Good morning, and a very warm welcome to the 18th meeting of the Constitution of Europe, external affairs and culture committee in 2022. Apologies for the sight delay in the start this morning. We have apologies from Morris Golden MP and Mark Russell joining us online. Welcome this morning to those online. Our first agenda item is the implementation of the Northern Ireland protocol. The first agenda item is the fourth session in our series of meetings focusing on post-EU constitutional issues. We have been joined this morning by Stuart Anderson, head of public affairs, the Northern Ireland Chamber of Commerce and Industry, who is in person. Dr Lisa Clair Whitten, research fellow post-Brexit governance, the Northern Ireland and Queens University Belfast, and Declan. Is that NRI, is that Northern Ireland? Have I got that right? It is, to be absolutely. Thank you. Declan Billington, chief executive, John Thomson and Sons Ltd, who is joining us online this morning. We are also joined in committee room by our advisor Professor Katie Hayward from Queens University Belfast. I welcome you all to the meeting. We have also received apologies from John Patrick Clayton, who is policy officer for Unison, whom we were hoping to join our round table this morning. We have four main themes, which we hope to look at in turn this morning. We have about 20 minutes each on each theme, so I give the fair members to paper one in their briefing. Our first theme is the Northern Ireland economy. From the most recent economic analysis in Northern Ireland, we can see that it seems to be outperforming the rest of the UK in terms of output. I wondered what the panel's view was on the impact of Northern Ireland in comparison to the other areas of the UK following Brexit. If I could maybe go to Dr Whitten first. Yes, thank you for the invitation to speak with you this morning. In terms of determining the economic impact of the protocol, it is important to set the context that it is very difficult to disaggregate between the impact of the protocol specifically and the impact of Brexit generally when we are talking about the Northern Ireland economy. That said, as you suggested, there have been good figures coming out in terms of overall status of the Northern Ireland economy. I think that one of the questions in the preparation documents for today was about how, where do we get the most reliable information about the Northern Ireland economy. I think that it is important to recognise that we don't have all the data that we might want in terms of determining exactly the protocol impact. As I said, disaggregating between the impact of Brexit and also broader global events has the implementation of Brexit occurring in between the Covid-19 pandemic and the impact and implications of the Ukraine war. It is important to hold in balance the different economic indicators that are available and to look at both official statistics in terms of the UNS data, also the CSO figures and information from trade bodies and industry in terms of putting together the picture of what the Northern Ireland economy looks like and its performance. When you do that, you see that there are positive things to say and there are still outstanding challenges. It is important to measure the different figures that might pass on to go into detail about those, if I may. Thank you and good morning. Everyone, it is a pleasure to be with you this morning. I think that you will see and you will probably have seen the indications on social media and through British media and Irish media outlets in particular the presentation of particular pictures in relation to Northern Ireland. At times it can seem like a very confused picture because you will hear that the Northern Ireland economy is struggling and then you will hear others saying that Northern Ireland is doing exceptionally well. I think that there is a role for business in particular to play in bringing those narratives together and really working through what the picture actually looks like. There is no question that our exports are up year on year. We are seeing about a 60% rise across 2021 in terms of exports to the Republic of Ireland. The most recent data that I have seen is from Intertrade Ireland saying that exports are up year on year in Q1 of this year by 34%. That is significant but it does come with all of those health warnings. I think that one of the big ones is that a lot of that is actually pharmaceuticals and we have a lot of pharmaceutical firms in Northern Ireland that have been involved in the Covid response for example. There is a need to be cautious about just how well things are looking. They are looking well and that is positive and I think that that needs to be protected. Particularly when you draw a comparison between UK and GB exports to Europe and what is happening in Northern Ireland, there is definitely a positive picture there. The challenge at the moment is with no executive and the challenge at the moment with the wider economic pressures, particularly energy intensive industries struggling perhaps at the moment with their energy bills and input costs. I guess the difficulty is that business confidence is starting to see it really be impacted. The Ulster Bank PMI for the month of May indicated that business confidence in Northern Ireland for the 12 months ahead and a lot of this is linked into the protocol and the uncertainty around it is the lowest in any of all 12 UK regions. So, while things look quite optimistic from the outside, I think there is a need to be cautious about the path ahead. When you say that the exports have to be protected, is protection keeping the protocol in its current form or does it need amended or what does protection mean? That's a good and deep question that I think we could probably get into the discussion around dual regulatory regime. I think there's no question that for our exporting community and broadly speaking, AgriFood protocol is working and when I talk about protection, I'm talking about protecting those sectors. There is a challenge from GB to Northern Ireland, it is the largest market but it's inappropriate and I get tired of a comparisons being drawn between the importance of Europe, the importance of the Irish market relative to GB. They're very different things. GB to Northern Ireland is largely consumer facing, so two out of every three goods that move to Northern Ireland are for retailer wholesale. The Northern Ireland consumer as well is firmly at the bottom of the UK table in terms of discretionary spend. We see that from the aspect of it in contractor, so there is a need to protect the Northern Ireland consumer. To answer your question, yes, we need the protocol retain to protect AgriFood in particular on the All Island piece but there is an exam question that needs to be answered around how we protect the Northern Ireland consumer and there is further work to be done on things like the at-risk test that currently apply on the customs burden in particular. It's an interesting question that you pose because normally whenever you change policy, you look at the base case and you look at the consequences of change. The protocol is the base case and by that I mean that whereas the rest of the UK have customs documentation and AgriFood, they have veterinary certificates required with their trade. Northern Ireland doesn't. The question about the impact of the protocol, the real question, is what would the impact have been if there was no protocol and it would be a lot worse than we are today. Benchmarking where we are today against the rest of the UK understates the value of the protocol in three out of the four trade flows that's working very well. The Northern Ireland to Europe, to Northern Ireland, Northern Ireland to GB, the only issue is GB to NI. As Stuart said, that's a consumer issue and probably a consumer price risk for the Northern Ireland consumer. However, if you were to go back to the work that was done in no deal as a proxy for what would look like in a protocol, it was estimated that there are 24,000 micro-businesses in Northern Ireland to just trade with their neighbours across the border. That's a business with 2, 3, 4, 5 people. Those businesses, if they're trading in food, we would now need export health certificates for the food that they trade in, processed food. They would also need the customs documentation. One could argue that today those requirements would be mild because the UK had not diverged on customs, tariffs and standards versus the EU. However, in the next five to 10 years, as the UK diverged on trade, on tariffs and on standards, the burdens would get greater and greater. The real question is, without the protocol, how would that cross-border trade into Europe look? Today, businesses in Northern Ireland are trading freely with Europe in the agri-food sector. Three to four-year contracts selling food with no paperwork and no customs. Will that trade remain the same way if suddenly there are customs declarations and export health certificates? I don't think so. I think that the analysis is early because we need to disaggregate Covid from trade flows, but the base case is the current case, and it's a step back if you do anything that affects our ability to trade unfettered into Europe. Thank you. I'm going to ask questions from the committee and I can invite Mr Cameron first. Thank you, convener, and good morning to the panel. Just to follow up on the point that was made by Stuart Anderson about the consumer-facing businesses, I think that I'm right in saying that you're on record in terms of talking about the bill that's just been introduced, in saying that there are aspects of those proposals that may help consumer-facing businesses. Is that still your view? I mean, I guess, look, if you want to take the bill at face value and not consider the potential consequences of the relationship with Europe, if you just take the bill as red and assume that it is an agreed mechanism, there is certainly value in the principles that are there. I guess there's a question that needs to be answered at the heart of the consumer-facing challenge, and that is, how do you manage divergence between the UK and the EU? There are various mechanisms to do that. You could have a veterinary agreement, or you could look at the question of, do you facilitate divergence for goods for final sale to the consumer in Northern Ireland? If it is such that your consumer-facing supply chains, in particular your retailers, have such level of sophistication that they can move goods to Northern Ireland for final sale in Northern Ireland, where there is, in practical terms, little or no risk to the single market, then there is value in exploring that as a potential carve-out from the existing arrangements. It is something, I mean, we have been very clear with the UK and the EU. The challenge was that, over two years ago, the business community pulled together a report. It was a collective report, and I think the important piece I would underline is 14 business organisations with a diverse range of interests agreed on the questions that need to be answered to make the protocol work. At the heart of that was the need to have delegations and mitigations to make it work. We are two years on, and, in many respects, those calls, those questions were not answered by either side, and many of those questions remain unanswered. At the moment, it is fair to say that, under the current standstill arrangements, there is some discussion of what is the baseline. At this moment in time, we are seeing goods, relatively speaking, move freely into Northern Ireland. Our supermarkets are still serving Northern Irish customers. The question is one of looking ahead if you remove the standstill arrangement and if you try to look to the question of divergence over time, where will that take us to? On that red line green line, there is the seeds of a good idea. The challenge however is that, while that may work for your firms that are moving their own goods, so the likes of the big UK retailers are moving goods themselves, what is the commercial impact for the Northern Ireland business and the Northern Ireland customer? There are protections in here for GB projects, but I would have a question around what the impact is in terms of commercial bargaining power, because we know that there will be strict compliance rules in place, so will the GB supplier say, we are not going to actually take that burden, we are going to push that back on to the Northern Ireland customer, so it could actually be counterproductive in that respect for third party supply chains, where the Northern Ireland customer says, actually there is too much risk here, we will trade elsewhere. Those are all open questions. I am not drawing any definitive conclusions. I think that there is a lot in the bill still to be answered, so I would like to frame my response in terms of questions rather than definitive conclusions. Thank you for that. Sticking with consumers in Northern Ireland, I note that the consumer councillor in Northern Ireland has said that companies have stopped supplying to Northern Ireland around about 130 confirmed retailers. I do not have any sense of whether that is a small number or a large number. Do you have any comments on that particular aspect of the effects of that? I do not, in terms of the scale. I know that your average supermarket stops around 40,000 to 50,000 products and because of the challenge of divergence, something like titanium dioxide being banned in the EU as an example, you could see maybe 30, 40, 50 products being removed from the shelves. In terms of proportion at this moment in time, divergence is not creating a significant challenge, but there are challenges there already and perhaps those coming up on the horizon. I am not saying that. I take what the consumer councillor is saying at face value and I am hearing, I mean, I would hear mostly from NI distributors who are bringing in goods actually to the island of Ireland as well. This is a problem for the island of Ireland where, if goods have to be made to a different standard, economies of scale is dictating that actually it is not worth supplying Northern Ireland and that was the issue with medicines as well. You create a small market is a commercially viable to supply Northern Ireland or the island of Ireland and that is the difficulty that they are trying to address. Anecdotally, we are seeing, and like the consumer council said, yes, there are suppliers who are stopping supplying Northern Ireland but actually one of the challenges is a lack of awareness and I think one of the things that the UK Government did not do was prepare GB businesses as well at all to trade into Northern Ireland. I think you saw guidance being published and this is not a period of my life I want to repeat but on the 31st of December last year guidance was being published right up to the 11th hour about how to move goods into Northern Ireland the next day and that was really really challenging and a really rocky period for Northern Ireland businesses but you can see from our own data from the Northern Ireland Chamber we do a quarterly survey and in Q2 of last year we saw a 52% of businesses saying they were uncomfortable with it they were getting on top of the protocol that's not a great statistic that you know almost one and two saying that it was a problem in Q1 of this year that increased to 65% and only 8% are saying that they're finding it extremely difficult so I think we're still teasing out that question of time and whether supply chains can adjust to the protocol so I don't think with all the confusion we're really clear as to as to what the impact is going to be. Thank you. Lastly can I ask you if I may just very briefly to say that I think I'm writing in saying that the consumer council that total that you cited I think