European and External Relations Committee, 30 Oct 2007

Meeting date: Tuesday, October 30, 2007

Official Report 99KB pdf

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European Union Reform Treaty

The next item relates to the EU reform treaty, which we discussed previously as one of the Scottish Government's six EU political objectives. At its previous meeting, the committee agreed to focus on two of those: the EU reform treaty and the EU budget review. The purpose of the paper on this item is to highlight a number of issues relating to the Scottish Government's role in the treaty's progress. The paper covers quite a lot. Much of it focuses on the substance of the treaty, while other bits focus on the consultation that may or may not have taken place.

Do members have comments on the paper?

I will make one suggestion, although it might be covered by the second bullet point in the recommendations in paragraph 18, which recommends that we seek clarification on

"Whether the Scottish Government has been consulted by the UK Government in responding to the concerns of the House of Commons European Scrutiny Committee as set out in its"

report of a month or so ago. Perhaps we should ask the Scottish Government about its policy on whether there should be a referendum on the reform treaty.

The bullet points contain three specific recommendations, plus a fourth recommendation that we

"Clarify the Scottish Government's current position on the EU Reform Treaty."

Paragraphs 15 to 17 raise the red-line issue that was flagged up in the committee and in the debate in the chamber in September. I see no reason why we should not specify particular aspects of the treaty on which we want clarification. Its provisions on fisheries is one—we know the generality, but we want to find out the detail—and the referendum policy could be another.

On marine biological resources—or fisheries, as they are more easily referred to—there is a clear difference of opinion between the UK Government and the Scottish Government as to whether the reform treaty changes the existing legislation, that is, the provisions of existing treaties. It would be helpful for us to get some independent advice on how what the reform treaty does on marine biological resources compares with the provisions in existing treaties. Could SPICe ask an academic or somebody else to give us a clear position on whether the reform treaty changes the existing treaties? Otherwise, our debate will be more heat than light.

I agree with Iain Smith that some independent legal advice would be helpful. A briefing paper to tell us whether the reform treaty changes the status quo would inform our discussions. To be frank, it is as clear as mud from our previous meetings and our questioning of the minister.

When Iain Smith mentioned academic advisers, it occurred to me that we could get two of them and get two separate opinions. The same goes for legal advice, to be honest. If committee members hope that the matter will be clarified, they will be disappointed.

When we ask for clarification from the Scottish Government, it does not usually give legal opinions—although I note that the newspapers referred to a legal opinion from Professor McCormick, but I do not know whether that is true. We can ask the Government to give as much detail as it can on the grounds for its position on marine resources, as I ought to say. We can also use the legal advice that is available to the Parliament to get a different view—[Laughter.] No, not a different view—although it may well be a different view.

Confirmation, Malcolm, confirmation.

I do not know how that will be rendered in the Official Report.

On whether independent advice should be sought, I think that such advice is essential on the justice and home affairs issue. We should seek not so much an opinion as an explanation in respect of how the latest red line that we have learned about has been drawn. From what I have seen, learned academics and legally qualified people believe that red lines could be challenged after five years. Given that confusion over what exactly is being proposed, we need—quite apart from a legal opinion—an explanation of what is planned on justice and home affairs.

I am also concerned about energy policy, which no one seems to have mentioned. About a month ago, we were told once again that negotiations had taken place since Gordon Brown became Prime Minister, but I do not know how the new constitution—if Giscard d'Estaing calls it a constitution, I go with him and refuse to call it a treaty—includes energy policy within its remit. Does control over energy policy refer to exploitation rates, taxation rates or conservation policies? What is it and what part do we play in it? Surely there is a specific Scottish interest in energy.

You have broadened out the discussion to include two different issues. The Scottish Government seems content with the justice and home affairs opt-in, given all that it has said so far. The energy matter to which you refer is no doubt another dispute that was raised by Westminster's European Scrutiny Committee. Obviously, there could be legal dispute about a large number of issues, so we need to clarify exactly what we are agreeing to.

The paper recommends that we write to the Scottish Government on a range of issues around the treaty. From what has been said, I think that members are content with that, provided that specific issues are specified in the letter. It is also suggested that the letter should be copied to the Justice Committee and the House of Commons European Scrutiny Committee.

If the committee is to seek legal advice, we need to consider what we want to ask about. In addition, timing is an issue. There might be a certain logic in waiting until we hear the Scottish Government's view before pursuing that. What do members feel about that?

