European and External Relations Committee

Meeting date: Tuesday, February 23, 2010

Official Report 437KB pdf

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Treaty of Lisbon Inquiry

I welcome to the committee our first panel of witnesses, of which we have three today. We are pleased to have back with us Donald Henderson, who is deputy director Europe and head of the European Union office in Brussels; Vanessa Glynn, who is a head of unit in the Europe division; and Paul Cackette, who is from the Scottish Government legal directorate.

I thank the witnesses for coming and for their written submission, which is useful and has answered some of the questions that we intended to put to them. We have quite a few questions, but I think that Donald Henderson intends to make a few opening remarks. Is that correct?

Yes. I will do so if that is possible, convener.

First, on my and my colleagues’ behalf, I thank you for the opportunity to come along and talk to the committee. The Government’s approach to implementation of the Lisbon treaty is probably best seen in the context of our developing experience of the EU over the 10 years of devolution and of the Brussels office’s existence, and in the context of the strategic approach that was set out in the action plan that we published last September. As the committee will recall, that plan covered four areas: energy and climate change, the marine environment, justice, and research and creativity. The Lisbon treaty affects all those areas in one way or another, either by clarifying competence, by adding competence or by introducing co-decision.

Although we have been mindful of the treaty’s likely introduction for some time, and although it introduces changes in how we will have to work, it does not, at one level, radically change how we engage on EU matters. Not everything changes.

In order for us to be at our most effective on a particular issue, it was always important to have good communication with the key domestic interests—local authorities, other public bodies, industry, non-governmental organisations and, of course, the Parliament. In Brussels, we have always needed to engage closely with the institutions—with the Council of the European Union, via our engagement with the United Kingdom permanent representation to the European Union, and with the European Commission, directly through everyone from the Cabinet to desk officers—and with others of like mind, whether they be member states, regions or NGOs. That will all continue under the Lisbon treaty, albeit that it will happen in respect of a broader range of subject matter.

Perhaps the area in which the treaty brings about the biggest change to our day-to-day engagement in Brussels—whether through the Brussels office or line divisions at home—concerns the role of the European Parliament, where there is much more co-decision, including in areas that are crucial to us, such as agriculture, fisheries and justice. However, even that can be considered to be the continuation of a trend over the past 10 years.

It is probably true that, when the Brussels office was first set up 10 years ago and the Scottish Parliament was created, the European Parliament did not figure significantly in our work. It was certainly always more than merely an afterthought, but it was substantially less important to us than were the Council and the Commission. The introduction of the Lisbon treaty and the expansion of competence and co-decision mean that there now needs to be parity in our targeting. We have adjusted to that over the period since we saw that the Lisbon treaty would be implemented, so we now have in my team in Brussels a person who is dedicated to European Parliament liaison. We also had minister-led engagement with new members of the European Parliament within days of the European parliamentary elections last June. We not only engaged more effectively in Brussels with our own MEPs, but with MEPs from elsewhere in the United Kingdom and from Ireland, and with rapporteurs, conveners or vice-conveners in areas in which we have a particular interest.



10:15

On other areas of the treaty that I know we will get into today, we look to emerging experience as people build experience of what the treaty means in practice, or look to others for a lead. In the former case, I am thinking about the rights in the petition and subsidiarity arrangements. On the million-signature opportunity that the treaty allows, all of us across the 27 member states and throughout all parts of the member states must watch how that develops. I think that NGOs and pressure groups will be hugely interested in it.

On the subsidiarity arrangements—as you will know, convener—the treaty gives member states’ national Parliaments an explicit right to one vote per chamber. However, within that it also says explicitly that there can be a role for legislative sub-state or regional Parliaments. There has been much discussion of that already, and we think that it is right that Executives await a lead from their legislatures in that matter and not the other way round. However, we will be very happy to work with the committee to develop the proportionate and effective system that I know we all want.

That concludes my remarks. I hope that I have not gone over my time limit. My colleagues and I are happy to help you however we can.

I do not have an enormous amount to add to Donald Henderson’s explanation, but I will fill in with some detail of which the committee might not already be aware. The Cabinet Office receives documents through the Council’s document system and then, on publication, provides them to the relevant lead Whitehall department, which is required to provide an explanatory memorandum to the Westminster scrutiny committees within 10 working days: timelines are pretty short. When there will be a devolved impact, the Whitehall departments are required within that time to consult the devolved Administrations. That often happens at short notice, although where Scottish Government officials have built a good relationship on EU issues, there is often discussion ahead of the explanatory memorandum’s being provided. That works well.

At the Scottish Government end, there is limited time for scrutiny of what are often voluminous documents. Often, it is possible to determine only whether there will be an impact on devolution and not a lot of scope to consider the issue in full detail. Sometimes, a memorandum is merely a trigger to flag up Scottish interest and to write that into the explanatory memorandum so that that is clear to Westminster committees and Whitehall counterparts. The final document, when it comes back through the Scottish Government and is provided to the Scottish Parliament information centre, is a mechanism to inform the Scottish Parliament that there is a Scottish interest.

On what happens next in the Scottish Government, the explanatory memorandum is a trigger for the system that is set out in the guidance that we published last year on handling EU obligations: the Scottish Government talks to Whitehall and stakeholders and considers in more detail what the effects will be. We are currently rolling that out.

Would Scottish Government officials or departments respond to all 20-30 explanatory memoranda that are flagged up as having a devolved interest?

If there is no interest, departments are also asked to register that. There may be many reasons for that: many documents apply only to other parts of the European Union and would have no impact on Scotland, and some are fully on reserved matters.

EMs cover a range of issues. I imagine that there are quite a few on the environment and, as you said, agriculture and fisheries. There will also be quite a number to do with the internal market.

A sensible next step might be to work out how the Scottish Parliament scrutinises what happens to those 20-30 EMs. My concern is that at the moment, no parliamentary committee is monitoring that. What is the timescale for the audit that you are conducting?

