European and External Relations Committee, 22 Jan 2008

Meeting date: Tuesday, January 22, 2008

Official Report 273KB pdf

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Transposition of European Union Directives Inquiry

I apologise to our witnesses; they have had to wait rather a long time, but they will have seen how interesting the previous discussion was. I am sure that we will have another interesting discussion now. I hope that it will not be quite as long, although there is plenty of time to hear from Councillor Corrie McChord, the vice-president of the Convention of Scottish Local Authorities; John Paterson from Renfrewshire Council; and Sandy Taylor from Argyll and Bute Council.

We have a cast of three representing one organisation, so I trust that it will not be as long. We welcome the opportunity to respond to the Scottish Parliament's inquiry into the transposition of European directives; it is an important piece of work for governance issues at European and domestic level.

In the past, local government's main focus in European initiatives has been structural funding. In the past two or three years, COSLA has been much more concerned about influencing policy and strategy, and constitutional issues, in Europe. Perhaps more than at any other time, there is an opportunity for local and central Government—by which I mean the Scottish Government—to work together. We have found an open door recently on domestic issues, and we hope to develop that with regard to European and indeed international issues. We feel that we need to develop team Scotland as the way to go in Europe.

I have been involved in European issues for at least 12 years through the European Committee of the Regions. The relationship with the Scottish Executive and the Westminster Government, and how we work together, has sometimes been frustrating, not only for local government but for MSPs. I trust that that is all in the past now—I will not say too much about it at this point. There have been examples of good practice and examples of not so good practice—my professional, technical colleagues can go into that much more. The Cabinet Secretary for Finance and Sustainable Growth said that there is an historic opportunity for national and local government to develop a cohesive agenda. We hope that that common-purpose agenda extends to European as well as domestic issues. Of course, we are fully signed up at the domestic level.

We have a meeting with the convener next week on arising issues, particularly the marine bill. COSLA was involved in the bill at an early stage. The blue paper on maritime policy in Europe is one of the issues that are coming up for us. It is important that we involve ourselves in the scrutiny process as well as the legislative process. We hope to develop relationships not just with the Cabinet and the Executive but with the committee's scrutiny process. That is important.

Our relationships with committees have been intermittent in the past. I hope that our relationship can be more structured in taking European policy forward.

It is also important to say that Scottish local government has been well served in the initiation and introduction of policy in Europe through our COSLA office in Europe and by other organisations such as the Committee of the Regions and maritime regions bodies—we have worked with a plethora of organisations. However, that influence tends to peter out at the end of the process. The continuum is important. When it comes to transposition, we do not know an awful lot about what is happening. If there is no will, that can extend to yourselves—MSPs are not always particularly well informed about transposition by either the Westminster Government or the Scottish Government. It is important that we develop that.

The continuum in the transposition of directives is important. COSLA probably has emerging policies, but they emerge from our experience of specific directives rather than form a general policy. There was a period of difficulty with the waste electrical and electronic equipment directive: I do not think that the way it was implemented served Scottish business well.

I do not want to say a lot more. As I said, we are well represented in Brussels and we would like to develop that representation through to the transposition process. We are, we hope, a major stakeholder because we have to implement and regulate a lot of the legislation. However, we want to be more than a stakeholder—we want to be part of governance, and we believe that there is an open door on that. We hope to develop relationships with the Government and the Parliament through the committee.

I do not want to say a lot about sections 57(1) and 57(2) of the Scotland Act 1998, principally because I do not know a lot about them. I do not think that any of us does at this point. However, on section 57(1), I believe that we have the resources, capacity and knowledge in Scotland. There will be few occasions when we need to look to other parts of the UK for the resource, capacity or knowledge to implement a directive.

Marine legislation is a case in point—I understand that the committee will discuss that later today. Scottish legislation on marine policy has been debated recently, and the UK Prime Minister has said that it will be introduced at UK level at some point. COSLA has also been involved in discussion in Europe on a blue paper. That will present a lot of challenges considering sections 57(1) and 57(2) and other aspects of how and when any legislation is introduced, but the issue provides a good starting point for working together in taking legislation through.

That is all that I want to say at this point. I would hope to direct most of the technical questions to my colleagues who are beside me today.

