Transposition and Implementation of European Directives Inquiry
Our second agenda item concerns Jim Wallace's report on his inquiry into the transposition and implementation of European directives, which he has circulated—I am sure that we all took it home over the weekend and read it closely. The report is an excellent piece of work and I congratulate all those who were involved in its production. Members have also been sent a letter from the Deputy Minister for Environment and Rural Development, which was written in response to my letter. The letter is included in annex C of Jim Wallace's report.
Professor Alan Page, the committee's adviser on this matter, has joined us.
I thank those who assisted me in the writing of this report, including the previous clerking team, the clerks who are at the table with us, Iain McIver from the Scottish Parliament information centre and Professor Page.
Colleagues will recall that we examined one or two directives that had received press publicity or, in the case of the waste incineration directive, constituency complaints, to see whether there was evidence of gold plating. Annex A contains Professor Page's analyses of the directives.
Sometimes it is difficult to know whether there is gold plating. The waste incineration directive is a good example of that, as it is clear that the transposition is identical north and south of the border. However, a decision that was made by the Department for Environment, Food and Rural Affairs south of the border to exclude small waste burners on the basis that they are not "technical units", in the terms of the directive, gave rise to the concerns that constituents raised with MSPs—and which Alex Fergusson and I raised in the chamber—around the fact that Scottish operators had to pay more than their English counterparts. Members will note from the correspondence with the Deputy Minister for Environment and Rural Development that there is some question whether DEFRA has got the definition right. However, that example shows that allegations of gold plating or differential application can often arise at the follow-on stage of enforcement.
The committee last considered the drinking water directive at our meeting of 12 September, when I gave one of my interim reports. We noted a number of points that the Parliament's legal advisers raised. Indeed, I record my considerable thanks to the advisers for their work on our behalf. At the time, the convener wrote to the Minister for Parliamentary Business, but we have now received a reply from the Deputy Minister for Environment and Rural Development. To put it politely, one would need a PhD to understand it—and a PhD is not even a chemical that is found in water.
At one point in the letter, the minister accepts that there has been overimplementation and gives the reason for it. Again, the example illustrates our point about the need for transparency. If the Executive is going to overimplement, it should have to give its reasons for so doing. As we heard in the evidence that we gathered and from talking to Lord Davidson, who produced his report last week, the right decision in terms of some policy decisions may be to overimplement. However, it is important that such a decision is flagged up, that a rationale is given for the decision, and that people are given a proper opportunity in which to consider the impact.
As I said, although we started with specific directives, it soon became clear that we could go on for ever, as Lord Davidson did. [Laughter.] That is not quite what I meant to say. I should have said that, given that Lord Davidson took one set of examples and the Federation of Small Businesses took another, we could go on for ever taking small sets of examples. It is difficult to know what conclusions might be reached in those differing circumstances.
The issue that emerged clearly was not gold plating as such, but the fundamental issue of the way in which the Scottish Parliament goes about its scrutiny of European legislation. As I tried to set out in my report, the Parliament's scrutiny falls into three parts. First, we get an intimation from the Commission of pending legislation and we make our pre-legislative scrutiny. [Interruption.] I have checked my phone, but it is not causing the interference.
At that point, we decide whether our treatment of the instrument will involve consideration and consultation. The report sets out the interesting comparisons that the committee made with Ireland and Denmark, the latter of which can be described as the Rolls-Royce model. Considerable consultation and parliamentary involvement takes place in Denmark prior to the appropriate meeting of the EU Council of Ministers. We also made a comparison with the UK Parliament, where the House of Lords and the House of Commons have their own scrutiny mechanisms, both of which kick in very early; that happens when the draft legislation emanates from Brussels.
Secondly, there is the transposition period, during which the directive is transposed into national legislation. Issues arise at this stage, including whether to have the greater transparency that a transposition guide would allow. As the report sets out, correlation tables would allow people to cross-refer the elements of a statutory instrument and the EU directive that it is transposing and vice versa. Obviously, if the tables showed that the Executive had overtransposed a directive, it would have to flag that up clearly and give a rationale for its decision.
Thirdly, there is the stage at which enforcement and implementation take place. I gave the example of the waste incineration directive in which, although transposition north and south of the border was the same, the respective enforcement authorities have expressed different views and made different applications and interpretations. As a result, different pressures and burdens have been brought to bear on businesses north and south of the border. There is also a role for the Parliament in the implementation stage.
I will not go over everything, as all the issues are set out in the report. However, given that the Parliament moves into a new session after the May elections, the committee must decide whether to produce a report as part of our legacy papers. We need to identify the ways in which our scrutiny of EU legislation could be considerably enhanced. However, we should be under no illusions. Given the resources that are available to the Parliament and the Executive, we cannot take on every piece of legislation.
