European Committee, 18 Aug 1999

Meeting date: Wednesday, August 18, 1999

Official Report 232KB pdf

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Scrutiny Process

We move on to item 1 on the agenda. A paper on the scrutiny and sift process for European documentation has been circulated. As we discussed at the first meeting, a plethora of documentation and regulations comes from Europe. If we were to try to deal with everything, we would be unable to progress any business. We wish to identify the key areas that need to be attended to. There will be matters to which we need to pay attention and matters that Parliament and other committees need to attend to, but there will probably be much more that needs no comment. The paper that Stephen Imrie will speak to suggests how we might deal with that bulk of information.

Thank you. As the convener suggested, under standing orders rule 6.8.1 it is within the remit of the European Committee to consider and report on proposals for European Community legislation and its implementation. That is what we are calling our scrutiny function. A paper, which was circulated to members before this meeting, was drawn up by the clerks in response to a request at the first meeting that we look at how the scrutiny function might take place. I stress that it is a draft paper on working arrangements. It includes some suggestions from the clerks, but it is down to the committee formally to decide on the procedure.

The suggested options have been developed over the past few months by the clerks, working in conjunction with officials from the Scottish Executive and clerks from the European Scrutiny Committee at Westminster. Our links to the Scottish Executive and to Westminster provide an important forum for your views in your consideration of European legislation.

The key issue that we identified is selectivity, within which there are questions of timing and of depth. Timing relates to the period in which committee members will be able to deliberate on any item of European business so that their views feed into the decision-making processes at Westminster and in Brussels. The clerks will advise members on the time frame for any item of business. On depth, members will be able to consider items of documentation at different levels. The options available to members range from a cursory glance, through holding an inquiry and inviting a minister to answer questions on it, to taking evidence from external bodies.

I remind members that we expect to receive approximately 1,200 documents every year. In paper EU 99/2/1 we have devised a twin-track approach to help members sift and prioritise a selection of those documents. Members have one fundamental choice for each document—to do something with it or to take no further action. It is at members' discretion whether a document is suitable for either category. If members decide to do something with a document, the question is how deeply they wish to scrutinise it and for how long. That is why we suggest a priority approach and a regular approach. If the priority approach is used, that does not mean that an item of business is more significant than one that is scrutinised using a more regular approach; it is just that we have less time in which to try to ensure that the committee's views are heard by the Executive and at Westminster and Brussels. Priority is a question of timetabling.

Whether the committee decides to look at a document on a priority or a regular basis, it has to choose whether to examine the document itself or, if the document is considered to be detailed on fisheries policy or agriculture policy, for example, whether it refers the document to a subject committee for its considered opinion. The subject committee would then report back to this committee. If the document relates to an item that is significant to Scotland, it can also be referred to the whole Parliament for consideration.

After those decisions have been taken, the clerks will ask the Executive to provide the committee with additional information that relates to policy and legal issues and that looks at the item of business from a Scottish perspective. As described in the annexe of paper EU/99/2/1, the Executive will supply the committee with additional information in the form of an explanatory memorandum. We will also inform the European Scrutiny Committee at Westminster about documents that this committee wishes to look at further.

We have a working arrangement with the Westminster committee regarding items that we select for priority because they are of great significance to us or because the timetable is tight. As soon as we inform the Westminster committee, it will hold back on making its considered opinion until we have been able to deliver ours. That is an important point. I stress that that is a working arrangement rather than a formal one—it has resulted from some good discussions with officials at Westminster. It is entirely up to this committee whether it wishes to scrutinise documents itself, to have an inquiry or to request a ministerial briefing.

To help with the process of scrutinising documents, the proposal is to have an initial sift before a committee meeting. In that sift, the convener and deputy convener—when one has been selected—will look through the documents on behalf of the committee and form a recommendation. A list of those recommendations and all the documents that we have received will be given to members well in advance of the committee meeting to provide committee members with some guidance on the initial thoughts on the document.

