Culture, Tourism, Europe and External Relations Committee

Meeting date: Thursday, March 8, 2018

Official Report 507KB pdf

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UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill

Our next item is an evidence session on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. The Parliament agreed to designate the Finance and Constitution Committee as the lead committee and the Culture, Tourism, Europe and External Relations Committee as the secondary committee in consideration of the bill.

I welcome our two witnesses, Dr Tobias Lock, a senior lecturer in European Union law and co-director of the Europa institute, and Professor Nicola McEwen, a research leader at UK in a changing Europe.

I would like to go back to the statement to Parliament that was made by the Lord Advocate, James Wolffe, on 28 January, in which he confirmed that he had cleared the certificate of competence in relation to the bill, which is, of course, required. He said that the bill falls within the legislative competence of the Scottish Parliament. In his statement, he said that the bill had been carefully framed

“to ensure that nothing will be done that is incompatible with EU law before withdrawal from the EU”.—[Official Report, 28 February 2018; c 27.]

He also said:

“The bill does nothing that will alter EU law or undermine the scheme of EU law while the UK remains a member of the EU”

and that

“if, contrary to the view of the Scottish Government, the continuity bill is incompatible with EU law, the same reasoning would apply equally to the UK Government’s bill.”—[Official Report, 28 February 2018; c 21.]

What are your views on that position? Would you like to start, Dr Lock?

The test is set out in section 29 of the Scotland Act 1998, which says that the Scottish Parliament does not have competence to legislate in a way that is “incompatible with ... EU law”. Therefore, the question is whether the bill is incompatible with EU law.

The bill does two main things. First, it retains EU law as it will be on Brexit day and puts us on a new legislative footing—the current legislative footing is the European Communities Act 1972, but that will be repealed, in all likelihood, by the European Union (Withdrawal) Bill, which is currently going through Westminster. Secondly, the bill gives powers to the Scottish ministers to amend that retained EU law. From an EU law perspective, neither of those things is incompatible with EU law. EU law does not care very much about what basis EU law has in a particular legal order as long as it applies, and the powers to amend—even if they existed before Brexit—would not, in and of themselves, be contrary to EU law; they would be contrary to EU law only if they were used.

From an EU law perspective, given the tests that are set out in section 29 of the 1998 act, I do not see an incompatibility with EU law in the bill, as such.

I should quickly comment on the argument that is made in relation to the withdrawal bill. The question of whether the withdrawal bill would be incompatible with EU law is not a question of UK constitutional law, because the Westminster Parliament can, as a matter of principle, under the UK’s constitutional settlement, legislate contrary to EU law—that does not invalidate its legislation. In contrast, section 29 of the Scotland Act 1998 limits the powers of this Parliament. The question of compatibility with EU law is one that must be asked in relation to legislation that is introduced in the Scottish Parliament but it does not have to be asked in relation to legislation that is introduced in the Westminster Parliament. That is probably all that I can say on the matter at the moment.

Before I start, I should confirm that we are here with the consent of our union, despite the industrial action.

As a humble political scientist, I am not qualified to give a legal ruling, so I will not try to do that. Clearly, there are different opinions. I appreciate the difficult situation that that puts members of the Scottish Parliament in, and I accept that there is every possibility that the process will end up with the Supreme Court determining the competence or otherwise of the legislation. I do not want to say any more than that.

As you indicate, there have been suggestions that the UK Government would seek to challenge the Scottish and Welsh bills in the Supreme Court. I know that the Welsh Government has been taken to the Supreme Court on several occasions by the UK Government, but a joint referral would mark the first time that the Scottish Parliament had been challenged by the UK Attorney General. What are the implications for devolution if that happens?

It would be a high-risk strategy, whoever did it. You are right to say that Welsh legislation has previously been referred to the Supreme Court. Sometimes, the rulings of the Supreme Court have been more devolution friendly than the UK Government might have liked them to be, although, at other times, that has been less the case. It would be extremely risky for whichever Government chose to go down that route, because it would set a precedent that could determine the scope of devolution.

One of the fundamental issues is that there are differences of view on what the devolution settlement is. I think that the UK Government genuinely thinks that it is enhancing the powers of the devolved institutions, because it does not consider those areas that have previously been EU competences to have been devolved, despite their inclusion within the devolution settlement. I think that the UK Government thinks that any additional powers would be an enhancement of devolution.

