European and External Relations Committee, 12 Sep 2006

Meeting date: Tuesday, September 12, 2006

Official Report 199KB pdf

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Transposition and Implementation of European Directives Inquiry

We move on to item 2. What has it been called? Is it the Jim Wallace inquiry?

The Wallace report.

Yes—the Wallace report. We will have an update from Jim Wallace on his reporter's inquiry into the transposition and implementation of European Union directives. I ask Jim to speak to his paper, EU/S2/06/12/2.

Thank you, convener. This has shades of the previous discussion as it is an issue that I felt I had to narrow down, otherwise it could go on for ever. It is like a Russian doll, in that when you think you have got to the bottom of it there is another layer. That is reflected in some of the written submissions, a synopsis of which is attached to my paper.

Paragraph 11 of the update paper is headed "Interim Findings", but it would perhaps have been fairer to put "Interim Questions", because there are a series of issues on which there are conflicting views.

A specific section deals with the drinking water directive. There was an outcry from a number of quarters when it was introduced, partly because of the speed with which people were asked to respond to it, but when I looked into the matter I discovered that it was already several years late. That raises issues about what people are being asked to do and how much lead time they are being given when we are already running behind time. In some of the detailed legal analysis of the directive, there are also arguments about whether the directive goes as far as it ought to. Sometimes the opposite of gold plating may take place. My point is that the issue is by no means straightforward, which is why it has perhaps taken longer than expected to get to where we are now.

Visits are now arranged to two other European Union countries. I want also to visit stakeholders in England to identify whether there are differences within the one UK member state and, if so, what lies behind them.

I mention my gratitude to Professor Page, who has given me legal advice on these matters. I will make a proper interim report to the committee and perhaps invite it to take oral evidence on the basis of the interim findings, with a view to the final report being published in late February or early March, before Parliament dissolves. One recommendation is likely to be that our successor committee might want to explore certain issues in the next session of Parliament. There are a host of issues that I do not think we would do justice to if we tried to cram the work in, but we could perhaps flag up some of them.

Members may now comment.

I thank Jim Wallace for his work. His paper is interesting and raises several issues. I am particularly interested in paragraph 13, which indicates that

"A number of respondents suggested that there is a need for comparative analysis … across the members states in order to address the issue of ‘gold plating'."

Do I have a different paper?

I am referring to paragraph 13 of the annex.

Paragraph 13 of the annex. Sorry. I was looking at the main report.

I was quoting from the summary of the written evidence.

I assume that that means analysis of states other than Ireland and Denmark, which are the countries that you will visit. Such comparative work will be a difficult task and you might already have given some thought to the matter, but it occurred to me that one way of doing the work might be to analyse European Court of Justice decisions or infringement proceedings that the European Commission had started against various countries in relation to the directives—although some of that might not have happened yet or might be in the pipeline. A way might exist to identify in the system Commission action that is proposed in relation to directives. That might be an easier way to track developments; otherwise, working out how to do an analysis across 25 member states will be difficult.

The work is proving particularly difficult, not least because of the need for translation, which is a genuine issue and means that it is not straightforward even to find out how the Greeks, for example, implement and transpose directives.

Professor Page is doing such work as best he can. He is having particular regard to the situation in the British isles, but I could suggest to him that if relevant European Court of Justice cases have taken or are taking place, he might consider them, if he has not done so off his own bat. The suggestion is good. As I said, Professor Page has done some of that comparative work.

One or two of the directives that are listed are from 2006, so the suggestion would be difficult to apply to them, but one or two are from 2003, which was three years ago, so member states might have been taken to court by the European Commission if they have not adequately transposed them. That might be worth a look.

The idea is helpful.

What I will say is more or less along the lines of what Irene Oldfather said and concerns paragraph 13 of the summary of written evidence and the first comment about where you will go from here. I congratulate you again; I recognise that you have a massive task, to which you have stuck manfully. A huge workload lies ahead of you.

I think so.