The nature of the expanded competences varies. There are some areas that, nominally, are expanded competences but in fact are a restatement or clarification of existing practice. For instance, in tourism and sport, the Commission has been active not through spending huge amounts of money or by introducing legislation but through assisting the work of member states. The Treaty of Lisbon clarifies that the EU can play a supporting role in various areas.

The treaty also sets out new competences in certain areas of energy, not least because the challenges that now face the EU in energy and, indeed, in climate change are quite different to those that were faced in the 1990s when the Treaty of Nice, the Treaty of Amsterdam and all the other treaties were going through.







In merely clarifying certain matters, the Lisbon treaty not only gives the Commission greater confidence about the areas in which it is able to operate, but provides member states with clearer boundaries and draws the lines over which the Commission cannot step. In past years, member states have expressed concern about what has been called competence creep, and have expressed fears that the Commission would try to occupy legislative ground by building on legislative statements and policy communications. As I said, there is now greater clarity, and in areas such as tourism and sport the Commission can play a role by assisting member states’ actions instead of introducing legislation. It is certainly not an exclusive competence or area for co-decision, and I am not sure that the Commission intends to legislate in such areas anyway.

I am not sure whether you also wanted to know about co-decisions.

The treaty will bring challenges, opportunities and risks. Before the Lisbon treaty came into force, decisions on agriculture and fisheries were made only by the Council of Ministers and, rather than being part of the decision-making process, the Parliament itself could only try to influence what was going on. As a result, all our work was carried out with UKREP or other member states or, particularly with regard to agriculture and fisheries, alongside non-governmental groups and industry groups.

However, most aspects of agriculture and fisheries will now be subject to co-decisions, which means that we can work more directly through our six MEPs. We have always spoken to them about those matters and over the years they have received briefings from officials and ministers. Until now, however, they were unable to vote on such issues. Now their votes will count. Of course, so will everyone else’s, so we need to analyse the alignments of the various national interests in the European Parliament and use our MEPs to pick up what the themes are and where the momentum lies to ensure that we not only spot opportunities to pursue any lines that are conducive to the Scottish interest, but identify emerging threats or opportunities such as a one-size-fits-all proposal that would not fit us, or a zero-sum game in which one of the choices would not be in our interest and the other would be.

Am I right in saying that the major decisions on the nuts and bolts of, say, the common fisheries policy—total allowable catches, for example, and quotas—will be retained and will not be subject to co-decisions?

Are you sure that the Government has in place the appropriate mechanisms to ensure consultation on such matters and to look out for traps that might lie down the road?

Absolutely. Internal processes exist and much work goes into ensuring that the Scottish legal system’s distinctiveness is reflected in what we do.

That part of the treaty enshrines an important safeguard. Although past best practice ensured wide consultation, the protocol requires the Commission to consult widely, albeit that the requirement appears alongside wording such as “where appropriate” that allows argument about different options and extents.

Our belief is that, if the Commission is to introduce sound legislation that will fit across a continent of more than 500 million people in 27 member states and the different communities within those member states, wide and genuine consultation will always be necessary. In the main, the Commission has engaged in such consultation, but the fact that such a requirement is written into the subsidiarity protocol means that the Commission’s lawyers will need to examine just a bit harder whether they are comfortable that the Commission’s actions pass the clear test that is set out in the protocol.

Beyond those general statements, we will need to see what specifics emerge. Obviously, the protocol was not written with a view to there being a very clear, black-and-white, single test that can always apply to every question. Given the wording “where appropriate”, how the requirement to consult is applied to different circumstances might vary according to the circumstances themselves.

I think that I will pause at that point. Does that answer the question?

In many ways, the requirement could be quite a subjective measure. Might that not lead to problems in the long run?

We would have to be persuaded that the issue was both exceptional and urgent. It is very difficult to develop hypothetical cases that would answer that, and I might get myself into hot water if I tried. However, thank you for the opportunity.

That leads us nicely to some questions that Rhona Brankin wanted to ask.

10:45

I will ask a couple of questions about article 6 and consultation with regional Parliaments with legislative powers, with particular regard to the term “where appropriate”. In what areas would it be appropriate to consult the Scottish Parliament? Would there be only a few exceptional cases in which there was no consultation, with the vast majority of issues being consulted on? What would those exceptions be?

Before you answer that, I have a supplementary question. Do you think that subsidiarity would be breached only if the European Union were acting in an area in which it did not have exclusive competence?

That is right.

The one that is arguably of most interest to us is marine biological resources under the common fisheries policy, which is itself an interesting construction.

Within the United Kingdom?

Yes.

There are a number of ways in which it could be initiated. In essence, there is no special mechanism for use in such circumstances. As Paul Cackette said, we have never needed such a mechanism for dealing with things through Council. We cannot find an example in which the UK wanted to remain part of something and Scotland wanted to opt out, or vice versa. Sometimes, different factors have given rise to the conclusion, but the conclusion has been the same each and every time in the past 10 years, since devolution. Nevertheless, if that did happen in the future, the same mechanisms would apply as in other areas. To start with, the matter would be dealt with bilaterally between the departments and ministers who were involved, but mechanisms have been set up that would allow broader discussions of the issues at play, either through correspondence or, if time allowed, through meetings. I am sure that ministers of any Administration in Scotland would regard it as an important event if we reached a situation in which there was a significant difference of view, because it would be the first time that that had happened.

What timeline would be in place in such a situation, or is that unknown?

I want to pick up on something that Donald Henderson said in response to Rhona Brankin. You stated that there are some challenges in establishing a process for dealing with subsidiary matters between the UK level and the Scottish level. Will you comment on whether some of those challenges emanate from article 6 of the protocol on subsidiarity, which sets out that there should be consultation where appropriate, but directed by the member state, and which does not set out how the consultation should be carried out? Is that lack of direction in the treaty unhelpful? Does that contribute to one of the challenges?

Ever the optimist, Donald.

