the position because we have a position where the UK Government has still failed to move that extra bit forward. If it did so, the Scottish Government would consider withdrawing the continuity legislation. I saw that there was some comment in the Times yesterday that the UK Government spokesperson was saying that it did not think that the UK Government would move that extra bit forward. How likely do you think that that is? Fortunately, I do not undertake my negotiations entirely on the basis of what the Times or the Scotsman or the Herald or anybody else publishes on their front page. Otherwise, I would be blown by every single wind that blows. We are in a clear position. I said in a television interview on Sunday that, no matter the circumstances, I would continue to negotiate, and the basis of that negotiation would be on respecting the devolved settlement. That required our consent in terms of the frameworks. That remains consent or agree—those are important words—that remains where we are. Tomorrow, Mark Drakeford and I will be at a meeting of the GMCEN tomorrow afternoon. We hope to bring further thought and ideas to bear, and we will continue to have that conversation. I wonder if the minister heard what Professor Page had to say about the issue of competence and compatibility with EU law being, in his words, something of a red herring, and whether the minister would want to reflect on that. I did hear what he said, and I would probably want to reflect on that, but probably not instantly. I would want to study what Professor Page has said. We take very serious consideration of all the views of experts on this field and your own too—your exchange with the Lord Advocate last week was of significance, and we understand how significant it is. I do not know whether my legal colleagues want to reflect on what Professor Page said, but we will certainly consider it. I heard his views. Can I question that on two specifics? We all understand that acting compatibly with EU law is not the only constraint on our legislative competence. We are also required to act only within devolved competence and not to trespass on to reserved functions, as provided for in schedules 4 and 5 to the Scotland Act. A couple of specifics in this bill have been raised as examples of provisions that would appear, at least on one reading, to do exactly that, to trespass on to reserved functions. The provision in the bill that enables Scottish ministers to set a different day than 29 March 2019 as exit day is an example. The whole of section 6, which provides for the ongoing status of the principle of the supremacy of EU law and Scottish law after exit day, would appear to be another. Those are examples of provisions in the act that trespass on reserved competence and are therefore incompetent for this Parliament to pass. I did ask the Lord Advocate last week about that, but he declined to answer it with any level of specificity. I wonder whether minister Yu or your officials this morning would be prepared to walk me through the reasons why, in the Scottish Government's view, those provisions and others like them are within competence, not outwith competence. Okay, let me deal with the overall question and then I'll deal with the specific items. I'll ask Alison Cole to talk about section 6, which is better qualified to do than I am. In the overall principle, we don't believe the bill relates to reserved matters, and that's clearly the position we have. An objection has been raised, for example, that it relates to reserved matters in international relations, including relations to the EU. It doesn't. It's about domestic law. That reservation contains an express exception concerning the implementation and domestic law of international obligations in the EU law, and that's what the bill does. It deals with the implementation and devolved areas of the UK Government's decision to leave the EU. That's what it's designed to do. The purpose of the bill is to make provision within the legislative competence of the Scottish Parliament, consequential and decision of the UK to withdraw. Our view is that it is within competence. In terms of the specifics that you have raised on the exit day, I feel very much that we are damned if we do and damned if we don't on exit day. Exit day was a huge issue in the passage through the House of Commons. There was very strong pressure to put on to the bill the date itself, the date was put on it and then another group of people swept in from other side of the argument and said that it shouldn't be there. What the compromise, I think it may be Michael Clancy who quoted this, who quoted the actual provision and evidence to you, is that it gives the date, but it also gives a power to a minister to amend the date. I am more than willing to look at an amendment and I confirm this to the Delegated Powers Committee, which I think that the convener referred to this morning. I am more than willing to look at an amendment that does exactly the same sort of thing. It is neither our intention nor do we believe that it is our ability to set a different date. We are not in that business, but if it is possible to improve the bill in that way, I do not believe that it is out of competence, but it is impossible to improve the bill in that way. We will improve the bill in that way. Is a function which is self-reserved to ministers and the Crown? We can recognise that reservation quite easily because we are not endeavouring in the bill to take a power to set a date or a different date. That is not what we are doing. What we are doing is accepting that that date will be set by the UK Government. We then come down to this head of a pin whether that date could or could not be changed. Of course, there is a dispute about that whether it could or could not be changed and who will be set. However, I