was 130 the figure approximately and I would need to check but I think an earlier similar review it was more like 300 which just affirms that kind of adaptation aspect I can get the actual figures on that but then it does kind of beg the next question around adaptation to any new arrangements if we do get entered UK divergence going forward. Finally thank you thank you for that finally can I ask you all I mean you've been very clear about the effects on business in Northern Ireland both today and in your submissions. One particular focus for us is obviously Scottish businesses who are trading into Northern Ireland as it were and I'm sure you will all have contacts and relationships with Scottish businesses particularly perhaps in the south west. I just wondered if you had any observations on the effect of the protocol on them and their trade in or out of Northern Ireland. Perhaps I could start with Mr Billington if that's all right sorry Mr Thompson sorry Mr Billington beg your pardon I'm reading your name wrongly. No problem. I think just that for the comments of my colleagues before Brexit if you went on Amazon and tried order goods for Northern Ireland that were freely available elsewhere in the UK you didn't get them so there's always been a reality that we're service less from GB businesses than any other region. The protocol does put extra burdens on that trade and one of the criticisms of the business begs a working group has been the UK Government prepared GB businesses for trade with Europe but did not educate them on their trade with Northern Ireland so how much of the trade that's that has been lost by those 130 is down to the lack of knowledge as opposed to cost. In terms of trade Scotland to Northern Ireland we were very afraid in a no deal that we would not be able to trade with agricultural products from Scotland in particular we buy a lot of barley in the agri food sector from Scotland having a trade deal at TCA solved that problem not to the 11th hour I was looking at having to resell Scottish barley back to Scotland because of tariffs so the TCA was a very useful document that eased the burdens on trade between the UK and Europe and therefore the UK and Northern Ireland. In terms of there's bound to be a bit more difficulty in trading GB to Ni I don't have any first-hand knowledge what I do know is my trade and the agri food sector remains unchanged Scotland is still a very good origin for the agricultural products we have I know for the farming base that they have issues with things like seed potatoes coming from Scotland because of the sanitary and phytosanitary rules but there definitely is in these sectors a restriction to trade arising from sanitary and phytosanitary controls that didn't exist beforehand. If I may if you can forgive slightly dodging the question to say that I think we generally in this conversation would benefit from more regionalised trade data and as a result of post Brexit realities to inform the debate I say that because I wouldn't want to speak because I don't have necessary data to rely on in order to inform my answer. That's fair enough is this slightly unfair question because it's really a question for Scottish businesses and their trade and land but in terms of what you're hearing from the people that you represent or speak to Mr Anderson do you have any final question? Yeah I would agree with that and thank Lisa for dodging the question and just even what Declan has touched on when I guess there are anecdotes and there are case studies that come to the fore and without question the one that we hear the most of is seed potatoes from Scotland for the the agri food sector and that is a question that you know we would like to see solved that is a question that I guess could be resolved through some form of SPS arrangement between the UK and Europe but we don't see an indication of that being on the table at this particular time so again back to the red lane green lane there is the potential for Scotland to have much much much better much much easier smoother access to the ni market if that was to come to fruition and be agreed and be a stable framework for trading into Northern Ireland but that but I guess the question is it depends what type of good you're moving in and we're still to work out the detail on what's meant by qualifying movements under the protocol bill and the big question is around intermediate goods in particular how if it's not known whether goods are destined for Northern Ireland or Europe at the point of entry what lane do they go into so there are I guess a few unknowns at this moment I thank you very much thank you convener thank you miss playock thanks very much convener and thanks for the evidence we've had I want to follow up the issue it's both in the written evidence and it also comes forward today quite powerfully in the answers you've given so far about the need for information being able to predicts and plan ahead in terms of communications because it's clear in terms of agriculture food sector also noted the dairy sector about changes that are happening what is what is the solution to that in terms of the discussions because there was the northern Irish business brexit working group what what communication networks are there that are available because you don't have the Northern Ireland executive to talk to to push what needs to happen with the UK government or the EU but what are the what are the political structures that you can actually lobby at the moment that's one of the concerns we've got in terms of holding our government to count is just even that transparency so how do you who do you talk to how do you make this work given it's a changing situation yeah that's a good question and I think that the first the first answer I give is just in terms of the actual operation of the protocol as it stands today one of the challenges that we have is there's over 300 pieces of legislation that apply to northern Ireland under the protocol which is a complex if it's annexed to the protocol very complex very challenging and one of the questions that we've put to government is around well how are you making this accessible to business so for example who is the competent authority within the UK for managing the administration of that particular piece of legislation and then is that piece of legislation subject to any change or reform or amendment in the foreseeable future and how do we engage in that process we don't have that access so businesses are and I know Declan will have some examples of this but you know in many cases we're relying on discussions having to go directly to UK officials within departments but also relying on the Republic of Ireland and their departments and officials with it so it's not it's not an ideal situation in terms of the existing implementation of the protocol in terms of the negotiation discussions call them what you will we engage a lot with both UK task force and with the EU commission that happens a lot and I have to say there is an open ear from both the commission and from UK task force to Northern business but I think the question does remain as to you look at the evidence over the course of the last two years we've seen some really good progress on things like medicines I think the UK standstill arrangement as well has secured those consumer facing supply chains so we have seen some positive moves from a trade perspective albeit on a temporary basis and in respect of the standstill to bring us to this point today but as I said at the beginning you know it's over two years ago since we put questions to both parties over what we felt was required to make the protocol work and the difficulty is that today many of those questions remain unanswered so we find ourselves in the situation that we're in today. Thanks very much that's useful and Mr Billington do you want to come in on that because that's one of the issues that comes up in your evidence as well? Yeah if you look at the structure of the committees on the protocol it's Whitehall and it's Brussels and so where's the voice of Northern Ireland in the protocol given that it governs us and that is a major concern the second concern is that even figuring out within the business community who's the competent authority to talk to and I actually have one or two work examples which have been described as case studies because we're moving from the abstract to whether rubber hits the road and for example the EU have decided because of the issues in Ukraine to relax some of the maximum residue limits of pesticides and agricultural crops which creates the opportunity to source from wider origins if you can't source from Ukraine so the question is who takes that decision for Northern Ireland Spain and Italy have already done something Ireland is in the process of doing something who takes the decision for Northern Ireland because we would be keen to relax those constraints in order to service our farmers with the best possible access to commodities and it took a week of engagement with Belfast and London to find out that in that matter it was Belfast however on another piece of agricultural policy organics that I'm working on at the moment there's a special unit that's set up within Defford to deal with it why I don't know but it is very difficult to engage another problem that we're having is with this protocol bill coming through somewhere along the line a lot of knowledge has been lost within Whitehall between four years ago and now because I see the same issues coming up now in legislation or the risks of legislation that came up four years ago that we were able to engage with communicate and when the civil servants understood it they then refined policy to manage it but the engagement is an agenda set by Whitehall at a time set by Whitehall to engage and it is very difficult for us to put up our hands and say yes but what about this what about that we're having practical difficulties so there is a vacuum in terms of the ability to communicate to engage with both parties and in truth one of the frustrations I feel and my colleagues feel is that even when you do engage with the UK and Europe on aspects of interpretation protocol you get different answers on the same piece of regulation and you're sitting there saying how the heck can we decide the right thing to do if there's a difference of opinion between Europe and the UK on interpretation of something and there has to be some vehicle by which we can engage directly get quick determinations of these issues and in advance of changes to be able to share our concerns just like any other part of Europe not in the EU that is subject to European law is able to at least be consulted unchanged so there's a deficit in these arrangements number one and there is maybe it's just teething issues but we are really struggling to engage with the UK government on implementation and I'm never sure whether that is because of late communication by Europe to changes or whether the civil service machine is still trying to establish its internal channels of communication but there is a deficit that exists. Thanks that's very helpful and I don't know if you've got a perspective on this Dr Whitton in terms of that kind of oversight and having looked at this structurally. I would just in terms of an overview make the point that the architecture that exists for scrutinising and overseeing the implementation of the protocol that we have wasn't updated to reflect the kind of fundamental change between the backstop protocol arrangement which was meant to be temporary and not to be used or to be used in conjunction with a deep and special relationship kind of agreement which is not what the TCA offers but we now have a relatively introduced draft legislation notwithstanding but a relatively permanent arrangement for Northern Ireland if you look at what's in the text of the protocol now but the governing architecture wasn't revised at that late stage in negotiations when that shift was made. In terms of what is how it's operating we do see that the joint consultant of working group which is the kind of lowest tier under the protocol in terms of implementation between the UK and the EU for exchange of information that does seem to now be in a rhythm of operating quite well as Declan Stewart made the point that Northern Ireland businesses and Northern Ireland representatives don't have a formal role there although there have been observer status attending Northern Ireland officials. The specialised committee and the joint committee which are the second and third or higher tiers they don't seem to be the political relationship is not such that they're operating to the fullest extent that they could be so there is a deficit there in terms of the higher level. Also just on the kind of practical the communication of practical challenges in terms of the operation I spend a lot of time how I spend a lot of time possibly too much time looking at what dynamic alignment under the protocol substantively looks and tracing through changes that are relevant in EU law down to UK law and how that flows through and in doing that you can identify where there are changes happening for example on maximum residue levels for plant protection products and how that has filtered down to a statutory instrument for GB retained EU law and what that shift means you can read that it takes a lot of time but in terms of knowing I can't tell you what that means for agri food industry in Northern Ireland because you need because the nature of the subjects and the substance tends to be very technical and get very technical very quickly you need stakeholders in the room to tell you does that matter or does that not matter and how and why and that's why I think it's it's important and one of the positive aspects of UKE talks before they broke down was that there was consideration of how to integrate Northern Ireland voices into the process of implementing the protocol that's very clearly necessary that's very helpful thanks I think that's one of the big issues that we need to kind of record and think about going forward thanks all of you thank you thank you very interesting to hear from panel today to get a particular to get the voice of the opinions from business I'm just keen to get a bit more of that that voice because although we're accustomed to hearing in Scotland about what political opinion in Northern Ireland might be about the protocol we're less accustomed to actually hearing businesses views so I just wonder what it feels like from the point of view of business to have access from two markets this is something that we look on notwithstanding all the problems you've described with some envy in Scotland so is this something that business value and is it something that would have a view about if it was ever to be taken away do you want me to take that in the first place yeah no problem yeah I mean I think is as Declan said you know it has to be seen as as the baseline where particularly good fairly agreement and working through in terms of our agri-food sector and the level of integration you're seeing and some of the key agri-food sub sectors I mean the reality is is that they just could not survive without or that would certainly being an awful lot of difficulty and environmentally that would pose significant challenges if that access was to be removed it would certainly be be existential what we're finding is a lot of our exporters are doing very well I mean I've had discussions with a number of our banks in recent weeks who said look a lot of our exporters are actually building up deposits they're actually withholding investment because of the uncertainty that's kind of looming ahead and actually the uncertainty in the macroeconomic picture that's looming ahead but the difficulty is that they don't necessarily want to raise their head above