Agenda item 2 is the European Commission work programme. At its meeting on 11 May, the committee agreed to invite the Scottish Parliament’s European officer and others to give evidence on the European Commission’s work programme for 2010 to 2014. Papers 4, 5 and 6 are listed on the agenda for this item.
I thought that they were members of the committee, actually.
Indeed. It has been commented that Mr Clancy seems to have a season ticket. However, his contributions are always erudite and welcome.
I should have brought my scarf and rattle, convener.
I will open the questioning.
I thank you for the invitation to give evidence.
The approach also makes it important for the Justice Committee and the Parliament to be sensitive to what is going on in Brussels. Perhaps there will be further comments on that this morning. At the moment, there is, of course, no Scottish MEP on the European Parliament’s Civil Liberties, Justice and Home Affairs Committee or its Legal Affairs Committee, which are the crucial European Parliament committees that consider justice issues. Therefore, the situation is slightly different from what it has been in times gone by, when Neil MacCormick was an MEP. He made a contribution of great substance, of course.
Mr Thompson will examine that point further later.
On a pragmatic level, the changes will give this committee and other committees greater transparency on the issues that unfold in Brussels, and there will be more time to consider them. For the first time, with Parliament’s involvement, you will be able to see a series of stages or readings. You will have an opportunity—for example, through various visits or briefings from me—to gain an understanding and to engage. Where appropriate, using MEPs who are perhaps not from Scotland but who are nonetheless interested parties, you will have the opportunity to seek to have your views made known. That is important.
Cathie Craigie will examine some aspects of the opt-in arrangement.
The opt-in has been extended to legislative initiatives in the areas of policing and criminal judicial co-operation in criminal matters. Are there potential consequences that we should be aware of and, if so, what are they?
Title V of the treaty states:
My colleagues will go into more detail on how the reporting-back system might operate. Do the other witnesses have anything to add?
You might be aware that the Scottish Government has given a commitment to report back on what has happened at councils that it attends. More important is the reporting-back procedure from the joint ministerial committee, which is far less transparent. During the European and External Relations Committee inquiry, the then Minister for Europe gave a commitment that there was no reason why there could not be greater transparency in the discussions. You will be aware that much of the UK line is developed and negotiated in the UK before it ever arrives in Brussels. For the Scottish Government and Parliament to be involved in that, they need to be particularly involved at the joint ministerial committee stage, because that is when many of the decisions for the UK are taken. So, the more transparency there is in relation to those meetings and the greater awareness that the Justice Committee has of them, the more likely it is to scrutinise and to seek to influence.
I claim ignorance and ask who is involved in the joint ministerial committee.
The JMC is chaired by the UK Government and involves the devolved Administrations. It focuses primarily on European affairs. I think that it meets quarterly or so to consider issues on which the ministers seek to take a position. It also exists in a non-meeting format, through regular communication. The ministers attend the meetings—from Scotland, it is usually the minister with responsibility for Europe who goes.
You mentioned that the minister said in evidence to the European and External Relations Committee that the Government is willing to report back on that. Have you identified a current failing in that we do not have a formal mechanism for reporting back?
The UK minister said that he saw no problem with reporting back, but that was not the traditional line that had been given by the Scottish Government for a number of years. The Scottish Government is now trying to work out how it can report back. There will still be restrictions relating to future negotiating positions, which could not be discussed openly. The Scottish and UK Governments are trying to find a modus operandi for that.
As you will no doubt be aware, the timing is tight, as there is an eight-week deadline. We considered the issue yesterday and suggested using tools such as the European Commission work programme and the Stockholm action plan, which identify certain dates or timelines. Those are given to change quite a lot but, for the committee and for external organisations, if we knew that within a certain period we could expect a piece of legislation on procedural rights or on trafficking of human beings, that might given us an idea of when something will come up and when the eight-week period might start to run. That could assist everybody in preparing for that period.
A very real problem that I can anticipate is that, if something lands on the desks here in the third week in June, just before a lengthy parliamentary recess, there will be no committee facility to deal with the issue until the first week in September at the earliest, unless we call people in for special meetings, which I would be reluctant to do.
The European Commission has recognised that problem. It has said that there is a dispensation for national Parliaments, such that the eight-week period will not be deemed to include periods of recess, given the very problem that you have highlighted. I am not clear, however, that that extends to regional Parliaments.
My reading of the situation is that the dispensation does not include Parliaments such as this. We have a difficulty there.
The witnesses have anticipated some of the committee’s questions—Michael Clancy, in particular, is showing his experience and has been thinking ahead. Do you believe that Scottish interests are being adequately covered by the way in which the opt-in procedures currently operate? Could we improve them beyond what you have been suggesting already this morning?