recognise that the date will be set by UK ministers and we are not going to set it. We are not endeavouring to shove in somewhere, you know, oops, we said 2029 rather than 2019. That is not what we are into. I give you my reassurance on that and we will endeavour to bring an amendment. Perhaps Alison would like to address the competence of section 6. I will cover exit day briefly as well. I suppose that our position, I think that the Lord Advocate maybe did address this, is that we are required to act compatibly with EU law and in exercising that power, we would need to exercise it in a way that fits in with the exit day that is under the treaties, which is currently 29 March. As the minister said, we are looking at whether we can make the position clearer. On supremacy of EU law, our position would be that that is part and parcel of the whole range of EU law that we are bringing into domestic law as part of the preparations for exit. The general principles, the charter and the incorporation and saving of retained EU law is one of the EU law concepts that we have to deal with and we need to see what the position is and what we are seeking to do is the same as the UK Government in its bills to say basically that supremacy of EU law applies in the same way as it currently does to the law that we bring across. I understand the policy intention but I still do not understand how the Scottish Government considers that this Parliament legislating for that is compatible with the reservation in schedule 5 that reserves international relations, including relations between the UK and the EU and its institutions. Their court of justice is one of those institutions and the doctrine of supremacy relates directly to the relationship between the UK legal systems and that institution of the EU. How does that provision in your view not trespass on that reserved function? I look to address that to see if we can provide additional information that will assist. I think that it is important to look at what section 6 will do where it is to be enacted. Although it is about the subject of the supremacy of EU law, it would no longer be about the relationship between EU law as part of the supernational legal order and our domestic law because the UK would have ceased to have been a member state of the EU. If you actually look at what section 6 will do after, and as Lord Advocate made clear, this bill can only take effect after UK withdrawal, it will become a set of principles about what that former principle of supremacy means in the context of Scots law as part of the UK, a country that used to be a member state. I understand the provision, but I think that there is a grave issue here about whether that is competent. We will have to agree to differ on that. We believe that the arguments that we put forward mean that it is competent and, of course, that Lord Advocate contends that it is competent, but I am quite happy to consider further questions on that and to take, for example, a question in writing and to see if we can answer it from you. As you outlined at the start, minister, there are clearly different positions in terms of the view on legal competence. There is a view from the Presiding Officer and there is a view from the Lord Advocate, which is supported by the Government. There is a potential, as you said, that we may end up in the regrettable situation that this is in the courts and that is something that none of us want. However, in order—and you said—discussions were on-going between legal officers and the hope would be that we could get some resolution. However, in order to—it puts MSPs in a difficult position because we are in uncharted territory here, but in order to inform this debate, which has become, unfortunately, part of the consideration of the bill, I perfectly understand the Government's view that it is not in the normal policy to publish legal advice, but would you take on both the view of the law society that, given the public interest here, there is a case for both the Presiding Officer and the Lord Advocate publishing the legal advice to inform those discussions? I do understand it and I heard the evidence of the law society. However, we have already undertaken, of course, an exceptional state permitted under the ministerial code, in which the Lord Advocate has indicated the reasons that the Government has taken the action that it has by saying that why we believe that this is within competence. He has also gone further. He has come to the chamber and he has answered questions from members on those matters. That is an exceptional step to take. It is not presently—I have to say that it is not the view of the Government—that we should then move into not only completely uncharted waters that would set—we think of a very difficult and dangerous precedent if we were then to publish or give further legal advice. That is not the intention so to do. I understand where the law society is. I understand where you are, but we do not believe that there would be benefit in so doing, and that is where we stand. Do you accept that MSPs are in a difficult position here, because that has become part of the debate as to whether the legislation is legally competent? We understand from the Scottish Labour's perspective why you are bringing the legislation forward, and we support that in principle. However, we are in a difficult position in regard to legal advice. It is important for MSPs across the chamber to have as great an understanding as possible as to the two different positions here. We have indicated very clearly this morning in publication in statements why the Scottish Government believes that this is competent, and we have given legal reasons for that. We have indicated why. The Presiding Officer has published his statement, and there was no limit to his statement. He