Thank you, Corrie. We certainly look forward to continuing engagement with you on the issues. I will ask the first questions on engagement with the Scottish Government before we move on to questions from Irene Oldfather. You are obviously looking forward to that engagement, considering your new arrangements. Will you comment on what has happened hitherto? To what extent have you been engaged in the transposition of directives? Have you had more engagement with the directives that local authorities are responsible for implementing, or have you had a more general engagement on directives?

We have not had engagement at the transposition stage. As I said, we have been very well served in the early initiation of policy, although there have been difficulties. MSPs and local authorities were frustrated when our stakeholder partners such as the Scottish Environment Protection Agency and Scottish Natural Heritage were pulled away from supporting issues through thematic strategies and directives at initiation level. COSLA tried to encourage that through MSPs when we had support, but we had some difficulties with the Executive. That was a problem—and it is why I say that the continuum is important—but I trust that that is behind us now.

At the transposition stage, we have little political effect. We would hope to develop that through some stakeholder forum. I keep going back to this, but the WEEE directive has been a particular difficulty—my colleagues could comment on that. Politically, there is no real engagement at the end of the process.

COSLA set a high standard when it set up an office in Brussels before the rest of us did. The Parliament looked to that high standard when it considered having representation in Brussels.

Corrie McChord mentioned team Scotland, which is important. Are there links between our representation in Brussels and yours? Both teams must be trying to identify similar issues in the context of transposition and the need to flag up as early as possible in the process difficulties that might be particularly relevant to Scotland. Is there liaison between officers? How might there be better engagement towards the end of the process, not just at Government level but between COSLA and the Parliament?

We have asked other organisations about that and it has been suggested that when we set out our work programme we should issue on the internet an invitation to stakeholders to comment on areas of interest or relevance to them. Perhaps more formal engagement with you would be welcome.

Our relationship with the Parliament's European officer is new, but I hope and trust that it is developing. We might have more information on that at next week's meeting. The relationship with local government has been frustrating, particularly at Schuman—I think that I have described to the committee the difficulty of the building. Scotland House had a reception for local government on one side of the building, with a buzzer, and a reception for the Scottish Executive and Scottish Enterprise on the other. It seemed to be a case of ne'er the twain shall meet.

We are building a team Scotland culture and we are in the best setting to do business in Brussels. I hope that we can develop more formal links, not just at government level but for stakeholder organisations such as SEPA and SNH—I mentioned them because my experience is primarily in environmental matters, but there are other stakeholder organisations.

I am told that meetings take place quarterly.

It would be helpful if you could give an example of a directive on the development of which you thought you were consulted meaningfully.

One of my colleagues will comment on the WEEE directive or on the directives on foodstuffs and animal health.

I was involved in the implementation of the WEEE directive when I represented COSLA at UK level. There was a relationship between officers at Scotland level, but most discussions took place in London at UK level, where the devolved Administrations were represented through their branches of the civil service.

There has been regular consultation at Scottish Executive level through formal written consultation, informal discussions and stakeholder groups, but there were issues to do with the Executive's role at UK forum meetings, which were driven and chaired by the then Department of Trade and Industry. Some local views were perhaps not strongly represented at UK level by the Scottish Government. There was a reliance on individual stakeholders, including COSLA, to articulate their views.

Have you been consulted as part of the review of the transposition process that the Government is carrying out?

I am not a full-time official of COSLA, so I do not know whether that consultation has come through.

Perhaps you might have more information on that next week.

We will clarify the position next week.

I will relate a positive experience about our work with the previous Scottish Executive on the transposition of directive 98/83/EC, on drinking water quality, which relates to issues that the committee hopes to consider, such as why action is taken in Scotland that is not taken elsewhere and the concept of adding value to a European directive's requirements. The instrument amended existing legislation on the subject by addressing problems that are associated with E coli, which are particularly important for Scotland, and changes that had been made to the World Health Organisation guidelines.

I cited the example because COSLA and others in local government were engaged in the process from the outset. We worked on a collective basis to secure significant improvements in the legislation—improvements that were over and above the basic improvements in the EC directive. The particularly important element of the example is that Scotland now has an improvement grant scheme under which people can get financial assistance to improve their water supply. Of the four countries in the United Kingdom, no country other than Scotland has that provision.