We are human beings, so nothing that we do is perfect, and there is always room for improvement. One thing that I had thought about mentioning when giving evidence to the European and External Relations Committee was COSAC—the Conference of Community and European Affairs Committees of Parliaments of the European Union. It was established in the 1980s, and representatives from all the national Parliaments attend it. The UK has six nominations to COSAC, and they are filled by members from the UK Parliament.
There being no other questions on that subject, I will pass to Dave Thompson, who will deal with the subsidiarity protocol and our relationship with it.
Good morning and thank you for coming along to speak to us today. A number of interesting points have been raised already, and I wish to tease out one or two others. The national Parliaments—the Westminster Parliament and the Scottish Parliament—now have increased involvement in legislative development in the EU, which can only be to our benefit. We have already seen, however, how that throws up potential difficulties for us in Scotland and at the Scottish Parliament. Will you elaborate on the roles of the UK Parliament and the Scottish Parliament, so that we are clear about those? I wish to pick up on one or two other wee points after that.
The Lisbon treaty gave national Parliaments a greater role to allow them, on receipt of a draft piece of legislation, to consider it, apply a subsidiarity test to it and write a reasoned opinion—against it, if a Parliament so decided. If enough national Parliaments were so minded—one third for most issues, but only one quarter for justice—that would cause the Commission to pause and reconsider its position, and then to decide whether it was still of a mind to proceed, in which case it would need to justify its actions.
In the justice area, subsidiarity concerns such issues as cross-border law enforcement, investigation powers and procedural rights. In the European Union, police authorities and Governments need to work together, with impacts on what are very different legal systems and specific legal traditions. A number of problems can be thrown up. The argument might be made to legislate on something at a European level, but the subsidiarity principle will come in and have an impact on different national legal systems. It is a hugely complicated area, but we should all be aware of it and look out for subsidiarity issues.
Is there any other devolved Parliament in Europe with a separate legal system, such as Scotland has within the UK—in Spain, France, Germany or wherever else—or are we unique in that respect?
I am happy to be corrected, but my initial view is that Scotland is unique, although the German Länder have strong legislative traditions and independent legal authorities. That model is often used for comparison, and I know that the Scottish Government’s office in Brussels has strong links with the Länder, with a lot of exchange of information. Although Scotland is unique, it is possible to seek out similar situations. I am happy to be corrected on that, as I said.
Do you wish to correct Ms Bateman, Mr Clancy?
I certainly would not venture to correct anyone, convener. The point about the German Länder is important, but of course they operate within a federal system, whereas we do not. That is a significant distinction: ours is a separate legal system within a unitary state. We are not the only legal system within the unitary state of the United Kingdom—with the recent devolution of justice matters to Northern Ireland, one can see the potential for the emergence of different justice issues there, too. Wales is in a slightly different category.
That leads on to an issue that was touched on earlier: how we protect our position and deal with situations. I was interested in the comment that we in Scotland might think that it was a good idea to opt into something that the UK had chosen not to opt into. I do not remember which witness said that we could develop our law along such lines. That seems a fairly cumbersome way of operating. Do you have views on our setting up an opt-in mechanism whereby we could—without going through the complete law-making process again—opt into something that we felt would benefit Scotland? Do you have ideas on how we could streamline our ability to pick up on initiatives that we think would be good for Scotland but which the UK does not think would be good for the UK?
As I mentioned the issue, I might as well pick it up and explore it. Creating a new legislative mechanism is not the way to go. We have established legislative mechanisms for dealing with European law. The implementation of European law such as directives is pretty well set—we know how that works, what that looks like and what the outturn is. Whether an act of Parliament or a statutory instrument is used, it gets to the point and the law becomes effective here. We should not go about re-engineering the legislative process, which is there for good reasons—to ensure democratic accountability and proper implementation throughout the European Union and to ensure that parliamentarians know what they are doing when they implement a piece of European legislation.
I suspect that such a situation would not be without its tensions.
I suspect that you are right.
I will add some background. Great disagreement between Scotland and England is rare in such areas, primarily because of how the laws are deliberated on before they become public. Quite strong communication takes place between London and Edinburgh to ensure that laws are sensitive to the respective legal jurisdictions. The EU is very aware of Scotland’s unique legal system and often questions the UK Government to ensure that a measure has been considered in the light of the Scottish legal jurisdiction. Issues might arise, but I suspect that there will be far fewer than we might expect given the nature of the situation.