In advance of the committee meeting, members will receive a list of every document that we have received, a list detailing the recommendations of the convener and deputy convener and copies of the documents that have been selected for further scrutiny. It is for the committee to decide what to do with each document at the meeting; there may be occasions on which the process is altered. There is a further safeguard—a set of all documents will be received by the Parliament's information centre and a list of all documents received will be published in the business bulletin. Any member of the Parliament can address this committee and ask for an item to be looked at further, regardless of the recommendation of the initial sift.

The sift is a guideline process. It is for members to decide what to do with the priority document, the regular document or one on which no further action is required. If scrutiny is required, the committee will decide whether to carry it out itself or to refer the document to a subject committee or to the whole Parliament. Finally, there are a number of administrative matters to allow the clerks to deal with the follow-up.

That is all I want to say on the paper, but I am happy to take questions on a factual basis. As the committee clerk, it is not for me to decide the detail; I merely give the committee some suggestions about proceeding with scrutiny.

Thank you, Stephen. Before I throw the discussion open, I should clarify that what Stephen is suggesting is slightly different from what the flow chart in the briefing paper implies. The flow chart says that copies of every document will be sent to committee members, whereas Stephen is suggesting that members receive a list of all the documents with a recommendation as to whether we discuss them. If members wish to discuss a document and there is no recommendation, that document can be brought to the committee. The committee has to decide whether it wants a copy of every document that comes in or whether it is happy to receive a list.

The briefing paper states that the Scottish Parliament will receive a copy of all the documents that are received by Westminster. For clarification, do we get the documents—or does the secretariat get the documents—directly from Brussels or are we dependent on Westminster to forward them to us? As the clerk said, time is of the essence. If documents are to go through Westminster before they are forwarded here, I wonder whether that might interfere with our whole timetable.

About 1,200 documents may be forwarded to us for possible scrutiny; it will be virtually impossible for members of the committee to look through the detail of every one of them. At what stage will members of our staff have access to those documents so that, on our behalf, they can scrutinise them and report back to us?

I will answer your second question, Dennis, and leave Stephen to answer the first one. It is suggested that members will get a list giving details of every document that comes in. On that list will be a recommendation indicating which documents we think should be considered. If we recommend that a document should be considered, members will receive a copy of it. If we recommend that a document should not be considered, but a member believes that it should be, the member and his or her staff will have access to it immediately, as Stephen suggested.

We are trying to help members in the process of sifting out the most important matters. We are also saying that members and the committee have the right to determine whether things that have been missed or ignored should be brought back for consideration. As soon as information comes out, members will have access to it.

Documents that we receive from Westminster are sent to us at the same time as they are laid before the Westminster Parliament. We receive them directly from the Cabinet Office. That is the official route and it is the fastest route. We do not receive documents directly from Brussels, although we may receive working documents directly. We will be able to establish links into networks to get documents—such as reports of meetings, white papers, green papers and draft papers—directly to members. A complete set of the documents that we must officially consider is sent to us as soon as it is received in the Cabinet Office. The Parliament also receives a complete set to store in the document centre. We are not reliant on Westminster clerks to add us to the circulation list—we are already officially on it. As I said, that is the fastest way in which we can get the documents to the committee.

I think that the list idea is sensible: if we were all to be sent 1,200 or 2,000 documents a year, the system would grind to a halt. I wonder whether, in this age of information technology, those documents could be put on to the internet or on to the Scottish Parliament's intranet. That would allow us and our staff to access a particular document from the list. For those of us who are a little bit away from Edinburgh, that might be sensible.

The guidelines and the criteria laid down in the briefing paper are sensible and suggest a useful way in which to proceed. I can see that timetabling is going to be of the essence. As we work together and gain experience as a committee, we will know what needs to be changed and what does not. Co-operation with Westminster is going to be crucial and I am pleased that proposals for that are in place. It will be important for us to monitor that co-operation; as we gain experience, I hope that we will develop and amend it as necessary. New technology might be helpful in that as well.