The private water supply improvement grant provision is unique to Scotland. In addition to securing the grant for domestic and business premises, we were able to take the process to fruition two years before other countries. Whereas the legislation has been in place in Scotland for two years, England put it in place only last year and has no grant provision—the directive has simply been transposed. Northern Ireland has yet to do that and has no grant provision in place as yet, although it hopes to do that.

Clearly, in transposing the directive, the Scottish Executive took significant regard of the need to deliver one of its key objectives—improving the health of the people of Scotland. Indeed, it used transposition as a vehicle by which to do that. The example is important. The Government not only achieved its objective but sustained and supported business by enabling an improvement for which significant expenditure is required. By making the flat-rate grant available to business, we are supporting business in Scotland.

We seem to have two different experiences: Mr Taylor is very happy with the result of a directive, whereas Mr Paterson takes a different view. I am paraphrasing what you said, Mr Paterson, but I think it was that Scottish Executive officials did not represent the COSLA view strongly. Is that correct?

I said that they could have articulated our point of view more strongly and proactively. I said that too much reliance was placed on us, as stakeholders.

Am I to take it that we are talking not about institutional failure but about it being the luck of the day which Scottish Executive officials happen to be dealing with a directive in which you have an interest? If not, what is the reason for the different experiences?

My involvement was from February 2003 to July 2007. During that long period, a couple of attempts were made to implement EU legislation, both of which did not proceed—we saw only false starts. During that time, the Scottish Executive made the representations at most fora, but its level of involvement appeared to suggest that it had only a watching brief.

I hoped that I got my message across, but clearly I did not. There are UK Parliament transpositions in which we try to influence the outcome for Scotland and there are Scottish Parliament transpositions, such as the example that I gave, where we are better able to do things—

I like the example.

I was trying to get across the way in which the Scottish Parliament can use the process to its advantage.

It is a win. I will paraphrase again what you said: when we do it up here it is okay, but when we have to go down to London it is a mess. I will settle for that.

I think that you were talking about a UK-wide instrument that affected Scotland adversely. I think you said that officials were not inefficient or ineffective, but that they had not come to the fore and stated Scotland's position. Is that what you were saying?

That is a fair assessment. The relationship between the Scottish Executive and the lead department of the civil service—it was the DTI—was such that the DTI was organising and running the whole implementation process. The Scottish Executive tended to attend those fora with a watching brief; there was not much proactive articulation of the views that we were looking to be expressed at United Kingdom level.

Is there a need for a formal mechanism whereby we can ask for an issue that is pertinent or important to Scotland to be debated properly before implementation?

There should be a Scottish forum that collates and articulates the Scottish view at UK level.

I might just be landing this question on you, but since you have had that experience, you might have come up with some kind of idea of a mechanism that would work effectively and be fair to all parties. Have you any suggestions?

Obviously there is the issue of duplicating work that the DTI was doing. There is no need to do that, particularly at Scotland level, but it would be useful to have some form of Scottish stakeholder forum where our views are collated and articulated, perhaps in a single, coherent paper that the DTI could have fed into the UK implementation process.

There have been attempts to do that: there were Scotland-level fora that involved the waste and electronics industries, local authorities and the enterprise community. There was a lot of disquiet among those groups about how the process was working and whether their views were being represented to the DTI. There was certainly a need to say at a UK level some of the things that some stakeholders were saying, whether it was convenient for them to be heard or not; Scotland has a duty to represent those views with a single voice.

That is an interesting example. Iain Smith wants to ask a question, but I have a brief one to ask first. Are you talking about a reserved area, a devolved area or a mixture of the two?

My understanding is that it was an environmental issue, so it was devolved. A decision was taken somewhere early in the process that the issue would be UK-led and that there would be a single UK scheme.

That was my point.

Okay, sorry. We have been looking at these issues, so the example was useful.

In summary, the quicker we are independent, the better.

Corrie McChord, in your introductory remarks you said that the process seems to work okay until the point of transposition and then it tapers off—I think that that was the phrase you used. We are grappling with what we can do in Scotland to improve transposition and compliance. Is there a need for some kind of Scottish Government unit to work with local authorities and other organisations, including Government departments, to ensure that the transposition process is smooth, to build up experience of transposition and compliance and, if you like, to shadow the compliance unit in Brussels?