I have a query about language. The phrase “regional Parliaments” jarred around the committee table as being not altogether applicable, to say the least, to the Scottish Parliament’s position. Might we have some thinking about a more appropriate phrase, as part of our involvement with all this law? I am not sure whether the phrase apples all that well even to the Länder or to the Spanish provincial bodies, whatever they are called. The phrase “regional Parliament” certainly does not express the reality of the Scottish Parliament’s position. A bit of thinking about language might not go amiss.
Article 2 of the protocol on subsidiarity to the Lisbon treaty talks about taking into account
No—it would be worse.
When one is dealing with at least 27 languages, there must be some translation capability.
I appreciate the general overarching point, although even that might be affected by slightly more comprehensive thinking. Language can translate badly. In this instance, the language used does not represent the reality of the position.
As we said in reply to Dave Thompson’s question, Scotland’s situation is unique. The reference to the German Länder was made in the context of looking for comparisons or for jurisdictions in larger member states that have a high profile or are very active in Brussels. I was by no means saying that the Scottish Parliament is equivalent to institutions in the Länder; I was just trying to think about other member states that have several different representative bodies in them.
I was not going to raise the issue, but I will discuss it now that it has been raised. I support Robert Brown’s comments not from a nationalist point of view but from the point of view of accuracy. Scotland is a nation; the UK is not a nation—it is a state. The UK is a kingdom and a state but not a nation. We are a nation. Calling us a regional Parliament and them a national Parliament is factually inaccurate.
Mr Duncan, will you tell us of a Euro compromise that will keep everybody happy?
My only comment is that the Lisbon treaty was careful and did not mention Parliaments—it referred only to issues that emanate from regions and local areas. The treaty was diplomatic about not tackling the question, because of the issues that have unfolded here today.
We now turn to the Charter of Fundamental Rights of the European Union.
I want to get a feel for the interrelation between the European convention on human rights and the charter of fundamental rights and their different jurisdictions. I think that I am right in saying that the EU charter of fundamental rights has been incorporated into EU law—as opposed to Scots law, one imagines—through the Lisbon treaty. Under the Belgian presidency, there is also discussion of the accession by the EU—as opposed to the UK—to the ECHR. Can someone perhaps take us through what all that means? What implications will all of that have?
The charter of fundamental rights was initially signed in 2000 as a political statement—rather than a legislative text—but the charter was then incorporated into the Lisbon treaty so it now has binding legal effect. However, the view has been that, in relation to the European convention on human rights and the legal systems within the UK, there is very little impact from the charter’s incorporation into the Lisbon treaty. The UK secured a protocol to the treaty that states that the charter of fundamental rights has no effect in relation to the legal systems within the UK. From our perspective, the charter is a political statement that has then become incorporated into the Lisbon treaty—
Let me just interrupt you. Does that mean that the charter remains a political statement and has no legal implications?
The charter is legally binding in the sense that it is now in the Lisbon treaty and is referred to as a justification or reason for legislating. In terms of improvements or developments, we do not think that the charter has much effect, although there is a specific Scottish angle to the issue.
The protocol to which Julia Bateman referred specifically states:
I think that I understand that. On the consequences of that change for Scotland, basically no one in Scotland could sue under the European charter of fundamental rights or use the charter as an argument before the courts.
One could probably use the charter in an argument, but one could not sue on the basis of the charter.
Therefore, the charter could be used only as a political argument for change or to bring pressure. It operates at that level.
The incorporation of the charter does not introduce any new rights and obligations, but it could be relied on either to introduce legislation or for the purposes of interpretation. As Michael Clancy said, the most interesting thing will be the relationship between the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg.
My follow-up question is on a slightly different issue. The Lisbon treaty provides for the possibility of the creation of a European public prosecutor if all member states agree to that. I cannot see how that would fit with existing national frameworks, such as the Lord Advocate and so on. Can we perhaps be given some insight into what the implications might be if the EU went for such an arrangement?
The Law Society does not agree with the creation of a European public prosecutor. We believe that issues relating to the prosecution of crime should rest—as is currently the case under section 48 of the Scotland Act 1998—with the Lord Advocate, who has sole discretion to prosecute serious crime. We want to ensure that the position of the Lord Advocate remains inviolate.
If the EU made further moves forward on that, what would the implications be? What are the society’s concerns about having a European prosecutor?
There could be confusion over who would mount a prosecution. For example, on a certain given set of facts, the Lord Advocate might decide not to prosecute whereas the European public prosecutor might decide to prosecute. That could produce difficult situations for citizens and for their advisers, who might find it difficult to decide what kind of advice they should give.