could have published as much or as little as he wished. He has published his statement and why he believes that not to be the case. We have heard distinguished scholars this morning give their opinions on that matter. That will, with the greatest respect, never be in definitive. There is a difference of opinion on this matter. It could only be definitive. In the end, it was tested in the courts. As the Lord Advocate has indicated, in his view, if the position that he has taken was in the UK, it would be in the UK position. With the greatest respect, and I am not trying to be difficult, I cannot give you any comfort on that at all. The Lord Advocate has taken exceptional steps. The Presiding Officer has published a lengthier statement than I believe that he has ever published before. There are other contributors to this, and that is where we are. How do I want to express this? If there is this agreement currently, and even though we, the Lord Advocate, the Scottish Government and the Presiding Officer, published in full what their legal advice was, I suspect that this agreement would still be there. Therefore, in that context, we might have more text to read, but it does not change the context of the decision that MSPs have got to make. I suspect that, if the archangel Gabriel were to come down and define what legal advice he was to give, there would still be a dispute about it. I do not think that it is going to produce the clarity that people wish. Adam has got a supplementary of that. I agree with the minister about this. I think that legal advice to Governments should only be published in very exceptional circumstances, but there is an alternative that you said you could not offer any comfort to Mr Kelly, but I wonder if you would consider that. The Lord Advocate could refer the competence of this bill directly to the Supreme Court, because he is a law officer who is able to do that under the Terms of the Scotland Act 1998. I think that his equivalent legal counsel in Wales has done that formally with regard to a Welsh statute, which was referred by the Government of Wales to the Supreme Court in order to test its varies. Would the Scottish Government undertake if it is so confident about the Lord Advocate's legal advice to refer the competence of this bill directly to the Supreme Court? I think that the reason that we would not, that it may not happen, and I cannot make a commitment one way or the other, though I think that it is highly unlikely, is that because we are confident in the advice that we have had the Lord Advocate that this is entirely within competence and therefore we do not believe that it needs to be tested in that way. I cannot and you would not expect me to give that commitment at this meeting, and I think that it is highly unlikely, but I have heard what you have said and no doubt that the Lord Advocate has heard what you have said. Legal advice should only be published in very exceptional circumstances, and the ministerial code makes provision for that. If the ministers believe that it is in the public interest, then obviously the Law Society of Scotland has said that they believe that it is. Can I ask you, have you received any other legal advice from anyone other than the Lord Advocate? I am not at liberty to give that information. Ministers do not talk about the legal advice that they have given, and that is an answer that other ministers have given regularly around this table. I do not think that we should become totally hooked on that. The Lord Advocate has taken the steps that he is entitled to take in exceptional circumstances, and those are laid out in the ministerial code, because we recognise the exceptional nature of those circumstances. That is what has happened. Moreover, he has made himself available for questioning in the chamber on the issue, and that is absolutely unique. I think that that is a considerable contribution to understanding, but I agree with the convener. I do not think that the publication of any amount of legal advice would actually change things. You said that you are not at liberty to say, but the ministerial code states that in exceptional circumstances that legal advice can be published if ministers believe it in the public interest. I am not in the position to say it, and I will not be giving any information on that, because I believe that I am bound by the ministerial code. The area and the competence issue, we move on to the areas around necessity. I want to ask you to give a comment or two about the overall timing of the Scottish bill. Clearly, there is a view that there is an urgency attached to this, that time is moving fast and running out and so on and so forth. Is there another view that perhaps we do not need to do this until later on or the last minute or even not at all? Could you just outline what the advantage is in the Scottish Government view, or in bringing it in now, and what the risks are if we do not act now? Well, I am going to ask Graham to come in in a moment, because this was a question that was asked yesterday at the delegated powers committee, and Graham provided a written explanation of this. I think that all members are to receive it, because I think that it was sent to the convener of the delegated powers committee who undertook to circulate it. I do not know if it has been circulated as yet, but it will give you a written explanation. Has it been circulated? I received it as a committee not long ago, so it is about to be circulated. Okay, so there is, but suffice to say, and I will ask Graham to give the legal detail, but from the perspective in which we are operating, we require and we understand we require to have this bill passed before and have royal assent before the UK bill has passed and has royal assent. Now, Michael Clancy laid out the timetable to which the UK Government