wirth y fawr i dyiedi'r Metgell Goyn? Organization realiz folk cs estoy strapidiion dda nhw y constitutione committee, just because we know. I'm C-well. Bright Aide and Busy Tail. It's good to see y'all. We continue our consideration of the UK withdrawal from the European Union Legal Continuity Scotland Bill and the first piece of business this morning, I call amendment 115, in the name of Dean Lockhart, grouped with other amendments as shown in the eighteen groupings. I will remind members of a preemption when I call the relevant amendment. Dean Lockhart, to move amendment 115 and speak to all amendments in the group. Thank you, convener, and good morning. In this grouping, I have one amendment in my own name, amendment 115, and three amendments that I will be formally supporting, amendments 9, 14 and 22. I will also talk to amendments 11, 12, 13, 15, 119, 138, 206 and 212 in the name of other members. First of all, my amendment 115 seeks to clarify the scope and application of section 11 of the draft bill. As other members highlighted yesterday, section 11 confers wide-ranging powers to Scottish ministers to pass regulations in a number of areas without the approval of Parliament. Specifically, section 11 empowers Scottish ministers to make such regulations as they consider appropriate in the following circumstances, where ministers consider that there is or would be a failure of retained devolved EU law to operate effectively, or any other deficiency in retained devolved EU law arising from the withdrawal of the UK from the EU and where it is necessary to make such provision for the purpose of preventing, remedying or mitigating such failure or other deficiency. Section 115 provides that regulations to be made by ministers may make any provision that could be made by an act of the Scottish Parliament. My amendment 1115 follows the concerns raised by the Law Society of Scotland over the scope and application of those powers. First of all, according to the Law Society, what constitutes a failure in the retained EU law to operate effectively, the provision that I mentioned, which is contained in section 111, is not clear and is open to argument or subjective opinion, despite the examples of deficiencies given in section 11. That is because, according to the Law Society, the deficiencies in section 11 are neither exhaustive nor limited to deficiencies of the same kind, making it very difficult to interpret. Secondly, the Law Society goes on to explain that section 1111 of the bill adds further uncertainty. Section 1111 broadens the category of deficiency that ministers may address by providing that a failure or other deficiency arising from the withdrawal of the UK from the EU includes a reference to any failure or other deficiency arising from that withdrawal taken together with the operation of any other provision or the interaction between any provision made by or under this act. The operation and scope of this section is unclear. To address those concerns, my amendment 115 proposes to insert a new subsection into the draft bill that would provide as follows. Scottish ministers must, by regulations, subject to the affirmative procedure, define what, for the purposes of the act, constitutes a failure of retained devolved EU law to operate effectively. The purpose of my amendment 115 is threefold. To introduce further legal certainty as to the scope and operation of the powers conferred upon ministers. To introduce further legal certainty as to what would constitute a failure of retained devolved EU law to operate effectively. Thirdly, to introduce parliamentary scrutiny to the exercise of those powers by ministers. In his remarks at the end of this grouping, I would invite the minister to address those concerns of the law society on the powers being conferred upon ministers in this section which can be used and implemented without scrutiny of Parliament. I would also ask the minister to provide examples of what he might consider as a failure of retained devolved EU law to operate effectively. I move on to the three amendments that I am formally supporting in the name of other members, amendments 9, 14 and 22. Those amendments propose to change the test applied for the use of the powers by ministers to pass the regulations that I have mentioned. As currently drafted, ministers would be able to make such provision using those regulations as they consider appropriate to deal with deficiencies arising from the UK withdrawal from the EU. The key words here being as ministers consider appropriate. However, amendments 9, 14 and 22 would change this test so that ministers are only able to make such provision by regulation as is necessary to deal with deficiencies. Those amendments are made to address concerns raised by the law society that the legislation that is currently drafted would allow ministers to make provisions in whatever manner they consider appropriate, which is a subjective test and one that would be wide-ranging. To address the issue, the law society has suggested an amendment that Scottish ministers should only make such regulations as are necessary, which is an objective test rather than appropriate, which is the subjective test. Amendments 11, 12, 13, 15, 119, 206 and 212, in the name of other members, are based on a similar rationale. They all change the existing tests set out by reference to the subjective test of appropriate to the more objective test of necessary in the relevant parts of section 11. In my winding up remarks, I would like to address those proposed amendments in more detail, but for the time being I move the amendment in my name. Neil Bibby, to speak to amendment 116 and other amendments in the group. Good morning, convener. As Dean Lockhart has said, there are multiple instances throughout part 3 of this bill where Scottish ministers could be prepared to exercise significant regulation making powers. Those powers are far-reaching and can be considered where the Scottish ministers consider appropriate. My concern and the concern of many others is that this bill, as it is presently drafted, places too much power in the hands of the Scottish Government and not enough power in the hands of the Parliament. Amendments 116 to 119, 124 and 135 to 138, in my name, are an attempt to address those concerns. Instead of mandating the Scottish Government to use regulation making powers when ministers consider appropriate, the Scottish Government will be mandated to use regulation making powers where necessary. That is not just the focus of my amendments in this group, but also the amendments of other members from Tavish Scott, supported by Neil Findlay and Dean Lockhart. The bill has to be tested. The climate for ministers to use the powers granted to them by the bill has to be tested. That is what those amendments and a number of amendments from colleagues across the chamber seek to do. The bill should not permit the use of those regulation making powers where it is not necessary. Two of my amendments 119 and 138 resemble very closely amendments 9 and 22 in the name of Neil Findlay. Those amendments were lodged separately but would have a similar effect. James Kelly will speak to those amendments. It is necessary to adapt retained EU law so that it functions in Scotland on and after exit day. It is necessary to confer new powers on Scottish ministers to manage that transition. That bill, however, must not marginalise the Scottish Parliament and it must not be a vehicle for bypassing the Scottish Parliament. The powers available to ministers must therefore be limited to converting EU law into Scots law and must not extend any further unchecked and without proper scrutiny. I therefore hope that members will consider supporting the amendments in my name in this group. James Kelly will speak to amendments 9 and other amendments in the group. I move amendments 9, 14 and 22 in the name of Neil Findlay. I will be moving them in the name of my colleague. Those amendments replace the wording in three sections. They make the wording tighter and provide more clarity by replacing the wording as they consider appropriate with the wording that is necessary. The wording tighter provides greater legal clarity and is more concise in terms of the regulation powers and ties in with the points that Neil Bibby was making. In terms of the other amendments in the group, I want to indicate support for Neil Bibby's amendments and also Tavish Scott's amendment. Tavish Scott to speak to amendments 9 and 10 in other amendments in the group. amendment 10 is one of a series of amendments that seek to restrict the use of ministerial room for manoeuvre in establishing new regulations. In the spirit of the remarks from Dean Lockhart, James Kelly and Neil Bibby, I would move those in that basis. The addition of the words on reasonable grounds in amendment 10 and amendment 16 will toughen the tests, making them justiciable and narrow ministerial discretion. Amendment 11, 12, 13 and 15 seek to toughen the test for ministerial action. Given the areas that we are in, that seems an appropriate course of action. I suddenly accept that the minister has earlier explained that a test of necessary has been placed in section 11.1b, which has to be met before appropriate provisions can be proposed by ministers. That debate, of course, is the one that has just been spoken to in relation to Mr Kelly. My amendment seeks to place a test of necessary on to all of the deficiencies referred to in the bill in section 11 to C, D, E, F and G. I want to restrain the room for ministerial manoeuvre without recourse to Parliament. Ministers will have to make the case before they can use these extensive new powers and their remedy is necessary. That seems a fair test. Do any other observation that I would make, convener, is that amendment 9 seems to me where members do not accept that there is a test of necessary in 11.1b before ministers can consider any appropriate action. I have said that I accept the necessary test that has been put there and I have an amendment later to make sure that ministers have to report how that test has been met, which again seems to be an important check in the system. I move on that basis. Jamie Greene to speak to amendment 134 and other amendments in the group. Thank you, convener. I will take my amendment first, as I think the other amendments are similarly themed. Mine perhaps stands out somewhat slightly differently. What I'm seeking to achieve in amendment 134 and how it differs from Neil Bibby's amendment 135 is I think Neil Bibby's amendment is heading in the right direction in terms of the wording, but I would like to go further with mine. The current section 12, subsection 1, in my view is worrying. The proposal, as it is in the bill, seems to imply that the method for identifying a breach or what is or even what might be a breach of the United Kingdom's international obligations arising from a withdrawal from the EU lies subjectively with the Scottish Government. From my understanding, this clause could be used by Scottish ministers to introduce or change regulations as they see fit to ensure that international obligations are met. I am sure that I cannot be the only MSP who would be concerned about adding this power to the Scottish Government, which would in effect undermine the independence of not just our but any judiciary system by adding an overtly political element to it. I do not believe that it is for the Scottish Government to be making decisions on another Government's international obligations nor do I believe that it is the Scottish Government's position to decide which treaties that the UK Government is or is not adhering to. My personal treaties are enforced by the relevant courts, domestic or otherwise. Let me give you an example. The European Commission is legally defined as the guardian of the treaties, but as the executive branch of the EU they still need to refer cases to the European Court of Justice or the court of first instance and are bound by judgments thereof. My amendment places the responsibility of identifying breaches of treaties on relevant courts, rather than ministers. My amendment allows Scottish ministers, however, to make provisions that they see appropriate for dealing with such breaches as they have been identified by courts. The new phrasing mirrors the current practice in the tripartite relationship that exists between the UK Supreme Court, the UK Parliament and its adherence to the Human Rights Act 1998, where, for example, the Supreme Court could issue a declaration of incompatibility when it finds an axe of Parliament that is incompatible with the Human Rights Act and the UK Parliament would then make necessary changes to ensure that the act is compatible. My amendment would enshrine to law that any dispute must be brought before the relevant court responsible for enforcing international obligations. All I'm proposing this morning is that we do not deviate from international practice in adding additional powers on to the Scottish Government. I'd like to turn some of the other amendments in this group. I fully support amendment 115 in the name of Dean Lockhart for the two reasons that he outlined. One is that it provides additional legal certainty and the second is that it will also increase the ability of Parliament to scrutinise via the affirmative procedure. Many of the other amendments in this grouping, as those laid out by Labour, are also welcome in my view. Again, they add more objectivity. The words that the Scottish ministers consider is used throughout this bill. I think that it's not just the MSPs or political views that they should be replaced, but we have had evidence from the law society as such. I think that that evidence should be taken into account throughout those of my only comments in that grouping. Liam Kerr to speak to amendment 206 and other amendments in the group. Section 31b sets out a sweeping provision that any power to make regulations that are incidental, supplementary, consequential, transitional, transitory or saving are allowed, as ministers consider appropriate. Section 32 repeats that form of words in a mopping-up section that gives broad powers of regulation and, again, it is expressed to be where ministers consider it appropriate. That is too broad. As drafted, this gives the Scottish ministers powers to make legislation as appropriate, which is subjective. I listened to Dean Lockhart praying the law society in aid and seeking to interpose the objective test of necessary. I associate myself with his remarks in this regard and I think that they apply equally to my amendments. I also recognise Neil Bibby's comments about placing too much power in the hands of Scottish ministers by use of the word appropriate. This bill should not permit the use of such powers where it is not necessary. Regulations in this case should only be brought where they are required by amendments change to that, to tighten the definition and place the necessary checks on executive power. In anticipation of ministerial response, this is, of course, going further than the withdrawal bill, and this is entirely appropriate. We are a single chamber. The House of Lords brings an extra level of scrutiny to regulations in Westminster. Our particular setup means that we have to be particularly cautious about extensions of executive power. That is what these amendments 206 and 212 seek to do, and I hope that the committee will look favourably upon those amendments. Adam Tomkins, I move to any other committee member who wishes to speak. Good morning, everyone. I just want to speak briefly, if I may, to the amendments in this group in the name of opposition