At the moment, we receive all papers as hard copies rather than electronically. However, I understand that a database is to be set up in Whitehall that will allow us to receive electronic copies. I am not sure when that will happen but, as soon as it does, we will try to tap into the database so that papers will be available to members in the electronic medium.

I agree that using the electronic medium is a useful idea.

I thank Stephen for his opening remarks, which helped to clarify some of the issues that I was going to raise. In a list of the various pieces of legislation or documents for consultation flowing from Europe, it would be very easy for us just to be given a headline. However, that would not tell us much. Some of the stuff can be obscure, so it would be useful for the list also to include a couple of sentences outlining the thrust of the paper. That would help us to understand things a bit better.

The relationship between us and Westminster is obviously an issue of keen interest. I am glad to see on page 4 of the briefing paper on the scrutiny and sifting of European documentation that an informal relationship has already been established and that Westminster is treating us, at this stage, as a parallel body on areas of particular Scottish interest—although I am not sure exactly what the hell that phrase in the paper means, because if stuff coming out of Europe is going to affect the United Kingdom, it is going to affect Scotland as well. I need a better definition of what is of particular Scottish interest.

The same paragraph in the briefing paper talks about the requirement for an agreement between the two Parliaments or between committees of the Parliaments. Westminster committees have an opportunity to put their views on matters before they are discussed by the Government. I hope that we will manage to get ourselves into that position, because that will be important to the standing of this committee and of the Parliament. I would like to hear some views on that from my friends and colleagues around the table.

A couple of smaller issues need to be teased out. There is a reference on page 3 to the way in which Scottish explanatory memorandums will be structured. There is also a pro-forma for SEMs and I am grateful to Stephen for that. However, having looked at the Treaty of Amsterdam, at some of the issues that will be raised because of that and at some of the main thrusts of the European Community over the next few years, I think that it might have been useful to committee members if the memorandums contained mandatory information both on the environmental impact of consultation, directives or regulations coming out of Europe and on the issues of equality that they raise.

Finally—this is a very small point—the business bulletin seems to grow and grow. It is an important document for us as MSPs and I need to get to the nitty-gritty of what business is going on. I see that it has been suggested that the list of European documentation held in the Parliament's document centre be published in the business bulletin. The Parliament should find a different way of notifying us of that; if it does not, the business bulletin will lose what it is really about. I realise that that is more of a housekeeping issue, but I thought I should raise it here.

I will ask Stephen to comment on that last point. The point about our having a view before decisions are made and legislation is passed is absolutely right. It relates to some of Irene's comments about timing—we cannot afford to consider things after the event. We need to ensure that our procedures are properly sorted out so that we can get in with our views as early as possible.

I think that a descriptor, to go with the title on the list, is included in the template, but Bruce makes a useful comment, which will be attended to.

I certainly agree that it is vital to have a description of the documentation in the list. I also agree with what Irene was saying. I am happy to sign up to what is being recommended, but only on the basis that we are flexible and accept that—as we move forward and gain experience—we must be willing to adapt. I especially do not want to get into the Westminster scenario where something agreed today becomes the "Erskine May" for all time for all procedures.

Perhaps Stephen can clarify the relationships we will have with other committees. The Rural Affairs Committee in particular has a heavy agenda, and we cannot simply punt things on to other people and tell them to come back to us within six weeks. How will the relationship work, in terms of the turnaround and quality of input, especially as we could find that there is so much volume that people do not have an input at all?

Before I ask Stephen to comment, I will say that, because the timetable is determined elsewhere, we will occasionally have to ask committees to respond within a very short period. That is unfortunate but, rather than lose the opportunity, we need to filter things out and tell people that they need to look at matters in a hurry. Generally, however, David's point is well made: people need time to give adequate scrutiny to business.