is operating. It is worth saying that that timetable has slipped and continues to slip. The timetable originally for that bill was for the end of last year. There were difficulties with it in the commons. The Lord's timetable is for 10 days at the committee stage. It is on day 4 and is already slipping, we understand, at the time, so it may well take longer. There is then a report stage to be had. We do not believe that this bill is likely to be ready for royal assent in the UK until some time in early May at the very earliest, so that is the timescale. Now, because Scottish bills require once passed to have a month's lying time, I suppose, you could call it in old practice, under which, as Professor Tomkins has indicated, there could be a challenge to it, and then you add the period of royal assent. Working back from that, it would appear that this is the last possible moment. We have held off—I would say that we have restrained ourselves very much by saying that we want to get a resolution through a negotiation, and we have only, alongside our Welsh colleagues, brought this to the respective chambers at the very last moment that we felt that we could do so. That is where we are. In terms of legislative consent, where we need to bring forward a legislative consent motion, and the procedure is slightly different than Wales and Scotland, that would have to be done before the last amending stage of the bill, and that is report stage in the House of Lords, so that would require to be done sometime in the second half of April, certainly after Easter. Perhaps I might want to indicate that the issue is probably important just to quote from the letter that has gone? Yes, it is partly a marginal issue and further to those issues, which the minister has just outlined and indeed spoken to before in relation to the need to amend the withdrawal bill, if necessary, in the event that the legislative consent motion is refused by the Parliament and in view of the practical legislative work to prepare for Brexit that follows on and needs some kind of settled position between the two bills. There are also some more technical reasons buried in the detail of the EU withdrawal bill about the potential interaction of the two bills, in the sense that there is an amendment in schedule 3, paragraph 19 to be, of the EU withdrawal bill, which would amend the Scotland Act and which would make the EU withdrawal bill if it is in due course passed into law. It would make that a protected enactment in terms of the Scotland Act, so it could not be amended or modified by an act of the Scottish Parliament, and that may come to have some bearing on the operation of the continuity bill, for that reason and also the timing issues that have been advertied to by the minister and, I think, by the witnesses that the committee heard earlier this morning in terms of the timings, that is one of the other reasons for the urgency of bringing forward the bill at this pace. If the LCM is refused and we did not have this bill, where does it leave us? It would depend on whether the constitutional conventions were being observed or not. There is a question that Tomkins raised earlier this morning, and I know that this is the word normally and normally. Normally, what would happen is that the sections of the bill to which we could not consent would be removed from the bill, and that would create some considerable difficulties. That is one of the strong reasons for having something to take its place, so that we do not have that legislative cliff edge that would take place. I think that that is a positive intention that we have said regularly to stakeholders across Scotland, particularly to businesses, that we do not want to see a legislative cliff edge, and therefore we need to put something in to stop that happening. On that question, minister, Tavish Scott was asked this question to the Lord Advocate last week, and the Lord Advocate politely declined to answer it on the basis that he considered it to be speculative. However, given that we are considering the general principles of legislation and we need to be looking forward, I hope that perhaps you will not rest on that and give that a substantive answer. It is a direct follow-up to Willie Coffey's question. If the devolution provisions for want of a better expression of the withdrawal bill are removed because this place or Cardiff Bay declines to give consent, and if the legislation is enacted by this Parliament, I know that this is at the third if, and if that legislation is then challenged in the Supreme Court, and if the Supreme Court strikes down this legislation, then isn't it the case that Scotland would have absolutely no legal ability whatsoever to correct its statute book so that it is meaningful and ready for exit day? I know that the Lord Advocate did not want to speculate, but speculation is the stuff of politics, so if you are a politician, you are more willing to speculate. I do not think that chronologically that can happen, and I think that Lacunae is in the question. I am sure that you do, but just to outline the timescales involved, let us—there is a very helpful chart on timescales that we can let the committee have that looks at the passage of the bills. The UK bill is likely to pass in, let us say, the middle of May, in Royal Ascent, at its earliest, roughly Royal Ascent. Let us assume for those circumstances that it is passed as presently is, and there is no legislative consent and they do not remove those, which you indicated is a possibility because there could be an argument that these are not normal times and everything, so that bill is intact. Even if they were removed, and this bill had been passed, one of two things would happen. If the bill were to be challenged in the courts—and I hope that it is not—and it was found to be