The sift paper that we will consider today contains obscure proposals that will probably affect very few people. Nevertheless, important pieces of legislation are coming through. The Parliament's European officer has an important role, given that it is often possible to identify and flag up important proposals well before they appear as draft legislation.
The fact that the identification of such proposals is now part of our work programme is important. When we have identified emerging legislation that is of particular importance, we should at an early stage ask the Executive to indicate its view of the proposal. If necessary, this committee or a subject committee should take evidence on the matter, but we should at least feed in our view to the Scottish ministers before they agree with UK ministers the common line that will be put forward at a meeting of the Council of the European Union.
As I said, there is a role to be played in examining the subordinate—and sometimes primary—legislation that will implement a European directive and in considering how the implementation works in practice. To that end, I hope that the committee will make recommendations on how we might improve parliamentary scrutiny of European legislation and, in so doing, do a service to the many stakeholders who have an interest in how the legislation will affect them.
Thank you. The legacy paper that we leave for our successor committee in the next session of the Parliament is a thread that has run through many of our meetings. The clerks are working on the content of the legacy paper, which seems to be getting larger and larger—we might leave a legacy book that will be split into chapters.
As long as there is just one volume.
I thank Jim Wallace and everyone who contributed to the report and I congratulate them on their valuable work. They have focused on a matter that affects businesses and communities throughout Scotland and needs to be understood and addressed. Jim Wallace was quite right when he talked about obscure pieces of legislation. I never thought that I would hear from a small company in my constituency that is based in a tiny, remote village in the Lammermuir hills and builds church organs, but the company contacted me when it discovered that it was in terrible trouble because components that it was using were classified as electronic waste. The company thought that it would be impossible to continue to use welded lead organ pipes. I think that a solution was found, but the anecdote provides an example of how issues can jump out of the system and cause terrible difficulties for industries that we might not even have heard about.
During yesterday's event in the Parliament on maritime policy, I was struck when someone said that gold plating is not necessarily bad. There are circumstances in which gold plating can lead to better quality and create a competitive advantage for industries in Scotland. However, for goodness' sake let us be careful before we start gold plating directives. I am sure that everyone has anecdotes: this one comes not from my constituency but from where I live, which is close to the English border. Neighbours drew my attention to the fact that when the Berwick bypass was being resurfaced, the planings that were taken off the surface of the road were made available to local farmers, who used them to resurface farmyards and farm roads and gateways. Farmers south of the border had no problem doing that. However, farmers north of the border had to get special licences for the disposal of the material as waste, as a result of the interpretation of European legislation by the Scottish enforcement agencies, such as the Scottish Environment Protection Agency. The approach seemed barmy, because the material would have gone to a landfill site if the farmers had not used it. That is an example of the kind of situation that can arise and I hope that we can learn from the recommendations that emerge from Jim Wallace's report.
In paragraph 96 of his report, Jim Wallace says:
"there is scope for greater co-operation with the European scrutiny committees at Westminster"—
and, I presume, at the National Assembly for Wales and the Northern Ireland Assembly. I thought that that was meant to be happening. Ages ago, when I was deputy convener of the European Committee in the first session of the Parliament, I recall attending meetings in other Parliaments, the objective of which was to identify matters that the Westminster Parliament or one of the devolved Parliaments would focus on and specialise in. I do not know whether that happens, but it was a good idea.
I have been trying to interrupt you to tell you about that. You are talking about the UK European chairs forum, which fell away for various reasons. We are trying hard to resurrect the forum, because we recognise its importance. I understand that we have a meeting on the matter in January. The committee agreed that the point about the importance of such things would be made forcefully in the committee's legacy paper.
I apologise to Professor Page, because I meant to ask him to make some comments.
Sorry.
It was my fault—you do not have to jump in and take the blame from me.
I should have asked Professor Page to speak at the beginning, but now that I have started wrong I will continue wrong. I will take a few comments from members before I ask Professor Page to do a sweep up at the end.
I wanted to make some of the points that John Home Robertson made.
First, I congratulate Jim Wallace. The report is very helpful. I agree with most of the preliminary recommendations on increasing scrutiny, having more influence upstream, trying to engage Scottish ministers early on and having an input to UK discussions. I, too, draw attention to paragraph 96, because I think that the suggestion that it makes is very good.