members who are not Scottish Conservatives. Obviously, the Scottish Conservatives will be supporting the Scottish Conservative amendments, but we will also be supporting all of the other opposition amendments in the names of Neil Bibby, Tavish Scott and Neil Findlay in this group for two reasons principally. First, amendments 116, 117, 118, all in the name of Neil Bibby, 124 in the name of Neil Bibby, 10 and 16 in the name of Tavish Scott, and also 135, 136, 137 all in the name of Neil Bibby. All of these amendments have the same effect, and that is to say that they have the effect of reducing excessive ministerial discretion. The minister is fond of reminding the Parliament that we must be careful with our language, and yet at the same time he constantly uses the unnecessary and hyperbolic rhetoric of power grab when he describes the withdrawal bill. There is a power grab in this legislation, too. It is not a power grab from Westminster to Holyrood or the other way round, but it is a power grab from Parliament to executive. We must be equally alive to the appropriate balance of power between the executive branch and the legislature as we must be to the devolution settlement. If we are to respect the constitution, then we need to be alive to the issues of separation of powers as well as to devolution and its appropriate settlement. This is an element of the rule of law, which Gordon Lindhurst spoke eloquently about yesterday evening. For that reason, the Scottish Conservatives will be supporting the amendments that I have just named that reduce excessive ministerial discretion. The second subgroup of amendments in this group are amendments that delete the word appropriate and replace it with the word necessary in a number of different provisions, principally in section 11 and 12 and 30, as Liam Kerr has just spoken about. Again, the minister has made great play of the fact that one of the significant differences in his view between the withdrawal bill at Westminster and the continuity bill here is that ministerial powers here can only be exercised where necessary whereas ministerial powers in Westminster can be exercised where appropriate. The minister has made great play of this. We are just encouraging him to be through our support of these Opposition amendments to be consistent rather than as he currently is inconsistent about this. For the reason that was outlined a few minutes ago by Liam Kerr, which is to say that we have to recognise that this is a unicameral Parliament. It is not a bicameral Parliament. It is not like Westminster. The constitutional function of the House of Lords is to act as a check on that which happens in the House of Commons. We have no equivalent in Scotland. This is a unicameral legislature. Therefore, we have to be even more alert than our friends and colleagues in Westminster have to be about ensuring that ministerial discretion is appropriately tailored. For that reason, we will be supporting all of the amendments that seek to remove the word appropriate from this bill and replace it with the word necessary. I am slightly uncomfortable suggesting that I might have reached the same conclusion as Adam Tomkins but for very different reasons. It does strike me as odd that he spent a good part of yesterday evening telling us that the most important thing was to have consistency with the UK legislation and now he is telling us that the minister should have consistency with his own arguments rather than with those being made down south. For very different reasons, I am not someone who thinks that we should be following in lockstep with the UK legislation. I am judging that on its own terms. It seems to me that, from my perspective, there is a good case for replacing the word appropriate with the word necessary. I would like to ask the minister, when he is responding to this group, to be very clear to separate the different arguments. It seems to me that there is a case for replacing necessary with appropriate. On the other amendments that seek to remove the role of ministers in reaching a view about what they consider should be done and, instead, applying the word necessary. I am not an objective test. I think that I have more concerns. It is not clear to me who would assess that objective test, who would be determining that objective test. We have seen in the debate over the continuity bill itself that, in a great deal of this whole situation, there is what we have described to us as room for difference of opinion, room for disagreement on questions such as the competence of the continuity bill. I would like to ensure that we avoid the situation in which ministers reach the view that regulations are necessary and must be brought to Parliament. They are unable to do so, or that the issue becomes mire in a question about whether an objective test that has not been well defined in the legislation has or has not been met and whether, in fact, they therefore have the legal right even to lay those regulations before Parliament. There are really important discussions to have later about the level of scrutiny that regulations will have. I think that there should be, I hope, a degree of cross-party support for beefing that system up a bit and making sure that Parliament is in control of the level of scrutiny it wishes to provide and can hold to account the significant powers that ministers are to acquire under this bill if it passes. However, I would be very concerned if we leave ourselves in a position where we are simply unable to debate, unable to begin scrutiny of something because legal doubt has been raised over whether ministers have the right to lay a resolution for discussion because of some objective test that does not appear to be well defined. Just asking the minister to respond separately to those points, one on the question of necessary and appropriate and the other on the question of ministerial consider, whether ministers have the power to consider as the trigger for laying an instrument. I think that amendments 11 to 15 from Davish Scott and Neil Findlay could make it almost impossible to exercise the powers and question here. It seems reasonable to me to retain the word appropriate rather than replacing it with a specific requirement to establish necessity. I can imagine a number of situations where it might not be so clear what a particular policy direction might be. I think that it is better to allow some flexibility to be applied here. In my view, the amendments could weaken the bill at best and potentially make it inoperable, at least in some circumstances, at worst. Rather than being an example of excessive discretion being applied, it seems to me to be mindful of Patrick Harvie's comments. It seems to me to be an example of excessive inconsistency. We are talking about this bill in its comparison with the UK Parliament. The other members indicate to want to speak. Thank you. This section is appropriate. We come to first thing in the morning because the issue of proper scrutiny and the issue of the way in which ministerial power can be exercised or restrained is crucial to the consideration of a whole range of issues that we are going to be taking forward this morning. I want at the outset to indicate that I am aware of that. I am absolutely aware of the issue of ensuring that anything that is done under this bill is done in a way that has maximum scrutiny and that ministers are placed in the position that they are aware of the special powers that this bill gives. We have to ask why this bill gives special powers. It is because of the circumstances created by the United Kingdom's Brexit process. That is why those powers exist in the withdrawal bill, because there is a very major job of work to be done and that job of work cannot be done by the tools that are presently to hand. If we are devising new tools to undertake this, those tools have to be appropriate or necessary, but they have to be able to be scrutinised and trusted. What we have done—I will come on to this in a moment—is carefully look at what the situation is in the UK bill and strengthen the powers of this Parliament compared to the way that these are overseen, scrutinised, controlled by the Westminster Parliament. I am pleased at that inconsistency in Patrick Harvie's terms, because the inconsistency is that we have been listening and we continue to listen. I want to make a general point that will apply to this and to subsequent parts of the debate this morning. I will be accepting a range of amendments that do just that, but I will not be accepting all the amendments for reasons that I will give about those amendments. I am not resisting the principle in any sense of making sure that there is stronger scrutiny, that there are more restraints than ministerial power, but that does not equate to accepting every single proposal, some of which are either inoperable or would be difficult to operate. I do not think that we should be in lockstep with Westminster. I have always believed that we should do better than Westminster if we possibly can, and that is what we are going to try and do. The central problem in legislation is, of course, the way in which objective tests are enforced or scrutinised. There is no way around that. If the piece of legislation has an objective test and the objective test is not met, then redress exists through the courts. That is the legal situation that we have. Outlining the objective test and making sure that it is applied and can be scrutinised very closely by the chamber is exactly what we should be doing, and that is what we are trying to do. I believe that the test should be toughened. I will try to find ways to toughen them in subsequent sections, but I stress that it is not possible to accept all the amendments in that regard. Therefore, when I accept some, I am not doing it on the basis of favouritism. I am doing it on the basis of practicality and striking that balance between scrutiny and between control and the issue of getting the job done. Let me therefore start with Dean Lockhart's amendment 115. By requiring regulations to define a failure of EU retained law to operate effectively arising from EU withdrawal, it would require an intervening set of further regulations to be made and complicate the already difficult process of adjusting domestic law to Brexit. I have to say, convener, that those people who are now supporting Brexit, but are actually intending to make it even more difficult for the Scottish Parliament to adjust to it, really need to consider their position. It would delegate more power to ministers, which has been criticised elsewhere. While failures of EU law to operate effectively may be a relatively wide concept, the power here is limited by the context of EU withdrawal. It is also limited by the test of whether it is a necessity to make provision, prevent, remedy or mitigate the failure that we have added to the bill. That is another safeguard. Neil Bibby's amendments 116 to 119, 124 and 135 to 138 would adjust the main legal test for what deficiencies can be remedied and how international obligations can be implemented. They would remove references to ministerial judgment of whether the law fails to operate properly or whether there is another deficiency or breach of international obligations so that only provision objectively necessary would be permitted. I am sympathetic, but sections 111b and 121b already make careful provision to require that it is necessary—I stress the word, it is in the legislation—to make provision in order to prevent, remedy or mitigate the failure of deficiency. However, it allows sensible and practical, appropriate solutions to be made without the need to ensure that they are also absolutely necessary. In that context, the test would be unclear because we have been applying it twice in different circumstances. It would actually lead a lot to the working out of the courts. Necessary is there in sections 111b and 121b, and there is an objective test. That issue runs through many of the amendments. We are drawing the boundary carefully because we are drawing on the House of Lords Delegated Powers and Regulatory Reform Committee report, which we accepted and have implemented. Talking about consistency, the Commons has not. We are also relying on specific recommendations of committees here in Holyrood in going further than the UK bill. That same issue applies to amendment 9 from Neil Findlay. I am sympathetic, but the same reason for enabling sensible and practical provision to be made in the midst of what is a Brexit crisis. If we go further than we already have, then the ability to deal with that crisis becomes diminished and there is a judgment to be made. That judgment, if it is made by ministers, is subject to the bill and to the chamber and to the legal process, and they are all in there. A related point is amendment 11 to 15 from Tarrish Scott to replace necessary for appropriate in the detailed heads of what is a deficiency in describing EU arrangements of structures no longer relevant as a consequence of leaving the EU. That sounds apt in the context of the UK leaving the EU, but it may actually, and this is a key point, be necessary to retain some of those structures or arrangements, but just not appropriate to retain the existing structures or arrangements. The intention is to have that power available to vary to adapt the structures to new circumstances. If we use necessity, then we may find ourselves unable to do so. By contrast, however, I am happy to support Tarrish Scott's amendments 10 and 16, providing that ministers must have reasonable grounds to consider that various matters apply in what is listed as a deficiency. I think that that does help to clarify where we might be and where we are going. I cannot accept amendment 134 from Jamie Greene, requiring a court to identify a breach of a UK international obligation before section 12 regulations can be made rather than leaving it to ministers. I believe that his interpretation of the bill is wrong. The power is being exercised in the same way as in the UK and the massive criticism that he made of exercising the power would have to apply to the UK as well. We have put additional safeguards in. A primary legislation would have to be made in these circumstances to avoid a breach, and that would greatly reduce the utility of the power in the special circumstances of Brexit. Nor can I support amendments 206 and 2012 from Liam Kerr to adjust the powers to make incidental, supplementary, consequential or transitional provision in regulations so that ministers must consider provision necessary. The normal formulation where such provisions are included in a normal bill would be to allow such provision where appropriate or expedient as well. This change would limit the provision that could be made in regulations in the ancillary power of the bill to less than the standard latitude even for a normal ancillary power, especially for a bill of this nature where it would be important to have wider ancillary powers available, giving the range of the material the bill may have to cover. It would greatly harm the practical flexibility of those powers to cover any eventualities if such a power was unavailable. Indeed, the Delegated Powers and Law Reform Committee and their report on the withdrawal bill raised no issues with the equivalent power in that bill, which uses an appropriateness test and indeed suggested that the Scottish Minister should be given a similar power in the bill. To conclude, convener, my position is this. I am happy to accept the two amendments that I have indicated 10 and 16. I have indicated that it will be my intention to accept