European Committee, 04 Dec 2001

Meeting date: Tuesday, December 4, 2001

Official Report 177KB pdf

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EU Governance and the Future of Europe

That brings us to our main item of business. We are delighted to welcome to our meeting Jim Wallace, the Deputy First Minister and Minister for Justice. This is the first time that we have received him at one of our meetings but I am sure that, given his remit, it will not be the last. I understand that, because of Cabinet commitments, the minister can join us for only 30 minutes today. Is that correct, Mr Wallace?

There is a Cabinet meeting this afternoon. However, if we get to 35 minutes I will not run out the door.

I note that these are exceptional circumstances, but I hope that, once things return to some sort of normality, longer discussions between the committee and the Deputy First Minister and Minister for Justice will be the norm. I hope that the minister concurs with that view.

Mr Wallace, we have briefly discussed your external affairs remit and will write to you about that. I would appreciate it if you could assure us that you will reply to us speedily on that outstanding issue.

Mr Jim Wallace indicated agreement.

I understand that you would like to make some opening remarks. After you have done so, the floor will be open to questions from members.

I congratulate Irene Oldfather on her elevation to the convenership of this committee. I look forward to having a constructive working relationship with her and all members of the committee.

As Deputy First Minister and Minister for Justice, I have always had an interest in European Union matters, but because of the reallocation of responsibilities within the Cabinet I will now have more to do in that area. I hope that my relationship with the committee will be characterised by a spirit of openness, co-operation and partnership and that our overriding objective will be to further Scotland's interests in Europe. I am sure that the officials sitting next to me heard the convener's request that the committee's letter about external affairs be responded to as speedily as possible.

I appreciate that today's question-and-answer session relates to the committee's inquiry into governance and the future of the European Union and I will outline the Executive's position on those issues. However, I would be more than happy to appear before the committee again early in the new year to talk about other aspects of the Executive's position on EU matters. We will then, I hope, have a better opportunity to explore those issues in depth.

The Executives believes that, when we deal with major EU issues that impact on devolved responsibilities, our aim should be to help to build a reputation for Scotland as a significant contributor to EU thinking and, in so doing, to raise Scotland's profile in Europe. Improving governance was identified as a personal goal by President Prodi when he took office and the future of Europe debate emerged from the Nice summit in December last year. Although the two issues have different origins, the aim in both cases is to tackle a recognised weakness in the European Union—an increasing disconnection between the institutions of the Union and the citizens of Europe. That issue strikes at the heart of democracy and is therefore of considerable importance to Scots and to our fellow citizens throughout the European Union and, for that matter, in the accession states.

The Executive takes the view that it should play a full part in the debates on improving governance and the future of Europe. To that end, we have given oral evidence in Brussels at a Commission hearing on governance. With the Convention of Scottish Local Authorities, we produced a joint submission on governance as a contribution to the Commission's consultations.

I believe that we have led the future of Europe debate in Scotland. We have done so through a panel discussion in February that involved Commissioner Kinnock and through speeches by Jack McConnell at the Jean Monnet European centre of excellence conference in September, during Scotland week in October and at a discussion organised by the Belgian ambassador in London, also in October.

We participated in the Flanders group, whose discussions culminated in the political declaration of 28 May, and more recently in the resolution from the Liège conference, which was based on the May declaration. All that is in addition to the on-going dialogue between the Executive and the UK Government about the issues, in accordance with the arrangements laid down in the concordats. As a consequence of those activities, a number of documents are available setting out the detail of the Executive's position. Those documents have been provided to the committee.

On governance, we favour wider consultation at an early stage with Administrations such as the Scottish Executive, less European Union regulation where measures could be better taken at the Scottish level and greater flexibility in implementation. We were pleased to note that a number of our proposals have been adopted in the Commission's white paper, which was issued in July. The governance debate is now further forward, which is not surprising because, as President Prodi has said, governance deals with changes that the Commission can implement without altering the treaty.

