European Committee, 26 Mar 2002

Meeting date: Tuesday, March 26, 2002

Official Report 252KB pdf

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EC/EU Legislation (Implementation)

Every two months, we receive a statement from the Executive on the implementation of all directives in Scotland. That is useful because it enables us to see how departments are performing and to monitor late implementation, which we were keen to do. The paper that the clerks have produced is helpful. It sets out observations on the Executive's paper. Does the committee agree to write to the Executive to request further information and invite comment on the points that the clerks make?

The Executive's document is formidable. I have read it and I have a few points to raise. Perhaps the fact that officials sometimes do not know what they are talking about is a clue that the Executive lacks resources. Officials use a section that does not stack up to justify UK implementation of a directive. The basic excuse seems to be, "Let's just use section 57 of the Scotland Act 1998."

I do not think that that is done on purpose. It is caused by a lack of resources, a lack of understanding of the complexities and the problem of dealing with the vast number of directives that are coming in. Perhaps we could tag on another question to the Executive, to ask whether the officials who deal with such matters also have to deal with numerous other things at the same time. I would guess that the problem is caused by a lack of resources. It is easy to say, "Just let the UK carry on with it."

I agree. There is a shortfall in the information provided to the committee. I was going to suggest that, following through on some of the comments that the clerks have made about specific sections, we should ask for further information and for an explanation of the reasons for the shortfall.

I agree. After reading through the documents, I feel that some of the responses are almost cryptic; it is difficult to tease out what they actually mean. Given that directives have to be implemented in a certain time scale, I suspect that it has been a useful discipline for staff to go through the paperwork and see where they are, but the process seems to ask more questions than it answers. The key points that the clerks raised cover all the kinds of things that we should be asking. There may be simple answers to some of those questions, but we need to know what the answers are.

It is not clear, particularly in relation to section 57, whether the section has been applied at the initiative of the Executive or the initiative of Whitehall. That is a basic piece of information that is missing, so we need clarification on a number of issues.

Ministerial approval is required when section 57 is applied. I do not want to add to the work load unnecessarily, but it would be interesting to know whether ministers are asked about that and whether such actions are submitted to ministers before they are agreed to or not agreed to.

I have no problem with that suggestion. Another purpose of the report was to provide the committee with information to enable us to scrutinise the reasons given by the Executive to explain late implementation. The reasons should be given and explained in greater detail. A department-by-department scoreboard would give us a clearer view of what is happening across the board. As we get to grips with the new procedure, we will realise what sort of information we need but, at this stage, it is quite clear that information is lacking. The clerks' questions draw out quite well the sort of further information that we need.

Could the clerk clarify whether the use of section 57 requires a Sewel motion to be approved by the Scottish Parliament?

My understanding is that it does not. Our legal adviser is here, but she does not have a microphone so she cannot give us that information right now. We can investigate that point, but I understand that a Sewel motion is not required.

So the UK Parliament can unilaterally pass a statutory instrument to implement European legislation on a devolved matter, without the approval of the Scottish Parliament.

It would have to go through the Subordinate Legislation Committee.

We are now treading on legal ground and we may have to take further advice. I see that Christine Boch now has a microphone, so we can get that information straight from the horse's mouth, so to speak.

There is no need for a Sewel motion in having recourse to section 57. The UK ministers can decide at their discretion to implement on a UK-wide basis any Community instrument in devolved areas. There is a lot of information in the concordats about the use of section 57 to implement a Community obligation in a devolved matter via a UK instrument. Basically, it is envisaged that section 57 will be used largely at the initiative of the Scottish ministers. The Scottish ministers would ask their UK counterparts to implement a particular Community obligation in an area where Scottish ministers have responsibility for implementation.

So the Scottish Parliament is not involved at all.

It is not envisaged that the Scottish Parliament would be involved. However, there is nothing to stop the Scottish Parliament being involved, and I think that the European Committee proposed to scrutinise the use of recourse to section 57.

That is one of the reasons why we were keen to look into the matter and get procedures set up, so that proper scrutiny and accountability could take place. Today's paper is the first draft of how we could go about that. It is also a first stab at getting the information back from the Executive. However, the committee clearly feels that there is a shortfall and that we need to develop the procedure further. With the agreement of members, we shall write back to the Executive requesting that further information, which we can review at the next meeting, when we will have cases of the use of section 57 to discuss. Do members agree to that course of action?

Members indicated agreement.