competent, then it would be in place. If it was found to be incompetent, I think that it would flow from that. I would be highly surprised if the UK Government did not say to itself that we have to have something in place. I just do not think that the chances of that happening are infinitesimally small. I think that it is much more likely that either this bill passes and sits happily with the other bill, or at the earliest stage we have an agreement in terms of the UK bill, or the UK bill is passed, not changed, in which case I have to say that deepens the constitutional crisis, but I think that that is much more likely. I do not think that those set of circumstances are, in any way, almost impossible to a visit happening. Now, you never say impossible, you never say never, but I think that it is very unlikely. I have concluded your area. Thank you, convener. We had a discussion in the previous session about the need for the continuity bill to be complementary to the withdrawal bill. This is where timing becomes important, because the Scottish Government wants to see the continuity bill proceed as emergency legislation. Parliament has, indeed, agreed to that. It will therefore be concluded on the statute book before completion of the withdrawal bill. The withdrawal bill is subject to change at later stages, so we could end up with a lack of complementarity. Does that not mean, therefore, that this rush to legislate could lead to us having bad law and gaps in legislation? I do not believe so. I would respectfully say that I do not think that we are rushing to legislate out of necessity, and I have indicated that in the answer. However, I do not think so, and I think that the reality of that can be found in two possible approaches to this. The first one is that this is not where we wish to be. We are still endeavouring to reach an agreement with the UK Government on the overall UK bill, and, therefore, that agreement may still be reached. If that agreement were reached, then that question does not arise. On the second one, we would wish to be able to study very carefully any ambiguities that arise and find ways to correct them. That is not an impossibility. It has happened in other legislative circumstances, and we would study it very carefully. We have made some changes in this bill that we hope would improve the process, but we do not think that it is by any means impossible for those who are operating under the two bills. That, for example, has happened quite often in the European legislation, where careful decisions have to be made about what lies in one area and what lies in another area, and we will be prepared for that. I have never maintained that this is the ideal situation, but I am confident with thought and care that that situation can be taken care of, and we can make sure that there is not incompatibility. A great deal of work has gone into trying to make sure that those bills complement each other so that there is a workable solution, and we believe that we have found that workable solution. Again, it is not our first option, and I just stress that. In the situation that I have outlined, if there are subsequent amendments required, would you see those being done by regulation or by another piece of primary legislation? I am not saying that we would require amendment, but if those amendments were to be required, that would be a matter for full, frank and open exchange with the chamber and everybody with the entire Parliament. However, I do not anticipate that that will happen. I anticipate that we will find an orderly and proper way to conduct business through the two bills, dealing with people who have made those judgments every single day. If Alison might like to add to that, because Alison is one of those people who is judgmentally trust in those matters. As the minister said, there is a timing issue here. At the moment, the bill is complementary with some different choices in relation to the UK bill. There is a risk—this is the risk that you have identified—of the UK bill being amended subsequently at a point when this bill has been passed. I think that that is a relatively small risk in terms of causing the sorts of problems that you are suggesting might arise. I suppose simply because, in terms of the amendments that are being discussed, most of those are amendments that relate to things that we have already taken a different choice on. That is where some of the pressure comes from amendments. On your question about how, if such an issue does arise, we have the ancillary powers under the bill. They might not work in all cases, but that would provide a potential mechanism to sort out any small rubs that there might be with subsequent amendments. It is important to note that there has been considerable disagreement between the UK and Scottish Governments over a lot of things. However, there has been an absolute unity of purpose since the very beginning. This has set out in December 2016 in Scotland's place in Europe that both Governments have recognised the need for this task to be done to avoid the cliff edge. Already, under the anticipated use of the EU withdrawal bill between the two Governments, there has been discussion and arrangement at official level to see how that co-operation might work. I think that the two Governments share the ambition of avoiding the cliff edge, the dispute so far has just been about precisely how to go about that. It is a very important point. I had my first discussion about this bill with Ben Gummer, who was in the cabinet office minister in the previous administration. Sometime in December 2016, we have recognised that we do not wish the UK to leave the EU. Nobody has doubted about my position on Brexit, but we have recognised the need to have a set of laws that avoid chaos and confusion. That remains our view. We are