I will back up what Irene Oldfather said. You selected Dublin and Copenhagen for visits because they are in countries in which you are interested. A couple of years ago, the committee received a paper on the transposition and implementation of directives, from which I remember pointing out with some joy that the rate in countries such as France, Germany and Italy was running at about 40 per cent, whereas the rate in Denmark and the UK was up at about 80 or 90 per cent. Will you pick out a country whose record is not as good? That would fit in more with public perception and might benefit the report; it might also give people some comfort. I acknowledge that that would be a further imposition on your time, but it is probably important.

I acknowledge the merit in what Phil Gallie says. One consideration in arranging visits was that they should not appear to be excessive, but a visit might not be needed. If we wanted to consider such a country, I would see whether we could identify a devolved area, such as one in Spain, and we would see whether we could operate without having to travel. The budget was a factor in considering what travel the Conveners Group would permit.

The travel was agreed first by the committee and then by the Conveners Group.

I am not saying that travel would be necessary; there are ways of operating without travelling.

France and Italy are particularly interesting, although I would be satisfied with a study of Spain.

I will bear that in mind.

It is a tough job.

Perhaps Mr Jackson would like to help Mr Wallace.

Tuscany will call.

I have not a different view, but a different emphasis from Phil Gallie. What matters is the quality of what countries do with directives once they have them; I am not sure that the question is so much about the volume, although I acknowledge that if countries go slower on some issues, directives are not transposed as early.

Jim Wallace's proposals following his fact-finding mission and the comparison of how Ireland and Denmark go about doing things will throw light on the issue in a way that other areas of the report, although valuable, will not. The Irish model, in particular, involves a lot of consultation before directives are implemented. I am sure that if we conducted that process a lot more successfully in Scotland, we would not come up against a hammer in the time that some directives take and the reaction that they receive.

It is inevitable that, because of the sheer scale and complexity of the issue, some of the work will have to wait for the next parliamentary session, but the committee would value understanding the experience of those two countries. That would give us a fair whack at what we need.

I, too, thank Jim Wallace for what he has done. The issue goes to the heart of what the committee needs to do. How often do we hear examples of something that started life in the European Union as a well-intended, useful proposal to improve the life of our citizens, which, months or years later, percolates through to businesses and communities in Scotland and is an absolutely impossible burden on those citizens, because of the way in which it has come through the mincing machine at UK level, Scottish level or some other level? We need to find ways of ensuring that such proposals are transposed more efficiently and more appropriately. There have been too many examples of that not happening. If we can find a way of improving the system, so much the better.

I am curious to ask Jim Wallace: when you look at another country, how do you find out the truth?

It is bad enough in Scotland.

I am making a serious point. If somebody came to Scotland and said, "Do you overimplement or underimplement? Do you do enough or do too little?" the Executive would say, "We're fantastically balanced. We just do it right down the middle."

Do you think?

Well, it might. The Scottish Trades Union Congress would say, "It's not done nearly rigorously enough. It's too soft for businesses," and businesses would say, "The burden is beyond belief—we can't get on with our work." It would depend who you asked. When you go to France or Italy, how do you find out the truth? By truth I mean, how do you get an accurate picture? There is an interesting comment in the paper from part of the business community, which says that the Scotland Act 1998 is to blame because we have to implement Community regulations. In theory, every European country is supposed to do the same, but we happen to have it written in the Scotland Act 1998. Clearly, we are investigating the differences, but, when you go somewhere, how do you find out where the truth lies? We cannot find out where the truth lies in Scotland.

I concur with Gordon Jackson. It is difficult to get people to admit that they are doing something incorrectly. Alternatively, as I said to Jim Wallace earlier, we could do an analysis of European Court of Justice decisions over the past five or 10 years. I was involved in the issue of foreign lecturers in Italy being paid at different rates from Italian lecturers in Italian universities. Italy was taken to the European Court of Justice on a number of occasions and the decision of the court was clear cut: "You're wrong. You have to pay everybody the same rate." The case went to the European Commission first, which tampered with it and did not really do much, but it keeps going back to the European Court of Justice.

