European Committee, 15 Jan 2002

Meeting date: Tuesday, January 15, 2002

Official Report 133KB pdf

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EC/EU Legislation (Implementation and Scrutiny)

The next item is a discussion of the briefing paper—on which we have had an initial discussion in private—on the committee's role in relation to the implementation of European Community legislation and the sift and scrutiny process. The committee will recall that we received a briefing at our previous meeting. We must focus on the committee's role in the multitude of things that we have to do. It is important that we do not duplicate the functions of other committees, in particular the Subordinate Legislation Committee.

The paper is self-explanatory. The recommendations in paragraph 10 are about right. There is a temptation for us to do too much. It is important that we agree to focus on one or two areas initially. One recommendation in the paper is that we should monitor the situation in six months' time. What are members' views on those recommendations? Do members have a view? Are the recommendations about right or are they too much? Should we implement the first two recommendations and keep the third in reserve and review the situation later?

The recommendation that we go for

"The question of late implementation and the reasons why"

is likely to be useful. We could learn lessons from what has happened. If we are going to limit our effort, that would be a good area to limit it to, because it will have useful consequences.

On the other hand, that may not be the top priority, because what has happened has gone. Maybe we should know what happened, but that might not be at the top of the heap.

Are you suggesting that in considering the implementation of European Union legislation the function of the committee should be to focus on the use of section 57(1) of the Scotland Act 1998—the second recommendation in the paper—in lieu of the first recommendation, or are you suggesting that we should have both functions?

The recommendations are separated by an "or".

Paragraph 11 says that we could focus on the first recommendation or on the first and second recommendations, so it may be possible to do both and, as paragraph 11 says, review the situation after about six months. I am happy to take any other views.

We obviously cannot do all the things on the shopping list, because that would be absurd. I am particularly attracted to the third recommendation in paragraph 10, which is about looking for opportunities to do things differently. I am not sure what the term "a posteriori" means in these circumstances; it is always better to take decisions before rather than after.

It would have to be after.

I hope that we will be able to explore opportunities that arise. I am happy with the recommendation to run with the proposals in paragraph 10. I do not know whether it would be possible to pursue all three recommendations.

Paragraph 11 suggests that we could concentrate on the first and second recommendations, because those are different from the work that is undertaken by the Subordinate Legislation Committee and other lead committees. At our previous meeting, we spoke about implementation. If members recall, when we met in private we thought that it might be useful to monitor that. The committee seems to agree generally that the recommendations in paragraph 10 are appropriate, but the question is whether we concentrate on the first and second recommendations and review the situation in six months, or whether we try to do a bit more of the third recommendation and possibly drop one of the other recommendations.

As Colin Campbell said, the second recommendation refers to things that have already happened.

That was the first recommendation.

I beg your pardon. The third option, in which I have expressed an interest, is that we should look for opportunities to do things in a devolved or Scottish way. People tend to think that policies that come from Brussels must be done in a particular way and are set in concrete. It would be useful if the committee facilitated fresh consideration of ways in which European policies can be tailored to suit Scottish circumstances and needs. That is how I understand the third option—it would be a new and useful thing for the committee to do.

Is it not possible that the third option would lead us into long debates with the Foreign and Commonwealth Office about what we should and should not be doing, given what Peter Hain said about that when we spoke to him?

I do not think that the issue is for the Foreign and Commonwealth Office. The option is partly about us being up to speed and having a Scottish perspective on the key issues that are considered in Brussels and partly about the formation of European directives. We could consider to what extent directives are prescriptive and whether they must be implemented by primary legislation or in other ways. The issue is not only about Scotland having the flexibility to do things differently from how the rest of the United Kingdom does them, but about the crafting of requirements from Brussels. An interesting point was buried in what John Home Robertson said.

The briefing paper states correctly that we would have to consider those requirements by subject or sector; we could not just have the third option as a general objective. However, we should consider that option. It also leads to the first option, which is on late implementation—the third option is about trying to avoid being in that position in the future.

As I said earlier, we should try to find a niche rather than covering work that is done—or could be done—by other committees. That is an argument for the first and second recommendations. Although other committees have not done what is suggested in the third recommendation, it is within their remit. On the other hand, it could be argued that our inquiries into the common fisheries policy and the euro fall under the remit of other committees.

If we chose the third option, the best starting point would be to consider what flexibility in the implementation of EC directives has been in-built by autonomous Parliaments throughout Europe. We should learn from them, rather than starting with a blank sheet of paper. If we choose the third option, others' experience would be considerably helpful. We should not attempt to create a new set of rules. That starting point would give us an idea of what flexibilities are allowed in the rest of the European Union.

From our common fisheries policy inquiry, we know that there was a hoo-hah in areas of Spain about our attendance at and submissions to fisheries council meetings. Those areas of Spain are not allowed to do that. In other matters, such as transport infrastructure and energy, those areas have greater flexibility from the EU. If we chose the third option—although, frankly, I do not think that we should bother—it would be sensible to learn from others' experience. Some areas have 25 or 26 years of experience.

That sounds like an inquiry of its own.

Exactly.

One point that I have considered is the expansion of our monitoring role. Examining late implementation and the reasons for that are part of holding the Scottish Executive to account, which is within our remit. That would be a useful option to consider. I take on board what John Home Robertson and Lloyd Quinan said, but the third option would give us less of a monitoring role.