still trying to avoid that, and we will continue to try to avoid it. Just one more point about timing. In the last session, Professor McHarg said, and I wrote this down, that urgency is a tactical urgency. Is that not really the case? This is really more about politics than it is about the law. It is more about your negotiating position in relation to the UK Government, rather than it is about trying to improve the law of Scotland. No, I have indicated my answer to Mr Coffey and Graham's answer, and in the letter that is being circulated. Do you have the legal reasons why the sequencing has to take place as it is taking place? I have got quite a few people who have indicated previously that they want to take part in this session. Have you still got a question in this one? Yes, just briefly, and thanks minister and panel for coming to talk to us. It centres around the same issue that I raised with the earlier panel, exactly where we are in terms of the political negotiations and more fundamentally than that, what lies behind that, because we talk about the difference between consent and consult and how much ground each party is given, etc, between the Scottish and the UK Governments on where we go with frameworks, etc. We can talk about the legal easing about that, but the core of the reality is that it centres around whether the Scottish Parliament keeps the powers that it has got or whether it loses the ability to legislate in areas that it rightly does under the devolution settlement. As much as you can tell us on where we are with the discussions with the UK Government but also reflect on that fundamental principle and the reality that there is not actually that much give and take when it comes down to that principle. I do sometimes feel as if I am that person described in Palmerston's description of the people who understand the Sleswick-Holstein question. One had gone mad, one had died, and the other one had forgotten it. This is a very, very complicated set of things. I am trying to allow me to try and be as general as I can, and everybody would fall asleep where I go into the extraordinary and excruciating detail of it all. However, at the heart of this is the issue of how a bill is prepared that requires legislative consent. The usual way that such a bill would be prepared is that there would be regular contact between officials in both administrations to make sure that this bill would be operable in terms of legislative consent. Now, that has not applied to this bill. I indicated that I had a conversation with the then Cabinet Office Minister who was responsible of the bill, Ben Gummer, in probably December 16. The responsibility of the bill kept changing between him and David Davis, but there was a proposal that Ben would come and sit down and discuss with ministers and with officials what this was to look like. That did not happen. In January 2017, I raised this bill at the GMC plenary in Cardiff with the Prime Minister and indicated that an early indication of content and timescale would be helpful, because the bill had been discussed. Do you remember that the idea of this so-called great repeal bill had been announced at the Tory party conference in 2016? The bill was clearly in preparation. We were told that it was in preparation. At that stage, the intention was to introduce it in May. In January, February, we were saying that this is getting close to the wire. We need to see this and we need to have a conversation about it. Then, in April, an election is called, so clearly no bill is going to be introduced at that time. The commitment continues for the bill. The election takes place on 8 June. Very shortly thereafter, our officials continue with discussion and it is indicated that this bill is likely to be published in early July. We have not seen it, but we have not seen any detail of it. The last day of June or the first day of July, our officials have shown a copy of the bill, and it is immediately obvious that we cannot agree to the bill as drafted, primarily because of close 11, which takes all the powers, the intersection of powers between the European competence and the devolved competence, and they all go to Westminster. Then there is a process in which Westminster can or cannot divvy them up or pass them out. I went to London on the 3rd of July, I think, and spoke to David Davis about this at some length and indicated what the situation was. We then entered into a process of discussion. The Welsh Government was in exactly the same position. We had a meeting later in July in Cardiff between the law officers, ministers and officials, which we agreed to stop work on amendments because we wished to be constructive, and this has gone on. There has been little progress on amendments until, I think, November when the Prime Minister and the First Minister met, although our amendments were published in September, so we made it clear that we objected to the idea of withdrawal, but we were dealing with the technicalities. Round about November, there was an indication, I think, given the complete strength of this view across Scottish civic society, with the Conservative Party in Scotland indicating their concerns about it, with the Welsh Parliament unanimously indicating their concerns about it, with others involved, that there should be some changes. There was a commitment to look at those. I think that in early December, there was a commitment given by Damien Greene and David Mundell to John Swinney and I that there would be amendments, given in St Andrew's house of the meeting that we had there, and the GMC confirmed that. However, there wasn't much progress on what there was no commitment tabled in the Lord in the comments, although there was a commitment to do so at report stage, it didn't happen. We only began to see, I think, some movement in