I do not think that I used the words "taper off". If I was going to use a metaphor, it would be a brick wall.

That kind of experience is valuable. While we are not arrogant enough to say that we are the fount of all knowledge, we should be involved where we can add value to the process—sometimes it is not about the minutiae—and where our partners or colleagues in the other public services such as SEPA and SNH can add value, they too should be involved.

A lot is going on around the Lisbon reform treaty that is implicit in subsidiarity at the local level. The Guimarães declaration was quite explicit on subsidiarity, and not just to local government—we have to remember our communities as well. There is a subsidiarity role to play in how we devolve a view of the world to our communities. That is mostly about developing and encouraging a culture, which is more important than formal structures.

Have you spoken to local authorities in continental Europe about how they handle transposition?

That probably happens at officer level quite a lot.

If there is any feedback on that, it might be useful for us to have it, because it might contain best practice that we could adopt here.

Absolutely. That is valid.

From the evidence that we have taken from you and others, it does not seem that there is a uniform view about transposition. Some directives are transposed relatively well—with adequate consultation of stakeholders and proper account taken of specific Scottish needs—but others are not so well transposed. Would you find it helpful if, when a new directive or new regulations came from Europe, the Scottish Executive or the Government was required to produce a memorandum on how it intended to transpose the legislation? The United Kingdom has a number of options—primary legislation, secondary legislation or section 57 of the Scotland Act 1998—for transposing directives for Scotland. One issue is that, at present, there is no clear indication of how, when and why decisions are taken about which route to take. Would it be helpful if the Government gave an early indication of how it intended to transpose and whom it intended to consult?

Yes—from a political point of view, it would be very helpful. In COSLA, we carefully considered the good transposition guide that was issued, but the problem is that it has not been coherently applied. Perhaps my colleagues from the professional side want to comment.

Such an indication would be useful, for example so that everyone was clear from the outset why a certain part of the civil service was leading and how we would engage in the process. As I mentioned, the DTI led on the WEEE directive, and the Scottish Executive's role was not clear in the beginning. Our understanding evolved through meetings in which we were able to work it out.

Councillor McChord, is the transposition guide to which you referred the UK one?

Yes. The UK Government issued it at the beginning of last year or the back end of the year before.

We just wondered whether there was a Scottish one that we did not know about.

No, there is not—not that I am aware of.

Would there be any benefit in the Scottish Government reporting to the Scottish Parliament early in the transposition process? Would it make any difference?

It probably would make a difference, but it would be up to the Parliament to impose that procedure. My understanding is that, at the moment, the Scottish Government does not need to go to the Scottish Parliament to talk about transposition issues before a directive is implemented. I may be wrong, but that is my understanding.

I think that you are right, but we are examining the issue.

I am curious about the EU services directive. Will you be consulted on how the Scottish Government intends to implement it?

We hope to discuss it as a matter of concern. MSPs and local government have been successful and up to date in tempering the implementation of and the co-decision process on some parts of the directive, but local government still has concerns, particularly about the shared services agenda and public-private partnerships. We hope to keep a keen eye on that.

That is probably an example of a team Scotland approach, where we have worked with MEPs and others to influence the agenda in the lead-up to the directive's implementation. In some areas, we have been reasonably successful.

Have local authorities in COSLA highlighted to you examples of differential implementation where gold plating has happened in Scotland but not in other member states? That is one issue that we have been considering. Aligned with that is the European Commission's better regulation agenda, which you will know well, and the idea of using more framework legislation and simpler legislation, which would allow the flesh to be put on the bones at a local level. I assume that COSLA would welcome that, because the legislation would be simpler to start with, it would be more relevant to particular member states and we could highlight the potential pitfalls early on.

Yes, indeed. I support thematic strategies, which have raised the level of understanding of EU legislation in Scotland and made it much simpler. For example, previously, soil was not legislated for on its own; it was just a creature of different parts of European and member states' directives.

One directive that is coming up and which I keep mentioning is the marine directive. How it is implemented will be important for Scotland and for our role in Europe not only as a major fisheries nation but as an oil-supplying nation. A range of issues is involved.