As members know, respondents have until March next year to comment on the Commission's proposals. The Executive has been in dialogue with the United Kingdom Government about issues raised by the white paper. We are considering the points that we would wish to make and the best means of getting Scottish views across. In developing our thinking on those matters, we hope to continue the joint working with COSLA that characterised our earlier submission on the subject.

We are at a significant stage in the future of Europe debate, although it is important that we recognise that we are still at a very early stage. The Executive's position is based on five principles: pro-Europe, because of the significance of the European Union to Scotland's prosperity and the positive force that it brings for progress; pro-United Kingdom, because we recognise the fundamental importance of the member state in the European Union and appreciate that being part of the UK gives us power and influence that we could never have as a small country; pro-reform, because we recognise the need to adjust the decision-making process to re-engage individual decisions; pro-regional government involvement, because we believe that the greater involvement of legislative regions can make a major contribution to the task of re-engaging ordinary people; and pro-debate, because we believe that we have a better chance of meeting citizens' needs if citizens are involved in the thinking that goes into devising the necessary reforms.

At the Liège conference, the collective view on how constitutional regions could assist in dealing with the democratic deficit was put in the form of a resolution to the Belgian Prime Minister, Guy Verhofstadt, as a contribution to the thinking on Laeken. We must now await the outcome of the Laeken summit to discover how the debate will be developed further in the build-up to the intergovernmental conference in 2004.

We must recognise that there is strong agreement that detailed solutions would be premature; the consensus at this stage is that we need to concentrate on the questions to be asked and the issues to be explored. We fully support that approach, which is consistent with our stance as supporters of open debate. It follows that our policy position will also develop as the debate progresses in the build-up to the IGC in 2004; as a consequence, we may not yet have taken a position on certain issues.

I hope that this short summary has given members a solid outline of the Executive's position on the issues and that the papers that I have described provide the detail. I will try to answer your questions.

Thank you. We are short of time so I open up the meeting to questions. I ask that members keep their questions brief and to the point.

I will read this very quickly then. I welcome the minister's commitment to openness, co-operation and partnership. Will he do something to ensure that the answers we get from ministers to parliamentary questions are written in that spirit, as currently they are difficult and obtuse and tell people nothing? Can the details of the timing, agenda and basic substance of joint ministerial committee meetings be given to this committee so that we can scrutinise effectively the work of the Executive without prejudicing UK negotiating lines? Can the committee have better pre-Council and post-Council feedback? Lastly, are you going to the Council of Ministers on 6 and 7 December, where justice is a critical issue? If not, have you met your UK counterpart yet?

I will certainly do my utmost to ensure that PQs are as informative as possible. That is something that I have tried to do in the justice department—not always with success, I admit. PQs are not a game; they exist to inform.

I have not been involved in the timing of JMCs on Europe. My experience is that some other JMCs are called at relatively short notice, although in principle I can think of no reason why the committee should not be advised of their taking place.

I will consider what individual ministers can do in the way of written pre-Council and post-Council reports to the committee. I suspect that we would not necessarily want a ministerial appearance before the committee after every Council. Without detracting from the work of this committee, I also suspect that issues may arise from meetings of the various Councils that the subject or departmental committees will wish to pursue.

I will not be attending the Council on 6 and 7 December. I was, however, present at the justice and home affairs council that was held on 15 November. Much of the work that was done there has been taken forward to the Council of Ministers on 6 and 7 December. It goes without saying that, when I was at the Council, I had extensive discussions with David Blunkett about the important issues, particularly those where we have devolved responsibility, but also reserved areas where Scotland may be affected.

You said that you would like less European Union regulation in cases where decisions would be more appropriately taken at local level. I entirely agree—that relates to the principle of subsidiarity. Could you give us some examples? Would you say that the water framework directive is a typical example of European Union regulation in an area where, frankly, Scotland could claim to be better regulating or legislating for itself instead of following initiatives from Europe? Those initiatives are seen as bureaucratic and unnecessarily interventionist and are having a detrimental effect on the Scotch whisky industry, for example, which is a major part of the Scottish economy. I have never heard any consumer, in Scotland or anywhere else in the world, complaining about lack of purity in water used by Scottish distilleries. Would that be an example of an unnecessary regulation by Europe? If so, could you give us your views? If not, could you think of other examples?