the parapet and that's also the same for those who are struggling with aspects of the protocol as well because invariably that gets politicised for the gain of one side or the other and I guess what the role of the business community is is to actually just look at the evidence as best we can and try and bring both of those competing narratives together and I guess from a business perspective things are going relatively well I think there is some degree of caution with that as I mentioned the Ulster Bank PMI is of some concern whenever Northern Ireland is at the bottom of the league table in terms of business confidence looking to the 12 months ahead there is also the challenge of having to reassure your European customer base as well that you know the publication of the bill is not the change of law and it's very much business as usual so there's that challenge as well and actually in terms of access to the single market there are still challenges with that so Northern Irish firms for example do not have access to EU free trade agreements and when you're dealing with all island supply chains that has posed some difficulty as well in terms of unfettered access to GB certainly from our own Northern Ireland Chamber survey on balance we're seeing more firms are actually supplying more more firms are serving in the UK customer base than those that are not since the protocol is taking effect so you know the dual market access is working and I think that's that as distinct from dual regulation which causes some concern for indigenous Northern Irish firms and Mr Billington yeah I'd probably break it into two or three levels the first is Northern Ireland trade with Ireland which is part of the EU and Northern Ireland trade with Europe and the reason I break it down is is that the business model out of all fracery food in Northern Ireland on the island of Ireland is businesses are competing in scale processes the only way to deliver low cost trade with GB into the supermarkets so a third of the milk from Northern Ireland is processed in southern dairy creameries because they have the scale investment there and they draw from their catchment area and that catchment area crosses a border so if we lose if there is a border an SPS border for example we lose access processing facilities that is a unique problem to Northern Ireland versus any other part of the UK it's a bit like a Scottish dairy farmer selling milk to an English creamery how would you feel if you couldn't do that anymore and that's the problem we face if we don't have dual access access to both markets on the pig sector a third of the pigs needed to keep the minimum throughput viable for one of our northern factories comes from the south where you have an island at land goods move freely and easily where you have sea it's a barrier so we would have major challenges if we lose access to the european single market or trade with it on the same terms as any other part of the UK because we don't have access to the processing facilities and we don't have alternatives to those processing facilities on the second issue of trade into Europe and it's unfettered we don't have the paperwork and we don't have the SPS requirements the rest of the UK which actually makes us attractive and but also I know I used to work for an American company in manufacturing and everyone factory in Northern Ireland servicing the UK in Europe and and if you were to look at that model if that factory was in England it could service the GB market but would have to complete customs declarations and its global sourcing would be restricted because of this concept of rules of origin with trade where there's only so much their country components can be used in your goods if that factory was in Europe it could trade freely in Europe but it would have customs procedures and rules of origin restrictions on its global sourcing into GB if it's in Northern Ireland any third country goods pass through the sea border and we have unfettered access to GB any additional tariffs pay can be reclaimed so we have the same cost set as a GB business and trading into Europe we have the same cost set as any European business so I am aware that the businesses charged the government departments charged with inward investment had a large stockpile of interested businesses from around the world that wanted to set up manufacturing locations in Northern Ireland to service both markets so we're a very attractive proposition but the uncertainty means we're only a prospect we're not a reality yet. Can I ask a slightly different subject but can I ask Dr Whitting about again a business perspective on the current let's call it difficulty that exists between the EU and the UK Government as it might affect business in Northern Ireland. I appreciate you in a different situation you're in a different predicament and but we in Scotland are beginning to be very concerned about the prospect of what happens and if there is a retaliation in economic terms from the EU if that relationship breaks down completely is that a live debate in Northern Ireland as well. Yes I would qualify that I'm not speaking for business but when you look at if I might talk to public opinion even there is concern about a breakdown in if we entered into a trade war if that if there was a continued decline over the implementation of the Northern Ireland protocol bill if it became law that would have a negative it would have a negative effect across the board and as has already been stated there are vulnerabilities for Northern Ireland and to the broader question around the experience of what the current arrangement is we do see a lot of discussion and a sense of majority understanding that there is potential here for Northern Ireland to really benefit but that's contingent on implementation and legal certainty in polling that we run in the project I'm involved in in Queens together with colleagues Katie Hayward and Dave Finlay where we see really high level of support for an agreed outcome between the UK and the EU from the Northern Ireland public and a sense that the unilateral majority do not think that UK unilateral action is justified and that in itself I mean that it's difficult to allow that data to set that broad picture of opinion in Northern Ireland as well as together with the business experience of what's going on now with the trajectory that the UK Government is on and the trajectory that UKE relations are on which could ultimately if we continue as in the direction and there in could lead to a trade war that said I do think we're not there yet and it would need to be as measured as possible you very diplomatically described as UK unilateral action I'll undiplomatically describe it as the UK breaking international law so is that something that is a live issue as far as the business community are concerned but maybe Mr Anderson first yeah I mean and again there is there there is a degree of caution from the business community getting involved in providing a live commentary on that particular aspect I think UK government says that it's position is legal the EU says it is not it's the reality of the dispute between the two that is the the problem for Northern Ireland and the problem for the business community so while UK legal advice says one thing and any EU says another there is therefore a dispute over trading in and through Northern Ireland and that's not a comfortable place for the the business community to be in and we would put a strong sense of responsibility on both that in these times you need to start engaging with each other I think one of the most regrettable things that I've seen over the course of the last six months particularly given the level of engagement that we've had with both sides was the publication of the bill on the Monday with the UK proposals and 48 hours later we had the publication of EU proposals on some of the same subject matter and that's an indication of where the relationship is at that outwardly looking and that makes us very uncomfortable as a business community because until both sides get in a room and stop talking past each other this is going to continue for some time and one of the issues that we actually have is that the there isn't yet agreement on what the issues are to be solved even at a technical level and one of the leading asks that we have and one that we've been laying down for some time is in a in a non-political environment can the UK technical team the EU technical team and experts from business get into a room at the one time to bring integrity to the conversation and actually work out almost like a due diligence exercise work out where the particular red flags are or where the particular things are operating well and at a joint committee level agree on what on what that looks like and that is unfortunately receiving some resistance but that is ideally step one and from there we can decide where we need to move from. Finally I read the briefing note in advance of this meeting and the first paragraph is a very important paragraph in the briefing note. The purpose of the protocol was to protect the Belfast Group Friday agreement and we hear that again and again in Parliament. It was also to avoid a hard border and it was also to protect the integrity of the EU single market. The border in Northern Ireland is an inconvenient truth like global warming. If you choose to deny there's a problem you don't need to put policies in place and mitigate it. In time and again in our engagement over the last four years we have heard from MPs in London saying what's the problem and the problem like global warming is not a problem for today it's a problem for five or ten years time as changes continue to happen. In that light you got to remember that the protocol was a prerequisite for the TCA. Once there was an arrangement in place that made Europe feel it didn't have to put in a border, protect the single market, it moved forward with the TCA. If the UK disassembled that element of the protocol that gave the assurance that Europe wouldn't have to impose customs and SPS procedures in its trade with Northern Ireland then you'd have to ask yourself if they dug their heels in to require that prerequisite and we only picked the prerequisite. How will they respond in the TCA? To me that leads to an inevitable outcome that maybe there isn't a border now but eventually with the divergences that will happen there will be significant challenges and Europe will have to respond unless they dig their heels in now and go back to the justification for the protocol which was you don't have a TCA without a protocol so I do think that if the UK, there's some merit in what the UK are doing, it's about scope and risk, cause and actions and consequences so by design the UK have to deliver an outcome that doesn't threaten the single market which is the commitment of the protocol and if they don't pay attention to that then in my mind Europe will actually have to respond otherwise eventually it's only option is to implement customs and SPS controls and goods from Northern Ireland. Ms Anderson, the point that you made to response to Dr Allan's question about the way that you think things should move forward, I was wondering if you've twice referenced the 12 suggestions that you have made and you went on to expand a bit more about how you could bring some pragmatic solutions to issues, I'd be interested to hear a bit more about how you think businesses could be involved more in the process. Yeah thank you, I think the first point that I want to make is one that is crucial and that's that that business is not a negotiator in this process, it's not our role to come up with a framework, it's not our role to engage in the politics with this, what it is our role is simply to test the framework and to give clear evidence as to business sentiment and also whether the commercial viability of whether the arrangements work. So I think from a starting point we as I said we went back two years ago when the discussion was quite live we were faced with a real challenge and we met with the EU commission and this was reported on, I'm not disclosing anything that's not known with, it was reported on by Tony Connolly in the February of 2020 where we were looking for I guess some degree of pragmatism around application and some degree of derogation and mitigation in order to make the protocol operate well and at that particular time the EU was clear no this has been agreed, this is as it is and will need to be implemented and on the other side you had the UK who at that particular time were almost it felt like in denial about the reality of what they had been signed up to and even right until the point at which the protocol took effect it was very much downplaying the protocol despite the fact that business was saying particularly for key issues like food and medicines key products that we're moving across that GB to NI channel and now we find ourselves in the situation that we're in. I think business is not in the mind of looking back and pointing fingers we are very much in the we need to be constructive and we need to look ahead so as I said the first step that we believe needs to take place is an agreement around what the problems actually are and that's what the role that business can play so we find it very challenging when you engage with both sides on the same subject matter and they both draw conclusions that are surprising to us because they're often in conflict or not perhaps the full picture of what was disclosed so I think that tripartite discussion I think is essential for bringing some integrity to the conversation and it is that starting point from where I think we need to move. There has been some excellent work done by the likes of Professor Kiri Hayward and David Finnemore on the team and Lisa just around what actually if we get to a point where we get an agreement what the role of business and other stakeholders I think it's important to not just to recognise this as a business issue although Northern Ireland stakeholders are involved in that process from a representative capacity so there is that but we're not in that phase yet and again our calls are one of one of engagement and I think you know we want to see that happen as a first step it is hugely frustrating when you hear the UK government say our preferred outcome is a negotiated settlement the EU say where our door is open anytime and when we both say to them okay well where is the process and we're still not getting a clear answer in that and like we're open and willing to employ our part in that process. If I may just to pick up on the other stakeholders involvement if we're talking about kind of involving Northern Ireland voices and the sustainability of implementation it's important to recognise although conversations about the protocol tend to focus on trade because that has been the most prominent it isn't just about trade there is quite a significant there's a significant rights element to it there's also things that such as the operation of the single electricity market that is lesser discussed but if you look at both the approach of the UK government at the minute it's putting all of the protocol on the table when aspects of the protocol aren't in the assessment of anyone really about the problem and I entirely agree about the the different definitions of the problem and how difficult that is for reaching any kind of solution but if we're talking about involving businesses and also involving other stakeholders it's just important to widen that out and recognise that this protocol isn't just about trade across GBNI but it's broader than that and it's very difficult to delink those issues so for example on north south co-operation that is one of the protected aspects in the draft bill north south co-operation is very broad in scope but just to make the