February. Of course, Damien Greene stopped being First Secretary, David Luton came in. There was a learning period in there. We began to see some movement in February with an acceptance that, rather than taking the approach of taking the whole lot, there would be a much smaller group, essentially close to 11 would be turned on its head. Very welcome progress, but the basic issue of consent by the devolved administrations to anything that happens to their powers has still not been agreed. All the rest—we have had very detailed deep dives into some of the areas on possible frameworks. We have always said that we could agree on the principle of frameworks, but the issue of consent or agreement, which is central to respect for the devolved settlements, has not been agreed. I am sorry, convener, that has taken so long, but we are now up to date. There is another meeting tomorrow. That is why you have shot that. I was. For which I am renowned. I am happy with that. It is already becoming clear that there is a complexity to this bill and there are going to at least be proposals for amendments. We have heard that from the law society this morning and there was discussion in the previous session about section 13 and section 17. Bear in mind that the timetable for that is amendments have got to be lodged by Friday, and then they will be considered on Tuesday. Bear in mind that the complexity of this and the potential volume of amendments is that there is not a danger that the pace that we are moving at, that scrutiny will be compromised and the end product will not be as good and that potentially will give some exposure to a legal challenge. Well, we are between a rock and a hard place. Of course, one would want to see as much scrutiny that was physically possible during that period. I am very grateful to the imagination and flexibility of the bureau and parliamentary staff and the presiding officer for devising, for example, next Tuesday a way in which we can have a chamber discussion about possible amendments and then the proper process of amendments. I offer my apologies to you for the fact that this committee will be required to meet in the evening, but I know that the convener will ensure that pizza and other things are available to you all. The convener will make that available. Stevens Brady is. The situation is that I think I have indicated to Mr Coffey that we have indicated, Graham, in the letter that you have got that there is a necessity to do this within a timescale. We are more than willing to respond to amendments. We are more than willing to be receptive to things. For example, when we discussed this issue of the exit date, I think that we can just accept that we are going to find an amendment. If that amendment is acceptable, I do not think that it will take an awful lot of effort or debate. Perhaps we will restrict ourselves to things that will require substantial debate. I am afraid that there is no other comfort that I can offer to you, Mr Kelly, than to say that the legal reasons that Graham has given, the reasons that we have indicated, mean that we have to observe the timescale that we have. I think that it is also relevant to the committee's consideration that the continuity bill has introduced already reflects a number of the recommendations made during scrutiny of the EU withdrawal bill, both in this Parliament and when that bill receives scrutiny in Westminster to that extent. It already reflects a lot of the different policy choices in the bill. Reflect those criticisms. A good example would be the inclusion of a test of necessity before the main powers in the bill can be used. The form of the test of necessity that we have gone for was first raised in a report of the House of Lords Delegated Powers and Regulatory Reform Committee, and both the Delegated Powers and Law Reform Committee of the Scottish Parliament and this committee in their interim reports on the bill recommended of the EU withdrawal bill that such a test should be included. That test is now in the continuity bill. That was a subject of substantial discussion at the Delegated Powers Committee yesterday, which the official report, and I am sure that a summary of it from Spice, will indicate the changes that have been made. The counter to that is obviously a good legal practice. The counter to that is a discussion that we have had is that the EU withdrawal bill has still got some way to go in terms of progress and there is a danger of inconsistency between the end product to that and the end product to the continuity bill here. We have indicated how we believe that that would be dealt with. Neil, have you just thought of a question in this area? Yes, we have touched on it. Obviously, we are discussing the principle of legislating here at stage 1 and the principles of the bill and the areas of disagreement with the UK Government are what is driving forward the continuity bill and the reason for bringing forward this legislation. It has been suggested that there are 25 areas of disagreement. Given the timescales of Parliament and the public need to know what those areas are yesterday at the Delegated Powers Committee, you said that you could not publish them but you hoped that they would be published before stage 2. This is obviously a piece of legislation that could have potentially significant consequences and we have a truncated process. We do not have the luxury of being able to wait. Why is it acceptable for us to be published ahead of stage 2 and not stage 1? The same question was asked to me by Neil Findlay yesterday. Respectfully, I will give you the same answer. I cannot unilaterally decide to publish this. I have already spoken to my Welsh counterpart. I will be speaking to him again today. I know that he has no objections to that publication, and I will raise this at the meeting