European and External Relations Committee

Meeting date: Tuesday, March 23, 2010

Official Report 444KB pdf

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Treaty of Lisbon Inquiry

It would certainly mark an interesting change in the interpretation of the concordat if the UK Government is now saying that it is prepared to waive the inherent confidentiality conditions when it comes to the Scottish Government’s reporting back on negotiations on the UK line. I would find that incredible, although not objectionable. If the minister has changed the UK Government’s policy in that respect, it is possibly to be welcomed.

It was not quite described as a change; it was more of a clarification. Moreover, it did not apply to actual negotiations. The minister made it quite clear that when you go into Council of Ministers meetings you must have a negotiating position that has not been disclosed ahead of time—which is, as you say, exactly the same position that is taken by all member states. However, there is no reason why ministers cannot discuss the part 1 business that they take into the JMC and their positions on other matters.

I am interested in the process that happens before a position reaches the JMC. Obviously, most of the discussions between Scotland and the UK will be on-going and will take place a long time in advance. For example, I was involved for quite some time in working on how the Scottish position would fit in with and build up the UK position on fisheries negotiations. That actually worked very well. I am not sure how many disagreements have been referred to the JMC, although I am certain that few, if any, have been. To what extent are there common mechanisms that work across different areas of Government? In my experience, the system worked very well, but I do not think that there is necessarily a common framework that works across Government. Much of our discussion has been on the JMC, but should we perhaps consider the extent to which positions can be developed at UK level across the range of departments?

My comments relate to the relationship between this Parliament, the Westminster Parliament and, ultimately, the European Parliament, rather than to the broader constitutional arrangements to which Mike Keating’s and Drew Scott’s comments have pertained.

The basic issue is the step between this Parliament and the Westminster Parliament and the UK Government. There is also the relationship between the Scottish Parliament and the Scottish Government in terms of the Scottish Government’s discussions and negotiations in the JMC. Obviously, part of the committee’s difficulties has been in finding out what happens in the JMC, so the statement from the UK Minister for Europe this morning was quite informative. However, to come back to where Mike Keating started, the crucial requirement in all those relationships is information. With the increase in the codecision procedure and through the ordinary legislative procedures of the European Parliament, the Lisbon treaty provides us with an opportunity for more information to be gathered and given to this committee and to Westminster through the European Parliament.

Would that be at officer level?

Yes.

That would be interesting. We need a system that is robust enough to pick things up, but we have to recognise that, if we want to do it properly, we might have to allocate resources to it and I do not think that anyone has been prepared to do that until now.

There are some committee members who are incredibly interested in this subject and want to come in, but I am going to let Drew Scott speak first.

Sorry—it is one thing to ask for information, but it then has to be asked what you want to do with the information, and that is the crucial issue.

But that is a step, anyway.

The wording is wonderfully ambivalent. The treaty says:

“the Commission shall consult widely. Such consultations shall, where appropriate, take into account the regional and local dimension of the action envisaged.”

It was deliberately put that way, so as not to interfere with the distribution of power in federal and devolved systems. My interpretation is that there is nothing to stop the Scottish Parliament responding and lobbying Brussels directly. The treaty seems to be an invitation to do that—as long as you are well organised in doing so.

The stark reality, which I do not think is in any way controversial, is that the EU is a union of nation states, not of regions. In the past, the EU has tried, rather unsuccessfully—with no disrespect to institutions such as the Committee of the Regions—to bring a regional voice to the European top table. Its lack of success is probably for two reasons. The first relates to how you do that, because regions are widely divergent across the EU. The second reason—Michael Keating is much more of an expert on this than I am, and I am sure that he can comment on it—is that many regions see more profit in negotiating through the member state level than through collections of regions. Subsidiarity is the one idea that retains some kind of leverage. One has to applaud the enhancement of subsidiarity in the legal way, if in no other way. The Treaty of Lisbon has given subsidiarity standing before the court, and it has given national Parliaments the power to send out a yellow card, which—if enough Parliaments agree—requires the Commission to think again. In the extreme position, in which more than half of the national Parliaments think that a measure violates subsidiarity, it will be referred to the European Council and the European Parliament for them to positively accept the Commission draft; otherwise it falls. That is an improvement. The regional dimension of the European Union is problematic. I would see a key role for regional Governments and Parliament—I use the word regional in the broadest sense—to engage locally on those issues and to create some kind of democratic expectation in the public at large that Europe is what it is, which is an important legislative animal.

Is it fair to say, then, that there is an onus on those regions to make their voice heard, and to look for opportunities and ways to use what is there to the best possible advantage?

The Europe 2020 agenda, which you discussed earlier, is much more important to Scotland’s economic future, but we must acknowledge that there are some new competences that have not been given the air play that they deserve. I am thinking of climate change and energy in particular. What we have is broad statements that simply create the basis for legislation to be introduced because, as you know, any EU legislative proposal has to have a basis in the treaty or it would be ultra vires and it could not go ahead. The inclusion in the new treaty of broad general statements on energy policy and climate change gives the Commission the legal basis on which to publish specific proposals for action.

Whether that is a good thing or a bad thing is a political judgment for individuals to make, but the point is that any legislative instrument that opens up a market or changes the conditions in which a market operates is bound to have an economic consequence. The two areas are of acute interest to the Scottish Government and, one assumes, to the people of Scotland. I am definitely not saying that it is a bad thing. The treaty’s implications for economic integration are not sharply focused enough to cause us particular concerns, but they are worth highlighting because they relate to new areas of competence. Someone who looked at the articles in the CAP in 1958 could have said that they were fairly innocuous, but look at what they gave rise to. It is important that the appropriate committees recognise that there is an EU legislative dimension that is not at all defined but is covered very broadly in the treaty.