point so the cross border delivery of healthcare is quite significant in certain areas healthcare provision happens and relies on the ability for medical devices and medicines to travel freely across the island of Ireland but that's sitting under the customs and trade elements and the regulatory alignment element of the protocol so even when you start to separate out those issues it gets you get tensions within it which is why I think the conversation needs to be broader than just where it's at at the minute so that's really helpful because I suppose you think about it as everything's trying to be treated consistently whereas some areas actually perhaps are are working well and but by removing that change could throw up other issues that perhaps the I suppose is the unintended consequences of of this okay and Mr Billington have you got anything to add yeah I suppose that business first of all does not have a vote on the protocol only only society had a vote on the protocol second business is not involved in the negotiation and we try to provide input third we try to define problems to be solved and therefore our focus is always on trying to make whatever the framework we're given work and from that point of view there's a feeling at the moment that the two parties to the negotiation are standing on principles rather than trying to deliver outcomes and by that I mean the UK command paper is a position paper that is basically we should be no different in Northern Ireland than the rest of the UK but as I said actions have consequences and you can't ignore the consequence on the border area of goods at a different price and a different standard circulating there will be a consequence to that and I think the desire for the business community is is set aside the the rhetoric and concentrate on solving the problems you know so you think about goods at risk goods not at risk goods not at risk would be defined as goods have passed through an express lane in the European definition there'd be goods that have passed through the green in and UK definition I don't really care the label you hang on it let's get down to solving the remaining problems pragmatically in a workable solution and then you can hang whatever label you want onto it the command paper alignment with EU law we're so focused on rhetoric and high ideals or high principles that are mutually exclusive when in fact we should be focused on outcomes that get us across the line thank you I'm going to so generally move to our second area of question today which is around dynamic alignment with EU which is already mentioned by by Dr Whitton but I was struck by a comment that Mr Billington made earlier about the lack of knowledge or a loss of knowledge in Whitehall and we know that there are plans to reduce the number of civil servants in Whitehall quite quite significantly so one of the things we are struggling with from a Scottish context is with the Scottish Government commitment to keep pace so we have the keeping pace power which hasn't been used yet but we know that some areas are being introduced to a secondary legislation better take to stakeholders in particular and better take to the Parliament as well and also the decisions not to keep pace in certain areas as well which are in sometimes can be almost as important so I was just wondering if you had any thoughts or lessons that we might learn here about about what what that means and how the dynamic alignment is working in Northern Ireland so I've come to Dr Whitton first time sure you may have to stop me talking about this because it could go on for too long so in terms of how the dynamic alignment is working it comes through two processes and provisions in the protocol article 13 3 which allows for those 300 or so EU instruments that apply to Northern Ireland under the protocol to apply as they are amended or replaced automatically and that's quite unique so it's like an automatic update it's like a setting for apps to be automatically updated and so that's tertiary legislation so implementing legislation and also when a primary EU law act or secondary EU law act but they are are equivalent to primary acts and are revised or replaced that's it that gets in terms of monitoring that change so change does happen very often particularly on the level of implementing acts in EU law so in terms of lessons learned from spending a lot of time and looking at what the substance of dynamic alignment looks like for Northern Ireland there is a very clear requirement for Northern Ireland but also for Scotland and for the rest of the UK because of the nature of integration and inter interdependency of our two legal orders to monitor to the extent possible changes in EU legislation that have direct or indirect implications for the development of post browser UK legislation because there is then this kind of trade off divergence dynamic divergence sometimes isn't is perhaps too strong a word but just to see what is happening at an EU level and what is happening sometimes at a Northern Ireland level with the EU with what is happening at a GB level and then at devolved levels as well so that the one lesson I would say is monitoring is crucial and setting up systems for that and also then scrutiny of changes in UK retained law and GB retained law so there are examples of small shifts but technical changes in what is GB retained EU law that is protocol applicable EU law in Northern Ireland and when you read if you have all of the time in the world explanatory memoranda around that in terms of the statutory instruments that are produced by the UK Government there isn't always an acknowledgement of the potential implications for Northern Ireland again this speaks back to the importance of having a process for communication to stakeholders and good connection between Whitehall departments and in this case Northern Ireland departments in terms of the actual implications of any of those technical changes because although they are niche they can be important for some stakeholders in the industry so scrutiny processes monitoring processes those are the two main lessons and perhaps recognising just the kind of divergence dynamic the potential trade-off between alignment with EU legislation and EU legislative developments and the implications of that for Scotland's place in the UK internal market and the operation of the UK internal market the one example I would flag that we've seen so far and a lot of this especially when you look at the substance of Northern Ireland alignment so far I think it's important to say that only in the first year of alignment changes that were made at primary law level in the EU so acts that apply under the protocol only three of those were agreed after the UK actually left because of just the slow place of change coming forward so they were all agreed beforehand which is just to say that the divergence potential hasn't yet really been realised but that that's the kind of potential diverging paths that they were on and then Scotland under the continuity commitment is kind of opting in to that same or similar potentially opting in to the same kind of divergence trajectory the example I would flag from a Scottish perspective that I think is quite interesting is the single use plastics provision because that is a decision to align with a ban at the level that is under or at least partially under the Northern Ireland protocol but has had to get or has come through an exclusion provision on section 10 of the UK internal market act under a common framework agreement and I think that process is potentially would be a fruitful one if Scotland is planning to let us to align with EU law provisions in order to avoid undercutting if you have no alignment at a across the rest of GB and you have some alignment in Northern Ireland under the protocol and that the common frameworks process I think is interesting but it's part of it's also recognising that all of this is happening in a very fluid environment legislative in the UK and you have the EU developing looking forward in quite significant ways in relevant areas as I said I can talk for too long on that so I'll stop there yeah okay I just want to admit if mr billington's got any comment on the how how the dynamic alignment is working or not yeah I think there's two levels immediate and over the distance and I also need to look at the perspective if I was in Scotland rather than in Northern Ireland so starting off there was a backlog of EU amendments to the 300 odd regulations and statutory legislation that's the protocol that took some time I think for the UK government to work through and communicate it is beyond the capacity of business to track this so we're heavily dependent on the UK government figuring out what is and isn't relevant and how they interpret it but I have had some difficulties in how they interpret the laws that are being passed to us so it's hard to keep pace with it especially for a population of 1.8 million people and then there's an issue of interpretation and I have strong views on how I think the UK government has interpreted things incorrectly and there are other areas where I just don't know if they've interpreted it correctly and that was going back to your previous question about who do you raise your objections to since there's no vehicle for it so I think the challenge is there but is another more important thing and I think that is we talked about red line and green line so if you were to take something like pesticides for example that I measured mentioned earlier in the UK day verge on pesticide residues that presents a problem for Northern Ireland under the current proposals having goods that don't comply with European law because under the UK current proposal the first importer says I'm going to sell them in Northern Ireland what's the problem but if you were to take wheat for example the importer sells it to business like mine I'd process it and sell it to a merchant and the merchant sells it to farmers so goods for final consumption yes I can see how the UK proposals could work well in that area on a green line channel with appropriate trusted trader requirements but goods from intermediate use where they're in free circulation and they may have avoided taxes or they are working to a different standard and then the one that scares me most is that over a five to ten year windows growth promoters either in product brought into the UK in its trade deals with America and Australia or in the application of them in food production eventually and how could you have that circulating in Northern Ireland and Europe feeling comfortable about trade flows from Northern Ireland to Europe because you don't make these standard changes unless there's value which means you create a lower cost product that naturally will migrate to a higher priced market and I just struggled to see how dual standards works I could see how it works with a kite mark and a CE mark and reciprocal recognition I don't see how it works on SPS and my fear is you cannot have goods that Europe are incredibly sensitive to unapproved GEMs growth motors circulating in Northern Ireland as freely as the circulating GB and expect there not to be consequences to our trade into Europe and so dynamic alignment the challenges for Scotland is how do you follow regulations when under the single UK single market rules you can impose a requirement on your own businesses that reduce their competitive ability ability to trade in Scotland or the rest of the UK and you can't deny the products from the rest of the UK into your market under the UK single market rules so the principle will work in places but in other places it will be significantly challenging to apply a set of rules for your indigenous production when you can't apply those rules to the goods being brought into your region that's a big challenge thank you mr Anderson yeah I think it's been quite comprehensively covered but I would just I would just emphasise the point on capacity and resource and particularly the the role of business and trying to interpret and navigate its way through dynamic alignment has been challenging to date and it will continue to be so I think there is a there is an obligation on UKG to work harder to be able to support business in tracking that in particular and I think as I said the first step in that is some form of database that is accessible where in the first instance and Declan has given an example we actually know who the competent authority in the UK is that's responsible for managing the particular regulations and then a clear indication as to what's happening with the respective regulations perhaps over a five-year or 10-year window because there's no clear visibility on that and with all of the challenges that businesses have to to face at this moment in time this is one that they that they really do need help and support for and particularly as Declan said if you're working with a jurisdiction of 1.8 1.9 people you know where is the capacity and resource even within government and even within within Stormont to manage that so these are questions that are open and questions that we'll be pushing the UK government on. Can I bring in Mr Ruskell please? Yeah thanks convener just on that I'm just wondering from your perspective as business how important it is that Stormont gets up and running again I mean if you take an issue like gene editing possible that there could be a distinctive position on gene editing in the European Union there could be a separate position at UK level there could be potentially other positions with devolved administrations around the UK. When you're thinking about these issues where do you sort of place the work of Stormont and the committees at Stormont and that specific bit of scrutiny? Yeah look Stormont and I think the first thing it says you know even if we get at the reappointment of a speaker the statutory committees will not be reappointed it'll be up to the discretion of the whips I understand to decide whether they would point ad hoc committees in the absence of their being an executive. There is a significant challenge at the moment actually at a political level we had three years of no government in Northern Ireland and we're facing that period again of actually upskilling or elective representatives in respect of the obligations that they have and this being and I guess the administration of the application of dynamic alignment is one of those issues that really does require some further work. I have to say engagement with professionals within Dera and Declan can speak to this more than I can is good it is strong and the officials within the Northern Ireland department do work hard to try and understand the issues but again there are capacity and resource issues particularly with their officials being required to effectively man the checks and controls at this moment in time. If those checks and controls were to be implemented in full you're going to have another significant problem for Northern Ireland at an administrative level to manage that. Yeah I would just echo that and emphasise the capacity challenge presented to Northern Ireland institutions and the political conversation in Northern Ireland just because of the nature of the differentiated arrangement that Northern Ireland has in the post Brexit context. So there is a challenge raised to scrutinise and monitor whole new areas of legislative development going forward and even just on a basic level in terms of drafting of secondary instruments that would implement the dynamic alignment aspect previously. There was a lot of for Northern Ireland because it's different year sticks and there was a kind of copy and paste aspect as there was across the UK but now that has shifted so Northern Ireland Government lawyers are going to have to just develop those skills and create time for