European Committee,

Meeting date: Tuesday, May 8, 2001

Official Report 177KB pdf

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EC/EU Legislation (Implementation)

Agenda item 2 concerns the implementation of European Community and European Union legislation in Scotland, in particular the Scottish Executive's proposal for revised procedures. Members will recall that the committee's role is not just to scrutinise the Executive's activities in protecting Scottish interests; we also have an important role in scrutinising plans for the practical implementation of such legislation in devolved areas. The recent members' business debate on the water framework directive highlighted that issue, and there are further issues regarding the implementation of the various regional development funds.

Members will recall that we received a positive response from the Executive to our request for regular updates to allow us to monitor progress. I remind members that the end point of failure to implement such European directives would not just be the Scottish Executive facing a case in the European Court of Justice; if the case were to go against the Executive, that could involve some serious money in the form of penalties. I am aware of a current case in England, relating to the discharge of waste. The debate that may follow would be about who was responsible: the people who discharged the waste, or the Governments. There is an onus on us all to ensure that directives are implemented properly; if they are not, we can face horrendous fines.

The Executive's proposals consist of the establishment of a central database of salient information and activities from across the Executive, with regular reports on progress. I will leave my remarks at that, and invite any comments or questions from other members on the papers before them.

Could the clerks tell us whether annexe B was drawn up by the Scottish Executive, by the clerks, or by a combination of the two?

The proposed timetable, as worded in annexe B, is a bit ambiguous. It is important for us to have notice of the proposed means of disposition and authority, particularly the use of section 57 of the Scotland Act 1998, whereby the United Kingdom Government or Parliament would, in effect, implement European Union legislation for the whole of the UK. I am not against that in principle: if there is a common interest and if there is not a specifically Scottish dimension to a statutory instrument, it might make sense for that statutory instrument to cover the whole of the UK, which would short-cut things. The committee ought to have the opportunity and the time to check whether there is a specifically Scottish dimension to instruments. We might want to propose to our Parliament or to the Scottish Executive that a particular piece of EC legislation has a strong Scottish dimension and that we would like it to be dealt with differently in Scotland.

I question the wording of annexe B. For example, paragraph 6 says:

"It is proposed to include the following information for each Directive …

Means of transposition and authority used".

Are we just to be informed of that after the event, rather than before it? Surely we should be informed of the proposed means of transposition and authority before they have been used. Similarly, on the next page of the annexe, the first bullet point of paragraph 7 mentions, among the information to be included,

"date(s) by which EC legislation must be transposed".

Presumably, that means the deadline that is set down by the European Commission, or whatever, but we should also be informed of the date of the proposed transposition by the UK Government. Specifically, I refer to cases that will use section 57 of the Scotland Act 1998, under which the whole of the United Kingdom is embraced, rather than legislation for Scotland being dealt with separately.

Before I invite Ben Wallace to speak, I ask Stephen Imrie to answer some of those points, especially the first question about annexe B.

The paper was drawn up by the Scottish Executive executive secretariat, but in collaboration with officials from the Parliament. Although the text is that of the Scottish Executive, the thoughts and input into it have been a joint effort. The paper arises from a previous discussion in committee, when we were asked to consider the various options by which the committee may be better informed and to return with proposals. The details in annexe B have arisen from a joint effort.

We will leave Dennis Canavan's other points for now and return later to the implications of the timetable as set out in the paper.

In relation to section 57 of the Scotland Act 1998, I think that we should go further. Perhaps the mechanism should include a version of a Sewel motion, or the European Committee should have to give its approval for a directive to be dealt with at a UK level. I am thinking about the way in which the Food Standards Agency interprets EU directives more strictly in Scotland than in England; I am sure that that also happens vice versa. As a unionist, I believe that many issues are best dealt with on a union-wide basis. However, if different parties were in power in Scotland and in Westminster, one can imagine that the mechanism that we are discussing could well be used to get things in by the back door. The UK Treasury is the body that is fined if any part of the UK fails to implement a directive, but it is important that we be allowed to delegate that power back to Westminster if we want to. I do not think that Westminster should be allowed to assume that that would be okay. We should have at least a rubber-stamp role.

Paragraph 5 of the "Implementation of EC Obligations" document says that quarterly reports in table form would be produced for the committee. I understand that section 57 has been used in about four instances. Would it be possible to get information on those instances?

Information relating to the use of section 57 and the four instances to which the member refers was passed to Parliament in the form of an answer to a parliamentary question. At a previous meeting, the committee felt that that was not the best way of informing Parliament. With the Executive's assistance, we can compile information on the previous instances.

On Mr Canavan's point, the intention is to enable the committee to have early warning of proposals to use section 57 of the Scotland Act 1998, rather than to inform the committee after the event. That will allow the committee to consider plans for implementation and transposition.

Will that be written into the procedure, or will it be a gentleman's agreement? That is an important point.

I understand that the material presented to members in annexe B is supposed to set out the details of transposition intention. The material that we get from the Executive in tabular form will contain that detail, but we can clarify the language that is used in the proposals to ensure that the situation is clear.

I agree with what Mr Canavan said earlier. There might be a temptation in certain quarters to use section 57 as a catch-all means of enacting legislation. Probably, in 99 per cent of cases, that will not be a problem, but it is important that there is a clear mechanism to ensure that the committee gets notice of such use of section 57 and that we have an opportunity to say whether we think that the case should be dealt with in the Scottish Parliament.

Are we under any pressure to sign this off by a certain date?

We do not have a tight timetable as the roll-out period in the Executive is quite significant.

It would be worth while putting to the Executive the points that have been raised this afternoon and asking for further clarification. We would not be able to deal with the matter at our next meeting, but we could do so at the meeting after that.

I agree that we need to get further information from the Executive, but until we know what everyone on the committee actually thinks, that would be of limited use. We are making a decision that will affect not only the next few years of this Parliament; we are tying the Scottish Parliament into an arrangement for the foreseeable future. That is a huge responsibility and there should be further debate around the key principles of the issue. We have to think about what will happen in 30 years, not what will happen next week or after the next election. What we are discussing sets the relationship between us and Westminster. I can see great potential for conflict around this matter, which could be used as a political football. We have to approach the matter from a clear and principled stance that should be the collective stance of the committee. We need time to debate seriously the principles, rather than simply the proposed mechanisms. That is important.

We will seek further information from the Scottish Executive and inform it of the comments that have been made this afternoon. However, there would probably be no controversy about setting up the database and we can inform the Executive that we are quite happy for that to proceed. We need to take some time to reflect on what happens thereafter.

We need a clearly defined early-warning system to be built into the document before we give it our full agreement.

We will defer a decision on this matter until we have received further information.