On gold plating, I am sure that my colleagues are well aware of the issues.

Rather than talk about gold plating, I will pick up on what Irene Oldfather said about better regulation and framework legislation. For food and other regulated areas, the EC makes regulations that are absolute; it does not issue directives that we in Scotland or the UK can freely interpret and apply. An operational problem flows from that, because we are often given little or no notice of legislation, so the systems and infrastructure that are required to support the enactment and delivery of the legislation are simply not in place.

More important, Europe, Scotland and the UK seem to say the same thing—that the issue is better regulation, not less regulation—but, in practice, Europe seems to do two things: it generates more rather than less legislation; and it issues regulations as opposed to directives, which denies the UK and Scotland the opportunity to apply the legislation sensitively and appropriately in the communities with which we work. In addition, there is a cultural difference between the UK and the EC, because EC legislation does not allow for risk assessment.

Some of what members have said is about considering measures as early as possible to ensure that they can have the most favourable impact. Regulating business in Scotland is about deciding whether we need to regulate and, if we do, deciding what we do practically, for example in terms of environmental health and trading standards. Most local authorities have adopted a strategy such that we do not regulate small businesses at all; rather, we work with them and provide them with support, information, guidance and training—we provide an input rather than impose an administrative burden. Europe does not allow for that way of relating to business. It does not allow alternative ways of securing the same end. Instead, we must carry out inspections and assessments. In effect, when the regulatory services in Scotland are trying to reduce the burden on business, the application of EC law requires us to take the opposite step of imposing an administrative burden.

That was quite wordy, so I apologise.

No, it seems to be an important point.

Mr Taylor's point about regulation is important for local authorities and other organisations, and I thank him for making it. When we took evidence from the Commission by videoconference, I asked what the balance was between regulations and directives, and how it had changed over the years. The Commission said that it would send us the relevant statistics. I hope that we have them so that we can verify statistically Mr Taylor's clear perception, which others presumably share, that directives allow more flexibility.

On another point, everyone says to us that we should influence the process upstream and early. Clearly, Corrie, you have your unit in Brussels to do that. How do you use that unit to feed information back to local authorities? How do you pick up concerns from them so that you can influence the process at an early stage?

There is an iterative process. The issue is added value and where we can have influence, rather than the minutiae. When an issue arises that is of importance to Scottish local authorities, we consult them all and collate their responses. If there is time, and if the issue is important enough, we take it to the convention or to a leaders meeting—that is important to us. The process involves the whole of Scottish local government. Responses come back to us and are collated. That is the normal process.

It might be useful to give an example of another approach to gold plating, using the WEEE directive, to provide balance.

During the development and implementation of the WEEE directive, it was always agreed that there would be no gold plating. That was repeatedly said at all the fora that I attended. On the choice of lead department, we expected the Department for Environment, Food and Rural Affairs to be the natural home for such environmental legislation, but the DTI was chosen to push it forward, because it was decided that the DTI would better serve the interests of industry. That was reflected in how the legislation was implemented—it ended up without very much gold plating. If anything, there was the opposite of gold plating.

One issue that has been raised in evidence is the belief of some people—perhaps Scottish Executive civil servants in particular—that the Scotland Act 1998, which requires all regulations to be compatible with Community law, somehow restricts flexibility in implementing European directives and regulations in Scotland. I am not entirely clear why that view is held. From your dealings with the Scottish Executive in implementing European legislation, do you believe that there is a view in the civil service that Scotland is inhibited from more flexibly implementing legislation?

We have found the same story in reaching our agreements with the Scottish Government on governance and constitutional issues. It is a matter of commitment and will. The cabinet secretary with responsibility for constitutional issues, John Swinney, says that things can be done, to a certain extent, but if we ask a civil servant they say it is not possible.

We need to consider such issues carefully. We have a totally different legal system, and we are very much growing as a devolved nation. I hope that we will take on more powers. That seems to be in the interests of every party in the Scottish Parliament. We need to work out such issues to our benefit and to the benefit of the people of Scotland. Doing so is not impossible.

That was extremely useful. I am sorry to have kept you waiting, but it was worth waiting for. I am sure that we will make good use of your evidence. I look forward to meeting some of you again next week.