further amendments on scrutiny and other similar powers. However, I cannot accept every amendment because what many of the amendments would do would either restrict the bill unduly or create the circumstances where the requirement of the bill is undermined in a way that makes it impossible to meet the obligations of the bill to make the changes that are being forced upon us. We have tried very hard to ensure that we improve the parts of the bill compared to the UK bill. We will continue to do so, as I indicate, and I hope that members will therefore accept that we are moving in the right direction and navigating a careful course between a whole range of competing demands. I would like to make three general points in winding up before turning to the minister's response to the amendments. First of all, my first point relates to scrutiny, a point raised by a number of members. The debates around section 11 powers is an important example of the fundamental concerns that members have expressed with respect to the level of scrutiny this chamber has been afforded. The amendments in the group were largely suggested by the Law Society of Scotland in its submission on the draft legislation. If the minister is unable to accept comments made by the Law Society of Scotland with regard to legal certainty, with regard to tests applicable to the use of wide-ranging ministerial power and provide a full explanation as to why those recommendations and amendments cannot be accepted, we have real concerns about how that legislation will work in practice. The minister acknowledged that the bill gives ministers, in his word, special powers. If that is the case, I would emphasise all the more the need for proper and full scrutiny of that legislation. I accept that the minister is listening to members, but the process itself is very short and there is not a long time for a listening exercise. The second general point that I would make is that those amendments proposed are designed to address what Adam Tompkins referred to as a power grab by ministers under section 11. We have heard cross-party consensus during those amendments being proposed on those concerns about a power grab from Neil Bibby, James Kelly, Tavish Scott as well as colleagues from my party. I think that it is worth reflecting on some of those comments. Neil Bibby said that this bill, quite rightly, should not be a vehicle for bypassing the Scottish Parliament. Tavish Scott highlighted that those amendments will act as an appropriate check on wide-ranging powers that would otherwise be conferred on ministers. Liam Kerr highlighted his concerns surrounding the extent and wide-ranging nature of those powers. The third point that I would make is in relation to the overreach in section 12.1. Like Jamie Greene, I am also worried about the current wording in this section and how it may impact international treaties that the UK is party to. The amendments that are submitted by Jamie Greene highlight inter alia the critical role played by the judicial system in the interpretation of international treaties. Again, it is somewhat disappointing that the minister was not able to accept the amendment proposed amendment 134. Turning to the specific amendments proposed and the response from the minister, the minister acknowledged, as I mentioned, that the bill confers special powers. If it does confer special powers, I think that some of those amendments are designed to specify how those special powers will work. It is disappointing that the minister is not able to accept my amendment 115, as it is designed to address concerns raised by the Law Society of Scotland, precisely on the issue of how those special powers will be exercised by the minister. If there is, on the one hand, special powers being conferred by the legislation, then I think that there is also a case to be made for special provisions that will define and regulate how those powers will be operated and enforced by ministers, especially if this is outside the scrutiny of Parliament. It is likewise disappointing that the minister proposes to retain the use of the subjective test of appropriate in a number of areas and not the objective test proposed by the Law Society in their submission. To conclude, the minister, I think, agreed to two amendments proposed but has suggested that others may be accepted under further consideration. My question relates not only to this grouping but to others. Do we really have time to discuss and review and vote on a further iteration of amendments on submissions made not only by members but by stakeholders and a number of experts? That is perhaps a question that we can come back to when we discuss later groupings. The question is that amendment 115 be agreed to or will be agreed to. Here is a phrase that I have not heard for a while. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 115, where 5 votes 4, 6 against amendment 115 is therefore not agreed to. Amendment 116, the name of Neil Bibby, already abated with amendment 115, Neil Bibby to move or not move. The question, therefore, is that amendment 116 be agreed to or will be agreed to. In that case, there will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 116, where 5 votes 4, 6 against amendment 115 is therefore not agreed to. Amendment 116, the name of Neil Bibby, already abated with amendment 115, Neil Bibby to move or not move. The question, therefore, is that amendment 117 be agreed to or will be agreed to. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 117, where 5 votes 4, 6 against amendment 115 is therefore not agreed to. Amendment 118, in the name of Neil Bibby, already abated with amendment 115, Neil Bibby to move or not move. The question, therefore, is that amendment 118 be agreed or will be agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 118, where 5 votes 4, 6 against amendment 115 is therefore not agreed to. Amendment 119, in the name of Neil Bibby, already abated with amendment 115, Neil Bibby to move or not move. The question, therefore, is that amendment 119 be agreed or will be agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. Amendment 119, where 5 votes 4, 6 against amendment is therefore not agreed to. Amendment 9, in the name of Neil Findlay, already abated with amendment 115, James Kelly to move or not move. The question, therefore, is that amendment 9 be agreed or will be agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. Amendment 9, where 5 votes 4, 6 against amendment is therefore not agreed to. Amendment 120, in the name of Adam Tomkins, grouped with amendments 121, 122, 123, 148, 150, 115, 112, 153 and 154. Adam Tomkins to move amendment 120 and speak to all amendments in the group. Thank you, convener. I move amendment 120 in my name. Commune of these amendments in my name in this group are probing amendments. I do not intend to press them at stage 2, but I do intend to revisit the substance of the matter at stage 3. The amendments seek to, if I can put it like this, square the circle between the demands of the devolution settlement, the requirements of the devolution settlement on the one hand. The Scottish Conservatives have, ever since the publication of the withdrawal bill, been consistently of the view that the withdrawal bill, as introduced into the House of Commons, does not respect the devolution settlement and needs to be amended. We signed up unanimously to the committee's report that clause 11 of the withdrawal bill needs to be removed or replaced. Those are strong words, and we meant them. I'm sure that every member of the committee did. But we have also been four square behind the United Kingdom Government insisting that Brexit does not inadvertently or indeed deliberately lead to the breakup of the United Kingdom or to the disintegration of the UK's domestic market. These are competing legitimate demands from the UK Government on the one hand and indeed the Welsh Government and the Scottish Government on the other, both of which it seems to us and has always seemed to us need to be satisfied in legislating for the United Kingdom's smooth withdrawal from the European Union. We know that there has been several months of negotiations between the UK Government and the Scottish Welsh Government and the Northern Irish Executive on this issue for ever since last summer, and we also know that there is another round of that negotiation today when the First Minister meets the Prime Minister in London this afternoon. We know that those negotiations have made significant and substantial progress. We know that the United Kingdom Government has now tabled an amendment to clause 11 of the withdrawal bill, which goes some very considerable distance towards satisfying the requirements of the Scottish Welsh Government and satisfying the requirements of the finance and constitution committee's recommendations in its interim report. It doesn't go all of the way. The deal is not yet done, but progress has been significant. Progress at the same time has been significant in what others have coined. This is not a phrase I particularly like, but others have coined the deep dive, the examination of the issues where there is going to be the need for some sort of legislative or non-legislative common framework across Great Britain or across the whole of the United Kingdom to ensure that powers that are exercised by Governments at all levels, including ministers of the Crown, are not exercised in a manner that is inconsistent either with the constitutional arrangements of the United Kingdom, of the devolved United Kingdom, or with the imperative that the integrity of the United Kingdom's domestic market is not unduly disrupted by the Brexit process. In all of that, there has been very significant agreement right across the political parties represented in this Chamber. There has been very significant agreement between the Scottish Conservatives and the Scottish Government. There are a number of issues raised in the letter to all MSPs written by the Minister, Mr Russell, two days ago, on 12 March, with which we continue to agree and indeed welcome. For example, Mr Russell says that the Scottish Government has consistently made clear that we are not opposed to common frameworks where those are in the best interests of Scotland and are ready to work with the UK Government to agree where those may be required. I unambiguously welcome that. I thank Mr Russell for saying it. He said it many times. I think that it's very welcome that the Scottish Government has recognised throughout this entire process that there is a need for UK common frameworks. At the same time, Mr Russell says in his letter that one of the challenges with the amendment that has been tabled in the House of Lords in the Government's name to clause 11 of the withdrawal bill is that it does not specify or seek to specify the areas with regard to which there is going to be a need to ensure that repatriated powers are not the only ones that are needed. It is not exercised in a manner that could threaten the integrity of the United Kingdom's domestic market. It has always been my view that it would be in the interests of both Governments and the interests of the UK for the withdrawal bill to specify the areas where there is likely to be a need for a common framework. I have always been of the view, and I continue to be of the view that it would be in the public interest. It would be in all of our interests for that to be not just on the record, which it now is, thanks to the disclosures last week from the Cabinet Office, but on the face of primary legislation. That is what my amendments in this group seek to do. They seek to do in its sense to cut through, and I hope—we are very interested to see what the Minister has to say about this in due course—to cut through and I hope to solve the current impasse, as I understand it, between the UK Government and the Scottish Government on the consult-slash-consent issue. The force of my amendments says that there are a number of protected areas—that is my language, it is not UK Government language, it might be language—that the Minister has a number of objections to, we shall see. For want of a better form of words, a number of protected areas, that is to say areas where it would be irresponsible to exercise repatriated powers in a manner that would risk undermining, threatening or jeopardising the integrity of the UK's domestic market. Where we are talking about the exercise of power in one of those protected fields, there is a requirement to act consistently with a common framework. The Minister in the debate that we had in the chamber yesterday afternoon made great play of the fact that I said that common frameworks need to be agreed, not imposed. Those are not my words, convener. Those are the words of the Secretary of State for Scotland. That is the view of the United Kingdom Government. That is evidence that the Secretary of State of Scotland, Secretary of State for Scotland gave to the Scottish Affairs Committee in the House of Commons last year and repeated to the Finance and Constitution Committee here a few weeks after he said it in the House of Commons. It is the position of the Secretary of State that common frameworks need to be agreed, not imposed. Again, that is reflected in the force of my amendments now. I recognise that my amendments are deficient, which is why I'm not going to press them to a vote today. I'm going to revisit them and hope to bring them back at stage three. The reason why they are deficient is because they were drafted before the Cabinet Office published the list of powers that sit in the various buckets. There is one bucket of powers where there is no problem in immediate devolution. There is another bucket of powers where there is a requirement in the Cabinet Office's view for some sort of non-legislative framework. Then there is a third bucket where there is a requirement in the Cabinet Office's view for a legislative framework. We don't yet know how much disagreement there is between the UK Government on the one hand and the devolved Administrations on the other about which powers sit in which buckets, because we've only had publication and transparency from one side of that argument so far. Perhaps the minister might want to reflect on that in a few moments, but clearly the list of protected fields that we put into this legislation, if that is indeed the direction of travel that we embark upon, will need to reflect that agreement, if there is agreement, between the UK Government on the one hand and the devolved Administrations on the other about which powers sit in which buckets. In other words, which are the protected fields, which are the areas where it is important in the interests of the continuing integrity of the United Kingdom's domestic market that repatriated powers are not used in a manner that seeks inadvertently or indeed deliberately to undermine, jeopardise or threaten the integrity of the UK's domestic market. The best place in my view, and I think that the minister and I may be in agreement, I don't know, the best place in my view for this sort of provision to appear would be in the withdrawal bill. I'm not sure that they sit, these provisions sit perfectly in either section 11 or in section 13 of this bill, but as I said, these are designed convener to be probing amendments to test the extent to which the Scottish Government thinks at the moment, and I recognise that this is fluid, but to test the extent to which the Scottish Government, and indeed other members of the Finance and Constitution Committee who may have a view about this, given that we wrote about it extensively in our interim report only a few