Back to the Scottish Parliament European and External Relations Committee Report
Archive Home

Business Bulletin 1999-2011

Minutes of Proceedings 1999-2011

Journal of Parliamentary Proceedings Sessions 1 & 2

Committees Sessions 1, 2 & 3

Annual reports

SP Paper 469

EU/S3/10/R4

Next

4th Report, 2010 (Session 3)

Inquiry into the Impact of the Treaty of Lisbon on Scotland

CONTENTS

Remit and membership

Report

SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS

INTRODUCTION

Background
Remit of the Committee inquiry

THE IMPACT OF THE TREATY OF LISBON ON SCOTLAND

Chapter 1
Implications of the extended and new competences which apply to devolved areas

Extension of the range and reach of shared competences
Freedom, security and justice and the UK opt-in
EU Charter of Fundamental Rights
Climate change and energy
Territorial cohesion
Supporting competences

Chapter 2
Implications of the key changes to institutional and decision-making powers at the EU level

Key changes to the functions and powers of the European institutions
Implications of changes to decision-making powers at EU level
Parliamentary scrutiny of ordinary legislative procedure – first reading deals and the use of informal trilogues
Enhanced cooperation and the open method of coordination
Protocol No 26 ‘On Services of General Interest’
The “Citizens’ Initiative”
Implications of the changes for the Scottish Parliament and the Scottish Government
Scrutiny of the EU legislative process in the UK

Chapter 3
The protocol on the application of the principles of subsidiarity and proportionality and the role of the Scottish Parliament

Key aspects of the subsidiarity protocol
Potential significance for Scotland of the subsidiarity provision
Timescale for consultation
Examples of protocols and/or mechanisms developed by other devolved parliaments with legislative powers

General conclusions

Response to the inquiry and recommendations for the Scottish Parliament

Annexe A: Role of European and subject committees in European engagement and scrutiny

Annexe B: Subsidiarity-proposed process for consideration

Annexe C: Extended and New Competences under the Treaty of Lisbon

Annexe D: Audit of the Scottish Government’s handling of Explanatory Memoranda

Annexe E: Extracts from the minutes of the European and External Relations Committee

Annexe F: Oral evidence

Annexe G: Written evidence

Remit and membership

Remit:

The remit of the European and External Relations Committee is to consider and report on-

(a) proposals for European Communities legislation;
(b) the implementation of European Communities legislation;
(c) any European Communities or European Union issue;
(d) the development and implementation of the Scottish Administration's links with countries and territories outside Scotland, the European Communities (and their institutions) and other international organisations; and
(e) coordination of the international activities of the Scottish Administration.

(Standing Orders of the Scottish Parliament, Rule 6.8)

Membership:

Rhona Brankin
Ted Brocklebank
Patricia Ferguson
Jamie Hepburn
Jim Hume
Michael Matheson (Deputy Convener)
Irene Oldfather (Convener)
Sandra White

Committee Clerking Team:

Clerks to the Committee
Lynn Tullis
Simon Watkins

Assistant Clerk
Lewis McNaughton

Committee Assistant
Kathleen Wallace

Inquiry into the Impact of the Treaty of Lisbon on Scotland

The Committee reports to the Parliament as follows—

SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS

General conclusions and recommendations (paragraphs 338-344)

1. The Treaty of Lisbon offers the very real prospect of improved democratic oversight of the EU decision-making process with potential for a substantially increased role for, and respect for, national parliaments, devolved parliaments with legislative powers and devolved governments including the Scottish Parliament and Scottish Government.

2. As a result of the extension of EU competences and the changed institutional and decision-making structures, the Treaty offers new routes of influence for the Scottish Parliament and Scottish Government in the EU decision-making process in areas of significant interest to Scotland – most notably via the European Parliament and in new areas of competence such as energy and climate change as well as in existing priority areas such as agriculture and fisheries.

3. The UK is the competent member state and the Treaty competences now extend into many areas of devolved competence as well as to areas of significant devolved interest. EU legislation takes precedence over national legislation and the Scottish Parliament and Scottish Government need to be vigilant as even welcome or favourable legislation from the EU may have significant implications in relation to which level of government within the UK then becomes the decision-maker in any given field.

4. Given the devolved interest in many areas of extended EU competence and the role of the UK government as interlocutor with the EU, there is a need for improved mechanisms to ensure representation of the Scottish position in the UK negotiating line and for the scrutiny of this process.

5. Given the significance of areas like freedom, security and justice for Scotland, there is a need for improved mechanisms to safeguard the Scottish position in any negotiations with the EU and to deal with conflict resolution within the UK.