As well as what Jim Wallace is doing, it would be useful—perhaps in the next session—to consider an analysis of proceedings raised with the Commission by groups that feel that legislation is not being transposed properly or fairly. That could be done from here or perhaps from Brussels. It would not be too big a tie and you would not have to go to 25 member states to do it. However, to carry out such an analysis, you would have to find a mechanism for working with someone in the Commission and someone in the Court of Justice.

I do not want to back up Phil Gallie's Eurosceptic theories, but if such a piece of work were done, we would probably find that certain countries—Italy, for example—come up quite frequently. I know that from experience in another life. That would be an analytical way of proceeding, although I take on board Gordon Jackson's point about the difficulty of doing such work.

To use a Scottish colloquialism, I think that we are getting our knickers in a twist about nothing. Every country has a different foundation stone and a different starting place for its law. We cannot expect directives to have the same outcomes throughout the European Union. It is impossible to make a judgment on how a law has been transposed at the end of the process—at the output stage. I hope that Jim Wallace will examine all the material on the procedure that is gone through, which can be analysed robustly. It is not necessary to conduct a fine comparison of what the outputs of every piece of legislation have been.

We will get a final comment from Phil Gallie, before poor Jim Wallace responds to all our suggestions.

Europe is about coming together to operate on a level playing field. What Bruce Crawford has just said about transposition is totally wrong. If the EU passes a directive, all 25 countries are duty bound to transpose it into their law.

I accept everything that Mr Gallie has just said. Everyone passes the law; the issue is how they pass it.

I am more than happy that Jim Wallace is investigating that.

Charlie, you are sitting between Bruce Crawford and Phil Gallie. Do you have anything to add?

My foot has gone to sleep and I am thinking of joining it. We have had one lawyer asking another how he gets to the truth.

We should move on.

Yes, that is a good suggestion.

Gordon Jackson's question is one that I have asked myself—I suppose that it is an example of one lawyer asking another, but it could also be described as a medical condition.

I want to pick up on what Bruce Crawford and Phil Gallie have said. Phil Gallie referred to the transposition rate. That is not what I have been investigating and I do not think that Mr Gallie was suggesting that that is what I should be doing. I think that he was saying that a country's willingness or capacity to transpose directives might offer a guide to the quality of transposition.

I have a few points on methodology. We have yet to finalise the visits. Although the destinations are known, we have not finalised who we will meet. It is important that we do not meet only representatives of governmental bodies and that we do not talk just about transposition. We want to get a flavour of how implementation and enforcement are carried out because it would be possible to transpose a directive perfectly, but if it just sat on the statute book and no one bothered about it, not much would be achieved.

I believe that it will be possible to make comparisons with what happens here. In that regard, Bruce Crawford's comments are particularly pertinent. We might find that members of the business community in the Republic of Ireland say that they are consulted at length in advance of transposition. If they tell us what happens in Ireland, we will be able to make a meaningful comparison with the process that is followed here. We can also find out how they feel about the impact of such consultation.

Irene Oldfather made a helpful suggestion that it might be possible to adopt an objective approach by considering what action has been taken on implementation by European institutions such as the European Court of Justice and the European Commission. Given that the Commission has an interest in proper implementation, it will no doubt have views on how implementation can be evaluated, taking into account all the different factors. I am sure that it will have considered that in respect of many regulations over quite a period. As the paper says, the intention is that I will go to Brussels to meet the Commission at the end of the evidence-gathering process.

I suggest to members that we consider the issue again in December, with a further update following the visits to Copenhagen and Dublin. I suggest that we ask Professor Page to give evidence to the committee on his research; that we ask European Commission representatives to give evidence; and that we also take oral evidence from interested stakeholders at a meeting in January. We have the capacity for that within our timetable. Is that agreed?

Members indicated agreement.

Thank you very much, Jim.