weeks ago, have to say about whether this is the sort of solution that might work either in this legislation or in the withdrawal bill to square that circle between recognising the demands of the devolution settlement on the one hand, but also recognising that repatriated powers are not needed. Those repatriated powers may not be used in a manner, but inadvertently or deliberately seeks to undermine or threaten the integrity of the UK's domestic market. I know that you might not be pressuring them, but can I ask you to move at this stage? In which case, Jamie Greene to speak to amendment 148 and other amendments in the group. My comments will follow on very nicely from the salient points made by Adam Tomkins on his views on this section and his own amendments. The principal rationale and tone behind the narrative of our amendments in this grouping is that nothing in this bill should undermine the structures of the United Kingdom or the United Kingdom's internal market. That is what our amendments seek to achieve. My amendments 148 and 154, which are similarly worded, therefore I will cover them together. This all refers to section 13 of the bill. Section 13 is an interesting one, because subsection 1 effectively, in my interpretation of it, gives Scottish ministers the power to subjectively cherry pick after the UK leaves the European Union, which EU decisions, regulations, legislation or directives, it would like to make by regulation provisions for. The minister is welcome to comment in his own summary if he thinks otherwise. Subsection 2 then goes on to say that it may omit any EU directive or regulation which has no practical application in Scotland, but unfortunately fails to define who decides whether or not EU subordinate legislation has any practical implication in Scotland. It is also worth bearing in mind that the wording of section 13, as it currently stands, is that all this will take place after the UK leaves the EU. Now, when I questioned Tobias Lock in the Qualities and Human Rights Committee last week on this very issue and asked him about this practice, my understanding is that he thought that no non-EU country proactively incorporates EU legislation, regulation or directives into their domestic law. Now, there may be sensible reasons why the Scottish Government may want to do this, but it is certainly an unprecedented practice, in my view. Now, as we know, the UK Government is engaged in many and quite complex negotiations with the European Union, which will have an impact on all nations of the UK for many years to come. It is imperative that we as a Parliament do not allow clauses to be passed in this bill that could be used to undermine the UK Government in the negotiations with the EU. Now, this bill, if passed, will apply not just after exit day, but will also be live during any potential transitional period. Now, I accept that the Scottish Government may wish to hold back in regulating in specific devolved retain areas until after the deal with the European Union is finalised, and it should be allowed to do so where necessary. However, if there is a requirement for a trade deal, if there is a requirement for common frameworks, it is entirely possible that this clause, as it is currently worded, will allow the Scottish Government to make regulations that would inhibit the UK Government to do those trade deals and to create those common frameworks. Perhaps the minister could clarify also in his comments what his intention of section 13 is in relation to the adoption of EU subordinate legislation after the UK has left the European Union. What is the intention behind it and what does he seek to achieve or benefit from it? Those are my only comments on my amendments and I move 1 for 8 and 1 for 5 for 4. I know that Adam Tomkins has indicated that he is not going to move those amendments and that they are probing amendments in the sense that he is using the exercise to test the arguments and test the views of other members of the committee. I would say that, particularly in relation to amendment 120, which gives consent to UK ministers to basically withhold consent, that undermines the devolution settlement. I agree with the principle of UK-wide frameworks, however, they have to be set up on a consensual basis. I do not think that this legislation should be enshrining in it a principle that gives consent to UK ministers. I would hope that Mr Tomkins would bear that in mind in bringing back any amendments to stage 3 in this group. James Kelly, I recognise that Adam Tomkins does not intend to press those amendments to the vote, but it is just worth reflecting that it seems to me in his remarks that what is implicit throughout is the assumption that the way to achieve common frameworks is around where power is placed, where authority and the ability to make law is placed between the two Governments. The way to achieve common frameworks, in effect, is to bind the hands of this Parliament and this Government. That is not the way to achieve common frameworks, that is the way to achieve imposed frameworks. What we need is not simply the warm words in a statement from the current incumbent Secretary of State for Scotland. What we need is for the law to be clear that common frameworks are going to be the emergent result of action in multiple jurisdictions. One of the first pieces of legislation that I was involved in as a committee member when I was elected here was on charity law. Both parliaments were legislating on charity law at about the same time because it was recognised that this is something that requires to operate across these islands, across the UK or at least across GB, where many charities operate in multiple legal jurisdictions and have the same identity. We did not want to create barriers that would make that impossible. That did not require one Parliament to legislate for everybody. It required co-operation and co-ordination. The result was not language that we used the term common frameworks at the time but, effectively, that is what it was. That is the way that we should be looking to achieve common frameworks where they are necessary. I just want to make a brief remark about Jamie Greene's amendments 1, 4, 8 and 1, 5, 4 and to commend Jamie Greene on his creativity on those amendments. The suggestion that we should pass amendments that effectively say that the Scottish Parliament and Scottish Government can have any policy we like as long as it is Tory policy, any Brexit we like as long as it is the hardest of Tory Brexit would be extraordinary. The UK Government had to produce an entire bill to achieve something that we all agreed was fundamentally incompatible with devolution. Jamie Greene has managed it in just three lines. It is clearly unsupportable but, as a work of perverse art, it is impeccable. Well done. I am not seeing any other member wishing to speak from the committee at this stage, so minister. I find it difficult to follow that in terms of the summary of amendments 1, 4, 8 and 1, 5, 4. Let me deal with those first of all. I entirely agree with James Kelly and his overview about the undermining of the devolved settlement that some of those amendments would imply. However, I will come to Professor Tomkin's subtle amendments shortly because I do want to treat them very seriously. However, I think that Patrick Harvie's example of the charity law legislation is very good. It is one that I tell him quite frankly that I shall use again because I think that it illustrates absolutely clearly how there are different dispensations and those different dispensations work. Let me deal with Jamie Greene's amendment. It would require the Scottish Government, essentially, to sit on its hands until it was told things by the UK Government and then it would act and then it would discover that the UK Government had changed its mind. It is not even binding this process to something that we know or understand. It is binding it to UK Government policy, which even a sympathetic observer would indicate that it does change from time to time without being told, and anybody else being told, but it would also bind us to, and I quote, the negotiating lines of the UK Government in their negotiations. The UK Government has repeatedly said that it does not intend to publicise its negotiating lines. This would bind us to a secret protocol that we do not know, which we could not find out, but we would have to observe at all times. That is, frankly, and with the greatest of respect, convener, nonsense. Both of those amendments are nonsensical and should not detain us. Let me, however, go to Professor Tomkins, very subtle amendments. They are, I think, a clever attempt to probe what the position of the Scottish and Welsh Governments are in some matters. I would use the word sophistry as a compliment to Professor Tomkins in this, because I think that they are well thought through. I have to say that Professor Tomkins' description of why the present situation lies in terms of buckets of powers is defective in a key regard. It is defective because there is no lid on those buckets. There is nothing that says that we have put those things in those buckets. We can now agree those buckets and move on. One of the key issues in here is that the UK Government could put other things in those buckets at any time without any consultation and we would simply have to accept it. It could fill the bucket to the brim of all the powers that the Scottish Parliament has and there is nothing that we could do about it. It is not the issue of what is in those buckets. That is a matter for discussion and negotiation. Indeed, Professor Tomkins' amendment 1 to 1 already includes things that have been moved to other buckets without consultation, but it is an issue of the powers of the Parliament and the devolved settlement, as Mr Kelly has indicated, and respecting that devolved settlement as it operates. I agreed not imposed was what Professor Tomkins said yesterday. He now says that those were not his words, but the words of the Secretary of State accept that. They are both his words and the words of the Secretary of State. They are not yet the words of the UK Government and that is the problem. It is a problem, first of all, that the Secretary of State, who is a Minister of the UK Government, is using them, but the UK Government is not using them. It is a problem because the amendment that is presented to the House of Lords this week is not based on agreement. It is based on imposition. Until that changes, there cannot be an agreement. To give Professor Tomkins some credit, I think that there are elements in this that would help in the negotiating process. The elements would certainly include the fact that ministers of the Crown would not act where the Scottish Government and the Scottish Parliament had the clear competence and was acting in that competence and that any actions would have to be by agreement. I find those useful. I am very happy if Professor Tomkins does not move them, then we can have a discussion later on. I do think that it would be better to have them in a withdrawal bill than in other legislation, but I am happy to discuss that. To return to Jamie Greene, as the negotiating lines of the UK Government are in a sealed box, I am not prepared to set policy on the basis of something that somebody else has put in a sealed box or in a bucket. I would like to thank all the members who have contributed to the debate in this group, particularly the Minister for his reflections on my amendments, although I am not sure that I am going to take Sophistry as the compliment that he perhaps intended. I would like to respond first to what James Kelly said. I am sure that this is my fault, but perhaps I was unclear in what I said introducing the amendments. There is no sense, convener, in which the amendments in my name in this group undermine the devolution settlement, which are the words that James Kelly used. The consent of the Minister of the Crown in amendment 120 is required in order to safeguard the integrity of the United Kingdom. I would have thought that James Kelly, as a member of the Labour Party, would have understood, not just understood but would have supported that rather than criticised it. It is the responsibility of ministers of the Crown. It is the responsibility of the United Kingdom Government of whatever political colour to safeguard and protect the integrity of the United Kingdom. That does not mean that there is in any sense any kind of imposition here by UK ministers on devolved administrations. In amendment 122 it says, if there is a way of making this clearer then advise me. To my mind, perfectly clearly, a United Kingdom common framework has been agreed between the devolved administrations and the United Kingdom Government. Ministers of the Crown may not exercise their powers where there has been an agreed common framework. I do not know what is so baffling or confusing or bewildering to Mr Harvey or even more concerningly to Mr Kelly about the use of that word agreement. I do not know how it could be made clearer, but if you can advise me, Mr Kelly or Mr Harvey, about how it could be made clearer then I am happy to take that advice. I hear what the minister has to say about the moveable feasts that we see in the buckets. I think that that is a well made point and I will reflect on that between now and stage 3 perhaps in consultation with him and his officials. I do think that within the scheme that is sketched in these amendments there is a possible solution to the current impasse between the devolved administrations on the one hand and the United Kingdom Government on the other about the way in which Brexit is legislated for in a manner that is completely coherent, that respects the integrity of the United Kingdom and also respects in all its particulars the devolution settlement. I am very happy to continue conversations publicly or privately with UK ministers or Scottish ministers or anybody else to see if we can broker that deal, which would be completely consistent with everything that the finance committee said in its interim report a few weeks ago. I seek to withdraw amendment 120. I seek to withdraw that. Can I ask any other member present if they object to the amendments being withdrawn? No member objects. Ym 122 yn introduction bach iddyn Nadong Tomkins ydy'r dd개u fath gwrdd y relevant yearly yei. That is implementing a new portfolio in Israel, but all of our employees have created a new portfolio in Israel. That is making it possible foronyemp cheapest肉 nat�� to make it even cheaper at the label that we have $1500 a month. It is yet to be in the European Union, and therefore when they came together and controled, what I mean by doingки Fy oedduodd, M評 iddynionfyr, cymdrifiadau'r rhaglen, c rhagle, mewn ertwerd plumeau cyfas Arrow, rhoi'r cyff œr mlynau ddaціau. 