I am also interested in the fact that territorial cohesion is explicitly mentioned for the first time. Is that a good thing for Scotland? How should the UK and Scottish Governments go about ensuring that they are part of that discussion?

In cohesion policy, we have moved away from the old redistributive logic—or we are at least trying to get away from the notion of simply moving money around and to think about development in a broader sense and about how sustainable development can be managed at a spatial level.

Cohesion was put in the treaty because the Committee of the Regions kept on banging on about it, but it had no particular meaning. However, as I said, it opens up the territorial dimension. We should not think of that just as structural funds. We have been blinded by structural funds, which have prevented us from thinking more intelligently about regional development and what cohesion means in a broader sense.

Structural funds were always an irritant to Governments to an extent, because they hypothecated money to avenues that a Government might not want to prioritise. We found that national Governments were somewhat irritated by the Community initiatives that were important in the 1999 to 2006 budget framework, because jurisdictions in member states could draw on a proliferation of schemes, for which central Government had to give matched funding.

One can understand why a national Government—or any Government—is annoyed if such money is hypothecated, but for the Highlands of Scotland, for example, the attraction of structural funds was that they hypothecated money. When the Highlands stopped receiving the level of money that it had previously received—because it had moved into a different league of development, for which everyone should be glad—the challenge was not allowing it to slip back into economic relative underdevelopment because all the support had dried up.

Not only the Scottish Government but any Government that assigns regional development resources faces a challenge. The problem, which will need to be engaged with at some point, is the way in which the EU’s state aid map militates against such support. A tension exists with state aid legislation, which more or less prohibits Government support outside what we used to call the objective 1 regions. The Commission has a challenge in producing much more sensible state aid rules that do not preclude a Government from retaining support with a regional dimension for regions that are above the cut but whose economic development is not yet self-sustaining, secure and driving forward.

The challenges are ensuring that the resources from central Government do not dry up and meeting the Commission’s preoccupation with and ferocious fixation on state aid—that is understandable to a point, but there are other considerations.

That is helpful—thank you.

On state aid, the Lisbon treaty contains a clause that to a degree safeguards public services from the application of competition policy. That is important for Scotland, where ferry services and other services that have been seen as essential social services have been caught up in state aid rules.

I have a couple of questions for Professor Keating on the implications for Scotland of the changed decision procedures. Professor, you have referred to at least two procedures whose use the treaty extends. Will you expand on the potential implications for Scotland of the enhanced co-operation procedure?

Can you spell out how any potential conflict of interest between Scotland and the UK might be resolved?

Yes. The other procedure whose extension we should ask about is the open method of co-ordination, which might raise concerns for the Scottish Government and the Parliament.

As Chris Bryant said earlier, I suppose that we are perhaps slightly guilty of being far more interested in process than in actuality. He claimed that we keep on looking for all the things that might go wrong and things might never go wrong. However, I suppose that the counter to that is that if we do not look in advance for the things that might go wrong, we can land ourselves in a mess, such as the mess that the common fisheries policy turned out to be, as Professor Scott mentioned.

And that can matter—we need only look at the revision of the CFP to see that. The Scottish initiative of linking environmental measures and catch to the allocation of days at sea is being considered across the EU. Scotland can make a contribution through the actions that we take—you are absolutely right. The same was true in the old days when we had the graduation area for objective 1 regions, an initiative that was pursued by Scotland Europa in the 1990s. So, Scotland’s voice can be heard at the highest level in the EU when Scotland has a good idea. There are clear examples of Scotland having had a good idea in the past—I hope that Scotland will continue to have good ideas in the future—and having been able to give that idea legs so that it could run at the EU level.

My questions follow on from Professor Keating’s helpful written submission. Professor, you write of the importance of “upstream” and “downstream” engagement in the European policy process. Whom would you identify as key networking partners for the Scottish Parliament, and are there particular networks—formal or informal—that the Parliament should target?

Networking is important because Brussels is a complex set of machinery and it is important to know the right person in the right place. If one does, one can get access and it is easy, but one needs to know where to go. Some of that is institutional, some of it is personal and some of it is just about knowing one’s way around. At the institutional level, the Scottish Executive and then the Scottish Government, albeit in a slightly different way, have been fond—as all devolved Governments are—of signing partnership agreements with other Governments all over the place, most of which come to nothing as far as I can see. We need to ask ourselves why we are engaging in those strategic partnerships and be more selective about it, realising that it is all about exercising political influence. So, if we have a common interest with some other Government somewhere in Europe, we should focus on that common interest and have a common lobbying strategy. Such things need to be followed through.

I will stop you there, if I may. You are talking about Government-to-Government interaction, whereas I am thinking more of engagement involving the committee and the Parliament.

Yes, there are different models. In the German model, the Länder are well plugged into the German federal Government and tend to engage through it. We keep talking about the need for such an arrangement in the UK, whereby Scotland could have guaranteed access and influence at the UK level.



On networking more generally, the Spanish autonomous communities—notably Catalonia and the Basque Country—have been active in promoting themselves in Europe, drawing on a strong pro-European consensus. It is not just Governments; the Patronat Català Pro Europa, which is a Catalan organisation, involves businesses in the private sector and civil society. We have something like that with Scotland Europa, in Scotland house, but the Spanish autonomous communities have a sophisticated operation and know their way around Brussels extremely well. We need to develop such skills and train people in them.