Clearly, the devolved Governments do not share that view, and it is not the prevalent view in the devolved legislatures, which consider that those powers are already devolved and that, therefore, any alterations made through the withdrawal bill to, in a sense, re-centralise authority in the UK would be a weakening of the devolution settlement.

The Governments are, therefore, starting from quite different places. The fact that there is a lack of shared understanding of what devolution means and of its scope is part of the problem.

10:30  

Challenging the continuity bill might be a risky thing to do in political terms, as one side would have to lose because there would be an either/or outcome. However, it would also be very risky not to put the bill before the Supreme Court, because it is a very important constitutional bill. For example, perhaps two years after Brexit, somebody could challenge the legislation in the Supreme Court as an individual claimant and the Supreme Court could say, “Well, actually, there is no legislation.” There would then be a big gap in the law. I therefore think that there is almost a public interest in getting the bill’s competence confirmed.

It has been widely suggested that, if there are no changes to the European Union (Withdrawal) Bill, it will not get the legislative consent of the Scottish Parliament. The explanatory notes for the withdrawal bill state that the UK Government would seek the legislative consent of the Scottish Parliament and of other devolved legislatures in relation to certain aspects of the bill. However, it has been suggested, particularly in the Scottish Parliament chamber yesterday, that there might be a change of position on that and that the UK Government might not seek legislative consent. What do you think of that suggestion?

There is a commitment to seek legislative consent, but there is no compulsion to act on the outcome of that. As I understand it, the convention suggests that those aspects of the withdrawal bill that did not receive legislative consent would be removed, leaving space for the devolved legislatures to fill the gap. However, I find it difficult to see that being the outcome here. It is entirely possible that the UK Government and the UK Parliament—ultimately, it is a decision for the UK Parliament—will decide to proceed as they see appropriate while heeding the views of the devolved institutions.

The policy memorandum contains a paragraph that states that, if the continuity bill is passed and legislative consent to the withdrawal bill is withheld, certain things will have to happen and the offending parts of the withdrawal bill will have to be removed. However, I do not really see the “have to” necessarily coming into being in the way that is envisaged. If that were the case, that would be , in effect, an acceptance of the Scottish and Welsh Governments’ amendments, which those Governments have so far failed to get accepted through negotiation. I am struggling to see that scenario unfold in quite the way that is set out in the policy memorandum.

I have nothing to add.

Okay. I will pass over to Claire Baker.

That is a helpful explanation from Professor McEwen. I was going to ask about paragraphs 16 to 20 of the policy memorandum, which set out the three options or possible scenarios. The first option is that the UK Government could change the withdrawal bill and we could accept it. The second option is that the withdrawal bill and the continuity bill could be merged, which is the option that I would like you to comment on, because I am struggling to understand how that could be done. The final scenario is that we could rely on a bill when legislative consent has not been granted.

As I said, I am most interested in the second option of relying on a combination of the continuity bill and the withdrawal bill, if both are passed and there is qualified withholding of legislative consent. Can you give more explanation than is in the policy memorandum of how that would work?

That is a really good question, but I am afraid that I cannot answer it, because I am struggling to understand that option myself.

Nobody understands it.

I have not read everything that has been said, but that did not seem to be an option in the comments that the minister made. I would like to know more about why it is not the preferred option in the event of a failure to agree an amendment with the UK Government. Perhaps there is a legal reason.

No. The Scottish Government has outlined the provisions that it thinks require legislative consent in the European Union (Withdrawal) Bill in a list somewhere. The UK Government disagrees slightly with that list of provisions. The main bone of contention is clause 11 of the withdrawal bill, which deals with devolved powers. It may be that paragraph 18 of the policy memorandum could refer to a situation in which the Scottish Parliament gives consent to every aspect of the withdrawal bill except clause 11. That is a possibility. In such a scenario, both bills would govern the situation here in Scotland. However, I am just guessing, as I am not quite sure how that would work.

Professor McEwen, you said that, although a legislative consent motion is preferable, it is not a requirement and the UK Government could proceed with the withdrawal bill and pass it at the UK level. It could ignore an LCM even though there is a convention that it would not do so. Is that possible in legal terms?