5. Fy hi weithiwch gofyniaethau ar frech hangar, Angherddo, Rwyacell� a Llandhau Armagor? A call amendment 11, in the name of Tavish Scott, already debated with amendment 115, Tavish Scott to move or not move. The question is that amendment 11 we agreed or we all agreed, and there will be a division in that case. The question 11 would be agreed or not agreed. All those in favour, please raise their hand. All those against, please raise their hand. A call amendment 12, in the name of Tavish Scott, already debated with amendment 115, Tavish Scott to move or not move. The question is that amendment 12 we agreed or we all agreed, and there will be a division. All those in favour, please raise their hand. A call amendment 12, in the name of Tavish Scott, already debated with amendment 115, agreed to. A call amendment 13, in the name of Tavish Scott, already debated with amendment 115, Tavish Scott to move or not move. The question is that amendment 13 we agreed or we all agreed, and there will be a division. All those in favour, please raise their hands. All those against, please raise their hands. A call amendment 13, in the name of Neal Ffiffford, in the name of Neil Findlay, already debated with amendment 115, James Kelly to move or not move. The question is that amendment 14 be agreed or we all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 14, there were six votes. Four, five against, that means that the amendment is therefore agreed to. A call amendment 15, in the name of Tavish Scott, already debated with amendment 115, Tavish Scott to move or not move. The question is that amendment 15 be agreed or we all agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 15, there were six votes. Four, five against, that means that the amendment is therefore agreed to. A call amendment 16, in the name of Tavish Scott, already debated with amendment 115, Tavish Scott to move or not move. The question is that amendment 16 be agreed or we all agreed. I now call amendment 125, in the name of Dean Lockhart, grouped with other amendments as shown in the groupings. Members will note from the groupings that there are a number of pre-emptions in this group. I remind members of the pre-emptions when I call the relevant amendment. Dean Lockhart to move amendment 125 and speak to all amendments in the group. Thank you, convener. I have tabled four amendments in this grouping, amendments 125, 131, 139 and 160. I will deal with amendments 125, 139 and 160 together, because those amendments operate in a similar fashion. Those amendments relate to the wide-ranging powers conferred on Scottish ministers to make regulations without the approval of the Scottish Parliament under section 111, section 121 and section 131. As currently drafted, the bill provides that those regulatory powers conferred on ministers may be used to make any kind of provision that could be made by an act of the Scottish Parliament. The relevant provisions are to be found in sections 11, 5, 12, 2 and 133. Again, evidence received from experts on the draft legislation has highlighted a number of concerns surrounding those wide-ranging powers to be conferred on ministers. In evidence given to the Culture, Tourism, Europe and External Relations Committee last week, Professor Nicola McHugh highlighted concerns about those powers as follows. I would be concerned at the extent to which this section affords ministerial powers rather than legislative powers or appropriate scrutiny by Parliament. It is appropriate for those to be explored with proper scrutiny and consultation. In addition, the Law Society of Scotland has called for clarity in relation to the scope and application of the wide-ranging powers conferred on Scottish ministers to make regulations under section 111, 121 and section 131. Other evidence received from constitutional experts, Professor Allan Page, has highlighted concerns that Scottish ministers will be taking powers to implement EU instruments over which the Scottish Parliament will have had no say, a potentially major surrender, in his words, by the Parliament of its legislative competence and one that, under the bill, has introduced, may be extended indefinitely. There is concern that, although many of the detailed provisions of sections 11, 12 and 13 seek to limit the scope and operation of those ministerial powers—for example, sections 11, 8, 12, 3 and section 135 set out examples of what those regulations cannot cover—a proverbial coach and horse is then driven through those limitations by the overriding provisions of sections 11, 5, 12, 2 and 13, 3, which contradict those limitations by declaring that the ministerial powers may be used to make any kind of provision that could be made by an act of the Scottish Parliament. Those are indeed special powers, as described by the minister earlier. To address concerns expressed by the Law Society of Scotland and other experts, and to resolve legal uncertainty surrounding potentially conflicting provisions of those sections, my amendments 1, 2, 5, 1, 3, 9 and 1, 6, 0 seek to provide clarity on the operation of sections 11, 12, 1 and 31 by deleting the overriding provision that those ministerial regulations may be used to make any kind of provision that could be made by an act of the Scottish Parliament. Deleting that overriding provision not only provides legal certainty, but it clearly upholds the proper role of this Parliament. Let me make it clear that this amendment does not stop the Scottish Government from setting out in more detail in the legislation more specific detail what those ministerial powers can and cannot cover as some of the provisions in sections 11, 12 and 13 already attempt to do. Moving on to amendment 1, 3, 1 in my name, that provides for additional protections where ministers exercise their powers under section 11, 1 and 11, 9. Section 11, 9 is currently drafted, provides that ministers may issue regulations that remove or modify illegal protection in certain circumstances, including under paragraph 11, 8D, removing any protection relating to the independence of judicial decision making or decision making of a judicial nature by a person occupying a judicial office or otherwise make provision inconsistent with the duty in section 1 of the Judiciary and Courts, Scotland Act 2008, guarantee of the continued independence of the judiciary, and in section 11, 8 sub-paragraph I, modify the Equality Act 2006 or the Equality Act 2010. The ministers may only remove those protections or make the modification specified if under section 11, 9 alternative provision is made in ministerial regulations that is broadly equivalent to the protection being removed or other provision being modified. The impact of my amendment 1, 3, 1 is to add additional safeguards in those events, in the event that ministerial power is exercised to remove or modify protections, and my amendment provides that any protection can only be removed or modification made by ministers if provision is also given to an additional level of protection in law, no less than the protection being removed and the provision being modified. I would hope that amendment 2 is not considered controversial. As the additional wording is aimed at ensuring ministerial regulations do not have the unintended consequence of removing protections already in place under law, and I will talk to the other amendments in my winding up. Thank you. Tavish Scott to speak to amendment 17 and other amendments in the group. I am grateful, convener. This follows the remarks that I made in the stage 2 debate yesterday in relation to the scope of the powers in the bill. I do not want to see new quangos created by regulation, nor do I want to see new criminal offences created by regulation. If ministers have need for those elements, they should bring forward normal primary legislation to allow Parliament to offer scrutiny, amendment and detailed consideration. Amendment 17 and amendment 24 prevent the creation of a new public body through these regulations. Amendment 26 adds the creation of new quangos on to the list of things that cannot be done by this section. Amendment 26 transfers the creation of new quangos from the permitted list to the forbidden list under these regulations. If ministers have need to establish a new quango to keep pace with European Union law for the next 15 years, they will need to bring forward primary legislation so that Parliament can decide if the new body is required and whether its functions can be dealt with by existing bodies. Now, normal parliamentary procedures would allow that kind of detailed consideration. I'm concerned that where we not to have that, that kind of detailed consideration may not happen. Amendments 18 and 23 prevent the creation of new criminal offences through these regulations. At the moment, as I understand it and as I can read it, the bill prevents the creation of a relevant criminal offence. This is defined later as an offence for which those guilty can be sentenced for up to two years in prison. Now, that does seem a very significant power to put forward through regulation with no chance of amendment by this Parliament. Deleting the word relevant will mean that all new criminal offences have to be established by primary legislation, and that is surely the purpose of this place. Amendment 19 adds an additional test to the permissibility of regulation. It proposes that regulations must not increase legislative burdens on businesses or indeed individuals. If ministers have need or wish to increase the burdens, they should do that through primary legislation, publish a bill, hear evidence from those affected and allow members of this Parliament to provide amendments to mitigate the burdens as they see fit. That cannot be done through regulations, so this additional test should be added to the bill. On that basis, convener, I wish to move 17. Jamie Greene to speak to amendment 126 and other amendments in the group. Thank you, convener. I'll speak to amendments 126 first of all and then 142 separately. The existing wording of section 11 subsection 6 allows for the establishment of a Scottish public authority to carry out functions under any new regulation that is introduced. My amendment is designed to be helpful to Scottish ministers in that respect. In addition to the creation of a Scottish public authority, which I believe is the premise of subsection 6b, my additional wording will also allow the minister the ability to amend the object and purpose of a public authority to enable it to carry out its functions as any additional functions are put upon it under subsection 1. I hope that the minister welcomes that ability. It is worth pointing out that there are some drawbacks and the potential consequences of expanding or introducing new agencies in Scotland to deal with any new regulations as they are brought in. That is a point that is quite eloquently made by Tavish Scott around the set-up of new quangos, etc. My concern is that not only may we be overloading our public authorities by having them to carry out functions that are currently exercised in Brussels, it is unlikely that without quite significant adaptations in the workforce infrastructure and financial backing, current agencies in their existing forms may struggle to deal with those, especially those EU laws that are transposed into our system. In evidence section Dr Kirsty Hughes, the director of the Scottish Centre in European Relations, made this pertinent point in evidence last week. To give you an example, I think that anyone who has ever been to Brussels will comprehend my anxiety around the sort of support infrastructure that is required to deal with the just the level and quantities of EU law that we may have to bring over. If you look at an example of the DG agriculture and rural development, which is pertinent to my rural economy committee, that is comprised of 10 sub-directorates. Each of those sub-directorates has 48 units below them, each one of those units has a head of unit, each one of those units has two deputies, the three deputy director generals, two assistants to the director general and the director general, and that's just the management level. I'm not saying that all of this will be necessary in Scotland given that these DGs manage 28 member states, but certainly much of this and much of the functions of these agencies will need to be carried out in the Scottish civil service. My amendment allows for not just the additional creation of new public authorities but allows us instead perhaps to amend existing public authorities to enable to carry out functions regarding devolved retained EU law. We will discuss later in other amendments the consequences of this financially, so I'll leave that till later. Briefly on amendment 142, my understanding of this, and it jumped out at me when I read this bill, is that it's saying that regulations under this section, the section being section 12, complying with international obligations, point F says that under this section they may not be made to implement the UK withdrawal agreement. Those words jumped out at me, it's entirely unclear what the consequence of that may be. I would implore the minister that he could explain to us what the intention of this is. If there is no need to implement the UK withdrawal agreement, what is the rationale behind that and what is the potential consequence of that? It seems to fly in the face of the previous points on this, where the Scottish ministers may by regulation bring in provisions to deal with breaches of international obligations as they see fit of the UK's withdrawal of the EU. I made previous comments on my reservations around that anyway, but I think that that specific line was entirely unclear why it was in there and I propose to remove it. I'll await the feedback from the minister before deciding whether to move that amendment to remove that line 14. Liam Kerr, to speak to amendment 130 and other amendments in the group. Thank you, convener. Do you wish me to speak to amendment 129 in the name of Graham Simpson? Yes. Given that you're speaking to other amendments in the group and that Graham Simpson is not here, please feel free to do so. Thank you, convener. Therefore, I will speak to amendment 129 in the name of Graham Simpson first and will move it on his behalf, but I'm grateful to the convener for allowing me that opportunity. That crucial amendment 129 would reduce the minister's rights to change legislation relating to the independence of the judiciary and in relation to the Equality Act. Section 111 allows that where ministers consider that there is a deficiency, they may make regulations as they consider appropriate. Section 118 provides limits on those powers. Section 119, as drafted, states that the section 118 limits on making regulations affecting the independence of the judiciary or the Equality Act can be waived, providing that broadly equivalent provisions are put in their place. I shall revisit that issue, the broadly equivalent in my amendment 130 shortly. Section 1 of the Judiciary and Courts Scotland Act 2008, referenced in 118d, guarantees the independence of the Supreme Court and Scottish and international courts from interference by MSPs or the Lord Advocate. The Equality Act of 2010 and its precursor 2006 act, referenced in 118i, bring together earlier provisions to counter discrimination. Dealing with that second act first, section 119, in relating to 118i, states that an alternative provision can be made for modifications under the Equality Act, yet I am concerned that it is not within the Scottish Parliament's power to modify what is UK legislation. Thus, the provision of 119 by implication risks representing a serious overstatement of the Scottish Parliament's power, and for that reason it must be removed. Furthermore, it is highly inappropriate that any mechanism should exist for ministers to legislate without the consent of the Scottish Parliament in any area that would affect section 1 of the judiciary and courts Scotland Act 2008. That seems to be the practical impact of this section. I cannot understand why the areas set out in section 118 should all be completely protected save in regard to those two. That makes me suspicious. We have heard members' concerns about a power grab by the executive by seeking to do things where ministers feel it appropriate and seeking to create and harness new derogations and abilities to themselves. Amendment 129 is crucial in ensuring that ministers