6. The Subsidiarity Protocol offers a chance for the Scottish Parliament to challenge any incursion into areas of devolved interest. But to realise this power the Scottish Parliament needs to go through the UK parliament. A formal mechanism to ensure cooperation in this matter between the UK Parliament and the Scottish Parliament is required.

7. The inquiry recommends an improved model of EU scrutiny and engagement at all levels of government and parliament in the UK, in relation to the devolved legislatures and in relation to the EU institutions – particularly the European Parliament. The Committee has recommended a more robust approach to EU engagement and scrutiny in response to the findings of the inquiry.

Specific conclusions and recommendations

8. The inquiry into the Treaty of Lisbon identified three key respects in which the Treaty was likely to impact upon Scotland and upon the work of the Scottish Government and the Scottish Parliament. First, as a result of the extension of competences, particularly shared and supporting competences, in areas of devolved competence or with significant devolved interest. Second, in relation to the changed institutional and decision-making powers and processes in place at the EU level. Third, with respect to the inclusion of the subsidiarity protocol.

Chapter 1: Implications of the extended and new competences which apply to devolved areas

Extension of the range and reach of shared competences (paragraphs 86-93)

9. The Committee recognises that the Treaty extends the range and reach of shared competences and most areas of devolved competence are now subject to some degree of EU involvement.

10. The Committee notes that in the event that the EU proposes formal legislation in areas of shared or supporting competence, the UK Government and not the Scottish Government would negotiate any legislation at EU level even in areas of devolved competence.

11. The Committee welcomes the approach taken by the Scottish Government in undertaking an early internal impact assessment of the potential impact of the Treaty. The Committee notes that the Scottish Government has sought to raise awareness of staff, has identified a need for new advice for officials on engaging with the European Parliament and has begun to identify ways to improve internal systems.

12. The Committee urges the Scottish Government to give further consideration to raising the level of knowledge and awareness of the extended and new competences within the Scottish Government and more widely within its agencies and NDPBs.

Freedom, security and justice and the UK opt-in (paragraphs 94-115)

13. The Committee agrees that there are important implications for Scotland in the area of freedom, security and justice particularly in respect of how it impacts on Scotland’s separate and distinct legal system – extending majority voting to much of freedom, security and justice, extending the existing opt-in mechanism to include criminal law and police cooperation and extending the jurisdiction of the European Court of Justice.

14. The Committee considers that the ‘opt-in’ system secured by the UK for all freedom, security and justice matters may have difficult and complex consequences for Scotland. The Committee is concerned that as the UK has the right to ‘opt-in’ there is a risk that Scotland may be forced to adopt legislation that does not suit its own legal system, or, conversely, may be unable to take advantage of EU legislation that would be beneficial. The consequences of the opt-in system for Scotland must be fully explored and understood.

15. The Committee urges the Scottish Government to ensure that Scotland’s unique situation is represented in the formulation of the UK negotiating line in freedom, security and justice issues, and to continue to work to ensure that the UK takes account of Scotland’s interests.

16. The Committee recommends that the Scottish Parliament’s Justice Committee give further consideration to the possible implications of the extension of EU competence into the area of freedom, security and justice for Scotland and the consequences of the UK opt-in.

17. The Committee also recommends that the Scottish Parliament’s Justice Committee considers the requirement for inter-parliamentary procedures to ensure that in relation to any decision to exercise the UK opt-in the views of the Scottish Parliament are taken into account.

EU Charter of Fundamental Rights (paragraphs 116-122)

18. The Committee notes the importance of ensuring consistency between the requirements of the Convention on Human Rights and the EU Charter of Fundamental Rights. Clarity in the application of the Charter is necessary and to that end the Committee recommends that the Scottish Parliament and the Scottish Government monitor emerging case law and the implications for Scots law. The Committee seeks reassurance that the Scottish Government will monitor this and recommends that the policy memorandum accompanying legislation include a section confirming that the proposed legislation complies with both the Convention on Human Rights and the EU Charter of Fundamental Human Rights.

Climate change and energy (paragraphs 123-126)

19. The Committee recognises that the extension of competence to include climate change and energy may have significant implications for Scotland. The Committee recommends that the Scottish Parliament’s Economy, Energy and Tourism Committee monitors the developments in legislative proposals for energy and climate change.

Territorial cohesion (paragraphs 127-128)

20. The Committee recognises that the extension of competence to include territorial cohesion may present opportunities for Scotland which merit further examination. The Committee undertakes to monitor developments in this area.