As we know from the Supreme Court ruling of last year, the convention is not a matter of law. As I understand it, there is nothing that the Scottish Parliament can do that would constrain the room for manoeuvre of the UK Parliament. An LCM is a requirement in the sense that conventions are an important part of UK constitutional practice, but it is not a legal requirement. Any decision to ignore or to consider and then reject a refusal to grant consent from devolved legislatures may have quite serious political consequences, but I am not sure that it would necessarily have legal consequences.

The Supreme Court was quite clear in the Miller case, which was decided about a year ago, that, although the Sewel convention is now referred to in the amended section 28 of the Scotland Act 1998, it is not justiciable. That means that there is no legal remedy against the UK Parliament ignoring a refusal of legislative consent. There might be a political remedy, but there is not a legal one.

Politics matters, and not just for the wider debates that frequently rage around constitutional issues. The UK Government does not want that to be the outcome, because it is not just about the withdrawal bill, which is just the first of a series of bills. As we have seen in the Trade Bill, and as we can expect to see in the proposed agriculture bill and other Brexit-related bills, there will be interdependence between UK law and devolved competence and the UK Government will not want to have the same fight every time. Although it is not a legal matter, the convention does matter. The phrase “constitutional crisis” is bandied around a little too readily; the situation may not become a crisis, but it would certainly be a prolonged headache that the UK Government would rather avoid.

I want to ask the political scientists about section 13 of the continuity bill, which has loosely been described as a bill to keep pace with European regulations after March 2019. What do you make of the bill in the context of ministerial powers?

Tobias Lock and I talked about that before we came into the meeting. Section 13 seems to be quite a broad power. I note that the minister referred to it as a “technical measure” at the Finance and Constitution Committee meeting yesterday, rather than the broad power that many people have expressed concerns it may be. If it is purely technical, its time-limited nature seems difficult to understand. If it is purely about technicalities, there should be some redrafting and rewording.

I am not sure that the power is necessary in this bill. Is it a matter of continuity? Is it central to the primary purpose of preparing the statute book for exit day? I am not a lawyer, but I am not sure that it is such a matter, because it seems to be about what happens afterwards.

Could that be done at a later stage?

Perhaps it could be done at a different stage. Given that this is emergency legislation, that might be wise to do.

Absolutely.

If the measure is more than technical—what is and what is not technical can be quite a bloody distinction—I would be concerned at the extent to which this section affords ministerial powers, rather than legislative powers or appropriate scrutiny by Parliament. There may be lots of very good reasons why you would want to keep pace with EU law after Brexit, but doing so may have consequences and it is appropriate for those to be explored with proper scrutiny and consultation.

I have a point on the technical argument. Section 13(1) says that

“Scottish Ministers may ... make provision”

and so on. Therefore, there is discretion as to whether a minister, or ministers as a collective, want to keep Scots law in step with EU law. That is different from the situation now under the European Communities Act 1972; that act has a similar power, but there is, of course, an obligation to keep UK law and Scots law in step with EU law as long as the UK is a member of the EU. There is a difference in the nature of the power and, therefore, the process may not be quite as technical as it is now—it is not automatic.

Is your point that the issue is not technical at all? Is it much wider than that, because there could be major issues of public policy in whatever policy sphere is being considered in the future?

There is political discretion. It has to be filled somehow, and ministers tend to fill it.

Do you share Professor McEwen’s assessment that there is a different way to bring effect to this need—if, indeed, there is a need—for ministers to take powers post-March 2019?

If the policy aim is to allow Scotland to keep pace with the development of EU law in devolved areas as much as possible, and if that were to be put into a separate act of the Scottish Parliament, it would probably need to be done by secondary legislation, at least partly. A lot of this stuff, especially in devolved areas such as environment and agriculture, is highly technical material that the Parliament does not need to debate fully. However, it could probably have more robust scrutiny provisions.

Do witnesses think that there is a reasonable argument that there is an interest in Cardiff, Belfast and, indeed, London in keeping pace with European regulations about things that we would wish to do in Scotland, in lots of policy spheres? In other words, should there be a mechanism to ensure that there is proper discussion with the other Administrations and Parliaments of the United Kingdom to ensure that we keep pace consistently across the UK?