cannot change legislation relating to the independence of the judiciary and the equality act. Moving on to amendment 130 in section 11, where I have suggested leaving out the word broadly, that raises similar concerns to those made by Dean Lockhart in relation to his amendment 131. That subsection is very important. It effectively gives ministers the right to make changes to things that relate to the independence of the judiciary and to modify the equality act. That right has to be specific. Those areas of law are far too important to be tampering with. As drafted, the subsection means that ministers can make changes relating to the independence of the judiciary or the equality act if the regulations that they are bringing in are broadly equivalent to that being removed or changed. What does that mean? We just do not know. However, broadly equivalent is vague enough that the new protection for the independence of the judiciary, or for example the new definition of equality, could be lower than the existing protection. That is not acceptable on any analysis and must not be countenanced. It should either be equivalent or should not be allowed. By removing the word broadly, we make it clear that if ministers want to change those very important areas, it has to be at the level of the existing protection or provision, not less. Anticipating the minister again, which I am keen to do, I believe that the term broadly equivalent is most often used in the context of compatible trade and standards regimes, for example packaging. The application is surely different in a legislative context, particularly one of this magnitude. The wording of this section clearly has not been sufficiently tightly worded, and for safety, the word broadly should be removed and amendment 130 be agreed to. Murdo Fraser, to speak to amendment 144 and other amendments in the group. Thank you, convener. I would like to speak to amendment 144, and I will comment briefly on some of the other amendments in the group. Amendment 144 seeks to delete subsection 4 in section 12 of the bill. In effect, amendment 144 is a probing amendment, because I am not entirely clear what is in the mind of ministers in relation to this particular subsection. I would like to understand more fully from the minister what his intention is, and I will decide once I have heard from him whether or not I would intend to press this to a vote. The background to this is that section 12 sets out the right to make regulations to meet international obligations. Subsection 3 sets out exceptions to that, saying that regulations may not impose taxes, make retrospective provision, or create criminal offences and so on. Subsection 3D says that the right to make regulations cannot remove any protection of independence of the judiciary, and subsection 3I says that the right to make regulations cannot modify the Equality Act 2006 or the Equality Act 2010. What subsection 4 does is add a qualification to those exceptions. The purpose of this amendment is to check whether that qualification is necessary. Subsection 4 says that the regulations can be made that would remove protection from the judiciary, and that they can be made that would modify the Equality Act if, and I quote, alternative provision is made in the regulations that is broadly equivalent to the protection being removed or the provision being modified. That raises a number of questions, and I feel that I might be echoing Liam Kerr here, but I'm wondering what the term broadly equivalent is meant to mean and what is alternative provision, and why would the Government seek to have these powers? What does the Government intend to do with these particular measures? The issues at stake in relation to this subsection, independence of the judiciary, equality acts that govern so many rules, are very important and substantial matters of public law, and that is an area that requires further discussion. The amendment as drafted would remove subsection 4 altogether. The effect would be that, in relation to section 12, ministers would still have the right to regulation and, as per subsection 3, there are qualifications to that, but there is no further qualification to the qualification with vague definitions of further changes. An alternative approach would be to clarify by setting out what equivalence means or what alternative provision means, but that clearly requires an answer to the basic question. Why does the Government feel that it needs the ability to make changes to the law in these very important and sensitive areas? I look forward to hearing from the minister when he's responding as to what the rationale is behind subsection 4. At that point, I'll decide whether or not to put this to a vote. Just to comment briefly on the other amendments in this group, I would support all the amendments that are being proposed. I think that the amendments' name of Tavish Scott are particularly important. I thought that, in moving his amendment, Tavish Scott made some very important points about the very significant matters in which ministers are seeking to take power to make law by regulation rather than doing that by primary legislation. We've had a lot of rhetoric around this bill in terms of a power grab. I think that the most egregious example of a power grab that we've found so far is what is contained in section 11, in which ministers are seeking to take power from Parliament in a whole range of areas, and that is why I would be keen to support Tavish Scott's amendments. Gordon Lindhurst, to speak to amendment 145, another amendment in the group. Thank you, convener. My amendment 145 makes a simple but significant amendment to section 12, and I now move it. Section 12 is, of course, a section empowering Scottish ministers to make such provision as they consider appropriate by regulations where they consider that there is or would be a breach of international obligations arising from withdrawal and that it is necessary to make provision to prevent or remedy the breach. The section is premised on something that is almost entirely subjective in the consideration of the Scottish ministers and in their minds. I make reference in passing without going into what is said in the Law Society of Scotland's comments, both on section 12 and about legal certainty. Bearing all of that in mind, I turn now to my amendment, and it is to subsection 4, which itself restricts protections intended to be provided in subsection 3 against the exercise of the powers given to the Scottish ministers in section 12. The restriction of subsection 4 is, of course, limited to the provisions of subsection 3d and 3i, but it allows removal of a protection if alternative provision is made in the regulations that is broadly equivalent to the protection being removed and so on. That is not good enough. The word broadly should be left out for very good reason. It adds to the uncertainty of the provision. Why not have, as my amendment proposes, equivalent provision for the protection of rights? Now, the committee has heard with interest my colleague Liam Kerr's Oxford definitions, and I hope that the committee will not be disappointed with my more broad brush approach to the word broadly. A simple definition of it is, in general and without considering minor details or widely and openly. In other words, use of the word broadly provides, in the context that we are speaking about, no definition at all. When that relates to removal of protection and interference with rights, it is imperative that the section be clarified to provide actual equivalence. That is a word that is clear. My amendment is in accordance with, in particular, amendments 130 and 131, which I commend to the committee. Yesterday, the minister said that the act has to work within its own terms. Who could disagree with such a proposition? It might indeed be called a legal tautologism. Indeed, he also commented on littering the statute book with unnecessary provisions, but now is not the time or place to comment on the Scottish Government's legislative programme. However, if the minister were serious about statutory litter, he would simply withdraw the bill. That would be the ultimate tidying-up exercise here. A lighter alternative deletes subsection 4, as Murdo Fraser has posited, but failing that, minister, the least that the minister could do is to agree to leave the humble word broadly out of it. As with other groupings, we understand that the Scottish Government must have new powers to manage a period of transition into or absorb EU law into Scotland's law. However, as we said previously, those powers must be proportionate and must be balanced. Although I may not support a number of amendments from Conservative members in this group, there are some that could potentially help to achieve that balance. I will support amendment 130, for example, when the name of Liam Kerr removes the word broadly from a reference in section 11, page 9, to equivalence of regulations. That is an instance where the bill benefits from more precise language. I will also support Tavish Scott's amendments in this group. I share his reservations about the creation of a new public body or a new criminal offence through regulation making powers arising from the bill. Amendment 26 would specifically forbid the creation of a new congo under the regulation making powers. In our judgment, the Tavish Scott's amendments are fair, proportionate amendments, and I will support them this morning. I will make a few comments about the amendments that I am drawn toward and ignore the others for the moment. I hope that the minister will have a chance to respond. First of all, in relation to amendment 145 and 130, both of which seek to remove the word broadly, and 131, which adds an additional caveat to the first removal of the word broadly. I do see some merit in that. I know that Gordon Lindhurst tells us that he sees that as legislative decluttering. I can tell him that I have a number of anarchist friends who think that the world is far too cluttered with legislation in general. Perhaps, unlike last night, he might want to explore that a little further. I promise that they do not have any whiff about them at all. However, I do think that it would be good to hear the minister explain why he feels that removing those, if he does, would be inappropriate. It seems to me that they give some clarity, and in particular the addition in amendment 131, which ensures no less than the protection being removed. In relation to—I think that there are two amendments that address the word relevant in relation to criminal offences. I think that that is 23 and 25. It may be my fault, but I cannot see where that term relevant is defined in the context of those parts. It would be helpful if the minister could tell me what is meant by relevant criminal offences and why it is necessary to restrict it in those areas. In relation to public bodies, I see some strong argument for restricting the power to create new public bodies, particularly in light of Jamie Greene's amendment. Jamie Greene is quite capable of turning his legislative creative powers to constructive use rather than destructive. The additional power to amend by regulation the object and purpose of a public authority may allow ministers to take a new function that needs to be newly exercised in the devolved landscape and give it to an existing body without undermining its current functions. That would potentially remove the need to create new bodies. If the minister can give some clear examples of why there might be a need for the Scottish Government to propose the creation of a new body in this way without primary legislation but by regulations, I would like to hear that. It seems to me that there is some good argument for requiring them to bring primary legislation if they want to make the case for a new body, but if the minister wants to tell us why that would be necessary and in what circumstances he thinks it would be necessary to do it by regulations, I would be interested in hearing it. I think that those are the only amendments that I wanted to mention. The Deputy First Minister and Cabinet Secretary for Education and Skills Thank you very much, convener. Once again, we are in a key section of the bill that we are dealing with at the moment and will go on to deal with the next two sections, deal with the scrutiny and with the restraint on ministerial power. Therefore, I will be indicating the acceptance of certain amendments during my comments. Again, not all of them, because not all of them can be accepted for a variety of reasons that I will give. However, can I just preface this by saying that no one would be in any doubt that the Scottish Government is opposed to Brexit, nobody would be in any doubt that I am opposed to Brexit? In normal circumstances, the Scottish Government would not have sought powers of this breadth, but we are not in those circumstances. These are necessary in many cases because of the circumstances in which we find ourselves. Indeed, they are the only way in which we can properly prepare our devolved laws in the time that we have for the shock and disruption of a Brexit that is being forced upon us. We have always recognised that, with no desire to take powers any broader than is needed, and that is why we are also very flexible in this process, listening to people's concerns, trying to go further. I will indicate that in a moment. Let me set out briefly the changes that we have already made in the continuity bill compared with the UK withdrawal bill. We have introduced a test of necessity. We have set out additional limitations on the powers. We have provided an enhanced procedure for scrutiny of the most significant uses of those powers. I am also mindful of the votes that the committee has just had on clauses 11 to 15, indicating that the committee wants to go further. I understand that, and I will do everything in my power to help the committee to do that, but, again, where it can be done. We consider the steps that we have already taken and are taking to address legitimate concerns that are held by members across the chamber. I remind members that those broad powers are needed because of the scale of the task that is facing us. The EU law and the EU institutions are woven throughout our law. They have been there for almost half a century, and they are not easy to disentangle. Broad powers are also needed because of the sheer uncertainty involved in the UK's negotiations with the EU. Twenty months on from the referendum in June 2016, we are a little closer to knowing the details of the scenario in which the UK will leave the EU. Therefore, in many cases, what sorts of changes will need to be made by laws and by when are still very cloudy indeed. That uncertainty is not of our making, but I want to do all that I can to balance that with the absolutely legitimate desire to make sure that there is as strong as possible appropriate and necessary scrutiny and ministerial restraint. Let me speak to each amendment in the group. Dean Lockhart's amendments 125, 139 and 160 appear to be aimed at limiting the scope of what can be done using sections 11, 12 and 13. I cannot therefore support those amendments largely because of their wording. There is no clear category of things that require to be done in an act of the Scottish Parliament, and those are the words of his amendment. Sections 11, 12 and 13 are drawn to set out exactly what the power is and the limits that apply. Those amendments might raise interesting questions for the courts, but we do not feel that such questions are necessary and would limit what is actually possible to do. Tavish Scots amendments 17 