Following his visits, Jim Wallace has a feel for how scrutiny is being conducted at Westminster, including in the House of Lords. We spoke earlier about conducting comparisons not only with other member states, such as Denmark and Ireland, but perhaps with comparable regions. An issue that interests me is how other regions exercise the scrutiny duty in relation to their member states. Could we learn anything about the good practice that exists elsewhere? I do not know whether you have yet to look at that or whether the question is too big because of the nature of the beast that we are considering. Jim Wallace pointed out, rightly, that resources are a difficulty, but timescales are also an issue. How do regions in other member states go about such engagement?
That is a good question. When we considered the issue, there was a feeling among the team that a visit to Barcelona to investigate the Catalan system would have been welcome. Such a visit would have been worth while, but within the timescale it did not prove possible. However, if the committee wants to send me to Barcelona before we complete the final report, that would be fine.
Perhaps we could find out about the system in correspondence or by getting a briefing. Our colleagues from Denmark helpfully gave us a study that outlined the process in a number of EU countries. I read the part on Spain, but it is not clear what happens in the autonomous provinces.
I think that we should go to Barcelona.
Mr Home Robertson thinks that we should go there.
All of us?
The whole committee should go.
What about Tuscany, Jim?
Perhaps we could get briefings from Barcelona on how the matter is handled.
I thank Jim Wallace for the report. He obviously put in a heck of a lot of work, together with the team that put it together.
This comment is probably obvious. You would have expected us to be closer to one another in the UK in the way in which we implement legislation than other countries might be, but I guess that time and resources have not allowed greater examination of what other countries do by way of implementing EC directives. It might be useful for us to examine that matter somewhere along the line; I acknowledge that it was not possible for you to do so, given the timescale and the resources that were available.
I do not know how much evidence you took on the matter, so forgive me for throwing in this question. I was intrigued by something that the Danish ambassador told me when I met him recently. We discussed the workings of the European and External Relations Committee and I sought the Danish perspective on how they do things. One of the interesting points that he made about Danish practice is that, prior to council meetings that are of significance to the Danish national interest, the parliamentary committee responsible for the area takes evidence from the minister. If there is not national consensus, at least a generally shared view is reached on how the negotiations should go.
I know that the minister could end up being hamstrung before he goes to the negotiations, but I wondered whether there was anything beyond the Danish experience that might be a model to help keep us in the loop more effectively. The relationship would be different from the one that Westminster has with its ministers because the United Kingdom is the member state, but perhaps we could be involved at sub-national level in discussions with whichever UK minister was going to the council meeting.
Paragraph 29 of the report highlights that. In my opening remarks, I referred to the system in Denmark as the Rolls-Royce model, but that is not just because of the engagement of the Parliament. It sits at great length on the Friday before every council meeting, which means that it sits virtually every Friday; it considers the issues that will come up at the following week's council meeting; and it gives the minister a mandate. Obviously, those meetings take place in private session because the bottom line must not be shown.
The model also reflects Denmark's slightly different culture. I know that we have a coalition Government, but I think that Denmark has more coalitions of coalitions. The Danish model is the end of a process that has had considerable stakeholder involvement from the outset. It would be difficult for us to have the minister appear at the committee before every council meeting; I do not think that anyone would expect us to do that.
Perhaps our role is to try and ensure that Scottish interests are being highlighted and there might well be occasions on which we ask the Scottish minister to come and discuss matters with us before the UK line is agreed. The one example in which that happens, as we will see next week, is fisheries, on which we have a debate in Parliament before the council meeting takes place. The same thing happens at Westminster, so a model exists. Members can indicate to the minister the key issues that he or she should deal with at the fisheries council meeting.
It is unlikely that we would follow the full Danish model, but an issue might on occasion be of sufficient importance that we would want to ensure that the Scottish minister was well aware of the range of views—or even the single view—of the Parliament.
Thank you. I wondered whether there were any experiences of countries doing something similar or beyond that which is mentioned in paragraph 29. Perhaps, with our relationship with the UK in mind, it would be good to know whether Catalunya or any other states do the same thing as us.
You mentioned fisheries, and I had forgotten that that is debated in Parliament before the council meeting. However, there might be other areas in which significant directives—the waste electrical and electronic equipment directive could have been one such example—would have particular impact on Scotland. We might need to consider encouraging debates on such subjects in the committee or in the chamber, although I accept what Jim Wallace says about that.
I have a word of caution about the Parliament agreeing a position with the minister before he goes to the council. Having been involved in fisheries issues, I know that it might be helpful to the minister if he can say that the issue has been discussed in his Parliament and that it is very important to the country and all the rest of it. At the end of the day, however, at the negotiations on whatever the subject is, ministers need to be flexible and they cannot be mandated to take a particular line. It is in the nature of negotiations that horse-trading goes on and we can end up with some things that we want and some that we do not want. That is the way that the European Union works, I am afraid.