Our civil servants back here need to be sensitised to Europe, too, so that if something comes up they and the politicians can pick it up. We are less good at doing that than we were 20 years ago.

The European Parliament is a repository of knowledge and information. In a sense, it provides you with often pre-digested information, which is one of the issues in respect of sifting and targeting information.

A crucial point is to engage with the European Parliament’s rapporteurs when they are looking at reports and trying to discuss and agree amendments both in the Parliament and in their discussions with the Council. Simple things such as teleconferences, like the one that you had today, can be effective. It is helpful if the committee can engage directly with rapporteurs when they are producing reports. It is fair to say that parliamentary rapporteurs in the European Parliament are happy to receive and to listen to the views of national Parliaments and seek to engage in discussion with them. That was certainly the case in the last Parliament before 2009.

The European Parliament also welcomes reports from national Parliaments and regional Parliaments and feeds such reports and the information contained in them into specific discussions about legislative proposals. There are numerous examples of House of Lords reports, in particular, being used and cited in parliamentary discussions. Engagement with the important people, the European Parliament’s rapporteurs, is of some significance.

Engagement with members of the European Parliament is also important. Belgium has eight MEPs on its federal European committee and the German Bundestag also has such representation. I know that in the past you have engaged with MEPs. Trying to develop a mechanism for reporting sessions with Scottish MEPs is an issue, but there is also a case for engaging with MEPs beyond Scotland to get a different perspective. I appreciate that it is a Scottish Parliament and a Scottish Government, but there are often significantly different perspectives in the rest of Europe, so such engagement can help you to identify and engage with issues as they emerge.

Another more technical issue, which also relates to information, is the use of the new interparliamentary EU information exchange, which will become of increasing significance because national Parliaments, certainly, make frequent updates in respect of their own inquiries. If you go on there now, you will see that there is a whole pile of submissions about EU 2020 inquiries. In fact, the Italian Chamber of Deputies published its report on EU 2020 last week. In a sense, it is an ideal source of information, as it is there precisely to inform national Parliaments and, in this case, regional Parliaments, about what is happening in other regional Parliaments. That is not joining committees, but it is putting the information out there. That is the good news. The bad news is that, although these submissions are supposed to have summaries in French or English, you will find that the Lithuanian scrutiny document on the 2020 initiative is currently in Lithuanian, which might not be of much use. The Commission’s replies to the comments that have been made by national Parliaments are also on IPEX. There is an IPEX forum on the Lisbon treaty, which I think is currently accessible only to national Parliaments. If that is the case, one issue that might be raised in that context is whether regional Parliaments can and should have access to the information.

Again, it is about being informed about what is happening in Brussels. You have your Scottish Parliament representative in Brussels and most national Parliaments, and increasingly most regional Parliaments, have their representatives too. However, the representative has to be the eyes and ears of this committee and Parliament, particularly in gaining upstream information, which is vital. After a Commission proposal is tabled, it is late in the day to try to influence or change it, and that becomes even more difficult as the process continues. Mike Keating spoke about networking—the parliamentary officers in Brussels should be good at networking, should develop networks and should provide you with rapid and up-to-date information.

One source of freely available information is provided by the UK office of the European Parliament. In the past, such information was relatively sparse and focused on personalities—who UK and Scottish MEPs are—but there has been a significant change in recent times, which might be because Mike Shackleton, who was an official in the European Parliament and one of the authors of the leading text on the European Parliament, has now become head of the UK office of the European Parliament. The office provides lots of information and links about committees, what is coming up in the European Union and what is happening in the European Parliament. There is a range of practical issues that the committee can address.

My question is for Professor Judge. Both the House of Commons and the House of Lords have shown some concern about early scrutiny of the so-called first reading deals and informal trialogues between the Commission, Council of Ministers and European Parliament. How significant a problem is that and how might it affect decisions and legislation in the Scottish Parliament?

We are running short of time and the witnesses have already answered some of the questions that we had. However, Rhona Brankin would like to put one or two concluding questions.

On Michael Keating’s points, we are talking about things that are not yet laws. There is a way of getting to Governments, and the European Scrutiny Committee in the House of Commons is an important lever. The subsidiarity protocol empowers national Parliaments more than any other stakeholder in the legislative process, so there is a new job for that committee to take on. We know that scrutiny is far from perfect in any of the national Parliaments—far less the sub-national Parliaments—and the problems that you are having are mirrored in national Parliaments and other sub-national Parliaments across the EU.

There is an important point that the subsidiarity protocol could become part of the scrutiny reserve of the UK Parliament. The crucial point is then how this Parliament links in with that. The eight-week deadline is incredibly narrow, which means that you have to get in long before it. In other words, long before the legislative draft arrives in Parliament in London, you have to know about it and to be looking for the subsidiarity element.

You also have to define what subsidiarity is. The treaty is clear that the EU should act only when there is an added value of collective action—when member states acting individually cannot achieve the same outcome. That is an extraordinarily wide definition and open to interpretation, so you have to sit down and say, “How do we interpret subsidiarity?” Within that broad statement, you have to work out your own criteria as to when subsidiarity is being violated. If you run and say, “Everything violates subsidiarity”, that will become ineffective as a lever.

You have to be clear what this Parliament means by subsidiarity and what criteria it will use when it interrogates a legislative proposal for violations of it and of proportionality, which is its first cousin. Indeed, please do not ignore proportionality because it and subsidiarity are now almost two sides of the same coin.