would prevent the fixing powers from being used to establish new public authorities, and Tavish Scots amendments 24 and 26 would prevent the keeping pace power from being used to establish a new public authority. The Scottish Government is content to accept that, while keeping pace with EU law requires the establishment of a public authority, that should only be capable of being done by way of primary legislation, and therefore I would suggest that the committee should pass 24 and 26. Amendment 126 in Jamie Greene goes in a rather odd direction. It appears to expand the powers of Scottish ministers, allowing the powers to be used to adjust the general purposes of a public authority. We actually do not think that that would be an appropriate use of the fixing power, and that is why we would reject this amendment. Amendments 18, 23 and 25 from Tavish Scots would see the powers restricted so that no criminal offence at all could be created using them. However, they are already restricted to the creation of relevant offences, which are offences punishable by two years or less by way of imprisonment. That is defined in section 27 of the bill. That is the same test as for the current powers to implement EU law. There is no change in that test. In many situations, establishing a suitable set of enforcement mechanisms in an area of EU law will require the creation of regulatory offences. The Scottish Government therefore would like the committee to reject those amendments. If we did not, then in many cases setting up enforcement mechanisms could only be done in a lengthy process of primary legislation. It would interfere with the purpose of the bill, and it is constrained by the existing powers in EU law. Amendment 19 would supplement the list of things that the powers cannot be used to do. It is similar to some amendments that are debated already. It would prevent the powers from being able, for example, to increase burdens on individuals and businesses. That is an entirely laudable aim, but the amendment misunderstands and undermines the nature of the powers conferred on Scottish ministers under sections 11 and 12 of the bill. Those powers are limited in the bill itself to being used where necessary to a particular aim. In section 11, for example, they can only be used where it is necessary to prevent, remedy or mitigate a failure or deficiency. Subsection 2 of section 11 sets out an exclusive exhaustive list of the types of deficiencies that are covered. Those are the only circumstances where that power could be used. If there is no deficiency caused by EU exit, it is not necessary to remedy it and therefore no power is available. Those powers are therefore not an opportunity to go through the body of EU law and make policy changes. They are solely about discharging our responsibility to make the changes required to keep that body of law operating sensibly. It is important to have that in the forefront of our minds. Those powers are not, as I say, an opportunity to go through the body of law and make changes. That might be desirable, but that is not what we are trying to do, nor could we do it. They are about discharging our responsibility to make the changes required to keep that body of law operating sensibly as it is or modified if there are failures of deficiencies but only if there are failures and deficiencies and to the extent that those failures and deficiencies are rectified. The Scottish ministers could never use those powers to make substantial policy changes, but the test amendment 19 would put in the bill would make the powers opaque and difficult to operate. Leaving the EU is going to be very complex. It is complex already. It may well be necessary to make some changes that are taken on their own could involve increasing a burden on an individual or business. That is regrettably the nature of the task and the restrictions that those amendments will place on the powers would be complex, imprecise and very difficult to apply. Therefore, while I understand the motivation, I would urge members to reject amendment 19. Amendments 129 and 144 from Graham Simpson and Murdo Fraser would remove the rule that allows a modification of a protection to take place in certain circumstances. As long as alternative provision broadly equivalent to that protection is made at the same time. Those provisions were drawn from protections in the public services reform Scotland Act 2010, and they are a sensible, flexible rule. We would not want to prejudge the exact form of any amendment that might have to take or exactly how it could be drafted. However, we do recognise in support the point made by Liam Kerr and Gordon Lindhurst in their amendments 130 and 145, which would remove the word broadly from the rule requiring any replacement protection to be exactly equivalent. I therefore recommend that members vote against amendments 129 and 144 but for amendments 130 and 145. If members vote for the two amendments to remove the word broadly, then voting for Dean Lockhart's amendment 131 becomes unnecessary. It would require any replacement protection to be no less than the protection modified, and this is better achieved by the amendments 130 and 145. Finally, Jamie Greene's amendment 142 would remove a limit currently on the section 12 power. The presently withdrawal agreement is exempted from the power. As I have explained to members, we did not take a corresponding power to clause 9 of the EU withdrawal bill, specifically empowering us to implement the terms of withdrawal agreement by subordinate legislation. I understand the point of Jamie Greene's amendment. On reflection, I can see, and no doubt he will be surprised by those words too, that it could be a valuable adjustment to the way the bill works. If the interaction between an existing international agreement and the withdrawal agreement was complex, we would not want to be prohibited from taking it into account in our use of the section 12 power. I am therefore content to support Jamie Greene's amendment 142. The minister again started his response on a positive note, indicating that he would accept many of the amendments, but he then went on to decline most of them. Let me first address my amendment 125 before turning to the amendments proposed by other members. It is disappointing that the amendments in 125, 131 and 160 were not accepted by the minister. My amendments were based on comments and concerns raised by the Law Society of Scotland and other experts concerned about the open-ended powers, the so-called special powers being conferred on ministers to make provision of any kind that could be made by an active parliament. The minister in his statement said that there is uncertainty over what would be covered by the statement, any provision that could be made by an active parliament. That uncertainty is another good reason why that overriding provision should not be included in the draft legislation. If the minister wants clarity and wants to set out exactly the scope and operation of the ministerial powers, the better approach, as we have indicated, is to detail what those ministerial powers can and cannot cover in the legislation itself, rather than having an overriding catch-all provision that is set out in sections 11, 5, 12, 2 and 13, 3, which provide that all-encompassing power that ministers can make any provision that would be made by an active parliament. We feel that that does indeed, in the view expressed by experts, support the view that the bill shows scant respect for the legislative process. On other amendments, I support the concerns expressed by Murdo Fraser, Liam Kerr and others about the far-reaching operation of section 11, 9, for the reasons outlined. The power of ministers under this section could be far-reaching and we could potentially see ministers without any approval or scrutiny by Parliament removing protections relating to the independence of judicial decision making or judicial nature and modifying the Equality Act 2006 or 2010. There is provision for replacement of any provision amended or modified with an alternative provision, but again, there is real uncertainty as to what that might mean in practice. Again, I certainly feel that the powers conferred on ministers under sections 11, 12 and 13 are excessive and also create uncertainty about how they will operate in practice. There are other issues that were raised by the minister in respect of how those powers will operate under section 13 in particular, but those will be dealt in later groupings, and I will reserve my comments for those discussions in the later groupings. Okay, thank you. Therefore, the question is that amendment 125 be agreed or well agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. Amendment 125 were three votes far, four, eight against amendment is therefore not agreed. I call amendment 17, in the name of Tavish Scott, a red-debated amendment 125. Tavish Scott to move or not move. The question is that amendment 17 be agreed or well agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. Amendment 17 were six votes far, five against amendment is therefore agreed to. I call amendment 126, in the name of Jamie Greene, already debated with amendment 125, Jamie Greene to move or not move. At the risk of being accused of further perversion, I will move 126. Okay, the question is that amendment 126 be agreed or well agreed. In which case there will be a division. All those in favour, please raise their hand. All those against, please raise their hand. Amendment 126 were six votes far, five against, that means that amendment is therefore agreed to. I call amendment 18, in the name of Tavish Scott, already debated with amendment 125, Tavish Scott to move or not move. The question is therefore, as amendment 18 be agreed or well agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 18, there were five votes far, six against, that means that amendment is not agreed to. I will call amendment 19, in the name of Tavish Scott, already debated with amendment 125, Tavish Scott to move or not move. Thank you. The question is that amendment 19 be agreed or well agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 19, there were five votes far, six against, that means that amendment is not agreed to. I call amendment 127, in the name of Patrick Harvie, already debated with amendment 85, Patrick Harvie to move or not move. Not moved, in light of yesterday's discussion. On amendment 128, in the name of Neil Bibby, already debated with amendment 85, Neil Bibby to move or not move. Similar to Patrick Harvie, not moved, in light of last night's discussion. I now call amendment 129, in the name of Graham Simpson, already debated with amendment 125. I remember that if amendment 129 is agreed to, I cannot call amendments 130 and 131 under preemption, so Liam Kerr needs to decide, I think, in this occasion whether he needs to move or not move. The question is, amendment 129 be agreed to or well agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 129, there were three votes far, eight against, that means that amendment is not agreed to. I call amendment 130, in the name of Liam Kerr, already debated with amendment 125, Liam Kerr to move or not move. The question is, amendment 130 be agreed or well agreed. We are agreed. I call amendment 131, in the name of Dean Lockhart, already debated with amendment 125, Dean Lockhart to move or not move. The question is, amendment 131 be agreed or well agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 131, there were five votes far, six against, the amendment is therefore not agreed to. I call amendment 132, in the name of Adam Tompkins, already debated with amendment 71, Adam Tompkins to move or not move. The question is, amendment 132 be agreed or well agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 132, there were three votes far, eight against, that means the amendment is not agreed to. I call amendment 133, in the name of Adam Tompkins, already debated with amendment 71, Adam Tompkins to move or not move. The question is, amendment 133 be agreed or well agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 133, three votes far, eight against, that means the amendment is not agreed to. Therefore, the question is that section 11 be agreed or well agreed. Your opposition is noted. I call amendment 20, in the name of Mark Ruskell, already debated with amendment 4, Patrick Harway to move or not move. Happy to look forward to working further on this towards stage 3, so not moved. Therefore, I call amendment 21, in the name of Mark Ruskell, already debated with amendment 4, Patrick Harway to move or not move. Not moved. I now call amendment 134, in the name of Jamie Greene, already debated with amendment 115. And I remind members that if amendment 134 is agreed to, I cannot call amendments 135, 136, 137 and 122, because I did say 138 and 122 in preemption. Jamie Greene to move or not move. To move. The question, therefore, is that amendment 134 be agreed to or well agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 134, there are three votes far, eight against, the amendment is therefore not agreed to. I now call amendment 135, in the name of Neil Bibby, already debated with amendment 15, Neil Bibby to move or not move. Move. The question is that amendment 135 be agreed to or well agreed. There will be a division. All those in favour, please raise their hand. All those in favour, please raise their hand. Amendment 135, there were five votes far, six against, the amendment is therefore not agreed to. I call amendment 136, in the name of Neil Bibby, already debated with amendment 115, Neil Bibby to move or not move. Move. The question is that amendment 136 be agreed to or well agreed. No. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. Patrick Ewing. I just want to make sure that you are not going to abstain. Thank you very much. Six against, five for, six against. No, I avoided a tied vote in me having to make a decision. So thank you for clarifying this. Amendment 136, votes for five, votes against six, the amendment is therefore not agreed to. I call amendment 137, in the name of Neil Bibby, already debated with amendment 115, Neil Bibby to move or not move. Move. The question is that amendment 137 be agreed to or well agreed. There will be a division. All those in favour, please raise their hand. Sorry, all those against, please raise their hand. On amendment 137, there are five votes for, six against, the amendment for, is therefore not agreed with. I call amendment 138, in the name of Neil Bibby, already debated with amendment 115. On amendment 138, I cannot call amendment 22, Neil Bibby to move or not move. The question is that amendment 138 be agreed to or well agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 138, there are five votes for, six against, the amendment is therefore not agreed to. Amendment 22, in the name of Neil Findlay, already debated with amendment 115, James Kelly, to move or not move. The question is that amendment 22 be agreed to or well agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 22, there are five votes for, six against, the amendment is therefore not agreed to. I call amendment 139, in the name of Dean Lockhart, already debated with amendment 125. Dean Lockhart, to move or not move. Moved. Thank you. The question is that amendment 139 be agreed to or well agreed. All those in favour, please raise their hand. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 139, there were three votes for, eight against, the amendment is therefore not agreed to. Now, I call amendment 23, in the name of Tavish Scott, already debated with amendment 125. Tavish Scott, to move or not move. Move, convener. The question is that amendment 23 be agreed to or well agreed. There will be a division. All those in favour, please raise their hand. Sorry, all those against, please raise their hand. On amendment 23, there were five votes for, six against, the amendment is therefore not agreed to. I call amendment 140, in the name of Patrick Harvie, already debated with amendment 85. Patrick Harvie, to move or not move. Not moved. I call amendment 141, in the name of Neil Bibby, already debated with amendment 85. Neil Bibby, to move or not move. Not moved. I call amendment 142, in the name of Jamie Greene, already debated with amendment 125. Jamie Greene, to move or not move. Move. The question is amendment 142 be agreed to or well agreed. We are agreed. I call amendment 143, in the name of Donald Cameron, already debated with amendment 58. Donald Cameron, to move or not move. Move. The question is that amendment 143 be agreed to or well agreed. There will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 143, there were three votes for eight against amendment is therefore not agreed to. I now call amendment 144, in the name of Murdo Fraser, already debated with amendment 125. I remind members that if amendment 144 is agreed to, I cannot call amendment 145 because of preemption. Murdo Fraser, to move or not move. Not moved. I now call amendment 145, in the name of Gordon Lindhurst, already debated with amendment 125. Gordon Lindhurst, to move or not move. Move. Thank you. The question is that amendment 45 be agreed to or well agreed. We are agreed. I call amendment 146, in the name of Adam Tomkins, already debated with amendment 71. Adam Tomkins, to move or not move. Move. The question is that amendment 146 be agreed to or well agreed. There will be a division. All those in favour, please raise their hands. All those against, please raise their hands. On amendment 146, there were three votes for eight against. The amendment is therefore not agreed to. I now call amendment 147, in the name of Adam Tomkins, already debated with amendment 71. Adam Tomkins, to move or not move. Move. The question is that amendment 147 be agreed to or well agreed. That means there will be a division. All those in favour, please raise their hand. All those against, please raise their hand. On amendment 147, there are three votes for eight against. That means amendment is not agreed to. The question is that section 12 be agreed to or well agreed. Your opposition is noted. I call amendment 148, in the name of Jamie Greene, already debated with amendment 120. Jamie Greene, to move or not move. Not moved, convener. Okay, I think that we shall, in that case, we shall suspend for 10 minutes. Thank you, colleagues. Okay, colleagues. I now call amendment 149, in the name of Donald Cameron, other amendments as shown in the groupings. Members will note from the groupings that there are a number of pre-emptions in this group, and I remind members of the pre-emption when I call the relevant amendment. Donald Cameron, to move amendment 149, to speak to all other amendments in the group. Thank you, convener, and I duly move my amendment. I only have a single and specific amendment in this section. I think it would be fair to say that it is one of the most difficult and controversial sections in the bill. It relates to the keeping pace power, as it's being termed, about the power for the Government to make provision corresponding to EU law after exit day. I think I would intend to say more about the section as a whole in the light of the amendments made when I sum up, but in relation to my specific amendment, this seeks to add some important riders to the use of these potentially wide-ranging powers in the generality as they're set out in subsection 1 of the section. My amendment is very much in the theme of other amendments which were made this morning in relation to the checks and balances on executive power and the legislature's role in that. It seeks to put two conditions on the use of executive power. The first is that regulations made under this subsection 1 of section 13 must be subject to the restrictions and limitations of the Scotland act. The reason for that is so that we can ensure that any use of this power is compatible with the devolution settlement as enshrined in the Scotland act. I would submit, convener, that that part of my amendment does no more than ensure that the use of this power is fully conversant with the Scotland act. It provides an overarching protection provided by devolution. I would not call that littering the act, the bill rather, with obsolete references. In my submission, convener, that is enshrining devolution. Secondly and no less importantly, my amendment seeks to put a condition that this Parliament gives its consent to the use of these powers. In short, that part of my amendment is a simple, even a basic provision which, again, only seeks to require that it is this Parliament of which we are all members that agrees to the powers which ministers may seek to exercise under this section. This isn't a party political point. It's about the separation of powers between the executive and the legislature. It's a fundamental point to make, I would say. It applies to ministers of whatever political stripe, not least given the potential 15-year timeframe that could apply to the use of these powers. It goes to the very nature of what we do here. Ultimately, it's about respecting each other as MSPs and respecting the role of Parliament in scrutinising the power of the executive. Liam Kerr, to speak to amendment 155 on other amendments in the group. Thank you, convener. Again, I speak to amendments 155, 156, 157, 158 and 159 in the name of Graham Simpson. I'm grateful to you for permitting me to speak on his behalf. Looking first at amendments 155, 156, 157 and 159, amendments 155 clarify the section so that ministers can make regulations not where EU law is no longer appropriate, but where it is no longer operable, a much tighter and, dare I say, appropriate definition. This is again about how much power is grasped by Scottish ministers. Section 13 sets out the powers for ministers to make regulations, to correspond to EU regulations, provisions or some such, after exit day. Donald Cameron spoke very persuasively about the importance of this section. I strongly associate myself with his remarks and in what I'm going to say. Subsection 2 of section 13 sets out the details of what is entitled to be done, what Scottish ministers may and may not do. It sets out that Scottish ministers may omit provisions that link to arrangements that no longer make sense, such as agreements between the UK and EU member states, or that are dependent upon UK membership of the EU. The purpose behind that is sensible, and the merit of the section is therefore clear. However, there is a phrase used that is vague throughout. That is that all those things are omitted which no longer exist or are no longer appropriate. No longer appropriate is a vague phrase. It implies a level of judgment on what might constitute appropriateness. If we import an ability to make a subjective judgment, then it is concerning that there is no equivalent check on the use of that of a minister's judgment. That must be worrying. We surely should not countenance the situation under which Scottish ministers omit something from regulations on the basis that they simply feel it appropriate. Those amendments, therefore, at 1.55, 1.56, 1.57 and 1.59, by switching appropriate for operable, tighten up the meaning. If something is not operable, it should not be ported in. That is objective, that is correct, that is sensible, and that is why those amendments should be agreed to. Amendment 1.58 is slightly different, but it makes a similar point. Section 13.2f clarifies that, if Scottish ministers use powers under section 13.1 to make provision, for example, to implement an EU directive, they may confer extra functions or restrictions, which they feel it is appropriate to retain. Once again, this is a judgment call, and the risk must be that, when we make law, we make law for years and Scottish ministers to come. It must be right to ensure that only functions or restrictions are ported where it is necessary, i.e. imperative or required. It is not right to leave it open to judgment, to subjectivity, to discretion, as use of the word appropriate does. Therefore, I commend amendment 158 to replace necessary for appropriate. David Scott, to speak to amendment 27 and other amendments on the group. Thank you, convener. I wanted to speak to 27 and 34 in particular, and I share Donald Cameron's very opening remarks in terms of this whole section on keeping peace post-March of next year. Arguably in this area, I feel more strongly about the two issues in terms of improving this bill. I reflected on the need for the Administrations across the United Kingdom to co-operate in stage 1, which now seems weeks and weeks ago, but I think that it is important to remember that it was only a week ago. I said then and reflected on that yesterday that those involved in the rural economy know all too well the importance of a complete UK picture for their business and for their business's success. Amendment 27 complements others that I am proposing. It seeks to compel Scottish ministers to consult the other three Administrations prior to taking action to keep peace with the EU law under section 13 after exit day. Every political party—Adam Tomkins this morning, the minister's letter last night—has constantly cited the need for framework agreements and co-ordination, and indeed co-operation across the United Kingdom as powers are allocated after exit day. There is no political dissent on that point. That amendment says that in the event of that every one of the other three Administrations specifically asks the Scottish Government not to make a particular regulation to keep up with the EU law, then that regulation cannot proceed. If Scottish ministers insisted that they wanted to do it in the face of that opposition across the UK, then the proposal would have to come through primary legislation. Parliament would look at it in detail. We would consider why the other three Administrations were opposed. We would be able to hear from stakeholder interests, Scottish business and others as to the proposal and then decide whether or not the Government had made the case. That is not saying that the Government cannot bring forward in that context a policy proposal, a particular issue that, in the Government's view of the time that they need to address. It is just saying that the scrutiny of that, the proper parliamentary accountability of that, should be in place to allow that to happen. We would be able to protect the working of the UK single market from, in effect, unilateral action by any single administration. This amendment represents a federal idea of co-operation. I make no apologies for strongly believing in that. It is in contrast to some Conservative amendments that give control of these issues entirely to UK ministers. Amendment 29, together with 31, 32 and 33, would mean that the 15-year extent of the powers to keep pace with EU law are replaced by a maximum of five years renewed every year thereafter. The minister has made it clear that he proposes to assess how the powers have been used before they are renewed. I agree and I take that point, but I want to cut down the length of time ministers from any party in the next 15 years. After all, we are looking at legislation here that will affect whoever the administration is over future sessions of this Parliament, which can rely on the section 13 powers. On amendment 34, it proposes to do away with section 13 in the bill completely. It shares much with Neil Findlay's amendment 35, but my amendment goes further and allows ministers the opportunity to explain their need for further powers. Again, I recognise the point that the minister has made in respect of, again, any minister of any Government seeking powers and circumstances that we cannot fully envisage. However, my proposal in 34 here is to ensure that ministers are keen on our provision that they wish to make. It gives them three months to prepare a report on how primary legislation might be used to achieve the same end. In other words, I would argue a way forward in addressing the concerns that I recognise that the Government and ministers have, but it creates a proper parliamentary route to properly scrutinise what is needed in terms of ministerial powers post-March of 2019. Why does that matter? We have become obsessed about the language around power grabs. Nobody looking at section 13 is under any illusion that could only be described as ministerial seizure of the most extensive powers. This power grab argument works, as some colleagues have mentioned this morning, already both ways. Some could say that for 15 years, if we leave this bill as it is, ministers, again, of any persuasion, can create new laws, abolish old laws, create new quangles in prison people for up to two years under offences brought to the statute by regulation and not primary legislation. We have had a bit of a cut at this already and rightly so, but it is really important that this is carefully thought through even in the time constraints that we have today. The minister has said before that he had expected a similar section 13 to be in the UK bill. He has also said—let me be right about this—that the Lib Dems would probably like the UK to keep pace with EU legislation. I understand and agree with both those points, convener, but it cannot be done through this truncated emergency procedure. If similar plans had been in the UK bill, they would have been subject to the scrutiny of two houses of Parliament over months and months, not the much shorter period of time that we are having to deal with this bill here in Parliament today. This proposal does not have to dovetail with the UK bill. This proposal within it can be tabled at any point, perhaps even after exit day. I just argue here that this part of the bill is not an emergency. Other parts the minister may well have arguments to say demonstrably is, but this is absolutely not. What amendment 34 does is to give the minister, and if I may say so more importantly, Parliament the opportunity to look at this really important issue of parliamentary scrutiny in the round and over period of time, not in a considerable rush. It is in a constructive way forward for ministers. They can bring forward a report and justify their plans through the full scrutiny of this Parliament. This part is not an emergency. Last week in the European Committee, Professor Nicola McEwen, one of our preeminent political scientists, was sensibly warm in my view about this route at the committee in terms of amendment 34 being a sensible way forward in a difficult area of accountability and scrutiny. I hope that the Government might see it in that light. Neil Findlay's amendment 42, which I support, is one of three that makes sure that the UK Government and other devolved Administrations are consulted before regulations are made under section 13. The keeping pace and power are an act, and I think that that is an important step as well. On that, with those remarks, I would be happy to move the amendments. Thank you. Murdo Fraser, to speak to amendment 164 and other amendments in the group. Thank you, convener. I would like to speak to my amendments 164, 165, 168, 169, 170, 171, 172 and 173. James Kelly's amendments 28 and 30 and Tavish Scott's amendments 29, 31 and 32, all of which cover the same territory. The amendments that I have put down in the group are c