I thank the Government officials for coming. We have had a useful and helpful session and we look forward to working with you on the general scrutiny issue. We will take the last of our evidence in our inquiry in late April and we hope to publish our report by June, so we are on a fairly tight timescale. Any exchanges that we can have at officer level in the interim will be useful, particularly in relation to explanatory memoranda, on which I think we agree that there might be a little deficit, certainly in relation to parliamentary scrutiny. The House of Commons European Scrutiny Committee considers every single EM, but there does not seem to be a corresponding system in Scotland. The committee would be keen to investigate that further.

I will suspend the meeting for a few moments to allow the witnesses to change.

11:07 Meeting suspended.

11:09 On resuming—  

In the past, the committee has very much echoed your thoughts on early engagement and horizon scanning. From our perspective, we are faced with a plethora of legislation, directives, white papers, green papers and so on coming at us. The issue is how we can do the horizon scanning effectively and how we can put in place processes that ensure that we exercise the independence that you mentioned. Given your wide experience in these areas, do you have any thoughts about the processes and ways in which that can be done? We talked earlier about the explanatory memoranda, for example.

It is one of the difficulties with a situation in which some decisions are taken by what amounts to the executive, bearing in mind that the Council of Ministers represents the Governments of the member states. To that extent, parliamentary control over those decisions is limited. I think that we made that point in the Calman commission. It is a fundamental problem for Scotland that differentiates Scotland from almost any other region—in inverted commas—in the EU. Not only do we have the largest fishery area in the United Kingdom but we have probably the largest fishery area in the whole of the EU, yet Scotland is not independently represented, and its interests are taken forward by a UK Government in a manner that is perhaps unsatisfactory from Scotland’s point of view. That emphasises the need for what the Calman commission called for, which was much closer involvement of the UK Government and departments in Whitehall with Scotland’s particular interests.

How do we as a Scottish Parliament make those things happen? How do we bring influence to bear on the UK Government?

As you point out, the dangerous situation, which is to an extent hypothetical, would occur when it was in Scotland’s interests to opt into the European system or when the UK—that is to say, London—wanted to opt in but it would be to Scotland’s advantage or protection to opt out.

I will take a hypothetical example. It is clear that the proposal for a European public prosecutor has totally different implications for England, Northern Ireland and Scotland. The proposal might be entirely consistent with the Scottish system, because we have a public prosecutor. The public prosecution system here is not the same as that in most member states, but its origin derives from the same notions about the public prosecutor’s position. That is different from the English, Northern Irish and Irish position. It is conceivable that the mechanisms for the operation of the European public prosecutor would be compatible and perfectly workable with the Scottish system but not with the position in England and Northern Ireland, so Scotland might want to take a different position. That would be an impasse.

11:30  

I am sure that we could have a very interesting conversation about whether the concept of parliamentary sovereignty extends to Scotland, but Sir David Edward will know more about such matters than I do.

Article 6 of the protocol states:

“It will be for each national Parliament ... to consult, where appropriate, regional parliaments with legislative powers”.

Should that be interpreted as mandatory or permissive in relation to the responsibilities that it confers on the member state?

It is clear from looking at other language texts of the protocol that article 6 does not impose a legal duty on national Parliaments, or chambers of national Parliaments, to consult. Article 6 simply says that “It will be for”—in the sense that it will be the job of—each national Parliament to consult. That seems consistent with the idea of subsidiarity. It is not for the EU to define how such consultation is to be done.

In a sense, then, the power is retained at the member state level.

We have a couple of questions on the Committee of the Regions, but first I will bring in Rhona Brankin. We are so short of time, Sir David, that I wonder whether we could write to you to get your views on any outstanding issues. Would that be possible?

Yes.

I think so. Although it is not an official body of the EU, close involvement with the conference of European regions with legislative power or REGLEG is also important.

That is becoming quite a prominent issue.

I cannot guarantee when I will get back to you.

Thank you very much. We have a number of questions on new and expanded competences, to which we will come in a minute. I agree with you that much will not change. I want to begin by exploring the present system and how it works, and the explanatory memoranda, because the committee is looking to build a robust process in that area. What sort of scrutiny does the Scottish Government undertake? Can you talk us through the current process and the relationship between you and Whitehall? What happens with explanatory memoranda, what is your involvement with them and where do they go within the system here in Scotland?

It is hard to give an exact number because the system is decentralised. We think that the Europe division receives the majority of draft EMs, but we know that some colleagues receive them directly. At the London end, they come from individual departments—there is no centralised system. Through our Lisbon impact assessment, we have discovered and identified that we perhaps need to audit how we track EMs across the system, and to consider how robust the process is. All the evidence suggests that the process works well. We provide somewhere in the region of between 20 and 30 finalised EMs a week to SPICe, so it is a significant number. However, we do not know whether there are some that we do not see. That is what we would like to turn our attention to next, having spent a good amount of last year considering issues such as infractions and transposition. With Lisbon and subsidiarity, it now makes sense to focus on the explanatory memorandum aspect of our work.

I am sorry, but I cannot answer that. Although we want to audit the system, we have to be careful that we do not set up mechanisms that are disproportionate to the Parliament’s needs and over and above what is being provided by Westminster. We want to consider what is happening and we want to think about what value-added and resource-effective improvements we can make. It would be impossible for me to say what those might be until we have undertaken the audit.

We probably see a wider group than that because the Whitehall department is often not fully aware of where the boundaries lie. Equally, some reserved issues have an impact on devolved issues, so the line is somewhat blurred.

Do those 20-30 EMs fall within particular subject areas? I imagine that the common fisheries policy and the common agricultural policy come up frequently. Is that the case?

It will be done over the next few months, I imagine.

It would be helpful if we could work in partnership with you on that.

Absolutely.

We are working with SPICe to audit some of the papers that are resting there, to see whether they have any implications for the inquiry.

Do you have any other thoughts on how the Parliament could establish bilateral links with you to improve the scrutiny process, or is it too early to say? You might want to conduct your audit first.