Supporting competences (paragraphs 129-139)

21. The Committee notes that supporting competence has often preceded the emergence of shared competence in the EU context. The Committee considers that the trend towards extension of supporting competence is both significant and is of importance to Scotland and the Scottish Parliament. As many areas of supporting competence are devolved or have significant devolved interest, the Committee undertakes to monitor developments in these areas. The Committee notes again that should the EU begin to legislate in areas of supporting competence, the UK Government and not the Scottish Government would negotiate any legislation at EU level even when such legislation impacted upon areas of devolved competence.

Chapter 2: Implications of the Key Changes to Institutional and Decision-making Powers at the EU Level

Key changes to the functions and powers of the European institutions

The European Parliament (paragraphs 140-147)

22. The Committee recognises the strengthened role of the European Parliament and the increased status of member state parliaments but stresses it will be important to take account of the regional and local dimension.

The European Court of Justice (paragraphs 148-154)

23. The Committee notes that the jurisdiction of the European Court of Justice has been extended to all actions taken by the EU, except in the area of foreign affairs and security policy.

24. The Committee notes that the Scottish Parliament or the Scottish Government could take action under Article 263(4) against an act or against a regulatory act which is of direct concern to them and does not entail implementing measures.

The European Commission (paragraphs 155-162)

25. The Committee notes that the role of the European Commission as ‘engine’ of European integration is confirmed in the Treaty and the role of Commission President is strengthened in relation to the College of Commissioners. From November 2014, the number of commissioners will be reduced to the number corresponding to two thirds of the member states.

26. The Committee notes the view of the Law Society of Scotland that a greater legislative role for the Commission should ensure better EU legislation.

The Council of Ministers (paragraphs 163-165)

27. The Committee notes that the process of decision-making in the Council of Ministers has undergone some significant changes. Unanimity is no longer necessary in most of the decisions taken except in sensitive areas. Taxation, social security, most aspects of foreign policy, the common defence policy, operational police cooperation, the European Public Prosecutor, family law, enlargement to new members, the finances of the Union, citizenship and certain institutional issues, for example, electoral systems and the linguistic regime, remain subject to unanimous vote.

The Committee of the Regions (paragraphs 166-169)

28. The Committee notes that the Committee of the Regions will be able to bring cases before the Court of Justice of the European Union, its members' term of office will be increased to five years and the European Parliament is now required to consult the Committee of the Regions alongside the Council of the European Union and the European Commission.

Implications of changes to decision-making powers at EU Level

Extension of ordinary legislative procedure into new and devolved areas (paragraphs 170-184)

29. The Committee considers that the ordinary legislative procedure (OLP) should enable the Scottish Parliament to make representations directly to the European Parliament in a greater number of policy areas.

30. The Committee notes the Scottish Government’s recognition that the increased powers for the European Parliament will have a significant impact on the Scottish Government’s EU engagement. The Committee will monitor the Scottish Government’s ongoing engagement with European Parliament committees as part of its scrutiny of the Scottish Government’s EU priorities.

31. The Committee considers that the extension of OLP offers significant opportunities for Scotland. Both the Scottish Parliament and the Scottish Government consequently need to explore channels of communication with the European Parliament – including European Parliament rapporteurs and committee chairs, CoR rapporteurs and committee chairs, engaging with existing networks in Brussels, development of the Scottish Parliament’s early warning and horizon-scanning mechanisms via its Brussels office and the Commission’s Work Programme and at the earliest stages at official level, ensuring that the Scottish Parliament has the information and capacity to act.

Parliamentary scrutiny of ordinary legislative procedure – first reading deals and the use of informal trilogues (paragraphs 185-193)

32. The Committee notes that the Treaty extends OLP to 40 new articles covering some 95 per cent of EU legislative activity. Several of the areas now encompassed by OLP, most notably justice and security, judicial matters, agriculture, fisheries, and tourism, are major devolved competences of the Scottish Parliament.

33. The Committee shares the concerns of the House of Lords and House of Commons committees in relation to legislative transparency and the need to ensure sufficient opportunity for parliamentary scrutiny of first reading deals.

The Committee considers that the extension of OLP will have particular impact on the ways in which the Scottish Parliament and Scottish Government engage with the EU Institutions.

Enhanced cooperation and the open method of coordination (paragraphs 194-200)

34. The Committee notes that the intergovernmental nature of the Open Method of Coordination and enhanced cooperation procedures requires close relations with the UK Government to ensure that the Scottish dimension is represented.