I want to follow up on that. Mr Clancy’s answer assumes that, if there was a European public prosecutor, there would still be a prosecutor in Scotland. However, it might well be that the system would have only one prosecutor, which would get rid of our system, so the problem that has been outlined would not arise. That raises all sorts of other questions about how we in Scotland could protect ourselves if Europe wanted to move down that road. We would need to rely on Westminster not agreeing to the proposal.
My recollection is that the foundation of the idea of establishing a European public prosecutor was to defend the EU’s interest, so the prosecutor’s remit would be limited to issues such as fraud in EU finances. However, I agree that, if there was a suggestion that the European public prosecutor would cover a much wider range of issues, any such proposal would require a lot of scrutiny. A deal of persuasion would be needed to unseat the Lord Advocate from her chair.
Perhaps Mr Duncan can provide us with some reassurance on whether there is any unanimity of view—which I think is unlikely—about that in Europe. Such a thing is not going to happen.
You have taken the words right out of my mouth. Such matters are not subject to qualified majority voting plus codecision but require unanimity. The UK Government has been very clear that it would not support such a proposal in any form whatever, so unanimity would not be possible. Whether or not Europe moves from the current proposal to some new concept that might be introduced at a later date, at the moment such a proposal would not make great progress.
So we are talking in a vacuum. At this point, let us move on to current EU legislative initiatives.
I want to ask about current EU initiatives in the areas of police and judicial co-operation in criminal matters and of judicial co-operation in civil matters. Which proposals are at a stage at which the Justice Committee could have a significant influence?
In our written submission, we have tried to highlight a few of the priority areas. In the criminal law field, we think that the package of proposals on procedural rights—including the letter of rights, the right to interpretation and translation, the right to access to a lawyer and the right to legal aid and legal advice, on which the Commission is due to legislate next—is a priority for the Law Society of Scotland and for the Justice Committee. We believe that those initiatives are much needed to provide a counterbalance to the security-focused initiatives and the extension to police investigation powers that have been introduced to date. I flag up the letter of rights, which will ensure that information is given to suspects and defendants about their right to access to a lawyer. We believe that that is a very important proposal.
In discussing such issues with a committee that has a heavy work programme, I am always conscious of the problem of exactly how the committee will find time to engage in a way that will do justice to the issues in question. That said, the committee may wish to consider a few green papers that will appear over the next few years. Next year, we will have a green paper on minimum procedural rights of suspects and accused persons and another on detention, both of which may be of interest. There will also be a green paper on the free circulation of documents. The committee may want to get in with the bricks on those green papers.
Julia Bateman spoke of areas that the Law Society set out in its submission. It is clear to the committee why some, including the rights of accused, are a priority for our consideration. The proposed letter of rights was mentioned. How will that operate and why is it necessary?
It has been 10 years since the last major development in EU law on the police and investigative authorities, whether that be the European arrest warrant, the European evidence warrant or related confiscation and asset recovery. The Law Society supports measures to improve law enforcement across borders and crime fighting in the European Union, but we are concerned that some legislation does not take account of the role of the individual in proceedings. We need to ensure that procedural guarantees are protected. I refer not to the situation in Scotland but to that in cases abroad. In cross-border cases, individuals who face criminal proceedings in another member state should have access to information on their rights in their own language, be that information on access to a lawyer or on detention rights.
From the Law Society’s submission, I understand that the letter will not replace basic existing rights.
Absolutely. It will neither replace basic existing rights nor change those that exist in different jurisdictions. It is a tool to inform individuals of their rights in each national system.
When the European Commission wrote the paper, it highlighted a number of examples of people who had been arrested, tried and imprisoned and yet who had no idea why. In certain parts of the EU, justice is not quite as fair as we would like it to be.
The law of succession was mentioned earlier, as was family law. It is widely perceived that the UK Government and the Scottish Government are cautious about taking on those areas of law. Is that cautious approach justified?
In family and succession law, the cautious approach is the right one. The instruments in question are designed not to reform national law or deal with estates on the domestic front but to look at certain areas. I refer to questions such as what the jurisdiction and applicable law are, which court will be used and which law will be chosen. The concept of choosing which law to use in a proceeding is alien to our legal cultures. We do not support that concept; we think that the law of the country is the most appropriate, cost effective and simple choice to make. The Law Society is concerned that major changes in that respect may be introduced. The cautious approach is important in that regard. On the other hand, the 2.2 million British citizens who live abroad could benefit from a simplified system. We are therefore trying to look at the practical application of the proposed change. As I said, we support the cautious approach. At this stage, the UK as a member state has not opted in.
I find it difficult to envisage how this will operate. How will the choice of which law to use be agreed to? I understand the point about the rights of Britons who live abroad. That said, far from the proposed change introducing a simple way of operating, it will make things more complex.