Subsidiarity has never been rigorously defined by the ECJ. It has existed since 1993, and the court has never sent back a piece of legislation because it violates subsidiarity even when it has been referred to the court on that basis. The court will now have to take up the challenge of defining what a violation of subsidiarity looks like. Clearly, the one third yellow card provision will be an important part in its deliberations. In the past, if one member state said that something violated subsidiarity and the other 26 said that it did not, where would the court fall? Now, we have a clear procedure that says that if X national Parliaments hold up a yellow card, something is justiciable in a way that it never would have been before.

Item 3 is today’s second evidence-taking session on our Treaty of Lisbon inquiry. I welcome to the meeting Professor Michael Keating from the University of Aberdeen; Professor Drew Scott from the University of Edinburgh; and Professor David Judge from the University of Strathclyde. We will explore with the panel the treaty’s regional dimension, parliamentary scrutiny of ordinary legislative procedure and trialogues. I thank Professor Keating and Professor Judge for their written submissions, which I found to be very useful and interesting.

Given our tight timescale, there will be no opening statements. Instead, I will kick off with a general question. What changes might have to be made to the UK’s constitutional machinery to allow the Scottish Parliament to engage fully and play its full part with regard to the Lisbon treaty?

My answer to that question is the same that I have been giving for the past 10 years. In fact, earlier on, Drew Scott and I were saying that the points that we make this morning will probably be the same points that we have been making to the committee for quite a long time now. The arrangements for making Scottish views and interests known in Westminster, Whitehall and Brussels are really quite inadequate and need to be strengthened, and we need greater information and intelligence gathering in Scotland to anticipate things, to find out what is happening and what is on the agenda and to be able to intervene at the right time, in the right place and before it is too late.

If we are talking about the UK position, I entirely endorse Professor Keating’s comments. You should certainly look again at the JMC machinery. The fact is, however, that you are caught between a rock and a hard place; in so far as it decides on the UK Government’s negotiating position over legislative drafts, the JMC machinery is—and, indeed, has to be—inherently confidential, which for the Parliament and, in particular, this committee raises the difficult question of how to scrutinise the position that the Scottish Government feeds into the UK Government line. After wrestling with the issue for many years, I think that progress could be made: first, by clearly defining, before a JMC, part 1 business that might be considered non-confidential and part 2 business that is clearly confidential and secondly, by exploring the possibility of, and the capacity for, making private briefings to the committee. That approach is taken in other jurisdictions, particularly in Denmark, which also has a minority Government.

The difficulty is inherent in the concordats that the Parliament endorsed in 1999. In other words, it is the parliamentary procedures that gag ministers in representing to Parliament their position to the UK Government. Under the concordats, certain information has to be treated as confidential and it is the UK Government, not the Scottish Government, that defines the parameters of confidentiality. As a result, if the Scottish Government wants to be part of the process, it must adhere to those confidentiality requirements. If it breaches those requirements, the UK Government is under no obligation to continue to listen to it. As I say, that is a difficulty.

That is entirely right. A well-developed official machinery had been established before devolution on issues such as agriculture, fisheries, regional funds and—I would argue—justice. The old Scottish Office established close working relations with Whitehall on those issues because those have always been areas of priority, both in the Scottish Government today and in the Scottish Office back then. There seems to be no doubt that, in those areas, relations are working extremely well.

Where difficulties might arise is with changing cultures, as the footprint of the European legislative process moves into new areas in which there is meaningful devolution in Scotland. In newer areas such as the environment, the old arrangements did not apply and the UK Government in Whitehall retained almost exclusive competence prior to 1999. Those are the areas in which, I guess, the more acute difficulties might arise.

However, I entirely endorse the point that most of these issues are resolved between officials. We do not know whether any disagreement has ever been resolved by, or at least referred to, the JMC on Europe in dispute resolution mode. My understanding is that that has never happened, but I am not close enough to know whether that is the case.

Another issue that we want to explore concerns the explanatory memoranda, which now include a question about what, if any, impact a proposal might have on a devolved Administration. Those that do are sent to the Scottish Government and lodged in the Scottish Parliament information centre, but we do not know what happens to them after that. It is a little bit of a democratic deficit and our inquiry wants to look at how we in Scotland can get an overview of the EMs, as no one knows what happens to them other than a bit of personal contact between Whitehall and the Scottish Government. There is no overall co-ordination of the explanatory memoranda, so that might be an avenue to explore further.



11:15

I am quite interested to hear your views.

I am interested because I have said in committee before that I was astounded to find out that we get those documents but no one ever gives us them. I am not saying that the clerks should take on the extra work, but someone should be there to filter the information; obviously, we have our officer in Brussels as well.

I have a question for David Judge. Under the Lisbon treaty, the European Commission can send proposals to a national Parliament, which has eight weeks to respond, and it is up to the national and regional Parliaments to decide between them. However, it also says that the devolved Administrations can contact the Commission directly. If we find out what proposals are coming from the European Commission, is one way of circumventing the problem for us to contact the Commission directly as a regional Parliament?

The European Commission has been quite an open book for some time in that regard. I recall many occasions when the committee has submitted responses to consultations by the Commission, both directly and to the UK Government. One was on the future of Europe convention. When we made our submission to the UK Government, it adopted about 95 per cent of the committee’s response into its submission to the Commission. The treaty puts that in writing, albeit ambiguously. In some ways, an informal system has been operating for quite some time. That is my own view—I do not know whether Drew Scott would agree with that.

Absolutely. The invitations to consult are open. When it produces its work programme for the year ahead, the Commission places every prospective legislative measure in draft form, and the consultation is open to anybody. The Welsh Assembly Government certainly responds to such invitations to consult.