35. The Committee notes the need to be vigilant in relation to the implications of the extended use of the Open Method of Coordination in areas of devolved competence.

Protocol No 26 ‘On Services of General Interest’ (paragraphs 201-208)

36. The Committee welcomes the recognition of the need for discretion in providing public services. The Committee considers that protocol 26 could be particularly helpful in the provision of services in the remoter parts of Scotland.

37. The Committee draws the attention of the Scottish Government to the potential room for manoeuvre in commissioning services of general interest under Protocol 26.

The “Citizens’ Initiative” (paragraphs 209-216)

38. The Committee welcomes the scope for enhanced engagement offered by Article 11. The Committee understands that there is a Commission Communication which begins to set out how the provisions contained in Article 11 will operate but notes that as yet there is little evidence as to how this will work in practice. The Committee will wish to monitor the development of this initiative.

Implications of the changes for the Scottish Parliament and the Scottish Government (paragraphs 217-252)

39. The Committee recognises the importance of engagement at all stages of the EU policy process: including ‘upstream’ setting of the agenda; the development of an ‘Early Warning System’ or ‘horizon-scanning’ to identify legislation in the pipeline; the scrutiny of draft legislation by the relevant committee; and the ‘downstream’ monitoring of the implementation of legislation.

40. The Committee recognises that this engagement needs to take place in relation to all levels of legislative activity (Scottish, UK and EU), in relation to both executive and legislative bodies at all three levels and in relation to both horizontal issues of European engagement and to policy specific legislation.

41. The Committee recognises it is important to make any engagement as early in the policy development process as possible in order to increase the Scottish Parliament’s influence in the debate.

42. The Committee notes that it currently engages in early analysis of emerging proposals via the annual scrutiny of the Commission’s Work Programme, discussion with subject committees and monitoring of the Parliamentary priority areas via the Scottish Parliament’s Brussels office. In the past year, the Committee has sought to promote a more active approach to early engagement, selecting strategic areas for engagement, using rapporteurs and working with the subject committees. Experience suggests that there are issues (of priority and workload amongst others) in seeking to encourage subject committees to undertake systematic early engagement and these will need to be addressed.

43. The Committee concludes that in order for the Scottish Parliament to be fully effective in engaging in Europe it, with support from its Brussels office, should have an increased role in early warning and horizon-scanning and the subject committees will have a significant responsibility for making early contact in their individual policy areas.

44. The Committee notes the significant consensus on the need to establish internal and external mechanisms to facilitate the establishment of an early-warning system or a system of horizon-scanning. The Committee recognises the changed institutional dynamics and the importance of the European Parliament and potentially the Committee of the Regions as sources of potential collaboration or influence. The Committee supports this view.

45. The Committee agrees with the evidence suggesting the need for robust mechanisms for engaging with executives and legislatures at the Scottish, UK and EU level to allow effective parliamentary scrutiny to take place and the Committee considers that there could be further scope for new partnerships and networks through which influence might be pursued.

46. The Committee recognises the need to engage with the European Commission and European Parliament, Committee of the Regions rapporteurs and committee chairs, existing networks in Brussels, the development of the Scottish Parliament’s early warning and horizon-scanning mechanisms via the Commission’s Work Programme and Brussels office and at the earliest stages at official level ensuring that the Scottish Parliament has both the information and capacity to act.

47. The Committee welcomes the Scottish Government’s emphasis on early engagement and will monitor the development of its approach in seeking to build relationships with the Scottish MEPs, and conveners and rapporteurs on subjects that are of key interest to Scotland.

48. The Committee highlights the potential value of closer working with the European Parliament and the need to develop closer working relationships between the Scottish Parliament’s subject committees and the European Parliament. The Committee recommends that the Scottish Parliament should seek to engage more systematically with the Scottish MEPs, should target rapporteurs for particular pieces of legislation and chairs of specific subject committees that are of interest to Scotland and should seek to engage with MEPs from across the EU.

49. The Committee has considered a number of options for improving the link with MEPs, including an ‘open door’ policy where MEPs could be invited to raise issues of concern for inclusion on the agenda of the Committee and speak to them. In addition the Committee proposes to create a regular item in its business for MEPs to update the Committee, and proposes an annual meeting (possibly in Brussels) to analyse jointly the European Commission’s annual Work Programme.