Thank you. Ted Brocklebank has some questions on the expanded competences.

Good morning. Donald Henderson has already been over some of this ground—certainly in the submission—but I wonder whether you will go over it again for us. What are the potential advantages and disadvantages of the extended competences that we are now facing?

10:30

As we have argued until now in the Council of Ministers, we will lobby the European Parliament and have discussions with MEPs. I ask Paul Cackette to talk about that in detail.

Mr Cackette has helpfully given a specific example—which I appreciate is difficult, given what we have agreed is the subjective nature of the requirement—of where wider consultation might be required. I wonder whether we might also be given a specific example of how the Commission might apply the flip side of article 3, which states:

“In cases of exceptional urgency, the Commission shall not conduct such consultations.”

When would it be acceptable for the Commission to say that a proposal involves a matter of “exceptional urgency”?

Obviously, there has been some thinking about the procedures and mechanisms that will have to be put in place. What are the key procedures and mechanisms that will be central to this?

Does that mean that everything that is a shared competence could not be challenged on the basis of subsidiarity?

Probably the majority of issues are shared.

There is an important but limited range of exclusive competences at the absolute top level: the customs union, the functioning of the internal market, monetary policy, and the common commercial policy. They are specifically narrated in the treaty as being exclusive. Everything else will be shared, and subsidiarity will apply only to the shared competences, which form the vast majority.

Yes, it is very interesting. That was just an additional point to Rhona Brankin’s point.

Some other elements will probably play in. First, one of the secrets to any European engagement is early warning. The people who can help to develop early warning systems need to be involved at an early stage. We hope that that will include the Scottish Government, including my colleagues in Edinburgh and in the Brussels office. MEPs will sometimes pick up on issues at the same time as we do, but they will usually pick up a different sense at a different point in the legislative programme. Because the Convention of Scottish Local Authorities has to look at different aspects of implementation and represents an arguably different level of subsidiarity, it might have views that it wants to pitch in; I have not spoken directly to COSLA about that, but I suspect that it might be true. I do not think that that is an exhaustive list.

One of the secrets is to get a process that works quickly and spots early on what is likely to need greater scrutiny further down the line, perhaps in some cases even before there has been a formal legislative proposal because, as members will know, sometimes it can be picked up from the Brussels system that a legislative proposal is on its way and we might get a sense of whether it looks like a centralised measure that might breach aspects of subsidiarity.

Yes. I think that none of us has quite concluded our view of what we should be doing and, as the executive, the Scottish Government needs to be led by its legislature on this, but I sense that it would be a mistake to get into pettifogging territory. If there is a tiny technical breach that makes no material impact, others in the union can represent that view. We need to care about breaches that have a tangible impact on the lives of Scottish citizens.

You referred to cases in which Scotland might diverge from the UK’s position. What procedures and mechanisms are being put in place to facilitate conflict resolution if different approaches are taken?

I stand to be corrected by Vanessa Glynn, but I cannot think of anything explicitly on that in terms of UK Government linkages as regards the Lisbon treaty. Clearly, the extension of codecision will have an impact on how an explanatory memorandum is written up and on Union competence. At the level of the MOU and the concordats, the revision that is waiting to go through is not being led by any changes being introduced by the Lisbon treaty. The good practice that is set out in the MOU is that there should be early warning between Administrations where one is acting in an area that will have an impact on the others. That is meant to be an equal responsibility; the Scottish Government or Parliament can do things that can impact on how the UK Government operates within Scotland. There should be exchanges of papers in advance to give early warning and there should be consultation. Those practices exist already and will continue.



When there are disagreements on policy matters that end up in the European Parliament or the Council of Ministers, or on legislative proposals that are going through the European Union, the primary means to address them is through the bilateral link between line officials here in Edinburgh and Glasgow or their ministers, and officials in the relevant Whitehall department or their ministers. In theory, the joint ministerial committee on Europe can engage. In practice, it has not done so very much over the years, partly because the timescales for delivering the final UK negotiating line do not fit easily with the timetable for a meeting, which tends to have to be set up some weeks in advance to get into the diaries of ministers from the four corners of the kingdom, but it can be used if necessary. The paperwork setting up the JMC explicitly states that it can be used as a dispute resolution mechanism.

On occasions, at the softer end of it, we and UKREP can become involved. Such involvement is almost never to fix a big problem, because we both take instructions from our home authorities, as it were, but we are able to contribute to the final coming together, hopefully, on an agreed UK line that all parties feel they have had a good crack at feeding into.

One of the challenges—I am thinking specifically of the annual round of protracted negotiations on the fisheries policy—is that it is often a moving feast and things move quickly. Bodies such as the JMCs are perhaps not sufficiently fleet of foot, so there have to be other mechanisms that can respond quickly.

I suppose that, in many ways, the close working relationship between fisheries officials has developed over the years and, in one sense, it is probably a model for other areas.

11:00

Yes. Another area that demonstrates that is justice, although not all the same attributes apply and we do not have the statistics that we have in relation to fisheries, which show that the Scottish interest represents 60, 70 or 80 per cent of the UK’s interest. Nevertheless, we have been active in justice. We have knowledgeable officials and there are constructive discussions between officials and ministers. Indeed, Scottish ministers and law officers have spoken on JHA matters at Council on behalf of the UK on a number of occasions. There are other examples of important areas for Scotland and we are firmly committed to those.

I will give Jim Hume the last word as we are running out of time and he has not had a chance to contribute.

My question relates to one of Rhona Brankin’s points on freedom, security and justice. If and when we get a situation in which the Scottish and UK Administrations’ opinions diverge and they cannot agree, what will be the mechanism to resolve the conflict? My question is perhaps more one for Paul Cackette.

That is useful. Thank you.

Jamie Hepburn has a pressing but short question. We would appreciate a short answer, too, because we are running late.