10:45  

Yes. I suppose that the provision on keeping pace with EU law may have unintended consequences. It might be a good thing to do, but it might have the knock-on effect of causing Scotland to diverge from law elsewhere in the UK. It might not, and the way to avoid that is to work co-operatively. It also seems to me to be highly dependent on the nature of the UK-EU relationship that is negotiated, and we simply do not know enough about that yet.

Many thanks.

Good morning. I feel as if it is groundhog day, because some of this came up in the Delegated Powers and Law Reform Committee on Tuesday.

Dr Lock, you made an extremely important point a moment ago about the use of the word “may” in section 13(1) of the continuity bill. There have been some assertions that the Scottish Government wants to extend the opportunity for up to 15 years, but the bill is clear that it is about “may” and not “will”, and I note the time-limited nature of the power which, under section 13(7) may be exercised only for up to five years. I also note that, as we heard in the Delegated Powers and Law Reform Committee on Tuesday, regulations will be made by affirmative resolution rather than any other mechanism in the Parliament.

Given those aspects, is it your opinion that, although section 13 is wide, it is also quite measured? It is not as if the Government can railroad anything through. The decision will have to be taken in the Parliament.

You are, of course, right that the power under section 13 is time limited to five years, and the time limit can be extended only with the consent of the Scottish Parliament by way of the affirmative procedure.

The powers that are conferred under section 13 are not limitless. A number of conditions have to be met, and there are limits. First, the matter has to be something that comes out of EU law in the first place. Secondly, it has to be within devolved competence. Thirdly, there are limits in section 13(5) in relation to taxation, criminal law and so on.

My point was simply that, under the continuity bill, it is still up to the minister to decide whether he or she wishes to keep up with EU law, and the Parliament seems to have no involvement at that point. If the minister decides not to bring in new animal welfare laws that are coming out of Brussels, that is the decision made. Obviously, somebody else could introduce a bill to the Scottish Parliament and so on, so there are other ways of effecting things.

My point was that it is not just about the technical power. A policy decision would be made as to whether we should or should not do something. After that, it becomes relatively automatic.

Irrespective of which ministers are in place, ministers and parties are elected by the population on a manifesto of policies, so it would be—correctly—a policy decision depending on which Government was in power at the time.

Probably, yes.

Another aspect that you both touched on a few moments ago is the complete lack of clarity from the UK Government on what it actually wants to get out of an agreement with the EU and what deal will be signed. The Scottish Government may or may not want to introduce things to mirror EU legislation, but much of that will be dependent on what the final agreement is between the UK and the EU.

Yes.

Yes. The guidelines that came out of yesterday’s European Council say that there should be free trade, no tariffs, no barriers to trade on all goods—and that seems to include agricultural goods. However, if that happens, there will have to be some basic agreements on standards and, of course, that will impact on these powers.

Following the questions on section 13, can you clarify how the legislation would operate in practice? In the first five years after exit day, the Scottish ministers could bring into Scots law any piece of European law without the need to get the consent of the Scottish Parliament, subject to the limitations that are set out in section 13(5)—is that right?

Section 14 contains the scrutiny provisions. Certain issues would be subject to the affirmative procedure—the list is there, but I will not bore you by reading it out. They are mainly to do with the functions of public authorities. All others would be subject to the negative procedure, and members know better than I do how well scrutiny functions under that procedure.

That is very helpful. Thank you.

On the impact of the continuity bill, the Law Society of Scotland has raised concerns about new concepts being introduced into Scots law. For example, it says that the new concepts in the continuity bill that talk about retained devolved EU law are not currently recognised under Scots law. That will make it more difficult to understand the law and it will create uncertainty if the continuity bill is brought into Scots law. If, as described in the Law Society’s feedback, both bills are passed, is there a risk that we could have conflicting concepts and provisions of Scots law in reserved areas and devolved areas.?

Yes. One of the many criticisms of the withdrawal bill has been the uncertainty surrounding the status of retained EU law and where it sits alongside primary legislation. If both bills are passed and we have two new categories of law alongside the existing and recognised categories, that will inevitably add to the complexity. We are already undergoing an extremely complex process and that will be amplified somewhat. It will be difficult for the courts and, ultimately, citizens and stakeholders to navigate such a complex environment.