We have thought about how the committees will interact. I will explain a couple of ways in which we hope we can smooth the process. When I, as the clerk, initially receive documents, I can at least—without prejudicing any decision that this committee may make—say to my fellow clerks that the document has been received, that it is a detailed subject and that it is likely that this committee will treat it as a matter requiring scrutiny by other committees. The clerking staff therefore have some early warning that an item has been received and may—I stress may—follow that path; the clerks can look at timetabling issues as early as possible and alert other committees.

I perhaps did not stress sufficiently that, if an item has an extraordinarily tight timetable, this committee can deal with it even if might normally have been a matter for a subject committee. A matter does not have to be referred to a subject committee, even if it is detailed. I have been advised by clerks at Westminster, who are more experienced in such a role, that it is not often the case that they have only a few weeks in which to deal with business.

Members of this committee are also members of other committees, although not, interestingly enough, the Rural Affairs Committee. However, members can of course use their experience from other committees and any member of the Parliament, including members from one of the other subject committees, can come along to this committee to give their considered opinion on a particular document. We are trying to facilitate the interaction between committees in a number of ways. The process may not be easy and we will have to be careful about timetabling.

The Parliament has a tight timetable so, if we decide to refer something to it, what will happen?

If a matter is referred to another committee or more rarely—I hesitate to say that—to the Parliament, we have to advise the other convener, the other clerks or the whole Parliament of the timetable within which we would request them to report back to this committee to allow us finally to take a view. If a matter is to be referred to the Parliament, we would have to work closely with the Parliamentary Bureau to enable it to be fitted in. If the matter is of extraordinary importance and relates to a very short time scale, we would have to liaise with the clerks and the business managers so that it could be taken as business for the whole Parliament.

We will have to advise the subject committees of timetables and dates and when they need to reply to us, in time for us to consider their views and get back to the Executive and to Westminster. There are systems in place, but we will have to monitor them when things have started to run; we will have to be flexible.

Will you comment on Bruce's question about the pro-forma?

In the pro-forma, which is shown in annexe 1, as well as listing all the documents that we receive and the recommendation from the convener, we will try to insert a short explanation of what the document is and some of the issues around it, the timetable according to which we will have to take decisions, and any other notes.

There is also the issue of whether we should be commenting in the Scottish explanatory memorandum on environmental impact.

That is not within the explanatory memorandum, but if the committee wishes that, I am happy to suggest it to the Executive.

How has the pro-forma been developed? Where did it come from?

The pro-forma contained in annexe 2 is a suggestion by the Executive on how the Scottish explanatory memorandum would look.

Would that be a standard document for every committee?

The explanatory memorandum will be received by our committee; that will be the standard.

I wonder, given that every committee might concentrate on different issues, such as equal opportunities or a whole range of things, whether there is another route by which we could have that document looked at, so that it is not the Executive that determines how it should come before the committees.

With respect, I was signalling that I wanted to introduce that point. We are trying to work out how to manage an impossible amount of paper, never mind electronic mail and so on. All the committees of the Parliament link to this committee, and the Parliament is the managing agent for the structural funds that feed into the affairs of all the committees.

This committee should say to the other committees that it is in their interest to do as Irene suggested and keep their eye on what is coming up. I think that Winnie could help us with guidance on how we could have a direct route to the initial consideration of what is about to come up in Europe, so that we can link into that. But it is up to the other committees to decide which of their members will keep an eye on the European dimension.

That is a slightly separate issue and we have covered it to some extent. You are right that there must be an early warning system; it is not enough just to wait until things come out. Certainly other committees will have to look at who will take the lead and how they pay attention to European issues.

Bruce raised a specific point about whether the pro-forma should state whether environmental issues had been considered. There might also be other matters that are relevant to every committee. Given that it will be a standard document and every committee will have a similar page, rather than every committee having a debate about designing a form, is there a more appropriate route?