The Scottish Parliament has been hugely effective in some areas—and I put that point strongly. The work of the Justice Committee a few years ago was highly effective, for example. I do not think that the Scottish Parliament is not undertaking scrutiny across the board, but the difficulty is dealing with it in the appropriate subject committee. That did happen—dramatically and successfully—with justice. It also happens with agriculture and fisheries. It is not a question of getting back to fundamentals; it is more of a question of sifting and directing matters to the appropriate subject committees.

That is the point that I was going to raise—how it might be possible to develop a mechanism that is not overly cumbersome. I am not sure whether I support the idea of having a particular unit, but there clearly needs to be somebody responsible for getting matters to the subject committees. It is a question of ensuring that the subject committees are covering the important bits of legislation that are coming through the process—but without the system becoming too cumbersome.

We discussed that point some years ago in the context of this committee a couple of incarnations previously. One idea that got developed quite well at the time was a traffic light approach. One would rely on the Scottish Government to give a green light to indicate that there is no subsidiarity element and that it does not take a strong stance on the legislative proposal in question. Amber could mean that there might be an issue of subsidiarity and a significant devolved matter, which the Scottish Government could look into. Red could mean that there is definitely an area of devolved competence.

It is the Parliament that loses competence, not the Government. When Europe legislates, it squeezes out the legislative competence of this Parliament, but not that of the Government, because it is Parliament that enjoys the legislative position. That is why the Parliament should be alert to such incursions or intrusions into its legislative scope—however you might wish to put it—from European legislation. One idea would be to entrust Government with some kind of monitoring mechanism to flag up areas in which it felt that something should be scrutinised in detail because the Parliament could lose its legislative privileges in that area as a result of forthcoming EU legislation, and to ask whether the Parliament was happy with the EU legislative proposals in that regard.

That is interesting. I am sure that the convener will take that back to the Committee of the Regions.

What are the main economic implications of the treaty for Scotland? Is there anything specific that this committee should consider?

I agree entirely with Michael Keating, but one can imagine such a conflict arising in some instances. For example, on financial services legislation, there might be a different view in the city of London from the view in Edinburgh. I do not know whether that is the case, but one could hypothesise about something that looked like that. Enhanced co-operation has never been triggered, but if there was enhanced co-operation, it would be absolutely essential for Scotland to ensure that its rights under the internal market were not violated. That is the crucial thing and that is the issue on which there could be a conflict.

The enhanced co-operation provision says that nothing that falls under it should diminish the internal market in any sense, so it should not make it more difficult for Scottish businesses to do business in the European Union. However, it is an experimental lever and—let us be frank—it was introduced in the previous treaty to try to overcome the British veto, as Michael Keating alluded to. It was introduced for precisely and exclusively that reason, although it has never been used. I am sure that the Scottish Government and Parliament would recognise the importance of ensuring that any measure that was taken under enhanced co-operation that Scotland either wished to take part in but could not or did not want to take part in for the same reasons as the UK Government—which is perfectly feasible, too—did not affect the position in the internal market.

It is difficult to conjure up an enhanced co-operation issue that would not affect the internal market, which is one reason why it has not been used. Tax co-operation between member states would clearly raise questions. Corporation tax agreements between France and Germany have been proposed, for example. That would clearly affect the outsiders, because it would make their position less competitive. So enhanced co-operation is not ready to be rolled out in a raft of areas, but if it were to be rolled out, it should be studied carefully.

The same applies to the Parliament at the level of the Conference of European Regional Legislative Assemblies—the organisation of devolved Parliaments with legislative powers. Again, it is a matter of focus.

There is also a level of engagement that is about Scottish influence in Europe and the level of British influence in Europe generally, which has fallen calamitously in recent years because of a broader disengagement from Europe. Britain now has the lowest number of officials in the Commission of any member state, per capita—in fact, Britain is below Poland in that respect—because British people are just not going to Brussels. I understand that it is even difficult to get people to go to Scotland Europa and, last month, the British Government wanted to withdraw the UK’s scholarships for the College of Europe. Fortunately, the Scottish Government is keeping them because that will get Scottish students into the College of Europe, which is where people go if they want to work in Brussels. That contrasts hugely with the Irish, who know their way around and know how to network. They know the right people to contact when they pick up the phone.

We need engagement with the EU all the way from the institutional level down to the personal level of sending students around and getting civil servants to work in Brussels and come back again. Britain has been really bad at that, with the result that we are losing influence in Europe.

We have covered some of the issues. We talked about lobbying, for example. Professor Judge, as you know, the Lisbon treaty significantly strengthens the role of the European Parliament, particularly in relation to decision making. How might the Scottish Government and the Scottish Parliament adapt their practices in response to the new dynamic?

A significant change for the Parliament is the move to make codecision the ordinary legislative procedure. The Council of Ministers and the European Parliament have been co-equal legislators for a long time in the context of processes that have been established for some time; the significant difference for the Scottish Parliament is the extension of competences under the ordinary legislative procedure to include matters that are of significance for this Parliament.

The issue is how the Scottish Parliament seeks to scrutinise the legislative process. In the past, the committee has rightly focused on the actions and priorities of the Scottish Government and has sought to identify and influence activity at an early stage. As Mike Keating said, you need to get in early and identify what I think you call “early intervention issues”, on which the Scottish Government and the Scottish Parliament can have an impact. Then you can establish your reporting system and get evidence from ministers and stakeholders, which you feed into the European system. The issue is whether you then want to deal with legislative proposals in any great detail. That brings us back to the problem of who lodges explanatory memoranda and what you do with them. That takes you into the details of legislation, which are difficult for any Parliament.