I agree with that. If both bills go through—and let us assume that they will—Scotland will have retained devolved EU law and retained EU law, and then we will have ordinary acts of the Scottish Parliament and ordinary acts of the Westminster Parliament. We will have a host of different sources of law.

It will not be impossible to find out which is which but, in some cases, a problem will arise if the continuity bill and withdrawal bill enter into law in an unco-ordinated manner. For example, the continuity bill will claim that the environmental impact assessment regulations for Scotland are retained devolved EU law, and the EU withdrawal bill will claim that they are retained EU law. Somebody could then make changes; for example, a minister might say, “We have to change a few words in this”—it could be a Scottish minister on the basis of section 2 of the continuity bill or a UK minister on the basis of section 2 of the withdrawal bill—and there might be a judicial review three years later in which someone challenges those changes and these questions then have to be unpicked. There is an issue in that respect.

How would a Scottish court approach those conflicting provisions? Is there any precedent showing, say, the legislation to which a court would give precedence? Moreover, if the two bills go ahead, are there any examples that we can turn to of conflicting law on trade or areas where EU law has a common framework across Europe at the moment but where the UK might have conflicting laws that would impact on trade here?

On the first question, such a situation is normally avoided, because of legislative consent motions. If the Scottish Parliament agrees to a Westminster bill, it will not usually enact any parallel or contrary provisions. That seems to be the understanding, and it is why we have the LCM mechanism. I am therefore not aware of any cases in which the exact scenario that you have highlighted has occurred.

As for your second question, I think that you are referring to trade in agricultural or food products to which the regulations that apply in Scotland might be different from those in the rest of the UK—or, at least, in England. It is the reason why everyone seems to be quite keen on common frameworks on such matters; they want to avoid different standards, and it does not make much sense to have standards if you are not going to enforce them in some way to ensure that products that do not comply with them cannot be sold. That seems to be a danger that is out there.

We are almost out of time, but there are other members who need to ask questions.

Instead of taking in the full range of principles as derived from the treaties, the continuity bill includes

“general principles of EU law”

in so far as they have been recognised in rulings of the European Court of Justice. What are the implications of that? Dr Lock has already mentioned animal sentience, which is covered by the treaty of Lisbon, and environmental principles, which are covered in article 191 of the Treaty on the Functioning of the European Union. What are we including or, indeed, missing by transposing into this bill general principles on the basis of European Court of Justice rulings instead of trying to explicitly bring in treaty principles such as environmental principles?

As far as I understand it, the reference to

“general principles of EU law”,

which is actually in both bills, seems to be a technical reference to what EU law itself understands as its general principles. By that, I mean that EU law has a number of sources that include not just the EU treaties and all sorts of EU legislation but those unwritten general principles that have been developed by the Court of Justice of the European Union to fill certain gaps. Before we had the European charter of fundamental rights, there were certain things that did not exist in writing anywhere. For example, the principle of proportionality had not been written down anywhere, and principles such as equality before the law and basic procedural rules on fairness and so on could not be found either in the treaties or in legislation. I think that that is what the bill means by

“general principles of EU law”,

and it explains why there is a reference to the case law of the Court of Justice. Otherwise, you will not be able to determine what the general principles are, and it will become an academic dispute. The principles found in the treaties are not, in my reading, general principles in that sense.

It would be enormously helpful if there was a bit more clarity on what the bill meant by

“general principles of EU law”.

They are not named, and maybe they are not named for a reason. As it is drafted, the bill is designed to evolve as case law in the EU evolves, but I think that it would be very helpful, both for Parliament and for wider society, to know what we are talking about. Are we talking about subsidiarity or not? Those are things that we need to know.

11:00  

I am glad that it was not just me who was unsure of what was meant by that. Returning to environmental issues and to the precautionary principle and the idea that the polluter pays, I presume that it would be practically possible for us to transpose such principles and put them into the bill. Organisations have highlighted that area to us as being explicitly missing, but surely it would be entirely possible for those principles to be transposed?

In a way, that will not be necessary. Because those principles are written down in EU law and because they are largely within devolved competence, they would be captured anyway by sections 2, 3 and 4. The question is how far you want to make them susceptible to change by ministerial decree, but the principles themselves will become part of Scots law by virtue of the continuity bill.