That part of the treaty is what it is. The issues that I had in mind are rather more about the eight-week period within which comments must be submitted and the fact that no one thinks that it will be commonplace—although it is not quite like a needle in a haystack—for Parliaments across the EU to find subsidiarity issues arising with the Commission, not least because the Commission would quickly learn. The process will happen relatively infrequently, or perhaps rarely, and we will have a short period of time to deal with it. Those are the primary issues. However, I am entirely confident that the legislatures in the two parts of the country will develop a fruitful relationship and arrangement.

It is a pleasure to welcome Sir David Edward. We have a written submission from the Royal Society of Edinburgh, and Sir David chaired the committee that was responsible for that submission. He was listening to all that went before and I am sure that he has some opening remarks. Perhaps he would like to comment on what he has heard.

Thank you very much. We have a daunting task ahead of us.

There is no doubt about that.

Yes—it is almost too late. However, there are other methods. The EU system is extraordinarily leaky, so we have the means of finding out what is going on, which we perhaps do not have to the same extent in Whitehall. You are entirely right about the need to be selective, but I strongly recommend learning from the experience of other so-called sub-state legislative authorities. For example, the Basques have long experience of this in their own context, as do the Flemish. They have put in place methods that may or may not be suitable for Holyrood, but it is important to discuss matters with them, find out how they do things and learn from that.

I do not want to go over the same ground that I went over with Donald Henderson, but I am interested in a particular point that he made. I do not want to put words into his mouth, but he appeared to say that the advantages of the increased competences outweighed the disadvantages. I think that he also said that about co-decisions. Perhaps you would like to comment on that to start with. Do you take the view that, generally speaking, the advantages outweigh the disadvantages?

One of the difficulties with devolution is that you do not have a formal mechanism to do that.

One of the suggestions in your paper was an improved working relationship between the Scottish Parliament and the House of Lords, the House of Commons and so on, to ensure that there is parliamentary and legislative input to some of those processes. At one level, that would assist us in those areas.

I think so. My predecessor as professor in Edinburgh—Professor J D B Mitchell—said that Governments have as many reasons for conniving with one another as they have for opposing one another. That is true to an extent, which is why Parliaments need to be careful. The point is absolutely made—the Calman commission made it—that interparliamentary dialogue will be important.

I hope that the Scottish Parliament will know well ahead what proposals are in the pipeline and will have taken soundings not just from the Crown Office and the Lord Advocate but from other interests on how the proposals would work in Scotland. We also need to ensure that those who are responsible for promoting the legislation in Brussels are aware of the Scottish position and how the proposals would fit in with the Scottish legal system.

I want to explore the issue of subsidiarity. I invited Mr Henderson to give his perspective, but he did not take up the opportunity. Do you have any observations on whether the lack of direction as to how a member state should consult a sub-state entity about an EU legislative proposal is helpful? I refer to article 6 of the protocol on the application of the principles of subsidiarity and proportionality.

It is inevitable that the treaty should leave it to the member states to organise the process of consultation with sub-national Parliaments, because the relationship between, for example, the German Parliament and the Parliaments of the Länder is totally different from the relationship that exists between Westminster and Holyrood. The methods of consultation in Germany will be entirely different from those that are used here.

An underlying problem is the preservation within the Scotland Act 1998 of the concept of parliamentary sovereignty, whereby Westminster at least theoretically has total competence to legislate on any matter whatsoever. The terms of the treaty do not impose any duty on Westminster to consult. However, as a matter of practice, the Sewel convention is becoming, if I may so put it, hardened into at least pretty soft law and is getting harder. Therefore, it would be difficult for Westminster to justify a situation in which the Scottish Parliament had not been consulted on a matter on which it should have been consulted.

That is absolutely right. However, one must distinguish between what is a legal obligation and what is a constitutional convention or practical necessity.

I do not think that the provision is sufficiently explicit for that. Let me take one step back. By legal obligation, we mean something that could be enforced in court. Other things being equal—there are a number of other considerations—could the Scottish Parliament raise an action, or cause an action to be raised, before the European Court of Justice on the ground that the Commission had failed to consult the Scottish Parliament? My answer is no, because the protocol does not require that. However, the fact that no consultation had taken place might be an important element in the argument that a proposal constituted a breach of the principle of subsidiarity.

If there is no such obligation on the member state or the Commission under articles 2 and 6 of the protocol, what is the merit—not of the entire principle of subsidiarity, although I am tempted to ask about that—of those two articles?

What would be the legal implications of a divergence of interests between the Scottish Parliament and the UK Parliament in relation to subsidiarity in an area of devolved competence? We have touched on that a bit already.

What would be the legal implications if there were a divergence of interests between the Scottish Parliament and the UK Parliament in relation to subsidiarity? We have touched on the legal basis. Donald Henderson talked about the processes and mechanisms for conflict resolution. You are saying that there is no legal basis for resolving a divergence of interests between Scotland and the UK.

Subsidiarity is an issue between the UK or Scotland and the EU. The question is should the EU legislate at all, or to what extent should it legislate? It is important to keep subsidiarity in context with proportionality—the two go together.

I might be wrong, but, at the moment, I do not see a situation in which a Scottish entity could effectively challenge a measure on the ground of subsidiarity because it created a problem in relation to Scotland if it did not create a problem anywhere else. The whole system for challenging on the ground of subsidiarity envisages that more than one member state will be affected.

Even in the Committee of the Regions, it is about more than one region.

Yes. You have to get a majority there.

I suppose that, in that sense, there is a greater acknowledgement of the regional perspective within Europe. There is a lot to play for. Being a member of the Committee of the Regions, I agree that it has not been as effective as it could be, but there is a lot to play for with some of these new concepts. The committee is keen to advocate and advance that.

It is a useful body.

I presume that the only EMs that are flagged up to you are those that will have implications for devolved Administrations.

I will ask my colleague Vanessa Glynn to pick up on some of that.