doing that. Just as one example of what that is substantively looking like in terms of official capacity but also I think on the institution and the stormant it would be very useful to have for example a dedicated committee set up to look at the implementation of the protocol going forward but we're very far from having that kind of conversation and setting up that kind of infrastructure but I think when you look at the nature of the changes that have been made that's very reasonable. Okay a couple of points I suppose. The first is I think over the distance Northern Ireland's position has weaker than it could have been because we didn't have an executive speaking representing Northern Ireland in any of these discussions with the United Voice and I know the executive is fractured but one but you know we did have a previous First and Deputy First Minister that could agree a few points and no deal breaks if the need had to be addressed by the UK Government so we have been continually weakened in this debate by not having the local voice at the table and the lack of an executive. Also within the UK single market each devolved administration has the right to object to UK divergence but without the executive in place I wonder where the Northern Ireland has the ability to object to UK divergence along with the other devolved ministers and the challenge on impact assessments as well as risk assessments to justify these divergences so yes in answer to the question Europe goes one way and gene editing parts of the UK go another way in Northern Ireland we wouldn't be able to accept the gene editing under the current situation but we would be arguing that the damage to Northern Ireland on that basis is such that it should be reflected on before the UK diverges and then other devolved regions who would be keen to avoid such procedures could also raise their objections and so there are mechanisms I'm not just so sure those mechanisms will deliver significant outcomes but we don't even exercise those mechanisms in Northern Ireland because we don't have a functioning executive to exercise those as objection mechanisms effectively. Thank you Mr Ruskell did you want to come back? Thanks convener back to you just now. Okay miss Blyack. Thanks very much convener it feels like an incredibly tough impasse we have already debated in this committee how in earth you monitor the alignment process but we're at least able to sit here. Other alternative sources that you have to actually get your voice heard as businesses or consumers either through individual elected representatives or other business networks across UK where you can at least get these concerns on to a level at which it might actually reach the people making decisions whether it's the UK government civil servants or even UK parliamentarians it feels that there's a real gap here I think it's difficult for we get the politics are very difficult but it feels if we weren't even able to be here how our businesses would be able to begin to actually get their voices heard or never mind consumer groups environmental groups are there ways that you can at least get your issues raised or be seen? Yeah look I think one of the most important things that the business community in Northern Ireland did when we had no executive and when we were shortly after the protocol was signed was come together so we have and like it's a privilege for me now to convene that group that business brexit working group that is difficult that is a group that comprises all ends of the agri food supply chain from the farmer through to the retailer comprises micro businesses through to PLCs all with a diverse diversity of interests but an agreement on outcomes and an agreement on the direction of travel so when you bring 14 trade associations and business representatives organizations together with one clear voice which is work through which is difficult and we go through detail in the challenge of that it becomes quite a powerful voice to speak into the challenges so one of the things that the guys in the team in Queens has done is monitor voter sentiment in Northern Ireland in relation to the actors in the process and consistently the business community comes out on top and is viewed by a majority of voters and actually I believe the only actor in the process who is respected by the majority of voters to be trusted to do the right thing in the process so I think it's the most recent poll so around 60% and that's that's a consistent and actually my understanding is it's a rising figure so you know that that's a with that trust you know certainly comes a lot of responsibility and so what we've been doing and that is engaging intensively with UK government so whilst I was disappointed when you listened to the debate at the second stage of the reading of the internal of the protocol Bill on Monday I was disappointed for for two reasons the lack of reference to the risk and shifting of risk on to Northern Ireland businesses and secondly the risk for Northern Ireland indigenous projects there wasn't much discussion around that at all and that's you know the democratic deficit issue that we have and Northern Ireland has always had I guess until the devolution settlement so um look these are issues that we work closely with backbenchers across a number of parties um and look we always have an open ear and even just earlier this week we met with this trust on the Monday and then on the Tuesday the German ambassador was in Belfast it was the first place he came to in the UK since his appointment and we had an hour and a half with him and you know all 27 member states have met with us we're in regular conversation with the US I have no doubt that our voice is reaching into places that we are incredibly privileged for to see it being reached into I think the difficulty is that the politics is perhaps dictating the impasse at the moment and as I said until we get to a position where where both parties are in a place to sit down and actually agree on what the issues are um we will just have to continue to keep making our case yeah that's really helpful I mean my observation is if you look at this committee we don't all have the same politics but we occasionally find it possible usually to actually agree on things that we might not personally agree on but it's that capacity to at least have those debates I might just come back in on that I think we need movement from both parties I think we need to be clear on that this is not something where we think you know the we need the EU to move we need the EU and the EU and the UK both to move to find a solution and one of the things we've been keen to see and one of the things we've been asking for of all five executive parties in Northern Ireland right across the the political spectrum is is to recognise that you might not actually agree on everything but particularly with the cost of living crisis why not prioritise the question of the consumer for GB to Northern Ireland why not put that down as a as your first question and then talk about democratic deficit representation why not do that and then surely the UK and the EU will sit up and listen. I think Mr Billington wants to go in this one. I think that whilst there is no formal vehicle to engage I would give credit to the civil servants in Whitehall that I've been dealing with in Treasury and DEFRA in HMRC. My regret is they're not the same ones I was dealing with four years ago on this so we're going through the learning curve again but in terms of delivering underpinning policy they are very keen to understand and have the problem defined that those policy options need to manage so I've found genuine and sincere engagement as they try and understand the problem throughout the policy solutions. The problem always goes up to then the Secretary of State and the ministers and if they don't accept the inconvenient truth of their commitments around protecting the single market and avoiding hard border if they don't accept their actions have consequences then how successful will the policy options designed to deal with those issues be when they're presented to ministers so credit where credit is during the Whitehall has engaged constructively and continue engage with it and listen and I look forward to further engagement but it is as but when it gets to the floor in Parliament a lot of the issues and concerns we raised don't seem to make it to debate. Our last two topics were around potential solutions and the you know just a general opinion on the protocol been introduced and as it stands as a bill and we've touched on some of that already so if we could just you know in our last few minutes together can you give us an indication of how far apart you think was obviously we have the EU sitting with its proposals that have been published now and we have the protocol bill as it stands going through a Parliament in the moment. How far apart are some of the potential solutions and how has there been an analysis of the EU proposals in terms of some of these issues as well? Sure, I'll probably speak generally and then pass on to the others to go to the details but I think when you look at the two proposals it's perhaps helpful to separate the practical and the political aspects and issues so on the practical movement of goods and the already discussed kind of changing definition of risk strengthening a trusted trader scheme there is clear areas of agreement or potential agreement that could be reached on those matters. The dual regulatory regime proposal from the UK Government side does seem to be much more problematic. There's a lot of unanswered questions and there's not a lot of detail in the policy paper that they've put forward which allows those questions to remain about what that would substantively look like. That said, there are also possibilities for derogations and changes in EU legislation that could allow carve-outs that wouldn't be the operation of a dual regulatory regime but perhaps you can see a read across in principle for recognising particular circumstances of Northern Ireland but in specific areas so it's coming at it from a different, again it's kind of the nature of the problem to be it again. On some of the practical issues I think there is quite clearly you can see an area for agreement. On the governance questions around the role of the court of justice again I think you could see a compromise but the two sides are still very far apart in how they're coming at that issue and on state aid as well. I would make the general point that the proposals particularly from the UK side but also the proposals in general need more detail and that detail isn't publicly available obviously it's a negotiation or it ought to be a negotiation ideally but yeah there's potential but the politics are very difficult. Mr Billington. When there's one set of problems that need to be resolved and that's the GB to NI flow that's what I see the main one for us there is the issue about jurisdiction of the European Corp that's never really been raised by the business community because how can you have two different interpretations to the same rules on EU borders you can't but on this issue the one observation I would make is that in solving the problem of GB to NI flow we need to make sure we don't create new problems in NI to European flow and every time I engage I see a one-dimensional discussion in terms of how far apart we are if there is detailed policy underpinning what's in the bill that gave us clear view of scope of the definition of trusted trader etc then you could form an opinion and I believe in principle the UK in terms of goods for final consumption could deliver some good outcomes but they have this binary view of the world that it's either goes to northern Ireland and never mows from it, Greenland or goes to Europe red land and they don't take account intermediate goods that could come in be sold two or three times goods from free trade deals between the UK and the third countries that were with tariffs in Europe they're circulating in northern Ireland steel coming in fabricated in one business semi processed in another finally processed in the third and traded in the Europe and they don't seem to have any mechanism to address these goods in free circulation so I can't actually answer the question because when I asked lift the bonnet under the regular under the bill and show me the detailed policies that we can engage with I hear conversations around co-design and therefore I can benchmark what I would say is that I think it boils down to when the UK work through the detailed proposals the scope with which they decide to implement green land red land and the products there's a lot that can be solved by this but on the subset called agri food where standards differences create food scarce you need to be very very careful about what you allow in on your green land for free circulation and that is still a debate to be had mr Anderson yeah like I think where there is agreement that's on the principle that if if goods are moved into northern Ireland and stay in northern Ireland now what that means is is open for debate but where goods are moved into northern Ireland and stay in northern Ireland that they will benefit from certain flexibilities what those flexibilities are there is a there is significant divergence between the UK and the EU what the UK is attempting to do in its proposals is solve the question of of regulatory divergence and simplified process the EU expressly in proposal is principally about simplifying process and doesn't address that question which you'll hear a lot of UK retailers talk about which is the question of divergence but as Declan says if you move that if you move that beyond goods for final sales to the consumer that creates significant difficulty for agri food sub sectors and for exporters as a generally when it comes to looking at issues around intermediate products just to touch on on the issue of the dual regulatory regime I think we would have as I said our view is that there needs to be a question answered in consultation with retailers about how they continue to supply the northern Ireland consumer but setting that set setting that question aside for our exporters on agri food there are three principle issues that we see with with the dual regulatory regime the first one is administrative we've talked at length about the administrative challenges with the regime as it exists today if you're going to double that workload potentially what is that going to look like in practice the second question then is operational if you have northern Irish firms by right being able to construct their goods in accordance to UK standards commercially how will that play out with their UK customer whilst they'll have to in theory send goods built to EU standard to the south and on into Europe so they're operationally going to have to meet two sets of standards two sets of production lines increase compliance costs and increase red tape and then finally the most important one is the reputational challenges and the potential that that creates if we accept the principle that GB goods moving into northern Ireland have to be subject to some form of trusted trader status well then why are northern Ireland businesses by definition of being in northern Ireland trusted all 70,000 of them because they're operating within an open border well then what does that say for the reputation of northern Ireland firms and that's where I guess the difficulty is it's not necessarily about the framework but it's the response to that framework from the customer base within the EU that our members in particular are most concerned about and I guess the challenge is to look at it from lead-in times with supply chains if you're building a product now or you're signing a contract now for 12 months 14 months 18 months