Whether the existing treaties contain provisions on fisheries that are equivalent to those in the draft reform treaty is surely a matter of fact. I simply want to establish what the position is on the conservation of marine resources under the existing treaties as compared with the phraseology in the draft treaty. If we find out what the existing provisions are, we can make up our own minds—if we cannot get a legal opinion—on whether the provisions are the same or different. That would be helpful for taking the debate forward. If we ask the Scottish Government for an opinion, we will just be given the opinion that we already know it holds. Its opinion is diametrically opposed to the UK Government's opinion, which presumably is also based on legal advice. As a committee, we need to get something in between, so that we can make up our own minds on the issue.

I think that lawyers are like economists—I speak as an economist—in that, when they are asked for an opinion, they give three. I agree with Alasdair Morgan that we should invite a couple of people with expertise in the field. The concerns about the treaty go much wider than just fishing, although fishing is an extremely important issue. We could ask SPICe to invite a couple of people to give us their interpretation of what the treaty means for fishing, energy, justice and home affairs, and the other matters that touch on Scotland's interests.

A key issue is whether the chairman of the European Scrutiny Committee, Michael Connarty, is correct in asserting that, irrespective of the UK Government's opt-outs and waivers, such safeguards do not matter, because the European Court of Justice can overrule them after five years. We should seek clarification on that point. I would think that that is very much a matter for legal opinion.

It is important that we have factual information as a basis for discussion. I propose that we get independent legal advice and write to the Government in the terms that the committee clerks have set out. After we have received the Government's response and considered the independent legal advice, we can set up a question-and-answer session, as we will have the necessary information before us. That is the process that we should follow.

I have not had much to do with committees from this side of the fence, so I do not know whom committees can commission to carry out research. Will we get SPICe to do it? Can we get independent legal advice within the Parliament?

I suspect that the Parliament's directorate of legal services does not have the necessary expertise, as this is a specialist area. Many of the staff members in the directorate are seconded from the Executive.

Shall we ask SPICe to provide us with a paper? Presumably, SPICe will be able to draw on the legal advice that is available to the Parliament. Is that the best way of progressing the issue? We will also write a letter to the Scottish Government.

With all due respect, convener, the important issue is timing. The treaty is due to be signed in Lisbon in December. That gives us six weeks at most.

There will be a long parliamentary process at Westminster.

When she gave evidence to the committee previously, the Minister for Europe, External Affairs and Culture told us that the Scottish Government would give its opinion on the treaty once it had been committed to paper, which is now being done. The situation is bizarre.

I accept your point about timing, which is why we will ask for the Scottish Government's view at the same time as we ask for a SPICe paper to be provided. That will take us forward on two tracks. We will see where we are when all the information is available.

Will we ask for the legal advice that the Scottish Government has received or what representations it has made to Westminster on the issues that are highlighted in the paper?

The paper suggests that we want to know about the dialogue that has taken place on the issues. The substantive point is the last bullet point, which asks the Scottish Government to clarify its position, including in relation to marine resources. If the Government gives us a legal opinion, that is fine; if it does not, we can read between the lines.

I am sorry to add another point, but there are two policy issues relating to the referendum. First, what is the Scottish Government's position on whether there should be a UK referendum on the treaty? Secondly, if the UK Parliament does not hold a referendum on the treaty on a UK basis—technically, referenda tend to be only consultative—will the Scottish Government consider holding one?

We should ask the Government what its position is on a referendum. It might be difficult for us to ask a leading question of the sort that Alex Neil suggested, although it was a nice try. If the Government wants to distinguish between a UK and a Scottish referendum, it is up to it to do so.

Paragraphs 7 and 8 of the paper refer to justice and home affairs as a devolved matter. We should tidy that up and say that aspects of justice and home affairs are devolved. Clearly, justice and home affairs includes immigration and asylum, which are not devolved.

I want to raise a separate but related issue. I hope that in December the European Council will agree that the UK should have 73 MEPs rather than 72. It is proposed that there should be an additional UK seat in the European Parliament. In the past, the committee has argued that Scotland should hold on to its number of MEPs. We may wish to write a letter to the UK Government repeating the arguments that we articulated previously and suggesting that the additional place that is on the table should come to Scotland.

Should we write to the Scottish Government in the first instance?

The UK Government makes the decision, so I would write to it.

If the Parliament passed a motion on the issue, would that give the argument added clout?

Your answer is as good as mine—it depends on the value that is given to our views. I have just discussed with John Edward from the European Parliament's office the population density formula by which such decisions tend to be made. We have argued in the past that, for reasons of rurality and population sparsity, Scotland has good reasons for maintaining its seven MEPs. If the formula kicks in, the additional place will probably go to London or south-east England, but we should still argue Scotland's case for it.

We could point out that if we were independent, we would be all right.

A strong argument, Alex.

It looks as if Irene Oldfather has carried the day. We have covered most of the issues for the time being.