One of the issues to do with the legislative process is that dossiers are often moving targets. An explanatory memorandum on a Commission proposal is the start of negotiations and discussions in the European Parliament with the Council and associated bodies. Often the text of documents that the European Parliament is considering moves on fairly rapidly.

Our involvement must be pretty timeous. As you said, it is important that we know as soon as possible about information that comes from Westminster to the Scottish ministers and the Scottish Parliament and its committees. In evidence in a previous meeting, we heard that the Scottish Parliament should engage systematically with Europe. We talked about lobbying and the involvement of various groups to get in there as early as possible. Professor Judge, what would be the best way to go about that to enable the Scottish Parliament not only to engage with but to influence the European Parliament?

That is an interesting point, which I think we will take up.

12:00

That was a comprehensive answer. It shows that the problem is significant.

My questions relate to the subsidiarity protocol, which requires the Scottish Parliament to act in conjunction with the Westminster committees. We have not really touched on how we could do that. What mechanisms could we adopt to facilitate effective collaboration with those committees?

We have had some interesting informal discussions with the House of Commons European Scrutiny Committee. It pointed out that it has been doing subsidiarity checks for years but that, in a four-year period, it may raise only a handful of issues to the UK Government. It is interesting that we have to be proportionate in how we approach the system. Some horizon scanning may be the first way in.

Drew, you said that the situation will be mirrored in other regional Parliaments and Governments across Europe. Michael, you specifically mentioned, in relation to article 6, that a provision in the UK to give effect to the expectation in the treaty is necessary. Do you have an idea of what that might look like? Is there any experience of what other regional Governments, for example the Catalans or the Basques in Spain, might do to give effect to that?

Our system would be more comparable to the Spanish or the Italian system than it would be to the federal system.

The difficulty in the UK is always the asymmetrical nature of arrangements. In Spain, the approach could be taken whereby a majority of autonomous communities could invoke the subsidiarity protocol. That has not happened yet, but that would be one way of doing it. We could not think of an equivalent approach in the UK.

In my submission, I mentioned the justice and home affairs issue of freedom and security. That area is a complete mess. The UK has opted in and opted out of the new arrangements in a bewildering way. The issue is of interest to Scotland in a way that it is to no other devolved Parliament because of our legal system. I think that there will be no end of trouble, given that, after a transitional period, the UK must decide whether to opt in or opt out altogether. I can see all sorts of differences arising between opinion in Scotland and opinion in the UK on how to handle the matter. If an increasingly Eurosceptic attitude takes hold at Westminster, it is probable that the UK will opt out of the arrangements altogether, whereas we might want to continue to be involved in them. That will be extremely difficult to handle, politically.

That is interesting. I do not know whether you heard his evidence, but earlier this morning Chris Bryant, the UK minister, blew that notion out of the water. According to him, what you have suggested pertains to negotiating positions; however, he seemed to make it clear that there is a kind of part 1 and part 2 approach, as you outlined, and that there is no reason why the committee could not question a Scottish minister on his or her position going into a JMC meeting or on what they said at a meeting about a devolved area of competence. As a member of this committee for 10 years, I found that to be a bit of a revelation. Chris Bryant said that that is what the House of Commons European Scrutiny Committee does with him and that he would not get away with saying, “Well, we’re in a negotiating position and the memorandum of understanding doesn’t allow us to report to you our position going into this.”

On Rhona Brankin’s question, it is true that in certain areas—notably, agriculture and fisheries—there are well-established procedures and cycles of meetings around the European Council of Ministers. However, in many other areas, the people in Whitehall just do not think about consulting the devolved Administrations. That is not because they do not want to do so but because the thought just never occurs to them. Whitehall needs to be sensitised to that, but the Scottish Government and the committee should not rely exclusively on Whitehall to be told what is happening. You should have your own source of intelligence, so that when something comes up you can take the lead and contact the relevant Whitehall department.

The problem with explanatory memoranda is the sheer volume of them—I think that 20 to 30 a week are lodged with SPICe. That then creates the issue of who is going to look at them—this committee or the functional and specialist committees. I will return to that point later, or I could deal with it now.

It is not just about the explanatory memoranda. One of the issues with the ordinary legislative procedure is that the explanatory memoranda will outline the Commission’s proposals. Down south, in addition to the EMs, as the proposals and dossiers advance, ministerial letters or supplementary memoranda are needed to explain and update them. There will be a whole series of EMs, supplementary EMs and letters from ministers that the Westminster Parliament and, if there is a Scottish dimension, this Parliament will have to deal with. One of the issues is the sheer volume of material that comes in this direction. In a sense, that is good news because you get more information. The bad news is that you then need processes and mechanisms to sift and deal with that information.

The evidence from the Royal Society of Edinburgh—I can cite it directly because I contributed to it—suggested that there should be some kind of capacity unit in the Scottish Parliament, attached to this committee, to filter all that stuff and highlight the important things.

I have a footnote to what David Judge says—he knows better than I do about European parliamentary procedures. We must recognise that when the legislation starts its journey through codecision, it is changed. What you see in round 1 of your scrutiny might or might not resemble what comes out at the other end of the process. The shelf-life of the explanatory memorandum is therefore short. That brings us to the role of the members of the European Parliament in all this, which is another issue that you might want to look at, although I know that you have considered it in the past. Their position has become more important over the years and Lisbon takes it one rung further up the importance ladder.

