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Am I right that you are emphasising the consent of devolved Parliaments rather than the consent of governments, because common frameworks rest on governmental agreements?

Professor McHarg has moved on to the more practical areas that I was going to follow up on—the changes that we might actually see as being politically realistic.

I am clearly going to lean towards the view that we do not need such a framework. For well over a decade, the Scottish Parliament and the UK Parliament made decisions and legislated on areas that impact on business interests and others, while consulting at the same time on charity law, planning law, water-quality regulations and a great many other issues. They heard from the same stakeholders, understood the consequences of divergence or of making different decisions, and made political judgments that were accountable to the electorate on whether areas of divergence were justified. I would prefer that we got back to that way of doing things. However, it seems to be likely that, even if the UK Government wants to put a bit more emphasis on common frameworks, UKIMA or something very like it will remain in the background, with a degree of change.

Professor Horsley talked about shifting the burden of proof. It seems to me that that would be a significant improvement, but I am not sure that it would deal with the question of uncertainty, either for business interests or for policy makers who are seeking to innovate, who would still not know what they are ultimately allowed to do.

In oral and written evidence, there has been discussion about the grounds for exclusion. Should there be a longer specific list of grounds for exclusion, or should there be something that is more open-ended? Could you explore the options and the tensions in having a specific list of policy areas or list of principles? For example, if a devolved Government is implementing a manifesto commitment, that should be protected: there would be a democratic argument for that, or for something that is more open-ended in the exclusions process and how it works. What are the tensions between the approaches?

I have one question on the principle and one that is more practical.

On the principle, there is still a concern that major constitutional change requires democratic legitimacy. When this Parliament was created and given authority over devolved policy areas, the public had been asked for consent for that major change to the constitutional framework of Scotland, and they said yes.

When the UK Government proposed to leave the European Union, much as I regret the fact that the question was answered as it was, at least the public were asked the question, and 52 per cent of people UK-wide and 38 per cent in Scotland said yes. Even at that time, the subsequent constitutional changes that are now represented in UKIMA were not proposals that were on the table. Nobody in any part of the UK or Scotland said yes to those major constitutional changes, and Scotland’s Parliament said no to them.

Whatever changes emerge from the UK Government’s review, how can we achieve democratic legitimacy, which is currently lacking, for the new constitutional framework, which will continue, on some level, to constrain the powers that were given to this Parliament by the public?

Thank you both very much. I would just maybe ask for a trigger warning in advance of anyone using the word “trumped” in future.

Are there any other views on that question?

Professor McHarg is looking to come in.

There are many aspects to the issue. If you are going to have a framework like this, you want to be able to cope regardless of whether there is a good or bad relationship between the Governments. You want to be able to cope with changes of Governments and changes of ideology. You want to be able to cope with an emergency situation. You want to be able to cope with the emergence of new policy areas that test the boundary between devolved and reserved areas. I find it difficult to see how a framework will be able to withstand all those pressures and those that we cannot predict.

Do other witnesses want to comment on the practical question, particularly around whether things such as the exclusions list is more likely to change? If that is where we are likely to see willingness to move, how should we implement such changes?

You differ constructively, I hope.

And to a deregulatory pressure as well.

I will quote NFU Scotland’s written evidence, but my question is for both of you. NFUS seems to have hit on the nub of the tension in paragraph 2:

“NFU Scotland stresses the need for agricultural support policies to diverge where necessary to reflect different needs and objectives. However, the free movement of goods and services and the regulations ... must be aligned so there is no competitive (cost) advantage or disadvantage”.

People might emphasise one or the other of those objectives, but there is a tension between them and there always will be a tension between them. The principle that we should be aiming for is not to be absolute about either but to understand that tension and, as you said, hear from the stakeholders who are affected by whatever divergence might emerge and whatever consequences might arise. A clear-eyed decision should be made in a democratically accountable manner about how to manage that tension and, within devolved policy areas, the default should be that that decision is made in the devolved Administration or jurisdiction.

First, do you agree that that tension will always continue to emerge in issues that we know about and in new ones that we have not encountered yet? Secondly, as well as those two priorities and objectives, is there an additional one? I think that you have both touched on it, using different language. I think that Lloyd Austin used the phrase “race to the top”, and Jonnie Hall talked about protecting standards or something of that nature. If, for example, a future trade agreement opened the Scottish and UK market to products that undercut your members in terms of environmental protection, animal welfare and a whole host of other areas that we might anticipate, your members—at least those whose principal market is domestic rather than international—would be deeply concerned. The direction of travel of the regulatory landscape is an additional objective that we need to keep in mind, beyond divergence for innovation’s sake or for meeting local needs, or for the protection of the market itself. I wonder whether you could reflect on those issues.