It is important that we take into consideration equal opportunities because, as committee members know, in Europe the two key factors for reports are attention to the environment and equal opportunities. If we included the environment, I would want to ensure that attention was given to equal opportunities.

I do not want to waste time today trying to design a form, because we will never get agreement. Is there somewhere we can send it to say that some things have been missed out and it should be looked at again?

Might the Procedures Committee wish to look at the matter?

It might not wish to.

We could ask it to look at the matter.

I am not sure that similar committees will have this type of paper, which relates to the Scottish dimension and Europe. This is about our needs as a committee. Other committees might have a particular interest in other issues, but Irene is right that the two main platforms of the Treaty of Amsterdam are the environment and equality and they must be considered. It is not just about us but about influencing the way in which the Executive, including the officials, works and thinks.

Perhaps the clerk will advise us, because my understanding is that our committee is unique in the Scottish Parliament, in our role of scrutinising European legislation and documentation. Therefore, the pro-forma is unique to our committee. Surely it has not gone out, even in a similar form, to any other committee. It is up to us as a committee to decide whether to refer documentation to any of the other committees of the Parliament, whether on the environment, equal opportunities or whatever.

I suggest that we send the documentation back to the Executive and ask it to consider some of the broader points that have been made and to come up with another template for our consideration.

If we want to influence the decision-making process, as mentioned on page 4 of the briefing paper, we must get into it as early as possible. The documents that we shall get will not necessarily achieve that. What would achieve it is the agendas of the meetings of the European Parliament's committees.

An example is the document that gives the dates for various councils in which relevant matters will be decided, such as the Fisheries Council. Already we have lost the opportunity to influence it. Once the European committees start again at the end of the month, they will have an agenda of topics for which rapporteurs will be appointed, and that is where the early discussions will take place in which we want to be involved—before they harden into a report, when it is difficult to make changes.

Flexibility arises when a committee is still discussing a subject. The committees are non-political in the sense that there is rarely a left-right confrontation—except perhaps in economic and monetary matters. Mostly anyone with a good idea has the chance to submit it at the early stage.

If we do not get the agendas for what is happening at that time, we might lose our chance to influence the form in which issues are put to the European Parliament. Usually the Parliament passes what the committees propose because the committees, after all, are formed of all the different political groups, with the different skills and points of view. The flexible stage is when the committees first discuss the topics; what we need, and will not get unless we ask for it, is the agendas of the committee meetings from now on.

We are beginning to debate a separate matter. We have before us a proposal on how to sift the documents that we receive. What Dr Ewing is talking about is worthy—

We are not receiving the right ones.

How we influence the process is worthy of discussion at some point. I am aware of the time, because we have other items on the agenda. Today we are talking about sifting documents that are received. Is this a useful mechanism for sifting such documents? I am happy for a future agenda to include an explanation to us of the process whereby Europe makes decisions and how we can influence that process. That would be a useful part of our learning experience as a committee. Let us have that debate, but now let us try to concentrate on the document.

I welcome the work that has been done as I recognise the sheer volume of paperwork that will come through—we must be clear that we are giving attention to the things that are most relevant and of priority.

There are two points on which I would like clarification. In relation to the initial sift process, with the designations of priority, regular and no further action, are there many matters that would have little or no relevance to Scotland if we are trying to put our perspective on things? What issues are being put in that category—does it include reserved matters? Some things could slip past because of that. My other point is about influence. A paragraph in the paper refers to the committee at a future stage having discussions on direct influence on draft legislation. I would propose that we go ahead on the basis of the process that is outlined, given that if we want to discuss something in more depth, we have the opportunity to do that.

On the question that you raise about whether there are matters of no relevance to Scotland, at the first meeting I quoted a couple of examples in that category—Swiss watchmaking and something to do with Burma. If we start to say that all these matters will have relevance to Scotland, we will never get anywhere.

That is helpful. I wanted to be clear that it would not cover reserved matters.

