European and External Relations Committee, 27 Jan 2009

Meeting date: Tuesday, January 27, 2009

Official Report 153KB pdf

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Pilot Subsidiarity Check

Item 5 is our consideration of our response to the House of Lords on the pilot subsidiarity check on the directive on standards of quality and safety of human organs intended for transplantation.

Members will recall that, before Christmas, we agreed to participate in the subsidiarity check, partly as a way of learning lessons on the process, particularly in advance of its going live under the Lisbon treaty.

The check is essentially to ask whether the proposal should rightly be implemented at European Union level or whether it could be more appropriately implemented at member-state level or even below that. We have heard from the Scottish Government and from Parliament's directorate of legal services. Both seem content that what is proposed will be most appropriately handled at EU level, although both raise questions about implementation of the directive in Scotland.

Colleagues will have read the clerk's paper and will know that the options for us are set out in paragraph 11. I invite comments from colleagues on which of the three options the committee should proceed with. I have my own view, but I ask for colleagues' views first.

I would have thought that simply passing on the Government's response would be enough for us at this stage. It is not something that I would go to the barricades on, but I do not know that the committee has done enough to develop its own position on the matter.

One of the difficulties that we have is the fact that, as colleagues will note, the document from the directorate of legal services is a private paper that is not for publication. It contains views that are private advice to the committee, which raise one or two issues, particularly in paragraph 27. I do not know whether colleagues feel that it is incumbent on us to reflect the legal issues that have been highlighted. We cannot pass on the full content of the paper from the directorate of legal services, as the submission must come from the committee. Option 2 would cover both the Scottish Government's response and our legal advice.

I am inclined to agree with Alex Neil. I hear what you are saying, convener, but with all due respect to the directorate of legal services, the paper provides one legal opinion and there may be others that we have not heard. I am not sure that we can pass that opinion on because, in essence, it would become the committee's own submission. Like Alex Neil, I would not go to the barricades over it, but I would not be entirely comfortable with our doing that simply on the basis of a paper that has been presented to us, and without exploring the matter further.

We should, however, communicate paragraph 13 of the paper that has been prepared by the clerking team, on the timescale for the subsidiarity check. We have not had a lot of time to deal with the issue, which is why I think we cannot make a formal committee submission.

I agree. However, of the two decisions that we have been asked to make, the second—to report back on the practical implications of the pilot checks—is more important, although I mean no disrespect to the important topic under discussion. The point has been made that we are not able to undertake a proper assessment in the timescale that we have been given. I do not know whether it is the timescale that we be would expected to follow in the event of a normal subsidiarity check. If it is, it will rule out things such as allowing other committees to formulate views. If that is the case, we will have to consider practical ways in which we can incorporate that into how we deal with the checks. To me, the more important issue is how we deal with the process in the future.

Are there any other views?

I agree with the convener that we should take the second option. We would, however, have to make it very clear that the legal opinion is the view of the directorate of legal services, and not the view of the committee. If there is concern about that, we might glance over what has been put down as the views of the directorate for five minutes at our next meeting. I do not know whether that would allay people's fears.

We must make a decision on the matter and respond today.

I am quite happy with option 2, in that case.

We are not all that far apart. The committee has not had time to look into the matter fully. We could ask the clerks to draft a one-page paper on the difficulties that Keith Brown has raised in relation to the timescale and so on. The paper could also highlight some of the legal issues that have been raised with us, while pointing out that the committee has not had the time to take detailed evidence or to do anything else because of the timeframe. It could state that those issues have been highlighted to us by the directorate of legal services.

Can I make a suggestion that covers both positions? It relates to the wording of the second option, which is:

"Supply a copy of the Scottish Government's response"—

we are all agreed on that—

"and reflect the views of the Directorate of Legal Services on the subsidiarity aspects".

The word "reflect" is open to wide interpretation. I suggest that, rather than "reflect" those views, we inform the House of Lords of the views of the directorate of legal services. That would mean that we were not responsible for those views. That would be fair to the directorate of legal services and to us.

I agree with Keith Brown that the most important point is bullet point 2 in paragraph 15.

That is a sensible way forward. Are members agreed?

Members indicated agreement.

That takes us to item 6, which we have agreed to discuss in private. I draw the public part of the meeting to a close and thank all our visitors for their attendance.

Meeting continued in private until 12:11.