Our engagement, where it works best, starts even before the explanatory memorandum is prepared, in that the staff in the Brussels office will be engaged with UKREP, frequently through working groups, in picking up on what the legislative proposals are. The formal UK system requires the appropriate UKREP section to deal with the line department in London in deciding first whether a document is depositable, and thereafter whether an explanatory memorandum must be prepared. As you will know, memoranda are prepared to a standard template that includes devolution relevance, so there is a trigger for the Whitehall department to contact our colleagues in Edinburgh or Glasgow. My experience is that, when the House of Commons committee that considers the memorandum sees an inadequate devolution response, clerks and members are prompted to remind the Whitehall department that it must provide an answer on that, whether it is yes, no or whatever in between.

Within the Scottish Government, we have been reviewing the explanatory memorandum system. We get explanatory memoranda into the Europe division and we hope that the line divisions—justice, agriculture, fisheries, transport and so on—will have seen them beforehand and will have spoken to their Whitehall colleagues. That contact inevitably depends on the quality of relationships between officials in those areas, which can depend on whether their business in the months and years before have required devolution contact. The quality of contact varies.



Copies of the explanatory memoranda are, I think, sent on to you by us, but I am reaching the boundaries of my detailed knowledge, so I shall pass to my esteemed colleague, Vanessa Glynn.

I am interested in the issue because the system might lend itself to a bit of development—perhaps in relation to better scrutiny and subsidiarity. Roughly how many explanatory memoranda do you receive in a month?

It would be a useful next step to have some kind of centralised co-ordination within Scotland. I understand what you are saying about the fact that there is no centralised co-operation, even at the London end, but could the House of Commons European Scrutiny Committee not provide that? I wonder whether there is a step missing from Scottish parliamentary scrutiny. Although you lodge the explanatory memoranda technically with the Parliament, technically it is SPICe that receives the documents. Do any parliamentary committees consider them?

It would be sensible to consider how the system is working now, where we need to put extra effort, what we want to get out of it and what the committee wants out of it.

I was going to ask about that. You said that certain areas in agriculture and fisheries could be improved. Can you go into that in more detail and explain how the treaty will put us in a stronger position?

Although there are effort restrictions, the CFP is governed in part by landing restrictions rather than by catch restrictions.

Technical conservation measures such as gear regulations are almost as fundamental as landing limits, because use of the wrong size of mesh can be wasteful or ineffective and can make fishing in some waters—the prosecution of some fisheries—no longer economically viable. That is subject to the co-decision procedure and we will need to keep a much closer eye on that. We are well represented in the European Parliament’s Committee on Fisheries, of which Struan Stevenson is a vice-chair. I suggest that he and Ian Hudghton can expect and might already see a different workload and different pressures in that committee, as might be the case for Alyn Smith and George Lyon in the Committee on Agriculture and Rural Development.

Big decisions remain for the Council, but we need to be careful about the fact that big matters have transferred to co-decision. We need to ensure that they are got right, in addition to continuing to plough the Council furrow.

Another area that you say is subject to co-decision is justice. Of course, Scotland’s legal system is different from that of member states’. To what extent is our legal system considered? Is it accepted and given full cognisance and full weight, as we expect?

Ted Brocklebank is right to say that the Scottish legal system is distinct from that of England and, as one of the common-law systems in the European Union, it differs from other systems in the EU. We have worked particularly hard and effectively in justice and home affairs—which is to be renamed freedom, security and justice—to ensure that the UK’s negotiating line has properly and fully reflected the Scottish legal system’s differences. We will continue to do that.

We are keen to ensure, and have succeeded at achieving, wider awareness raising outwith the UK that the EU has at least 28 legal systems—arguably, it has more these days—rather than simply 27. That is part of the successful external work that has been done. We certainly seek to ensure that the Scottish legal system’s differences are reflected in the UK’s negotiating position, not for their own sake, but to ensure that the Scottish position is defended and respected.

In many ways, being part of the common-law club with England, Ireland, Malta and Cyprus means a commonality of views and approaches in which we have engaged and which has been properly reflected in JHA negotiations. There is no reason to think that that will not continue when the FSJ procedures take full effect.

Jim Hume had a few questions on freedom, security and justice. Do you want to follow up on anything?

All my questions have more or less been covered.

Article 2 of the protocol on subsidiarity says:

“Before proposing European legislative acts, the Commission shall consult widely”

and,

“where appropriate, take into account the regional and local dimension of the action envisaged.”

When does the Government consider consultation by the European Commission to be “appropriate”, as defined by that article?

I suspect that a degree of subjectivity is probably inevitable. Perhaps Paul Cackette can add something on that from the legal side.

Obviously, the requirement is a matter of subjective judgment. In our view, the concept “where appropriate” should be given a wide meaning. To echo what Vanessa Glynn said earlier, even if a proposal on the face of it dealt with an issue that is firmly within the reserved area of competence, the proposal could easily have crossovers to, or implications for the operation of, areas of devolved competence. An example that comes to mind from a number of years ago is a proposal relating to asylum and immigration, which are reserved, that also had a direct impact on the administration of the courts system in Scotland, which is devolved. That is exactly the kind of thing on which I would expect the concept “where appropriate” to be given a wide meaning, so that this Parliament is given a full opportunity to contribute to discussions that affect its interests.

Paul Cackette’s comments have been a helpful trigger in bringing to mind the fact that the memorandum of understanding and various concordats that we have with the UK Government—they do not always work perfectly, but they have set up a structure and an expectation about how the Administrations should work together—refer to issues that “touch on devolved matters” rather than simply to devolved matters. We expect the Commission to operate to that kind of standard, although we do not have powers to impose on it exactly the same language. As Paul Cackette said, we would expect the Commission to look not just at strict legislative competence within a domestic jurisdiction but at the impact of a proposal.

With the caveat that it is for legislatures to determine how they work together, I would say that it is our starting expectation that it is possible for the UK Parliament and the Scottish Parliament to work together in such a way that there would be Scottish Parliament input into all issues that touch on devolved matters.