I reaffirm what Mr Canavan said at the outset. I believe that the Scottish Executive should take decisions when that is the most appropriate level for decision making. Although I think that the word "subsidiarity" is ugly, the principle that underlies it is important. In our submission to the Commission's white paper on governance, we said that the Commission should re-examine the forms of its lawmaking and consider making short, strategic laws that clearly set out their objectives and leave considerable and genuine scope for flexibility in implementation. That means having a framework, rather than being over-prescriptive.

An example is given in the document that we produced jointly with COSLA. The Executive welcomed the initiative by the Commission to work with member states on the implementation of the water framework directive. A common strategy on implementation was developed as a result of that. A series of projects was considered with regard to individual aspects of the directive.

I do not think that anyone would want to criticise or take exception to the overall objective of high water quality and a clean environment. I make the general point that, the more that objectives can be set out within frameworks, leaving it to the member state or regional—national, in our case—Parliament within the member state to flesh out the detail, the better. It is often possible to take greater account of local circumstances by doing that.

Let us return to the upcoming IGC and the constitutional convention that is being prepared. First, do you agree with your colleague, Menzies Campbell, that we must go a bit further than simplifying the current treaties and that we need to transform what is a bit of a mish-mash into a coherent constitution? Secondly, do you agree that the charter of fundamental rights should be legally binding and justiciable? Thirdly, and more important, do you believe that the suggestion that regional legislatures, including the Scottish Parliament, should have access to the European Court of Justice, would allow them to guarantee redress against a member state in a situation in which the principles of subsidiarity are formalised in the constitution? Would you support those three concepts?

We are looking for considerable simplification, which, by definition, will involve some redrafting. I am not sure about a reformulation. We could split hairs about whether that would amount to a formal constitution, which may not lead to simplification. However, simplification is an important objective if we are to connect the ordinary citizens with the work of the European Union, which is an overarching objective. What was your second question?

Whether the charter of fundamental rights should be legally binding and justiciable.

When the charter was being considered before the Nice summit last year, we gave considerable thought to the position that we would adopt on that issue. At the time, we did not support the idea that it should be fully justiciable and legally binding for the good reason that we had just incorporated the European convention on human rights into our domestic law. I am a strong supporter of the ECHR's being brought in as part and parcel of our domestic law, but equally, as the Minister for Justice, I recognise the implications of that, the considerable amount of training that has been required and some of the more difficult decisions that judges have arrived at. Now other public authorities, not just the Executive, are having to come to terms with the matter.

I did not think that it would be in the interests of the citizens or of good governance to incorporate yet another European obligation into our law, especially if there happened to be divergences or discrepancies between the two and the courts had to decide which one to give preference to. That is why we decided that, for the foreseeable future, it would not be good government to support incorporation of the charter. We regard the charter as an important political statement rather than as something that should be codified in the treaties.

Your third question concerned the European Court of Justice. You will know what was said in the Liège statement on the issue. However, our view is that, in the context of trying to spot where subsidiarity rules have been breached, the political approach is more likely to be effective than the legal approach. We have proposed the creation of a subsidiarity watchdog, on the premise that prevention is better than cure. It is far better to spot where the problems are going to arise—where subsidiarity rules may be breached—than to take one's place in a long queue to get matters justiciable before the European Court of Justice. There will be debate on the issue. In a debate in the chamber in June, Nicol Stephen indicated:

"the Executive supports having all those issues on the agenda for debate".—[Official Report, 21 June 2001;
c 1801.]

On the withdrawal of autonomous regional powers—I am thinking about the future governance of the EU in the broadest sense—should not regional legislatures have access to the European Court of Justice in circumstances in which the member state claws back powers that it has granted? That situation has occurred.

That is a matter for the member states and I would not have thought that there is much likelihood that the member states would agree to surrender those powers to the European Court of Justice. Within the UK, the devolved competences are matters that we have negotiated and which, in Scotland, have been subject to a referendum.