time if there's questions over trading in northern Ireland at this point in time that's creating difficulty for our exporters at this point in time and I think sometimes when this question is addressed in theory and in the bubble of political circles there's not an understanding as to the commercial realities that businesses are facing right now that's very helpful I don't see any indications of further questions from the committee so just leaves me to thank you all for your contributions this morning and also to advise Katie for being here with us today and for your briefings for the session today it's all been really helpful and I'm sure it's something we will be returning to so we might see you again in the future so I'm going to suspend for five minutes till I witness this to change over. Thank you. We're warm welcome back to Secretary of Editham which is consideration of the subject of retained EU law it's the fifth and final session in our series of meetings focusing on post EU constitutional issues and for our second panel this morning I welcome to the meeting Professor Kenneth Armstrong, Professor of European Law at University of Cambridge, Michael Clancy OBE, director of law reform law society of Scotland both of whom are joining us online this morning and in the room we have Dr Tom West researcher with the Hansard society and Dr Emily Hancock's lecture in law at the University of Bristol School of Law and also Kirsty Hood QC from the faculty of advocates and you're all very welcome this morning I hope we can manage a panel that's split with more people online and of course our colleague Mark Ruskell is also joining us online today so we have roughly four themes again this morning our first first theme is how best understand retained EU law as a category of domestic law and the significance of the status attached to it and I wonder if we could invite Professor Armstrong to start us off. I think when we think about the what retained EU law is I think one thing that we it's important for us to really keep it in mind is the substance of what it is. We will talk a lot today about the status of it constitutionally and maybe the processes for its change and modification but the substance of it is actually quite important and it embodies a particular European model of the regulatory state, a model that grew up post-war but really accelerated through the 1980s with the EU's single market programme and it's a model of regulation that says that trade between states should be free but also fair in the sense that it is a regulated market and although the UK domesticated a very large body of law extending way beyond just the internal markets to include all sorts of other aspects of EU law I think particularly in terms of the interests of the Parliament is the regulated market aspects of that the regulatory powers that are involved in that and what was retained then was that model of the regulatory state the idea that we have free trade but under certain regulatory conditions to protect consumers to protect the environment, animal and human health etc and therefore one of the key questions I think the committee might want to explore is what happens then when that body of rules is then changed what type of regulated economy are we really going to move to and who has control over that because we can begin to see divergences between the position been taken by the UK government for example in terms of a desire to diverge and move away from that European model of the regulatory state and also we compare that then with the Scottish government's keeping pace power and a desire to remain closer to and aligns to that model of the regulatory state to think in terms of my opening comments just in terms of the kind of conversation I think we're going to have this morning I don't want us to lose sight of the substance that there are substantive rules there that are there to protect individuals to protect consumers to provide fair competition and we need to have a conversation about how that body of rules is going to evolve and change in the future for the economy of the UK but also the economy for Scotland. Thank you before we move on can it my apologies Professor Tobias Locke as a committee advisor has also joined us this morning may take part in the discussion as well if I could maybe then go to Kirsty Hood to comment on oh thank you very much thank you and I suppose coming at it from the point of view very much as a as a lawyer I think it's important to understand and to see it from that perspective that simply the when the UK was an EU member state then it meant it was subject to EU regulation and legislation and it was necessary to have a way of deciding what took priority over FOD and I think supremacy of EU law is perhaps increasingly in some quarters used in quite an emotive sense and I think that's very unfortunate because I think some of the written evidence brings out it's purely just a way of trying to arrange and prioritise if you will rules from from different sources so while we were an EU member state the UK and all the various parts of the UK including Scotland were subject to EU law that took effect in this country in a variety of ways sometimes because the United Kingdom or parts of the United Kingdom legislated to give effect to it and sometimes if the EU legal instrument took a particular form sometimes it could take effect directly without the need for any of the the parliaments within the UK to to take any action so that was at the time when the decision was taken to come out of the EU we had a situation where amongst the the tapestry of law within the United Kingdom and all the parts of the of the UK we had EU laws as various threads of that tapestry and it just raised an issue for in terms of the legal system it raised an issue as to as to what was done about that and as is quite normal with constitutional change with constitutional change it isn't necessary to have a complete reset of the laws it isn't necessary indeed I think it would be quite unusual when there's constitutional change however far reaching for laws to be simply repealed or revoked so unsurprisingly as has happened many occasions before and particularly to avoid any kind of cliff edge change or a vacuum it was provided that the various strands of the tapestry of the law which had been derived from the EU would remain part of the law in the UK and that that would allow the various parliaments depending upon their the powers in the areas that would allow them at leisure to decide to retain to decide to amend to make it fit better perhaps with a new situation or to to revoke it all together and of course there were some things which even as at the end of the transition period there were some pieces of EU law when it was immediately apparent that they wouldn't be suitable for them to be retained some of them for example relied on reciprocity for example with judgment recognition the idea that there should be a free flow of judgment between judgments legal judgments between the EU member states that was something which relies upon everybody recognising each other's judgments and just a consequence of coming out the EU and not making a new judgment recognition arrangement with the EU was that these things could not could not be unilaterally given effect to they would stop working as it were so there were some things that immediately were not retained as at the end of the transition period or implementation period depending upon the particular text description of that period but other things were simply retained within the system and they say that allows the leisure to the various parliaments to decide whether they want to alter that law or retain it and I suppose what I would say too is in terms of alteration that could mean a number of things it could mean altering it because in terms of a new situation or reality it seems perhaps inappropriate or it could be we're talking about we think about retained EU law we're thinking about EU law roughly approximately as it was as at the end of the transition period but of course given the keeping pace agenda there then that could also mean changing retained EU law in order to keep pace so because EU law obviously isn't preserved an aspect it will change as we go through the years so as I say I think I think it's perhaps from a lawyer's point of view it is important to try and remove some of the emotion from it and just see EU law as a part of we're in the European Union for a long time there's a great many different laws sometimes very very detailed and technical across many many areas of our legal system and the various devices legal devices which were used to keep that within the system so they can be kept or changed and it is necessary in terms of as was my final comment on this in terms of this idea of the supremacy of EU law this idea that you had to try and prioritise if on the face of it there seemed to be a conflict between some sort of domestic statute in the pan-European that concept of supremacy is something which is woven very firmly into the tapestry so if courts are having to look back at what the law was whilst we were within the EU and look at how the law operated at that time then it is it would be it seems to me quite normal and necessary for a court to consider how these particular phrases within EU legislation were interpreted and also to approach the way in which they interacted with domestic legislation while we were in the members state in the way they always did and it gives some certainty to litigants and general members of the public. Thank you. Dr Ancox. Thank you so I suppose I was to want to echo kind of or to make two points and we're thinking about retained EU law and I suppose the first is is about what retained EU law is in terms of why we retained EU law which is really about thinking about kind of legal continuity and legal certainty and in this way I think retained EU law while I would say that it is a category or source of domestic law it is quite a disparate source so you know we find retained EU law not only in statutory instruments not only in acts of parliament but we also have these kind of new converted categories so direct EU legislation which covers say EU regulations which previously took effect by virtue of the European Communities Act and also kind of other converted rights so treaty rights say and if you look to the retained EU law dashboard you can also see some case law as well and general principles in this kind of residual category and so in some ways retained EU law as a category was necessary to convert legislation which or convert EU regulations which otherwise kind of that the conduit pipe is said of the European Communities Act would have been cut off but retained EU law also reflects the fact of as has already been mentioned the the principle of supremacy or the primacy of EU law and the the various requirements in terms of the interpretation of EU law and also domestic law and so there are various kind of legal consequences I suppose which attach to a measure falling within the category of retained EU law and this all really reflects a kind of desire to maintain legal certainty and continuity following the UK's departure from the EU but another important point I think to make about retained EU law and this reflects perhaps the some of the comments that Professor Armstrong made is that retained EU law was never intended to be permanent it was always intended or the idea was always to provide perhaps we might say a springboard for introducing new policy choices and this has been done you know both in Scotland and by the UK parliament and so while there is provision for amending deficiencies in retained EU law in section eight of the EU withdrawal act retained EU law doesn't benefit from the principle of supremacy going forward so new acts of parliament also new statutory instruments where they have the power to amend acts of parliament or other sources of law can amend retained EU law so I think it's important to think about it in this two in these two ways one is a way of ensuring continuity and legal certainty and the other is bit as allowing for change and I think one of the things we'll come on to is how this change might best happen but I'll leave my remarks there for now. Thank you Dr Wast. Thank you convener so we've ended up with just category of law retained EU law with events the last few years which on the one hand is an integral part of domestic law it's part of the tapestry it's it's very much part of the law how it works even sort of you know how we regulate and all those sorts of questions but on the other hand it is this distinguishable identifiable category there is a thing of retained EU law and for the most part if someone was to ask a question is this retained EU law or not you'd be able to yes or no there will be some edge cases where it's difficult but there is this thing called retained EU law but that question is to whether or not something is or is not retained EU law by no means tells the whole story about what retained EU law is because as we've already heard it's itself is a very diverse body of law it's not a sort of uniform set you can look at and go oh this this is all the same kind of thing so you have from the sort of the EU treaties directives and regulations down to some very technical sort of implementing regulations you have that whole swath so that's I think the first point I really want to get across is that the retained EU law itself while we can say there is this thing called retained EU law that's only part of the sort of the question we to ask we also need to think about well okay what else do we need to know about that and what it is and the reason in particular why I sort of want to draw attention to that is this then goes on to the question of the status of that law and in particular our our interests and our concern at the hand side society is what that means for its future amendability and parliamentary involvement in that and I know we're going to talk about that in some detail later in the session so perhaps just as a starting point I would say a result of that non-uniformity that diversity of retained EU law means that it's unlikely that there's going to be a one size fits all approach to amending it updating it replacing it repealing it etc in the future which will be appropriate for all parts of retained EU law so if you think about some of those very technical implementing regulations from the commission which are perhaps analogous to secondary legislation here in the UK that may warrant a relatively light touch way of amending it but there will also be quite significant overarching sort of legal rules and principles which may warrant a greater degree of oversight and scrutiny by parliaments across the UK and I suppose that's really crucial because if that oversight is not there and this is our sort of wider work on delegated legislation you know our view is that our research focus on the Westminster parliaments but our view is that actually the processes there for scrutinising that by parliaments aren't up to scratch and too often allow important changes to be made to the law without enough oversight by parliaments and so a mismatch with retained EU law would be concerning from our point of view here too thank you thank you and mr clancy good morning good morning everyone well it's tempting to offer some kind of a critique on what we've already heard and I probably should forbear on that but let me pick out some of the themes that have come out of the discussion so far so the reason for retained EU law well as I mentioned in the society submission which for which I apologize being rather late yesterday when Theresa May was discussing the UK's withdrawal from the European Union in the white paper she was speaking about requiring certainty after the UK had left the European