As you know, the timescales that are involved are tight, even for member state Parliaments, never mind the extra leg that is required for the Länder Parliaments in Germany, their equivalents in Spain and elsewhere and the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. There are some challenges with regard to ensuring that there is an appropriate and speedy process.

We believe that a process can be developed that can be quite broad in its coverage. What that will look like from inside the mechanism will depend on discussions between Parliaments. We all know that a degree of proportionality will be needed because of the significant volume of legislation that is coming out of Brussels. I have not spoken to anyone who thinks that it will be commonplace for challenges to develop on the ground of subsidiarity principles being breached. Challenges will more often be the result of people being for or against individual policy proposals.

It will be necessary to find a system that, in order to be proportionate, manages to narrow issues down fairly quickly to cases in which there is a real risk of subsidiarity principles being breached and then allows scrutiny to take place in national and sub-state Parliaments within the eight-week process. That could happen with a wide breadth of subject matter, not just within structural funds, agriculture or fisheries. We do not think that that will happen frequently, but the potential for it to happen exists across the totality of devolved interests.

No. Everything that is an exclusive competence can be ruled out; everything that is a shared competence is within bounds, as it were.

Yes. We are really talking about quite a narrowing of policy areas, then.

There is a narrowing, but I think that most things are shared rather than exclusive.

I suppose that there is also a need to prioritise, given the volume of legislative proposals.

Fisheries are a perfect example, because things move too quickly, particularly at the tail end of the year when we are looking towards the final quota setting and associated technical conservation regulations. The main discussions usually take place quadrilaterally between the fisheries departments—the Welsh have much less of an interest in the matter than the Department for Environment, Food and Rural Affairs, Northern Ireland and we do, but nevertheless they are there. The decision making takes place at the end of the year and discussion on the UK’s line takes place in the weeks and months leading up to that. The scientific evidence is now available further ahead than it was a number of years ago, so, even from September or October, officials in their own capitals are looking at what they believe the best line would be—both the optimum outcome and what they think would be deliverable around the Council table or, in some areas in future, through co-decision, because the two things might not be exactly the same. The further level that needs to be fed in is what they think the give and take that will almost inevitably take place to some extent in discussions in the UK will be. Over the past couple of years, we have been quite successful in ensuring that the UK’s priorities have fully included Scottish priorities. I have very active fisheries colleagues who have developed their relationship with DEFRA and their level of expertise so that they have a force of argument and evidence behind the lines that are being argued.

I guess that the joint ministerial committee on Europe is the process that would be adopted in those circumstances. Official discussions and ministerial write-rounds happen in all areas, but in justice and home affairs, the determination of a UK line for negotiations involves a number of UK Administration departments, the Scottish Government and Welsh and Northern Ireland colleagues. The Scottish Government has no special status in that process, but it is one of the interested parties in the negotiations and discussions that take place to determine the appropriate UK line. If a position arose—I am unaware of its having arisen to date—in which there was a Scotland/England type thing, I guess that the JMCE would be the answer.

How would that be initiated? Would the Scottish Government initiate it?

We would be driven by the timeline for the legislation in Brussels. The timelines are inevitably cruelly tight in the endgame, but some legislation takes three or four years to go through in Brussels, so at the earlier stages we have quite a lot of time to chew over what it really means.

It varies. In the case of FSJ, where the UK opt-ins are preserved, we have three months in which to indicate whether we are opting in to each instrument. That is the timescale within which matters would require to be resolved. It is obviously a short time period if there were significant differences and difficulties.

I will make three or four comments. The first relates to paragraph 8 of the RSE submission. One must bear in mind that the relationship between Parliament and executive in other EU member states is not always the same as it is here. It seems to us important that the Scottish Parliament should view itself as an entity that is separate from the Scottish Executive. Obviously, Scotland is a small country; it does not have vast resources and we must make economical use of the resources that we have. Therefore, the closest possible co-operation between the Parliament, the Scottish Government, the resources in Brussels, the Scotland Office and UKREP is important. Nevertheless, although the Parliament must avoid doing double work and must use the resources that are available, it must also maintain an independent view and take an independent position.

My second comment is on what we say at the beginning of our submission about democratic accountability, to which there are two sides. The Scottish Parliament is democratically accountable for the matters that fall within its legislative competence, so it has a right to be involved in the EU legislative process. However, that carries with it a duty on the Parliament to keep itself informed and, therefore, not simply to rely on others to flag matters up.

In that context, I stress what we say in paragraph 13 about the need for effective horizon scanning, using the resources that are available, most particularly the effective horizon scanning system in the House of Lords. I stress the point that, once a project reaches a formal legislative stage, it is difficult to change the thrust of the proposal, so the horizon scanning must be well ahead of that. It is no use beginning the reaction at the start of a time limit, whether it is two months or whatever; you must know well ahead of that whether you will take an interest in a particular issue and, if so, broadly what your position will be. That is illustrated in the submission that Lord Roper from the House of Lords European Union Select Committee has made to the committee, in which he illustrates the way in which the accident of vacations means that, with particular time limits, you are simply not able to submit any observations. That stresses the need to be well ahead of time.

I will make only one other point. Paragraph 22 of our submission concerns the importance of the principle of proportionality. As the officials correctly said, subsidiarity does not apply in areas of exclusive competence, but proportionality does.

We therefore have to consider the extent to which the intrusiveness of EU legislative activity is unnecessary in the Scottish context. There are various provisions in the treaty, but I draw attention to a protocol that is not noticed very often—it is number 26, on services of general interest. Surprisingly, that was inserted at the insistence of the Dutch. It draws attention to the essential role and wide discretion of national, regional and local authorities, and to different geographical, social or cultural situations. It deals with the limited context of services of general economic interest, but includes ferries, for example. It is important for members to have in mind that the smell of the Lisbon treaty is very much more about recognising that we do not have a one-size-fits-all system.

11:15  

Explanatory memoranda come at the stage of a legislative proposal.

So that is a late stage.