The environmental lobby, as you know, has also raised numerous concerns about our governance gaps, so the question is about the effect of having those principles written into Scots law and what recourse for action would be available if people felt that they had not been upheld. That could be clarified as well.

I would like to ask a couple of questions relating to the Francovich case. How does that differ between the European Union (Withdrawal) Bill and the continuity bill? Can you explain the differences and say whether you think it will present any problems if there is a difference in operation across the UK?

The rule in Francovich is a decision by the European Court of Justice from the early 1990s. It introduced a new remedy into EU law, whereby a person who sustained a material loss because of a member state breaching or acting in contravention of its EU law obligations could, if the breach was sufficiently serious—that is the condition under EU law and it is a high hurdle to get over—claim damages from the state. Scots law does not have an equivalent to state liability law as such; we just have the normal law of delict.

Both bills say that there is no right to damages under Francovich after exit day. The difference in the Scottish bill is that it says that that subsection

“does not apply in relation to any right of action accruing before exit day.”

So, if the material facts had happened before exit day, you could still bring a claim after exit day and introduce it into the Scottish Parliament. That could be significant, because those breaches might not be detected for many years, or even decades; they might have happened back in the day. I am talking about breaches involving wrong transposition of an EU directive, which can happen—a directive might not be transposed correctly or it might be applied badly by the authorities because it is a highly technical matter and they make a mistake, and as a consequence somebody suffers a loss.

Is it in the public interest to keep that rule? I am a slight sceptic on that front, because it really is not the most effective remedy that you can imagine. It is difficult to get a Francovich claim through the courts successfully. The hurdles are very high and a sufficiently serious breach has to be shown; that means that it has to be an obvious breach of EU law, which does not happen that often. Mostly such breaches are small mistakes that are made and are not deliberate, and in such cases there is no chance of a remedy.

I once did a study on the success rate of those kinds of claims. It is very low in the UK, because, for a start, access to judicial review is very expensive and the claimants are often corporations or companies. If your concern is on individual rights, that provision will not present the biggest loss that we can imagine to the legal order.

So, if those different approaches are both implemented, you do not envisage that being too much of an issue

Probably not. There will be very few cases, if any, overall.

Thank you.

Section 6 provides that the principle of supremacy of EU law will cease to apply to legislation made after the UK has left the European Union, but at the same time it ensures that the supremacy of EU law will remain for legislation made before the UK leaves the EU. Can you explain how that is likely to work?

I have asked myself the same question and I think that I have an answer. It took me a few hours—well, overnight last night I came to a conclusion.

The principle of supremacy of EU law basically says that, at the moment, if there is a conflict between a piece of UK legislation—even if it is an act of the Westminster Parliament that is normally immune from any judicial review—and EU law, the latter prevails. That will be carried over in the withdrawal bill for all enactments that happen before Brexit and, obviously, it will not be carried over for enactments that happen after Brexit.

The Scottish continuity bill takes the same approach—it has basically copied that same provision into section 6. In the Scottish context, we have to ask ourselves what the practical application of the provision is, because an act of the Scottish Parliament already has to be compliant with EU law. If it is not, it is ultra vires—it is not law.

Where could the provision come in? There are two theoretical situations. The first would concern an act made by the Westminster Parliament preceding devolution that applies to Scotland, which would now be in the competence of the Scottish Parliament. If that act conflicted with EU law as retained under the continuity bill—retained devolved EU law—the EU law would prevail over it.

The second situation would arise because the provision applies not only to enactments but to a “rule of law”. Unfortunately, “rule of law” is not defined in the bill, but I assume that it means the common law. Therefore, if there is a conflict between retained devolved EU law and the common law, I am guessing that the former would prevail.

Those are the practical applications of that provision. There is not very much because, as I said, any act of the Scottish Parliament already has to be compliant with EU law, so there cannot actually be a conflict.

Thank you.

We received a submission from the Law Society of Scotland, which raised some issues around section 10, which is about the interpretation of retained and devolved EU law. The briefing argues that

“Section 10 does not currently reflect what was agreed between the EU/UK negotiators December 2017 joint agreement”,

so it is outdated, in the light of that agreement. Do you have any views on that analysis? Is that something that has been identified by anyone else?