tomorrow. Officials have been asked to ensure that that knows that it will be raised. I hope that we will then be able to publish the entire list, again, of 111, indicating what progress has been made with each of them. Nothing has been agreed because nothing is agreed in such discussions until everything is agreed, but progress has been made and there are issues in here of importance. However, I stress to Mr Findlay that this is also about the issue of principle. It is not simply about the issue of particular powers. It is about the issue of making sure that whatever powers this Parliament has, it cannot be taken away or hijacked by another parliament without the consent of this Parliament. That has been well put, I have to say, by the Welsh who, Cardwin Jones as the First Minister of Wales, has made it very clear that he cannot go to the National Assembly of Wales and say, these are powers that I have treated away because they have simply been asked for. I am sure that our First Minister cannot do that either. We should not lose sight of the principle in this, but we will also try to provide as much detail as possible. Members will have had a note from me last night on some of the issues in the bill. It is my intention to keep informing members before each stage, as I was asked to do again by the Labour Party. I will provide anything that I possibly can, but I require to ensure that this is agreed tomorrow, and I will endeavour to do so. What you are saying is that, in terms of that principle, whether it is 111 powers, 25 powers or 1 power, if it is not done by consent and agreement, then the Scottish Government would have issues about it. I think that we should know now what progress has been made by the Scottish and UK Governments in their negotiations and the expert panel that we had beforehand agreed that the public and the Parliament should know what progress has been made and what agreement has been made. You said that you could not do it because you did not have permission from the UK Government, but presumably you did not have permission from the UK Government to do the continuity bill. I think that it is only right that, if there is this list that is in the joint ownership of the three of us as a result of work that has been done, it would be utterly wrong to do ex-cathedra. I have taken a position, for example, on the UK Government analysis that, if I am given them, I will publish them. They know that, therefore they have not given them to me. I do not think that I can ex-cathedra say anything else, but I am endeavouring to ensure that they are published. I will continue to do so, and I hope that I will have a result out of it. We are moving on to areas of detail now. Emma, would you like to begin that suggestion? I will go with the same questions that I asked the previous panel, which was relating to the terms of parliamentary scrutiny and improvements that the continuity bill has in order to compare or scrutinise secondary legislation. The law society submission says that they recommend that the Scottish Government immediately commences a programme of consultation on the draft subordinate legislation that will be needed under the bill. The answer that Alan Page and Eileen MacArthur gave us was that there would be the ability to scrutinise secondary legislation better with the continuity bill. I am going to ask Alison to come in on this, but can I just make a point in terms of the DPLR committee and what it asked for? In its report on the UK bill, it recommended that the power should only be available where ministers can show that it is necessary to make a change to the statute book. We made that change at sections 11 and 12. It recommended that UK ministers should only be able to legislate in devolved areas with the consent of the devolved administration. We made that change section 17. It recommended that an explanatory statement should accompany each instrument. We made that change section 16. It asked the Governments to consider whether the Scottish Minister should be able to use a made affirmative or an urgent procedure for their instruments. We made this change, and it asked us to consider whether the Scottish Minister should have ancillary powers. We made that change. We have responded very positively to ideas about changing the scrutiny of those bills. I also yesterday in evidence to the committee said that, for example, the criteria that we have in the bill for ensuring that something is superaffirmative or affirmative, if there are changes that members would wish to see to those criteria, then I am willing to consider changes to those criteria. I think that we have to have a criteria based system for making that decision. I do not think that we can do it in a random way. I think that we have to decide clearly why something is superaffirmative, why something is affirmative and why, therefore, the other items are negative. However, if there are changes to that, I think that we have, on superaffirmative, I have remembered correctly that it is to do with a new power or a new body, or it is to do with a, what is the third one? I am sure that Luke is very good on the third one. The enhanced affirmative procedure is available where our regulations to establish a new Scottish public authority, give a function to a newly established Scottish public authority, or remove a current EU function without replacing it. That is absolutely perfectly done. Joe, we have criteria there, but if we add another criteria, if there is another criteria that seems sensible, we will consider adding it. However, I am very keen that we have the clarity of criteria applied in those circumstances. Alison, would you like to— That was just on the point of consultation, so I think that we have committed to consult as widely as we possibly can, including on-draft instruments. On th