Members will recall that the issue of monitoring came up because of section 57 of the Scotland Act 1998. The committee began to look into that and unravel bits and pieces of information. We realised that no one was considering implementation of EU legislation in relation to section 57. It seemed that the committee would take a monitoring role. I appreciate what has been said about the flexibility of Community instruments. Would that be better as the subject of an inquiry?

Do you believe that we would be spending our time as well as we could if we extended our monitoring role, rather than attempting to have influence? I do not believe that a simple monitoring role in the final year of the session is the correct approach. We should be looking to create circumstances where we are influencing things, rather than simply monitoring them. We should be considering the Commission's forward work programme and identifying what will be a live issue next year so that we can begin work on it now. We have said many times that we must stay ahead of the game. If we accept the role of monitoring and nothing else we will constantly be chasing the horse. Do you agree?

No, that is not the case. We should not be doing that. There are two separate issues. We will deal with the inquiries and work programme under agenda item 5, but this discussion is about our role in relation to scrutiny and how we want to develop it. The first stage of that process is monitoring and assessment, after which we can make recommendations as a result of what we find out. The two functions—undertaking inquiries and considering the Commission's work programme, and our scrutiny role—can run in parallel.

No other committee has the same remit in relation to scrutiny. There could be a vacuum. The committee could review that in six months' time. I am in the hands of committee members. During previous discussions, I picked up certain vibes from the committee and there was an interest in taking a more scrutinising role in relation to late implementation and section 57. That is what the clerks and I picked up from the discussions that we have had in the past six months.

Could we adopt the recommendation in paragraph 11, which is to focus on the first and second priorities and review the situation after six months? If we feel that we are making a difference and that what we are doing is relevant, we can continue and if we feel that it is not working out as we had hoped, we can review our decision.

In effect, we would write a letter saying that we are really upset about late implementation and nobody would pay us any attention. I would prefer that we did not spend our time monitoring and gathering information on late implementation. Could we make a bid through the conveners liaison group to appoint a researcher to investigate that matter, rather than having committee members spend hours considering lists of cases of late implementation?

I do not think that it is the best use of my time or that of other committee members to examine lists of instruments that have been implemented late and then write a note to the headmaster saying that we do not think that that is very good. It is about the art of the possible—what we can do, rather than what we can complain about. The focus for us in the final 16 months must be the influence that we can create in Europe for the next session. It is not about what we have missed in the past two and a half years, but about what we can do to facilitate a greater and better relationship with the European Commission and Parliament.

This is not an either/or situation. The elements are linked. Implementation cannot be turned on and off with the electoral cycles. One of the challenges is how to get ahead of implementation, so that we are not constantly behind. We will gain respect for holding the Executive to account and for having discussions at a European level with the Commission and European parliamentarians about how we can speed that process up. The choice is not between scrutinising now and having an impact in the future. One of the challenges is getting implementation right. The way in which Europe designs what it requires us to do and ensuring that the Executive anticipates that effectively are issues for the future.

I think it would be a useful piece of work and I take the point about the need to review the situation in six months. I think that Lloyd Quinan is concerned about us trawling through documents—

I have said what my concerns are. I do not need you to invent them for me.

I was referring to the point that you made two minutes ago, Lloyd. You said that trawling through hundreds of documents was not worth our time. The point of having a review in six months' time is to ensure that we have a system in which we are not doing that and in which we are focused and able to pick up on key issues. I agree with the convener's recommendation that we review the situation in six months' time, but I would like to know how we intend to carry out the scrutiny process. The principle is right, but I would like to know how it will work in practice.

As Christine Boch told us at the previous meeting, failure to implement legislation on time could cost the Scottish Parliament and our taxpayers dear. One of the reasons why there has to be a European Committee in the Parliament is to ensure that legislation is implemented in time.

I agree, but I do not want to spend hours and hours of my life working through these documents instead of working from a briefing that has been prepared by people who have greater expertise in that area than I have.

Welcome to Parliament.

John, get a grip on yourself.

That is what parliamentarians need to do, Lloyd.

Is that why you are an ex-minister?

It is important to focus on the issue and not get personal. We have a legal adviser, Christine Boch. I had expected that she would be able to come to the committee with background papers on the development of the implementation process. I suggest that, at the next committee meeting, we consider a paper with a little more detail on the first and second options, with a view to incorporating that into the scrutiny process. Obviously, later today, we will discuss further how we undertake the wider role of the committee in terms of inquires and the aspects of the European Commission's work programme that we want to examine in the next year to 15 months. I am sure that we all agree that that is an important role for the committee to play. Do we agree to do that?

Members indicated agreement.

The second part of the paper deals with the sift process. This is probably an appropriate point in the history of the committee to consider that aspect of our work again. I have relied on the clerks, who have given me advice about how this work was done under the previous convener and what the work load was. It would be fair to say of the current scrutiny process that the return is not there for the amount of work that the clerks are having to do. One area that has not worked well is to do with the recommendations that the committee makes to other committees, which have heavy work loads of their own.

We have to make progress on the issue of the sift. Members have before them a number of recommendations. It has been suggested that we create a database of papers that come in from the European Commission and the European Parliament and organise it on a subject basis so that other committees and members of this committee can easily access data. We would not then spend an awful lot of time during committee meetings working through a set of recommendations on papers, 95 per cent of which probably do not have a great deal of relevance to our day-to-day work load.

I invite members' comments on the second part of the paper, on the scrutiny process. The recommendation is that we try the database idea and alert the subject committees to the way in which we intend to proceed on a trial basis over the next six months. Are we agreed?

Members indicated agreement.