We can appeal only to the Judicial Committee of the Privy Council, which is an unelected structure whose members we barely know. Surely, not just for our own benefit but for the good governance of the EU, it would be preferable if regional legislatures had access to an independent authority such as the European Court of Justice.

I am not sure that the democratic qualifications of the European Court of Justice are any better than those of the Judicial Committee of the Privy Council.

Well, its members are not appointed by the British, for a start.

The position was part of the settlement that Scotland overwhelmingly supported in a referendum. It was part and parcel of the white paper that we voted on in the devolution referendum.

I think that we are dealing with a hypothetical situation as I cannot imagine that any member state would be willing to give up—I do not mean "surrender"—to the European Court of Justice jurisdiction over a matter that is very much part of the internal constitutional debate within member states.

Lloyd Quinan has asked half the questions that I was going to ask.

On the structure of the decision-making process in the EU, you said that you did not want to talk much about the position because that might create a barrier to consensus. However, when the Prime Minister spoke in Warsaw and when Peter Hain came to Scotland, they made it clear that they continued to be in favour of a second chamber. Is it the view of the Scottish Executive that that would be a good way to progress?

We identified the second chamber as being one of the bodies—a modified Committee of the Regions was another—that could act as a subsidiarity watchdog. I would not claim that we are absolutely wedded to the principle of a second chamber, but we suggested that it might be one of the possible mechanisms that would enable a close watch to be kept on the Commission, particularly with regard to subsidiarity.

Has the Scottish Executive's proposal found much support in Europe?

I was not immediately involved in any of the bilaterals that took place. I am checking to see whether the proposal was referred to in the Flanders declaration, but I cannot see an immediate reference to it. Perhaps I can clarify that for the committee.

If you could come back to us on that issue, that would be absolutely fine.

We are getting to the stage at which Governments of the member states are putting forward their ideas on the preferred option for the governance of Europe. The Prime Minister, Mr Blair, has made it clear that his preferred option is a second chamber. Does the Scottish Executive have a preferred option or will any of the four options that are on offer do?

Having an objective is more important than being tied to a particular delivery mechanism. My objective is that we should have a political mechanism to safeguard the principle of subsidiarity. In that context, we recommended that there should be a second chamber, which is one way of doing that. A second chamber would have representatives from national Parliaments and from regional Parliaments with legislative competence.

That consideration is secondary. It is more important that we have a body that has teeth and that can carry out the important function of safeguarding the subsidiarity principle. That is why I said in my opening remarks that open debate is very much part of the process. It would be wrong for us to get tied to a particular option if it proved not to be gathering momentum. We should not get so tied to a particular option that we take our eye off the ball and forget our objective—the objective is the most important thing. We have an opportunity for debate so that we can try to find the best means of securing that objective.

In October, the general affairs council agreed that such matters should be taken forward by a convention of MEPs, national parliamentarians and representatives of national Governments. Different people have said different things in different places about who should take part in that convention. Clearly, there is a strong case for regions with legislative competence such as Scotland being directly represented in such a body. What is the Executive's view on that?

The Liège resolution referred to that matter. If you bear with me, I will quote the relevant part.

I was afraid that you might. Not in Flemish, I hope.

The Liège resolution, to which we were party, states:

"with regard to the Convention the Regions with legislative power expect the Heads of State and Government to involve them as well. They believe they can bring a real added value by their knowledge of the diversity in social, economic and cultural fields, which represents the richness of Europe, its force and the foundation of its cohesion. Considering that all possible means should be applied to reinforce the democratic legitimacy of the European Union, the Convention should reflect the views of all politically elected actors that can contribute to this."

Will the convention only reflect our views or will MSPs be members of it?

Whether we are members is ultimately not our decision. I have given the position that has been indicated. It is important that the debate on the future of Europe is inclusive and wide ranging.

At one point, the Liège resolution makes a request for "direct representation". Perhaps you could agree to clarify that at a later stage.

It would be better still if the minister could clarify that now.