I read that in the Law Society’s submission as well, and I have no reason to doubt it. The Law Society has far more expertise on that than I have. It illustrates one of the challenges of the continuity bill, in that it will be enormously difficult to keep pace with developments—not just that interim agreement, but the transitional arrangements, the further trading agreements between the UK Government and the EU and, indeed, any changes that are made to the withdrawal bill as it goes through the Westminster Parliament.

There is no answer to that, other than to ensure that the legislation can be amended appropriately, and there are at least the regulatory provisions in the bill. I think that, on that point, the minister conceded in committee that amendments could be made in light of such matters. However, that points to the need for scrutiny. In emergency legislation, things might well be missed because there has not been enough time to identify them. It is notable that the Government seems open and amenable to suggested amendments, but there is just the challenge of time.

The preferred option of the Scottish Government and the Scottish Parliament is for agreement to be reached on the withdrawal bill. Over the next few weeks, where are the opportunities for the UK Government to table amendments and get them through Parliament?

We will see today whether there is any movement in the joint ministerial committee on EU negotiations. The UK Government has suggested that it is not willing to go any further. We do not know how far it has gone because we have not seen the amendments, which I think the Government has indicated will be published next week.

David Lidington’s speech gave us some clue as to the nature of the concession that the UK Government has made. The stumbling block is the issue of agreement or consent. Ministers of the Scottish Government and the Welsh Government have said that they need the word “agreement” or “consent” written into the withdrawal bill. I note that, in his speech, David Lidington said that he would expect the new proposal to be through a process of agreement. Therefore, it does not seem that they are a million miles apart but there seems to be an issue about whether “agreement” or “consent” is written into the bill.

That goes back to the principled difference in interpretations of devolution that I spoke about and it speaks to the lack of trust between the UK Government and the devolved Governments. The UK Government does not want to find itself in a situation in which it cannot do what it thinks that it needs to do to preserve the UK internal market, or negotiate and implement trade agreements post-Brexit, if it feels that it has conceded a veto power to the devolved institutions. The devolved institutions do not want to cede ground on what they perceive to be already within their competence.

It is very difficult to see a way through the impasse, but that points to the need to really get to grips with how we operate and govern within the much more complex and interdependent system of multilevel government that Brexit introduces. The machinery of intergovernmental relations has long been recognised as not being particularly robust or effective, but that is much more of a problem in the context of Brexit than it was before.

Since the Brexit vote, the flaws in the JMC process, in particular, have been highlighted. Has that contributed to the lack of trust?

Yes, it probably has. There has been an incredible intensification of intergovernmental relations since the Brexit vote. That has created a lot of administrative and bureaucratic challenges because we do not have the machinery and processes in place, but it has also revealed some of the more cultural or political—with a small p and a big P—differences that exist and which are a barrier to co-operative working. They already existed but they have absolutely been highlighted and made more problematic by the Brexit process.

Stuart McMillan indicated that he had another question. We are over time now.

I will be brief.

Be as brief as possible, please.

11:15  

Professor McEwen spoke about the time constraints on the bill. It is anticipated that in the region of 300 pieces of secondary legislation will need to be passed in Scotland. If the bill had not followed the emergency procedure but had gone through the normal process, getting 300 pieces of secondary legislation through the Parliament in the very short timescale before we leave the EU would have been nigh on impossible.

I am not saying that the bill should not be dealt with through the emergency procedure. I understand the rationale that has been presented for that and I am sympathetic to it, but I think that it is regrettable all the same. With the benefit of hindsight, we probably would not start from here. The continuity bill, or at least the documentation for it, could have been introduced earlier, but nobody quite envisaged the situation that we are in now. However, you are where you are and you have to deal with the context as it stands. That is all the more reason to ensure that the bill includes only those things that it absolutely has to include, and that there is a mechanism for utilising the Parliament’s post-legislative scrutiny procedures, which will become extremely important. There must also be a facility for fixing things that may need to be fixed, partly because things might develop that we cannot foresee but also because things may have been missed as a result of the rapid nature of the scrutiny process.

I thank both of our witnesses for giving evidence at such short notice and in their personal capacity.

We move into private session.

11:16 Meeting continued in private until 11:26.