I accept that wriggle room will always be important for the minister.
He needs more than that.
You know what I mean. There might also be occasions when the minister says that he cannot possibly take what is offered back to his Parliament because of its view, and that might strengthen his negotiating position.
The report is very useful and a lot of work has gone into it. I have one minor query and a broader point to make. The minor query is in relation to the mention in paragraph 56 of correlation tables, which is an interesting idea. Correlation tables always start out in directives but they are always taken out by member states. Does that mean that they are taken out at the insistence of all member states or just particular ones? Is there anything in that of more general import?
Consultation earlier and often on European legislation is a sensible objective, but I have a concern about that broader issue. When this inquiry was discussed, there was almost complete unanimity that gold plating is one of the top European issues that we hear about from business. If the suggestion of an inquiry into gold plating can attract only 10 responses, I wonder how much feedback we would get on the issue of early consultation for European proposals. That is the difficulty. It is a good concept, but in practice would we be able to engage people in such a way that we would get something meaningful out of the process?
The issue of correlation tables was one that I raised. It is not our Government in particular—our impression was that member states in general tend to shy away from the issue. I would not attribute it to any particular member state, but there is perhaps a perception that if a member state was too up front with its correlation tables it might make it easier for the Commission to identify possibilities for infraction proceedings. I think I am right in saying that transposition tables—I have never been entirely sure what the distinction is—are now required in most UK statutory instruments. That will be helpful.
Derek Brownlee's point about the fact that gold plating attracted only 10 responses is interesting. Those 10 responses were valuable, but Lord Davidson says in his report that
"a number of factors indicate that … over-implementation may not be as big a problem in the UK … as is alleged by some commentators."
When we visited Ireland and Denmark, the same things were said by the business representatives whom we met. Lord Davidson points out that, in the World Bank's "Doing Business 2007", the UK is found to be
"one of the most favourable regulatory environments for doing business in the EU."
That does not get away from the fact that there will be occasions when there is overimplementation. Part of the difficulty is that if we consider gold plating more generally, we might not attract much attention, but if we were to consider a chemicals directive, we might find that a number of companies that have a particular interest in that would be willing to engage in a consultation. Even if only five or six companies took part, if they were key stakeholders it would be worth while.
I am amusing myself with the thought of Mr Gallie sitting here listening to you say that the regulatory regime in the UK is one of the most favourable in Europe.
It was not me; it was the Organisation for Economic Co-operation and Development and the World Bank.
Well, then it must be true.
Could subject committees do more, or are they too overloaded? Until recently, when I got parole, I had another hat as a member of the Subordinate Legislation Committee. Thousands of statutory instruments come through, lots of which have to do with subject committees. We formed a view that the subject committees hardly ever looked at them, because they could not, as they were dealing with day-to-day politics. Is there a way round that?
That is a fundamental question. The recommendation to the committee is that we should send the report to the Subordinate Legislation Committee and the subject committees for their comment. In many cases, it makes sense for the subject committees to deal with European legislation. Fundamentally, the whole Parliament needs to re-examine how it deals with European legislation.
From the outset, we have not had a culture of going into European legislation in great detail. I am not suggesting that we should try to examine every directive, because that would be impossible and would induce a collective breakdown. Basically, we need to identify the handful of directives each year that will have a significant impact and flag them up to other committees, because in many cases it will be more appropriate for the subject committee to conduct the scrutiny.
Do we know what systems are employed by the subject committees? We do the sift and allocate various items to various committees. Do the clerks who operate the subject committees' systems have a particular way of handling what we refer to them or is it simply a case of, "Oh, more of these"?
I think that it is a bit of both. Would you agree, Jim?
I have had initial discussions with other committees' clerking teams and, as the convener said, the approach that is taken varies. It is clear that some subject committees take a bigger interest in such matters. For example, the Environment and Rural Development Committee has well-developed procedures for handling European legislation.
I think that Jim Wallace is suggesting that we should send the report to the relevant subject committees and the Subordinate Legislation Committee to ask for their views on it. That will allow them to have a formal input into the process.
It would at least make them think about the issue.
It has been interesting to listen to the discussion. It is clear that gaining early intelligence is vital, and in that respect we are further forward than we were in 1999, because we now have a European officer who can do that. Jim Wallace is right—it would be impossible to examine every piece of European legislation. There would have to be a committee working on that full time.