It is important that the committee examines options and suggestions for the way forward for everything connected to European governance. It is not satisfactory for us to sit here and spend 35 minutes talking about warm aims with which we probably all agree. We should push for stronger replies, or straighter answers, on what we want. We have found that an offer from the Executive of clarification at a later date does not always work.

Mr Wallace has been trying to clarify—

I may not have used the words "direct representation", but it is clear that that is what I implied.

So you agree on that point?

Yes. We are a signatory to the Liège resolution, but whether we get direct representation will be determined at Laeken. Even if direct representation is not achieved, there are ways in which the regions that have legislative powers can contribute their views. A seat at the table is the most direct way of doing so, but not having a seat at the table does not mean that your views are excluded.

I will follow up on the general area that Ben Wallace opened up of better consultation with and more involvement of citizens in the European Union. I was struck by the minister's opening comments on the weakness of governance, not just in Europe but throughout the world. Citizens are not connected to their representative organisations. The debate is not just about whether a second chamber would be a good idea.

In his answer to Ben Wallace, the minister referred to the need to explore other issues, such as better communication and information at an early stage. What specific proposals does the Executive wish to pursue? How can we make the European Parliament and the European Commission more accessible now, rather than having to wait for the debate on a second chamber?

My answer to Ben Wallace on the second chamber was in the context of the subsidiarity watchdog, and I suggested that a reformed Committee of the Regions might be another way of encouraging accessibility.

Ms Boyack has opened up the slightly wider issue of what might be done to connect with the citizen. The Commission's principle of not legislating to the nth degree is far more likely to make citizens feel that they are part and parcel of the decisions that affect them. Perhaps I can clarify the point that I raised with Mr Canavan. If broad frameworks are worked out, it might be left to the Scottish Parliament, for example, to provide the detail.

One of the strengths of the Parliament has been the accessibility of its committees to the public. One of the issues that we raised in our submission on governance was the importance of flexibility in implementation, and we suggested that such flexibility should be extended to legislatures such as the Scottish Parliament. If we were allowed that flexibility, we would be far more likely to ensure that, in delivering implementation through the Parliament's processes, we took local circumstances into account and took advantage of the experience of ordinary citizens. It would be wrong for the European Union to be prescriptive about other legislatures' processes. Obviously, the more that implementation is pushed down to the level of the Scottish Parliament, the more inclusive we can be.

Before I bring in Sarah Boyack again, I would like to ask you about your views on transparency, which are well known. How do you feel about the Council of Ministers, which is probably the only legislature in the world that meets behind closed doors? Citizens will obviously not feel connected to government if legislative decisions are made behind closed doors.

We should look into ways of providing greater transparency than that provided by the Council of Ministers. I am not saying that every moment of deliberation should be open, but more could be done. To be frank, I am not sure that much is said in the Council of Ministers, which I have attended, that could not be said outside.

A difficulty is that the views of journalists from different countries differ from those of their ministers about what happens in Council of Ministers meetings. It is always difficult to find out what the truth is.

There are opportunities for greater transparency.

I have a brief follow-up question on frameworks. Have we discerned any support from other member states for the strategic approach, in which we define key principles rather than defining the letter of the law in everything?

The white paper from the European Commission reflected that thread, which we included in our submission, and the opportunity for greater flexibility. We have until March 2002 to respond to the white paper. You will find that, in the white paper, the Commission says:

"There should be more flexibility in the means provided for implementing legislation and programmes with a strong territorial impact, provided the level playing field at the heart of the internal market can be maintained."

The answer to your question is yes. The approach struck a chord with the Commission.

I will pick up on your point about the transparency of the Council of Ministers. I commend the way in which the Swedish presidency has opened up the working groups, committees and meetings that the national civil servants attend in preparation for Council of Ministers meetings. Committee members have been impressed by that. We have noted that almost 90 per cent of the legislation is pre-cooked before the elected representatives make their final decisions. The process of opening up has enabled more people to be much more aware of what is going on.