Union and that I think was one of the main things which the Law Society of Scotland was advocating at the time when the build up to the referendum was taking place that if the UK was to leave the European Union then there should be certainty about the law no matter what that law was it should at least be certain after the day because of course people require certainty and knowledge about the law and I hear what Dr West has said about the diversity of retained EU law well of course there was diversity about EU law too so sometimes we have to think that it wasn't always absolutely certain what was applicable at any one point and that is why we had access to the European Court of Justice to determine those points where there might have been doubt about the flexibility or the interpretation of the law which was in place so obtaining certainty was important and the retained EU law is the legislative mechanism for trying to get that certainty of course it's not certainty like EU law was before because it's not EU law as it was before and I can go in great detail as everyone around the table can hear do about the various categories of retained EU law that EU derived domestic legislation direct EU legislation and other rights and obligations and also those parts of EU law which were left behind such as the Charter of Fundamental Rights so retained EU law is not the same as EU law was because of those exceptions and because of the mechanisms in which it has come into being through acts of Parliament through both the UK Parliament and the Scottish Parliament through subordinate legislation and of course as we accept that it was never intended to be a permanent state of affairs to have retained EU law in all its manifestations as we see under the European Union withdrawal act 2018 and I think it's fair to say that the question of when and how retained EU law is changed is the question which confronts us today and as we've heard already from some of the participants in the conversation the UK Government has stated its intention to bring forward a bill and to use Mr Rees-Mogg's preferred nomenclature for that bill, the retained EU law bill, then we need to await the introduction of that bill to see what it contains about what the time table is for removing retained EU law from the policy and legal landscape and also how that removal is going to take place, what further elements of domestication will be needed but I think I'll leave off on that point just now convener because I know that we've run into time which is precious for us all. I wonder if I could just turn briefly to Dr Reist and your comments about scrutiny and consent and how the sole convention has been interpreted at the moment and I just wondered what do you think as a Scottish Parliament and a committee that's responsible for scrutinising the Scottish Government, where does that leave us if EU law in devolved areas is amended through this process? Of course if the UK Government introduced a bill into UK Parliament which is seeking to touch these and that would go through the normal sole process I think the bit which we do a lot of work into and interested in is the question of what about when there are powers to make delegated legislation by the UK Government which would affect retained EU law in devolved areas and that's something which doesn't just apply to retained EU law but maybe particularly felt within that area because there isn't a clear sort of process that has to be gone through for the UK laying statutory instruments, UK statutory instruments which may affect devolved areas. Now these powers will often in fact normally have requirements to consult or consent or rather consent of Scottish ministers and one would expect that to be part of what you would see in any such powers but there's a question then about the involvement of the Scottish Parliament in those. There is the protocol in place which was first put in place as a result of the EU withdrawal act to make sure that there was an involvement of the Scottish Parliament in the giving of consent by Scottish ministers to such SIs and that has been expanded to also include other areas related to EU law which it looks to me would be probably co-exensitive to retained EU law but again there may be some edge cases you could find which wouldn't but it appears to be the case but this is all within the context as I said earlier the society's research and ongoing projects where we find that actually the scrutiny of UK statutory instruments in Westminster does not provide in our view for an adequate degree of oversight by the by the legislature there of executive action to make regulations and so it's all plugging in to to an overall system which we think doesn't give enough democratic accountability and that's clear constitutional democratic risks to that where important changes and that goes back to what's been said about this diversity of retained EU law and the fact that there are potentially quite significant and long-standing aspects of domestic legal framework contained within retained EU law and the potential that there may be powers to change those through a mechanism which doesn't give the degree of democratic oversight which we think would be commensurable with the sorts of changes which may be made now of course as we've heard we need to wait to see what the bill says and what it looks like and how it's designed and all those sorts of important questions but our concern is if they're not designed right with the appropriate degrees of scrutiny those are the sorts of risks that we'd be concerned about does any other panel member want to come in on those points? Mr Clancy? Thank you convener. Yes of course Dr West is correct that there is an issue about subordinate legislation and of course the under the devolution arrangements the sole or legislative consent convention does not apply to subordinate legislation and devolution guidance note 10 makes that pretty clear and has made that clear since the earliest days when that guidance note was produced. So what we are left with is that UK legislation can contain a power for UK ministers as Dr West has described to make subordinate legislation which can apply in Scotland and I don't need to remind the committee of the trials and tribulations that it faced in terms of consideration of the UK internal market bill now act 2020 or the professional qualifications act of 2022 which contain pretty similar provisions about UK ministers being able to make subordinate legislation which then is put to consult with yes but is perhaps put to Scottish ministers to consent and then if Scottish ministers not consent within a specified period of time then to be able to proceed with that legislation all the while setting out a statement which clarifies why they have decided to proceed without the consent of Scottish ministers but that is a specific type of arrangement and is not the arrangement which applies more generally if UK ministers have within an act of parliament in loaned the powers to make regulations then they may do so and if the act does not prescribe these kinds of procedures then there may be no necessary interaction with the Scottish Government or indeed the other devolved administrations. I think that that's important because the lack of a proper consultation arrangement at the very least is one of the things that the law society has been very concerned about, not just in terms of connectivity over UK ministers enacting subordinate legislation which might apply in devolved areas but also the actions of Scottish ministers making regulations that they too should consult with relevant interests before doing so. I think that it would be fair to say that even in those circumstances under UK legislation like the professional qualifications bill or the internal market bill act rather the requirement for consent and then putting forward a statement why consent was not obtained and why the need to proceed is necessary. I think that that needs considerable consideration as to whether it is sufficient for purposes. Does anyone else wish to comment? I'm waiting to see if I can't see Professor Armstrong at the moment. Does he wish to come in at the moment? I think that they want to ask happy to deal with that. Good morning again Mr Clancy. Good to see you again in committee. The Law Society made a written submission which he alluded to there which made some interesting historical comparisons 1560, 1707 and 1999 being dates when bodies of law were retained. It's a bit more complicated this time is it not in the question as to who gets to amend that body of preserved legislation is subject to perhaps more contention and more questions. Can you see that being a contentious issue in future? That depends on the parties involved and whether or not they intend to be contentious. Let us remember that for example the provisions of the European Union would roll act 2018 originally in section or clause 12 and then in clause 11 and then in clause 12 which related to the removal of the competence constraint on the Scottish Parliament and the other devolved legislatures of compliance with EU law and established a position where UK ministers could freeze any attempt by the devolved legislatures to enact legislation that would affect retained EU law. That has all been done away with. The relevant statutory instrument which was passed earlier this year was essentially allowed section 12 to slip into memory rather than be anything which bit on the competence of the Parliament to legislate. It would be open to the Scottish Parliament to legislate on such borders as they applied within devolved areas. I think that the element of contention which you refer to in that sense has been quietly forgotten about. There was a lot of concern when the EU withdrawal act was going through but there was not hardly a mention about the removal of the freezing powers by UK ministers. Maybe that indicates that the nature of the debate has moved on. If others want to come in on that question about the potential for contention around which Parliament amends those laws in the future, Professor Armstrong is volunteering. You are muted, I think. The connection might be a bit sticky. Alistair, if we can persevere just for a few moments. I wonder if we could switch the video feed-off that might help. We can hear you but the video connection is sticky. I am going to go to Kirsty Hood first and we will try to come back. I want to make the point that, to some extent, the potential for contention apart from one particular aspect, need not particularly come from the status of the retained EU law, but it simply holds a mirror up to the potential for contention more generally. The sort of issues, for example, with the sole convention, the extent to which that is enforceable, the way in which that is given effect to technically, are matters that apply more generally. To some extent, the potential for contention is perhaps just what is always there, subject only to the one particular additional aspect, which is not so much from the strict narrow retained EU law idea, but the generality of the situation is that when you had a pan-European apparatus where there was a need for consensus between a number of states with very disparate interests and where there is a need for flexibility and a number of states of different sizes, that is perhaps quite a different space for the Scottish Parliament to operate in rather than a much tighter internal market, comprised of only four different systems in terms of England, Wales, Scotland and Northern Ireland, and one in which one particular part of that is, in terms of geography and population, a great deal larger than the other three. That brings a quite a different situation, but, other than that, I think that the contention perhaps may emphasise themes that are already there, but it is probably themes that are already there. Did anyone else want to come in, Dr Pancox? Yes, so I just, I suppose I kind of wanted to echo perhaps what's already been said in terms of we don't know, I suppose, what form this new bill will take or what the power to amend retained EU law is, but I think there has to be a real concern that even if it doesn't include powers to amend retained EU law in devolved areas, that we have to think about the different levels of governance now, and in particular we have to think about, you know, if there is a wide-ranging power even just to change retained EU law, to amend retained EU law, particularly through statutory instrument in England say or in areas that don't touch upon devolved matters, that this will still have to interact with the Scottish policy of dynamic alignment with EU law in some areas and with common frameworks, and so even if it's just changed within England say, I think there is still quite a lot to be concerned about possibly from a Scottish perspective, so yeah, that was just, it doesn't really go, I suppose, perhaps to the contention point, but I think it's contentious regardless. I'm just trying to establish a preface, so I'm strong, I think it's got its camera off if he wants to come in. Am I, I don't know if you can hear me, my video was turned off. Yeah, we can now, yeah. Okay, the comment that I wanted to make was to recall the importance of the common frameworks programme, and the common frameworks were deliberately a mechanism for dealing with modifications to retained EU law, to deal with the kinds of issues that have been discussed already in terms of how do we have mechanisms for co-operation and co-ordination between different levels of government between Westminster and Holyrood, and that is there, I guess, is a way of trying to provide a channel of conversation about the kinds of policy changes that may happen, but of course it will raise a number of questions. One is about policy difference, where there are just very clear differences between what the UK Government wants to do in terms of changing that model of regulation and what the other devolved administrations may want to do, and I guess there's also then the question about parliamentary scrutiny. These intergovernmental mechanisms are good in the sense that they provide that channel of co-operation and communication, but they may be very hard for parliaments to get a handle on in terms of what emerges out of those types of process, what kinds of agreements, for example when you talked about gene editing in an earlier discussion, at what point do we find compromises there and what sort of parliamentary oversight is there on when rules will remain aligned internally within the UK and when they will divert. So that was important to remind us that the common frameworks programme is there, it's intended to be a structure for co-operation and communication, but in and of itself I think it raises some of the same types of scrutiny challenge that Dr West was talking about in terms of the scrutiny of secondary legislation. I just finally, convener, since Dr West and Ms Hood touched on the Sule convention, I won't speak too long about the Sule convention, but I'd be interested to know your views as to whether you feel it is going to be a real thing in the future going forward or has it been tested to breaking point already. I mean for instance just this week this parliaments made pretty clear what it's likely to do with the UK legislation on Northern land protocol in terms of consent, so is the Sule convention a real factor in how these relationships are played out in future or is the Sule convention something that we use the past tense about? It's a very good question and I'm afraid not one that I'm afraid I'll be able to say much on other than to say look obviously it has to date been a really important part of part of the devolution agreements, devolution settlements and if as you suggest it may be it's becoming a thing of the past and that will obviously