I am taken back to the consultative steering group and the discussions on what a European committee of the Scottish Parliament might look like. Several models were considered, one of which was that the committee would be much bigger and would have on it representatives from each of the subject committees. It would conduct its scrutiny role as a whole, pulling in expertise from the subject committees. It was decided that that model would not be chosen and that the present model, whereby we allocate matters to the subject committees for them to scrutinise, would be adopted. We can consider such issues in the legacy paper, so it is opportune that Jim Wallace has produced his report towards the end of a parliamentary session, when we have the opportunity to re-examine how we do things.
It is fun to listen to fellow politicians passing the buck on who should take up a difficult responsibility. Given that I will be leaving the Parliament shortly, I feel free to express a view on where the buck should stop.
I have been on the committee for nearly eight years, and during that time it has not considered a single bill. I cannot think of many other committees that could say that. The other committee of which I am a member is the Communities Committee, which has been dealing with legislation ever since I have been on it. It has had to meet weekly to cope with the workload. Frankly, the European and External Relations Committee is the committee that should be picking up the responsibility for scrutinising European legislation, because its workload is not that big. Indeed, there have been occasions on which we have been looking for things to do. If there is an issue to be addressed, this committee might be the one that should address it. We are the European and External Relations Committee, so we should be examining European regulations.
That is not within the committee's remit.
We could suggest that it should be.
That goes back to the alternative models that could have been adopted.
I ask members to make their comments brief, because poor Professor Page—
We will not resolve the issue today.
No, we will not.
I understand where John Home Robertson is coming from, but there is an element of truth to the suggestion that if the job was being done properly, this committee would not need to exist. If European issues were mainstreamed in the work of the other committees, there would be no need for a European committee. I acknowledge that that would have resource implications and would be difficult, given the legislative timetable and all the extra work that would be involved for other committees, but it would be possible to do away with this committee and with the Equal Opportunities Committee if we ensured that the issues with which they deal were mainstreamed properly.
We are not in such a world, nor are we in a world in which this committee should take on chunks of work on proposals emanating from Europe that other committees might take on. However, we could make suggestions in a louder voice when we think a particular piece of scrutiny is required. The committee should have a power for that—or perhaps not a power, but a bit more dynamism in how it gets involved with other committees in trying to persuade them that they should be more materially involved in examining particular issues. However, I do not know how we can achieve that.
This is strange, but you have to be bossier, convener.
That is the word that I was looking for.
I was about to say that I think that you are all very dynamic.
My point is more to do with structures than with individual members.
From the philosophical thoughts that have been roaming around the ether, I will move on to Professor Page, who will bring us all back to reality. Professor Page, will you comment on what you have heard?
Professor Alan Page (Adviser):
Certainly. There is a slight irony in turning to a professor to go from the philosophical to the practical, but I will let that pass.
I have three brief comments on what has been an interesting discussion. First, part of the answer to the question about resources is that there is a need to be highly selective. Somebody has to say which directives are the ones that matter to Scotland and we must then concentrate our resources on them, by whatever mechanism is most appropriate, whether that is this committee, a subject committee or some combination of the two. That is part of the answer.
My second point, which has come out in the discussion, is about the importance of getting in early and making views known at as early a stage in the process as possible. The inquiry started by considering the way in which various obligations had been transposed or implemented in Scotland. One issue that emerged is that, by that time, it is often too late, because there is no room to take account of distinctive Scottish interests or considerations. We therefore should ensure that they are built into the obligations when that is appropriate, because there are distinctive Scottish interests.
The third point arises from the fact that Scotland does not have a seat at the European table—the UK is the member state. To rewind slightly to the question about how other regions do it, the answer depends on their constitutional arrangements. Under the UK arrangements, as you all know, the final say in negotiations with Brussels is reserved to the UK Government, but it welcomes input from the devolved Administrations. Therefore, people here will in part concentrate their attention on the discussions between the Scottish Executive and the UK Government. Of course, the difficulty is that those discussions are veiled behind a cloak of secrecy and confidentiality. The key to some of the matters is ensuring that the Scottish voice is heard not just in Brussels but in London.
I do not want any more great philosophical ideas, but do members have any comments or questions for Professor Page about the report?
You have curtailed us, convener.
I have not curtailed you. I would not dare even to think about that.
In addition to the recommendation in paragraph 4 of the clerk's note, I suggest that the convener's correspondence with the Executive on the drinking water directive be sent to the Environment and Rural Development Committee for its consideration.
D'accord.
Do members agree to the recommendation, which is to invite the views of the Subordinate Legislation Committee and relevant subject committees, and to Jim Wallace's suggestion that we send the correspondence on the drinking water directive to the Environment and Rural Development Committee?
Members indicated agreement.
Jim Wallace's report will inform the committee's oral evidence taking at its meetings on 16 and 23 January and 13 February and our final report on the matter. I thank Professor Page. His work is much appreciated.