Yes, that is the interpretation under the Lisbon treaty, but it then raises the intriguing question of the relationship between regional and national Parliaments and EU institutions. The established position in the UK is that you, as representatives of the Scottish people, should hold to account the Scottish Government. Therefore, your influence should be exerted through the Scottish Government, which in turn will seek to influence the UK, which in turn will seek to influence the EU institutions. There is a certain issue about a direct relationship, which is an avenue that is opened up in a sense but, as far as the Parliament and its relationship to the Scottish Government are concerned, the question arises whether any Executive—the Scottish Executive or the UK Executive—really wants a part of the UK to deal directly with the Commission.

If we feel that we are not getting enough information or enough time, the treaty gives us, Wales and Northern Ireland the opportunity to circumvent—

Yes.

Professor Scott, it is fair to say that, in the past, you have been somewhat critical of the insufficient regional dimension in EU policy making. Will the treaty make a difference to that concern?

Absolutely. If you do not do that, you cede the ground to lobbyists and journalists. That is deeply undesirable. It is impossible to exaggerate the EU’s importance as a regulator. If the democratic element of controlling or monitoring that regulator disappears, you cede the ground to narrower interest groups. One only has to visit Brussels to see the proliferation of lobbyists surrounding the European Parliament. That is to be expected in regulatory capitalism. It is not a bad thing, and it is what we expect to happen, but it should be tempered by a high level of democratic input.

This has been an issue for a long time. There was a commitment under Danuta Hübner to the Leipzig agenda to try to strengthen the regional dimension of the EU as a whole, rather than just confining it to regional policy, which is what was intended in the past. The notion of a spatial perspective for Europe needs to be followed through. Central policies should also be seen in relation to their territorial impact.

There is also common agricultural policy reform, which has been going for a long time but is gradually becoming more of a spatial policy and less of a central policy. People say that eventually that will merge with structural funds—that would be the logical thing—and there will be one vehicle and one rather large amount of money available for spatial policy.



11:30

Irene Oldfather knows a lot more about the Committee of the Regions than I do, but I wish that it would become more focused. I wish that, instead of passing long resolutions that are pretty much unreadable and which do not really tell us anything, it would select issues on which to focus for a period of time and produce some good policy analysis, because that is how one gets noticed—not by passing resolutions but by doing things to which the Commission has to pay attention because they are good ideas. If the Committee of the Regions did that, it would be more effective.

More generally, there could be a common interest between the Commission and devolved governance because the Commission is interested in learning more about the impact of its policies on the ground, and that happens not at the state level but at a local level. People around the Commission have been talking about that for two or three years, but it does not seem to have gone very far.

Like many regions, Scotland has benefited financially from the idea of territorial cohesion for many years. It is highly likely that Scotland will no longer benefit from significant flows of funds in the economic development sense. The RSE’s response to a previous consultation made the point that there will be opportunities for Scotland, particularly in the entrepreneurial sense, when the Commission identifies research and development targets. It is hugely important that the Scottish Government and the Parliament are alert to the opportunities that will arise from that aspect of cohesion, but the broader issue is that Scotland will become a contributor to cohesion in the EU rather than a recipient. That is not a bad thing. If someone graduates out of poverty, they should be pleased about it. Also, the economic development opportunities that will pass to other parts of the EU will support Scotland through trade and other financial flows and we will benefit as those parts become stronger.

Michael Keating was also involved in the RSE report, so he might want to comment.

I presume that if we are coming out of poverty—as Professor Scott put it—that brings with it challenges. We need to be prepared to meet those challenges and to do the work to ensure that they do not suddenly come along and slap us in the face.

We are speculating, because we do not know how far enhanced co-operation will go. The procedure makes it possible for a group of member states to co-operate when not enough of them agree to create a Community initiative. Normally, the awkward state that does not want to co-operate is the UK. It is difficult to imagine the UK co-operating with others while the French do not join in, for example.

The most likely scenario is that Scotland will want to join enhanced co-operation but will not be able to because the UK has decided not to participate. We will be able to do nothing about that. If a member state opts out of enhanced co-operation, there is no way to become involved in it. Scotland might think of ingenious ways of shadowing the policy, but it could not become part of the enhanced co-operation mechanism.

I do not think that there is a way of resolving that. We are not talking about a normal negotiation between Scotland and the UK, such as that on the position that we take on agriculture; we are talking about a question of whether to go into a policy field. I cannot envisage the UK going into a policy field that the Westminster Government did not want to go into just because the devolved Administrations wanted to go into it. I cannot see a way out of that, although perhaps the other witnesses can.

Yes, indeed. That is not new under the Lisbon treaty, but it is important and is reiterated in it. It is critical that Scotland should become part of that. It is not clear that the various mechanisms that allow for Scottish participation in the Council of Ministers would necessarily apply to the open method of co-ordination. In the Committee of the Regions, regions have generally been suspicious of the OMC, precisely because it is so intergovernmental. They prefer the regular legislative process, because there is a place where they can get into that.

The method already exists for the Lisbon agenda and its social dimensions. There is a Scottish dimension and Scottish plans within it, so it has been piloted. If that goes further, it will be even more important that Scotland should be present and should know what the issues are well in advance so that, if it is not invited to the discussions, Scotland can knock on the door and insist on being invited.

It is possible to have far too many committees and co-ordinating mechanisms. People simply do not turn up, because they get bored and cannot see the point. You must have a mechanism that allows you to intervene when something important happens. You need to know where to concentrate your resources, because you cannot participate in everything.

11:45

Thank you.

You mention Ireland in your written submission and talk about the federal arrangements in Belgium. Of course, Ireland and the component parts of Belgium have a different status from that of Scotland; nonetheless, the comparison may be helpful. Are there any other models of engagement with EU business elsewhere, particularly at the sub-state level, from which the Scottish Parliament could learn?