No—only things that literally would have no impact on Scotland.

I return to Bruce's point on the relationship with Westminster. Once we have produced the Scottish explanatory memorandum or had an input into the European Scrutiny Committee at Westminster, what procedure or guarantees do we have that our case will be properly presented to that committee? I do not know how many Scottish MPs are on it or how our case will be put to the committee. We have a Scotland Office with a secretary of state, but our case could just disappear into that committee. We need to monitor what happens to our input and how it is made.

We need to develop a relationship with that committee, and I will seek a meeting with its chair to discuss how each of us will progress business. We need to make sure that our views are given due consideration; we will discuss that. There are other methods apart from membership of the committee—we will use every means at our disposal, including lobbying the secretary of state. At some point joint meetings or attendance of some of the relevant individuals at this committee might be useful.

I do not want to cut anyone off, but we have spent three quarters of an hour on what should have been a relatively straightforward document. Is there anything that has not been raised about the mechanism and the process? I suggest that we amend the document to take it into account that we will not circulate all the documents but that there will be a list; that we are sending back to the Scottish Executive the explanatory memorandum; that at some point we will discuss how we influence the policy process—the point that Winnie raised; and that in future we shall consider ways of trying to ensure that our views are properly heard in the Westminster European Scrutiny Committee.

I do not want to prolong this, but I am confused. I understood that our deliberations would be heard in Westminster at Cabinet level and that we would not necessarily have to go through the European Scrutiny Committee. I would be concerned if that were not the case as it would remove the possibility of there being a parallel system that would allow this committee to have a similar standing to the one in Westminster. I am sorry, Hugh, but I want to press that point. I asked a question at the beginning about whether this committee would be given the same standing as the Westminster committee as regards any parallel agreement. We need to understand how we feel about that issue and work out how hard we want to press it.

I will ask Stephen Imrie to explain the process before I bring this part of the meeting to a close. However, if we want to discuss further the committee's relationships with other bodies, we will need to structure our discussion properly.

The procedures allow for this committee to give its considered opinion on any document to the European Scrutiny Committee, which will take that opinion on board, and to the Scottish Executive, which will be responsible for making sure that those decisions are passed on to Whitehall. Our committee will be able to give its opinions to other people, such as the Secretary of State for Scotland, but it is not for me to say whether that should be done; that would be a political decision for the committee to take. As European affairs are a reserved matter, we would not report to Westminster, but would pass our thoughts into the Westminster decision-making process.

It is still not clear to me. I know that our opinions go into the Westminster system, but does that mean the European Scrutiny Committee or the Cabinet Office? If we input to the European Scrutiny Committee, I would be concerned about our committee's standing.

It is my understanding that Westminster means the Parliament rather than the Cabinet Office.

A range of options will be open to us. We will be able to pass our opinions to the European Scrutiny Committee but we will also be able to use the offices of the Secretary of State for Scotland.

We should not duck the issue, but we should come back to it at a later date. If we want a discussion on where items go from this committee and on what our relationship is with Westminster, we can put that on a later agenda.

That would be fine.

We would like that to be on the next agenda.

I want to make two brief points. When we refer the Scottish explanatory memorandum to the Scottish Executive, we need to put forward clearly the points that Bruce and Irene made about the environment and equal opportunities and stress that those are important matters.

I do not know whether we will discuss the date of our meetings at some other time, but our briefing paper says that we will meet in the afternoon. Are we agreed on that?

As opposed to in the morning?

I think that morning meetings were originally suggested.

We might have to refer that to the Parliamentary Bureau because other committees have to meet as well. There is a suggestion that, because of the volume of work and the way in which the process works, we should try to meet on a Tuesday. However, that might clash with other business, so we need to be flexible. For example, some of us on this committee are also on the Health and Community Care Committee and are unable to attend some of that committee's business because we are here. It is a bit of a nightmare. We will return to the timing of meetings at another time.