European and External Relations Committee, 04 Mar 2008

Meeting date: Tuesday, March 4, 2008

Official Report 287KB pdf

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Lisbon Treaty (Correspondence)

We move straight on to item 2, which is correspondence on the Lisbon treaty. We do not have a briefing paper on this, but we have four letters: two from Linda Fabiani, the Minister for Europe, External Affairs and Culture; and two from me, on behalf of the committee. I want to focus in particular on the latest letter from the minister, which is probably the briefest response that we have had from her and which raises interesting issues, particularly around the phrase "appropriate level of detail". I do not know whether members have any comments to make on the exchange of correspondence on the Lisbon treaty, which is one of our key issues.

I have one comment on the reference in the minister's letter of 26 November 2007 to the analysis of the impact of the Lisbon treaty, particularly on energy policy and marine policy. The minister said:

"It would not be appropriate for all the details of this analysis to be provided to the Committee, as much of the analysis has been undertaken as policy consideration."

Given that the vital vote on the Lisbon treaty will be tomorrow night, which means that the policy consideration is over, I would have thought that it would be highly appropriate for the committee to consider the analysis, because one of the jobs of this committee and of our sister committees that cover fishing and enterprise will be to monitor the impact of the Lisbon treaty in those key areas. Given where we are, I think that we should write to the minister and say that we should, in fact, get copies of the analysis, as should other relevant parliamentary committees.

The other point to bear in mind is that the minister is coming to talk about priorities and objectives next week, so there is an opportunity to raise issues then. Another point that I want to make, without complaining about it too much, is that we waited for two months for a reply from the minister. One option is to raise the issue orally rather than write another letter, but it is up to the committee to decide.

On the minister's letter, even if we were not given all the details of the analysis, it would be nice to have some indication of its content. There is a midway point between getting every last detail and getting nothing, which is basically what we have.

Before she comes to the committee, we should flag up for the minister our concerns, so that she knows we want to discuss them.

The committee's role is to scrutinise the work of the Executive in the areas of Europe and external relations. If we are denied access to information about the basis on which it has made decisions, how can we scrutinise its decisions? The issue affects committees throughout the Parliament in relation to departments. We must be clear about the distinction between factual information on which ministers base their decisions and policy discussions that they have internally. If we do not even get access to the factual information, we cannot challenge the policy conclusions.

I understand why it would not have been appropriate to give us the information during the negotiations and discussions with the UK Government and the European Commission in relation to the Lisbon treaty but, given that we are now beyond that point and that the vote takes place tomorrow night, I do not see how it could conceivably be damaging in an age of freedom of information to give us that information now. We should repeat the request.

The other bullet point on which we have not had much comeback is the Scottish Government's contributions to discussions relating to justice and other devolved matters. That part of the treaty is of particular importance to Scotland, but I do not feel that I am much the wiser about the Scottish Government's input or point of view.

The third area, which we have kicked around a bit more and is a matter of controversy between parties, is marine biological resources. Members obviously have different views on the substance of the issue, but there is still a lack of detail. Although we know the basis of the Scottish Government's view on the issue, I feel that we have been given an outline rather than a detailed explanation.

The key point is that the UK Government—as I believe and, I think, the minister believes—failed to protect Scotland's interests as far as marine biological resources are concerned. It is all the more important to consider the potential impact of the Lisbon treaty, given that the UK Government failed to make marine biological resources a red-line issue.

That is probably moving on to a related but different point. There is—let us put it this way—still an issue for some of us about the precise detail of the Government's thinking on the matter. I accept that we will not get consensus, but that is the third area on which we might want to ask more questions of the minister next week.

Were we not going to ask for a legal definition of what the Lisbon treaty suggests about marine biological resources? Was the thought not to get two separate legal opinions? Whatever happened to that?

We got a Scottish Parliament information centre briefing on the matter. As far as a more detailed legal briefing is concerned, part of the problem is that, since we do not have a detailed legal exposition from the Government, it is hard to get a detailed legal commentary. There are difficulties.

In respect of what we sought, it was the SPICe briefing.

I am not sure about that. I thought that we asked for something much stronger than the SPICe briefing.

I do not know whether the clerk wants to comment.

We provided a SPICe briefing, which the committee had the chance to consider a few months ago. Discussions with the minister are on-going and we asked the minister for further details on the Scottish Government's position on exclusive competence. An issue for the committee now is the level of detail that the Scottish Government has provided. It is up to the committee whether it wants to take external advice on exclusive competence or take advice from our own lawyers.

I vehemently disagree with Alex Neil's position. I do not know whether the committee's position on competence over the conservation of marine biological resources is the issue. We probably need to move on and consider what Lisbon means for the Scottish Parliament.

There is a more general issue. There were supposed to be UK Government opt-outs—whatever the terminology is—but it is emerging clearly that the opt-outs are not worth the paper they are written on, because the European Court of Justice can overturn them willy-nilly. That is why we wanted a legal opinion. The issue was not just conservation of marine biological resources; there was a much wider issue about the so-called waivers or opt-outs.

I think that we have identified two issues. We agreed to address two of the Scottish Government's EU priorities and objectives: the treaty and the budget review—the budget review happens to be the next item on the agenda. We might have more work to do on the treaty in general, as Alex Neil suggests—members are nodding—so we should follow up the issue during the next few months.

I suppose that that point is slightly different from our starting point, which was about how much detail and information we get from the Scottish Government. I think that we agree that we can raise such issues with the Minister for Europe, External Affairs and Culture next week. However, we have agreed in general terms that we want to follow up work on the treaty, so the wider question is how we do so.

Surely another issue that is emerging from our papers and the evidence that we have taken is engagement between the UK Government and the Scottish Government. The rubber-ear effect is implicit in the minister's reply to our letter. We should consider that.

We need to prepare for our question-and-answer session with the minister next week. Perhaps the clerks will produce a paper on how we approach our more general consideration of the treaty. In doing that, the clerks might take account of what happens at next week's meeting.

At the committee's round-table discussion, I asked the guy from Scottish Development International about the Saltire Foundation, but we have had no feedback on that.

We will chase that up.

Have we had enough discussion on the Lisbon treaty for the moment? There will be more anon.