be something which would need serious consideration as to what happens next. I think if one thinks back to when the Sule convention first came to life that it had certainly been thought that the position, presumably it had been thought that it was thought to be quite powerful if not in terms of its legal status but in terms of how it would operate and of course when it was given the particular altered legislative form that then that was thought to have strengthened it further it would appear tested to breaking point I think is quite a good phrase because obviously it would appear from the Supreme Court decision that in fact in terms of legal enforceability then the position is that it is as we now know and therefore it comes very much to how the various parliaments and governments work together and the I think the withdrawal from the EU and the very different the very different popular votes around the various parts of the United Kingdom on such a large issue have put the Sule convention very much into the fire on such a controversial and far-reaching issue thank you convener and can I start by referring to my register of interest as a member of the faculty of advocates I too enjoy the historical references to in both the faculty and the law societies submissions I seem to recall the reformation being fairly contentious too unlike Alasdor Allen but that aside can I can I can I ask around the issue of EU supremacy as we know the principle is that if there's inconsistency between EU legislation and domestic legislation EU legislation as primacy retained EU law effectively operated a kind of copy and paste onto the statute book and yet maintain supremacy prior to completion day that seems to create quite a unique situation to me because it's it basically creates a kind of hierarchy within the law that has the same status it's all domestic legislation now and yet there is a hierarchy within it and there is also two different approaches of statutory interpretation to the same law that has the same status that may be negligible in terms of the you know the amount of law that affects but I just wonder if people have reflections on that and perhaps more importantly given the UK government stated intention to end supremacy how is that done practically in terms of in terms of the situation that we now find ourselves and if I could start please with Dr Hancock's because I think this you write on this quite quite lengthy well thank you very much for your question so to kind of think about the supremacy or the primacy of EU law I would agree to in a sense that now that now that retained EU law is simply domestic law that to give it supremacy might seem perhaps a bit unusual I think it's a smaller issue than perhaps it might kind of seem at first glance in part because of course the principle of supremacy doesn't attach to any new acts of parliament so it really is a sort of conflict rule that's dealing with historical acts and I think that it's not that it's not still important there have been two recent cases in which for instance the court of appeal and the high court have supplied aspects of in particular the investigatory powers act for being incompatible with the UK GDPR but I think this also raises the issue of well if we remove the principle of supremacy this might then interact with existing policy frameworks so for example if we remove the principle of supremacy we then have to think about the fact that the UK might then be acting say incompatibly with the GDPR and what this means potentially for the UK's adequacy decision and I don't think that this is necessarily and I just wonder if this is a question that courts should be answering rather than this being part of a legislative policy I suppose in terms of different approaches to interpretation it's unclear to me at least that removing the principle of supremacy from retained EU law would change how it's interpreted it's been a recent case um allied wallet in which the the court there said that well this marleasing principle of interpretation the principle that we should interpret domestic law as far as possible compatibly with EU law is part of retained case law so I think there's a lot of different issues bound up here and so you know I think it's easy to remove the the language of supremacy to say simply perhaps that all retained EU law should be taken as enacted in 2018 or something like that in that way you keep the kind of legal continuity and legal certainty what you do about interpretation is perhaps more complicated because unless because I think this is separable from the principle of supremacy and it might not make sense before there are before there have been sort of more wide-ranging policy changes to necessarily change how retained EU law is interpreted so I'll end there thank you for the question could I turn next to professor Armstrong please thanks very much I think I want to just remind ourselves again that not only is retained EU law the the substantive legacy of EU membership but it's also the constitutional legacy and the principle of primacy performed a particular function in the EU constitutional order and that was to ensure the effectiveness and the uniformity of the operation of EU law across 27 member states. Domesticating that in UK law doesn't necessarily make a whole heap of sense going forward it's I think as Dr Hancox identified this use the term supremacy is kind of a distraction it's a priority rule it says as between two different rules which which norms should prevail in the event of a conflict now we might want to have rules about that that relates to different types of source of law but I think they extend more widely than whether it had its origins in EU law and in an odd way I think what it does is over constitutional lines an awful lot of bits of pieces of rules and regulations that aren't particularly significant that they don't necessarily need to have any particular kind of constitutional protection against implied repeal in other words I think what we need to think about is under what circumstances would we want to have constitutional rules about implied repeal of rules rather than simply holding on to the primacy of EU law in and of itself as as a concept so in a way I think it's this is an area where we need to have a kind of grown-up conversation about what exactly has been retained and why is that principle is there and really does it perform a useful function in our constitutional order and as a way of dealing with this the operation of this body of retained EU law as it evolves and changes in the future can I turn to to buy us a lot the advisor to the committee well thank you I mean maybe just briefly I think if I remember correctly the house of lords committee at the time did did object to supremacy being in the act and they proposed that everything should have the status of primary legislation instead which of course would have over constitutionalized things even more I think if the supremacy principle falls away which for which there are I mean there are good reasons perhaps in the long term I think it might be good to think about think very clearly about which pieces of what what was retained EU law and will be retained in the future under a different name should be protected in a certain way either be put on a primary law primary legislation footing or if not introduce some form of protection maybe in those individual pieces so that is of course a difficult decision because you have to go through the entire statute book of retained EU law and prioritise certain policy decisions over others or certain elements over others but I think that that might be a way to resolve this in a in a less sweeping manner I don't know if any other of our panel have comments but if not convenient that's thank you very much I'm very conscious that unfortunately Thursday morning committees don't have any flexibility in running on so we'll only have about 10 minutes left but miss boyack wants to come in thanks very much convener it's actually just to follow up that answer that we've just had I would like to ask from a devolved perspective what are the specific issues that could arise from chain changing the state is often basis for amending retained EU law which should be taken to account often the future and I'm thinking particularly in terms of our job as a committee we've already heard comments about scrutiny the challenges so what areas would you suggest we start thinking about focusing on I don't know who'd like to come in on that scrutiny has been mentioned by a couple of our witnesses I think to dr west you talked about scrutiny or or maybe if I just continue with yourself professor lock what would your what topics would you think we should be focusing on or prioritising well I think it would be useful to ensure that you know that that there is a we have we have to distinguish I mean on the one hand we will have a scrutiny of things that happen at UK level and I think that is probably the greatest danger where there might be a black hole because if a matter a policy decision is taken by the UK government how do you ensure that there is devolved input I mean if it's taken at Westminster a primary legislation level you could say okay we've got you know Scottish MPs in the room and all of that so that there could be there is some potential for devolved input but if it's taken at if it's government legislation that there is there's less of that and I think that that is the probably the biggest the biggest issue I would identify here at in Scotland I think it would be important for maybe for the committee to continue what what it's started to do already and holding the government to account if the government is given powers of amendment of retained EU law or of replacement of each retained EU law that there is a proper scrutiny happening at in this house I think that's very clear I think one of the things we've talked about before is the cross parliamentary liaison for example we've got the parliamentary focus where we've got UK parliamentarians talking to the European Parliament we're in the room but we don't have speaking rights is there something about UK committees in different parliaments actually having these kind of conversations ourselves because of the the sheer weight of potential legislation to share our best practiser or concerns certainly that that it would make sense to share experience and expertise because you know there's there is a danger of being overwhelmed as well the sheer volume I mean if you look at the dashboard which is very helpful thing I mean it's been slagged off a lot on Twitter and all of that I think it's actually a very good resource because it gives us an idea of what is there and and and I think that there is a danger of being overwhelmed and obviously there will be different policy approaches taken in potentially in Wales northern Ireland if they get back to having a sitting assembly and and here and I think it might be a good idea to to to try to coordinate also with regard to the internal market act which has repercussions as well. Mr Wesson was just going to come to you. Thank you, I'll try and be as quick as possible. Yes I think scrutiny of UK SIs is really important in addition to what's been said and the operation of the the protocol between Scottish Parliament Scottish Government I know the delegated powers and law reform committee are interested in that as well it's certainly able to focus on but I also say about this addition about timing at what point should Scottish Government and Scottish Parliament receive what information from UK Government and UK Parliament and that's not straightforward to work out what the right sequencing that is to allow meaningful scrutiny to be taking place here and while also respecting the fact that these are UK Government instruments to be scrutinised by the UK Parliament and three other sort of issues that I think are worth thinking about and one is there are ways in which retained EU law may now be amended through delegated powers which existed pre Brexit so a number of SIs are retained EU law many of them are made under the the section 22 European Communities Act power but many also are made concurrently with other powers and some of those powers still exist and previously they could only be exercised within the confines of EU law but of course that's no longer the case so to some extent the the scope of those powers has altered almost indirectly as a result of of Brexit so what happens with those I think is an interesting thing to consider in terms of new powers so within the Brexit freedoms bill or within other bills there's also a question about how long those powers last for I think there's some uncertainty right now as to whether or not those powers will be sort of one-off or sunsetted powers which allow a decision to be made to sort of repeal or do a one-off update and then in a certain amount of time they will they will go or whether they're powers which will be indefinite and if it's the latter what that essentially is doing is potentially giving sort of policy making power on the ongoing basis to the executives so that's again another area which I think it's really worth thinking about and lastly something which we in our work in general look at in terms of how parliament and again like I say our work is focused on the Westminster parliament but similar principles may well apply is the idea of sifting statutory instruments many many are technical uncontroversial and do not require sort of significant amounts of time to be spent looking at them but some aren't and so mechanisms which allow parliament to be able to identify those which are worthy of greater attention and those which do not necessarily need that attention we think are valuable and a number of those have been sort of been have come into play through brexit so in Westminster there's sort of under the Ewer but there's also sort of sifting style functions and related to withdrawal out powers here as well and so that's I would say something which it's which it's worth the committee sort of looking at both in terms of retained EU law but also in terms of delegated legislation more widely to. Did anyone else want to comment? Oh yes, Mr Clancy. Entirely with Dr Weiss analysis there in terms of sifting it was quite clear that a great deal of work had to be done in order to put retained EU law in place and so therefore one can with some confidence I think state that to unwind retained EU law will require also a great deal of work and that requires for legislatures not just the Scottish Parliament UK Parliament and the others as well to make sure that the processes are robust that they engage with the those who are going to be affected by potential changes and that that engagement is something which is real and that then takes us back to the idea of supremacy and one of the issues which I suppose one would want to raise is that supremacy of course applies to pre-exit legislation not post-exit legislation and there is somewhere or another and I'm just trying to figure it out in my own head what kind of a conflict is there with having supremacy in relation to pre-exit legislation and yet the declaration of sovereignty which you find in the European Union withdrawal agreement act as sovereignty of the UK Parliament how does that work and that I think is part of the key is to why the supremacy is also going to be targeted in the EU retained EU law bill thank you I've got cursey and Professor Armstrong very very tight for time if you could be succinct to the last word I'll go to Professor Armstrong thank you very much thank you I've just considered echo what's been said on scrutiny and the importance of that and the importance of remembering that a legislation that was passed through the European Union did involve scrutiny and scrutiny involved the United Kingdom and many o