Private international law is complex—it just is. As people’s family and property arrangements become increasingly complex, it becomes increasingly difficult to devise the proper law that should be applied in the circumstances. That issue confronts courts today. The 2.2 million cohort whom Julia Bateman spoke about are not getting any younger. It is not beyond the bounds of possibility to imagine that mortality will be knocking at their doors very shortly. People who bought a timeshare in Torremolinos or a villa in Tuscany a few years ago will now be looking to find out the taxation implications of transferring their property on death or while they are still alive.
It is also useful to remember that your predecessor committee responded to the European Commission on succession and wills and divorce and broadly supported the cautious approach of the UK Government.
As there are no more questions on that issue, we move to the final question, which comes from Nigel Don.
It might be more than one question. Thank you for your input, which has given us—or certainly me—a great deal to think about. I refer back to paragraphs 114 and 115 of the European and External Relations Committee’s report, which said that the Justice Committee should give further consideration to the issues. That was the European and External Relations Committee quietly passing the baton. I am looking for a little bit of help on what we should actually do.
Curiously enough, that would be my job. That is what you pay me for. When people ask what I am up to, I usually say that I am the eyes and ears of the Scottish Parliament. It is my job to ensure that you know in plenty of time what is happening. The publication of green papers is a stage in the process, but thinking often goes on within EU institutions before then that leads to more progress and material thereafter. I tend to use the Commission’s work programme, which is published annually and sets out the material that is coming up. Thereafter, depending on instruction from the committees of the Scottish Parliament, I actively engage with that and ensure that each committee has enough information so that, at any point, it can decide to engage more actively with the process.
Given that there is now no Scottish MEP on certain European committees, would it help you to do your job and help us to do ours if we formed a link with MEPs from elsewhere in the UK who are on those committees? We could work closely with them if they were willing to take on that role.
I usually assess who on each of the given committees are the best people to gain as contacts. I now have a network of contacts on all the committees. Where there is a given issue, a rapporteur is usually appointed and they are responsible for drafting the Parliament’s position. I usually seek an early meeting with that individual so that I am at least aware of who they are and what they are up to. I report that information back when appropriate.
Can I follow up on the process? I think that at some stage or other this morning, you have all said that the lines of communication are quite good and that the European Parliament and the Commission understand that the Scottish legal system is different. However, there is a bit that worries me. Forgive me if I am going off at a tangent, but I will come back. My experience is that when sheep farming is discussed in Europe, most MEPs think about a small flock of sheep on a patch of green grass that looks rather like a football field on a sunny day. They simply do not understand wet, windy hill farming in Scotland. That is a frustration for those who deal with farming issues. Clearly, legal systems are slightly different in concept. To what extent are we right to be concerned that Europeans might not understand Scottish law, or is that just something that worries a few of us and really should not?
That is quite a difficult question to answer. Many people do not understand Scottish law. I do not understand Scottish law, so why would I expect someone in Germany, Spain or Italy to understand it? In fact, they might understand it much better. The only sentence about Scots law in René David’s book on comparative legal systems is, “Le droit écossais est très différent du droit anglais.” That is it in a nutshell. That might be the way in which some learned commentators in Europe look upon the Scots legal system. However, René David’s attitude, as a significant French scholar, is tempered by the fact that there are organisations, such as the Law Society of Scotland, the Scottish Government and the Scottish Parliament, that make it well known that there is such a thing as the Scottish legal system, that it is in some respects very different from the English legal system, and that in other respects it is similar to some continental legal systems.
I agree with Michael Clancy. Whether an official who drafts a piece of legislation understands the number of different legal systems in the EU is questionable. However, there is an understanding and an awareness that Scots law and the Scottish legal system form a separate jurisdiction. The main, important message is that when legislation is developed there is no single UK legal system—there is no British law. The joint UK Law Societies Brussels office ensures that we are represented as three different jurisdictions and three different legal systems.
To return to your sheep farming analogy, the same is true of almost every single piece of legislation that develops in the EU: there will always be very distinct national, sub-national, regional and local components to its determination. The important thing is that those who represent you in the negotiations understand each of those aspects—in a sense, the law that will affect you is in the hands of those whom you elect directly or the officials who work for them, negotiate in Brussels or come to a UK position in London—so that what arrives is sensitive to all the aspects and micro-differences that affect a country or national jurisdiction. The EU is at its best when the civil servants from the member states work collectively to try to create a mosaic that deals with all the different aspects of the continent, which is no easy task.
There being no other questions, I thank you very much indeed, not only for your excellent responses to the searching questions that my colleagues posed but for the exceptionally useful papers that you produced. Thank you very much for your attendance.