I hope—and I hope that other committee members will agree—that in any meetings that you have, you will encourage other presidencies to adopt a similar approach, so that many more of us can be much more aware of decisions before they are taken. We often find that, in European Union affairs, we are told of decisions after the event, when it is too late for us to comment. We would like as much prior warning of such decisions as we can possibly get.

I bow to your greater knowledge of what the Swedish presidency did. I am sympathetic to the point that underlies your comment.

We have finished just about on time—in 35 minutes. We appreciate your coming along today. We have not had time for some questions. They are still outstanding.

If you want to take another five minutes, I am happy to stay.

Right. Does Ben Wallace want to ask something?

It is probably a big mistake on my part to stay.

I will expand on Lloyd Quinan's point about direct access to the European Court of Justice. Many of us acknowledge, as you said, that there are different devolved systems throughout Europe. That makes difficult a blanket agreement that would enable regions or Länder to have direct access to the European Court of Justice.

What is your opinion on the suggestion that, on devolved matters, devolved Administrations should have direct access to the European Court of Justice? In other words, the suggestion is that how much access institutions have to the court and in what circumstances they have that access would depend on the nature of the institutions. For example, if an EU directive on elements of fishing policy or smoking policy came into force, the Scottish Parliament or the Scottish Executive could have access to the European Court of Justice on those issues.

The answer remains the same as the one I gave earlier. The political route has been far more effective in dealing with such areas than the litigious route has been. Ultimately, the member state is the signatory party. If orders were to be made by the court, they would be made against the member state. In the kind of circumstances that you suggest, debates—over tobacco advertising, for example—are more likely to be brought to a successful and satisfactory conclusion through political dialogue than through a case that might take a considerable length of time to find its way through the court.

My question concerns a small point about terminology that is nonetheless important. You said that the Scottish Executive is pro-regional Government involvement. Can we search the vocabulary for a better word than "regional"?

Scotland is not a region and the people of Scotland make up a nation. For example, the Scottish Executive can be described correctly as a devolved Administration and the Parliament can be described as a national legislature, but one that is devolved within a member state of the European Union. The term "region" is confusing, bearing in mind the fact that it is sometimes used to refer to parts of Scotland. For example, although Strathclyde region no longer exists as a local government entity, many people still refer to that part of Scotland as a region. Similarly, there is the nomenclature of the Committee of the Regions. Will you press your ministerial colleagues in Europe to look for better and more consistent terminology?

I was conscious when I used the term earlier that it is not as felicitous as it might be, for the reason that Dennis Canavan gave—we consider ourselves to be a nation. One problem is that we came somewhat late to the table. The other regions, which include some Länder with populations of around 17 million, call themselves constitutional regions. We are stuck with the term. I would be happy if someone came up with a better word for that and for subsidiarity. Dennis is right to raise the matter, but the term "region" is better than the term "sub-national", which grates on all our ears. If anyone has an inspired thought, I would table it willingly.

I suggest that if we must think up new vocabulary, the place that the words "additionality" and "subsidiarity" came from is the last place to go.

Before I bring in Lloyd Quinan, I want to ask the minister about simplification of the treaties, which everyone signs up to but which seems to be more difficult to achieve. I remember simplification being an objective at the two IGCs before the most recent one. The treaties are enormously complicated. How can we put them into a form that allows ordinary citizens to connect and understand what the European Union is about?

I cannot claim to have an inspired answer to that, although if I find one, I will pass it on. The objective of simplification is important, but I understand how difficult it is. I would like our Parliament's legislation to be in much simpler English. Every time I plead for that, I am given five good reasons why it cannot be done—for instance, rights might be abrogated or exceptions might not be accommodated. However, that should not diminish a genuine attempt to simplify because, at times, one needs only to look at the treaties to glaze over.

What role do you see the committee and the Executive having in the bid for the 2008 European championships, which would be positive in engaging—

That is outwith our remit.

I do not want to get into a territorial battle with whichever committee looks after that subject.

The discussion this afternoon has been useful and interesting and we are grateful that you came along. We look forward to a productive relationship between the committee and the Deputy First Minister in future. We will have a short adjournment.

Meeting adjourned.

On resuming—