Thank you very much. Ted Brocklebank will ask about the extension of competences.

It is perhaps most advantageous to have a clear system for dealing with the various competences. It is desirable that, in areas where some common action is desirable—for example, tourism—there is a mechanism for taking common action. However, I repeat that the spirit of the treaty is one of subsidiarity and proportionality.

I do not fear the extended competences. It is a good thing that, for example, freedom, security and justice have been brought within the Community method. On the whole, it is a good thing that the European Parliament has an enhanced role, but I emphasise that the European Parliament is an example of a Parliament that is entirely separate from the executive. For that very reason, it is a body with which you may wish to engage. Its position is separate from both the EU executive and the Governments of the member states.

In the paper that was produced by the committee that you chaired, you used the line:

“Scotland’s interests are not always congruent with those of other parts of the country and may not be reflected in the official UK negotiating lines.”

Nowhere does that apply more than in fisheries. Two thirds of the UK’s fisheries are in Scottish waters, and there has always been a feeling that Scotland has been disadvantaged in CFP negotiations. As we have heard, fisheries are to be subject to co-decision, which in theory gives Scotland a greater opportunity to represent its interests. However, as I said to Donald Henderson, one of the flaws is that, as I understand it, the key issues, such as quotas and the total allowable catch for individual countries, will still be retained centrally and will not be part of co-decision. Is that not one of the flaws of the co-decision mechanism?

I am interested in what you say about fisheries. Donald Henderson certainly did not say that any major problem had arisen in fisheries in the past 10 years. In fact, conflict resolution at its hardest end has not been needed in fisheries. One reason for that, which we discussed, is the close working relationship between fisheries officials in Scotland and in the rest of the UK. Do you imply that that does not work? If so, what is your evidence?

I imply nothing—I merely take up the point that Scotland has an interest that is not necessarily shared. A much better example, which we give in our submission, is that the United Kingdom’s position on the common agricultural policy is seriously contrary to Scottish interests, in the RSE’s view.

In what way, specifically?

Very specifically, the Treasury’s desire to abolish the common agricultural policy system is contrary to Scottish interests.

It might well be true—I am not in a position to comment in detail—that no problem has arisen in fisheries, but a serious problem has arisen in agriculture and one cannot guarantee that the same problem will not occur in fisheries.

Tensions in relation to the common agricultural policy exist throughout the European Union. There are environmentalists, people who want to move to a more sustainable agricultural subsidy and farmers who feel that the existing subsidy works in the best interests of their communities. A debate is to be had about that.

On farming interests, we will debate the common agricultural policy review on Thursday afternoon, so tune in to find out everybody’s policies.

We have had a form of devolved power over freedom, security and justice for ever. The UK has secured an opt-in system in the area, which might mean opting out—whether voluntarily or involuntarily. I return to the question of a difference between Scotland and England, which might or might not arise but could well happen at some point. If a difference arose, how would that affect Scotland? If the UK took a different view from that which suited Scotland and our legal system, what would be the implications for our legislative process?

Through what mechanisms might the Scottish Parliament scrutinise such matters?

What would be the legal implications of the UK Government taking a diverging position on a proposal affecting the justice system? Would there be a change to Scots law, for example?

Let us take the proposal for a European prosecutor, which is a good example because it is well ahead in the hypothetical area. The Treaty on the Functioning of the European Union states:

“The European Public Prosecutor’s Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences”.

That implies that the European prosecutor could be involved in the actual process of prosecution in Scotland. There are many ways in which that could be done that would be perfectly compatible with the Scottish legal system, but one would need to be sure that the mechanism was compatible.

I could cite other examples related to the field of judicial co-operation in civil and criminal matters, such as the taking of evidence, the value of evidence and so on.

The power is at the member state level but, as happens in the UK, things can develop into conventions and conventions can harden. As I said, I think that it would be difficult for Westminster to justify a situation in which no attempt was made to consult the Scottish Parliament on a matter that clearly fell within the Scottish Parliament’s legislative competence.

I think that there are already procedures in place for some EMs. As Sir David Edward will know from what the submission from the House of Lords European Union Select Committee says on subsidiarity, in practice Westminster is very keen to involve the Scottish Parliament because it recognises that we should have input into the policy process on areas on which we have expertise. In practice, there is quite a lot of good will to make the system work.

Under article 6 of the protocol, then, there is no legal obligation on the member state to consult sub-state entities. However, article 2 of the protocol requires the Commission to consult widely. Does that provision constitute an obligation on the Commission to consult the Scottish Parliament or Scottish Government?

When I spoke at a conference in Cambridge in December, I said that—to employ an overused phrase—the elephant in the room in the debate is the status of sub-state legislative authorities.

It is a feature of the fact that we are still in a world of international treaties that the EU does not in principle descend below the level of the member state and get involved in the organisation of the member state. However, it cannot continue indefinitely to pretend that the real world does not contain sub-state Parliaments with legislative authority. In my view—this is going well beyond your question—the Committee of the Regions does not address that at all and does not substitute for it. Sooner or later, the EU system will have to face up to that. It is not doing so at the moment.

That is very useful. Thank you.

Thank you. We have a panel of witnesses coming to speak to us about EU 2020.

I do not quite understand the question.

The problem with the Committee of the Regions, if one is looking at it from the point of view of legislative Assemblies, is that the fact that Malta has regions and Luxembourg has regions illustrates that we are talking about apples and oranges.

I agree that it is asymmetric in that sense.

The Committee of the Regions is valuable in producing own-initiative opinions or commenting on Commission documents and subjecting Commission officials to interrogation in the same way that we do. That has value.

I am afraid that we have run out of time. The session has been extremely interesting—thank you very much. We have a few outstanding questions, which we can put to you in writing, if you are happy about that.

We thank you for taking the time to come along and we thank the Royal Society of Edinburgh for the written submission.

I suspend for a few moments to allow for a changeover of witnesses.

11:45 Meeting suspended.

11:48 On resuming—