Is there a reason for that?

Pervasive Euroscepticism. The fact that our students do not study foreign languages. The fact that the political class treats Europe as the enemy over there and fights battles with it the whole time. I have travelled around Europe a great deal and I lived in Italy for a long time. There is just not such an atmosphere elsewhere—it is a peculiarly British thing.

I must press on, because we are short of time. We have not yet discussed qualified majority voting and David Judge’s paper.

Thanks very much; that was interesting.

The extension of codecision and its framing as the ordinary legislative procedure is undoubtedly good news for parliamentary involvement in the legislative process. Perhaps less good news is the fact that although that has taken place, the codecision procedure was premised on three stages about which I do not need to tell you—the first reading, the second reading and the third reading. The significance of that is that there were lots of decision and discussion points at which national and regional Parliaments could gain information, be informed and inform the actions of the Government in an attempt to influence legislation.

With first reading and early reading agreements—a first reading agreement obviously finishes at first reading stage—those decision, information and access points for national and regional Parliaments disappear. The significance of informal trialogues and early agreements is that something like 72 per cent of codecision files in the last parliament finished at first reading stage. In the last parliamentary session, 80 per cent of codecision procedures finished at that stage because of the exigencies of trying to get legislation through before the parliamentary elections in May 2009. Even if legislation progresses beyond the first reading stage, something like 11 per cent of codecision procedures or OLP finish at second reading stage. Less than 5 per cent of procedures now proceed through the full three readings and that has an impact on your capacity to know what is happening as the files develop.

The significance of all that is that, originally, the early reading procedures and agreements were expected to be for relatively technical and uncontroversial dossiers. However, over time politically urgent files have also been adopted at an early stage. A good example of that was the climate action and renewable energy package. It was agreed by the co-legislators in December 2008 and became law in 2009, but it was fast-tracked; it finished at the first reading stage. Part of the reason for that was the urgency to agree it before the Copenhagen summit.

The subsidiarity protocol is extremely important for Scotland because, in the past, European legislation may have been too detailed and encroached on the Scottish Government’s discretion or may have had to be implemented uniformly throughout the UK because there was not enough flexibility within it. The protocol is a way of enabling Scotland to apply European legislation more flexibly, so it is very important that the Scottish Parliament should get some mechanism for making use of it. It is vital that that be taken advantage of. The Parliament cannot invoke the protocol directly itself; whether we are talking about the early warning procedure or the recourse to the Court of Justice, it must go through either the UK Parliament or the Committee of the Regions.

The problem with going through the UK Parliament is that it has a Government majority and the Government, by definition, has already agreed the position—we are talking about a redress against something that the Council of Ministers wants to do—so it is difficult to envisage the House of Commons taking up the matter. One possibility is that the House of Lords might take it up. That route might be more likely. However, some formal mechanism must be put in place to enable the Scottish Parliament to make its view known and Westminster to respond before the protocol is invoked.

Similarly, if the Scottish Parliament wished to go to the Court of Justice on the ground that subsidiarity has been violated—this is less likely than the previous scenario—there must be some formal mechanism whereby it goes to one House of Parliament in London or both and the UK Parliament has to give some formal response. It would not have to agree with the Scottish Parliament, but it would have to reply. If we had a proper territorial second chamber, that would be the obvious place to go but I suspect that, at the moment, the House of Lords might be a better route.

Then there is the Committee of the Regions. It must also set up some mechanism so that it can respond to requests from devolved Parliaments that it invoke the protocol.

Formal mechanisms become important under the protocol. In the past, my emphasis has been on informal mechanisms, but the protocol is formal and you need to have a procedure for it.

One of the issues is the eight-week deadline for the transmission of reasoned opinion about the principle of subsidiarity. That creates significant timetabling issues for national Parliaments, but the timetable for any statement that regional, devolved Parliaments might want to make is even narrower, which is a significant issue. If the Scottish Parliament wanted to co-ordinate its response with that of the National Assembly for Wales or the Northern Ireland Assembly, it would have serious problems.

I am not an expert on subsidiarity by any means, but my understanding is that many of the concerns about dealing with it are not necessarily about infringement of the principle, but are points of specific detail of how it impacts on Scotland or the Scottish Government. The Commission, the Council and the European Parliament have a pile of lawyers who check proposals. The Commission certainly does—it has experience of subsidiarity, and there are statements in protocols about conforming to subsidiarity. I would expect, therefore, that it will not necessarily be a major issue in terms of yellow or orange cards, but I might be wrong.

The strongest arrangements are in Germany and Belgium as part of their federal structures. In Germany, the Länder are represented in the Bundesrat and can, in effect, get the Bundesrat to invoke the subsidiarity protocol. As such, the Länder can make that happen. In Belgium, there is a provision so that if any of the devolved Parliaments—the community or regional Parliaments—wants to invoke the protocol, the Belgian Parliament is obliged to take it up. I cannot imagine Westminster conceding that, but that is the strongest example. In other countries where the subsidiarity protocol applies, such as Spain and Italy—it hardly applies in France—a solution is still being worked out; one has not been come up with yet.

12:15

That is interesting.

I think that that covers everything—colleagues do not seem to have any further questions. Is there anything that you feel we have not raised that you would like to bring to our attention?

That is interesting. We raised some of those issues with the UK Government minister earlier in the meeting. He will look into one or two of the legal aspects a little further and get back to us.

I thank you all for coming along and for your written evidence. That was a useful session. It was great for us to be able to pick your brains. We will certainly take substantial account of your comments in our inquiry report.