Scrutiny of the EU legislative process in the UK (paragraphs 253-275)

50. The Committee welcomes the commitment of the Scottish Government to undertake an audit of its internal process for tracking and responding to explanatory memoranda (EMs). The Committee notes the submission provided by the Scottish Government and would welcome further discussion with the Scottish Government on the nature of reporting to the Parliament. As a minimum the Committee would anticipate receiving regular (monthly) reports from the Government identifying the EMs received by the Government and highlighting those to which it has responded and those that raise issues of subsidiarity.

51. The Committee is concerned that the mechanisms for consultation with the devolved administrations require improvement. In particular, the Committee considers that there appear to be significant discrepancies in how Whitehall departments manage the interests of the devolved administrations and ensure that these are adequately taken into account in arriving at the UK position on any issue. The Committee considers that there should be a standard process for all departments in taking the interests of the devolved administrations into account. To this end the Committee urges the Scottish Government to encourage the Whitehall departments to adopt a standardised and consistent approach based on best practice.

52. The Committee has been concerned for some time now that the process by which the Scottish contribution to the UK position is incorporated and the UK position is reached is not sufficiently transparent. The Committee considers that the process should be open to scrutiny by the Scottish Parliament. The Committee considers that there needs to be a common understanding at the Scottish and UK levels of what information can be disclosed and at what point in time. There needs to be a clear and agreed position on this.

53. The Committee recognises that in any process there will be concerns to protect the UK negotiating position in the time between the JMC(E) and the European Council meetings. However the Committee considers that the Scottish Government should be able to report to Parliament (via the EERC) the Scottish position prior to the JMC(E), provide agendas in advance of the JMC(E) meetings, report the outcome of discussions at JMC(E), the agreed UK position and outcome of Council deliberations following the Council meetings. To this end the Committee welcomes the offer from the Minister for Culture and External Affairs to work with the Committee in seeking to improve the current process for scrutiny.

54. The Committee welcomes the recent progress on updating the dispute resolution process but considers there is scope for further improvement in the process and in the transparency of the process.

Chapter 3: The protocol on the application of the principles of subsidiarity and proportionality and the role of the Scottish Parliament

Key aspects of the subsidiarity protocol (paragraphs 276-299)

55. The Committee recognises there is some dispute in the written evidence as to whether the consultation of devolved parliaments with legislative powers is mandatory or permissive. The Committee is persuaded that Article 6 does not impose a legal duty on “national parliaments, or chambers of national parliaments” to consult but considers that the Scottish Parliament should be consulted where appropriate. The Committee considers that consultation is increasingly the convention and it would be difficult for Westminster to justify a situation in which the Scottish Parliament had not been consulted on a matter on which it should have been consulted.

56. The Committee recognises that the principle of proportionality, introduced in Article 5(4) of the Treaty on European Union is of major significance to Scotland as it restricts the EU from legislating in intricate detail except where absolutely necessary, allowing for more flexibility for appropriate implementation of legislation across member states and at sub-state level.

57. The Committee welcomes the requirement, set out in Article 2 of the Protocol on the Application of the Principles of Subsidiarity and Proportionality, on the Commission to consider the regional and local dimension. The Committee also considers that there is merit in the Scottish Parliament providing a list of devolved subject areas to the Commission as an indication of where the Parliament would wish to be consulted as provided for by Article 2 of the Protocol on subsidiarity.

Potential significance for Scotland of the subsidiarity protocol (paragraphs 300-314)

58. The Committee notes a number of key issues emerging from the evidence in relation to the establishment of mechanisms to facilitate scrutiny, feedback and conflict resolution in relation to the Subsidiarity Protocol: the process for consultation ‘where appropriate’; the problem of the eight-week scrutiny period and, related to this, the issue of parliamentary recess and; the importance of relationships with both Houses of the UK Parliament and with the Scottish Government.

59. The Committee recognises the need to engage with other devolved assemblies in the UK and throughout the EU in relation to the formulation of an opinion in relation to subsidiarity.

60. The Committee recognises that the Scottish Parliament cannot invoke the subsidiarity protocol directly itself. The Scottish Parliament must go through either the UK Parliament or the Committee of the Regions. The Committee considers that some formal mechanism between the Scottish Parliament and Westminster must be put in place to enable the Scottish Parliament to make its view known and the UK Parliament to respond before the protocol is invoked.

61. The Committee considers that any internal procedure for identifying and tracking issues of subsidiarity should be part of a wider scrutiny process. However, the Committee considers that it may be possible to identify areas in which subsidiarity is more or less likely to arise. The Committee recommends that the Solicitor to the Scottish Parliament undertakes an analysis of the areas where subsidiarity may arise to support a focused approach to early warning/engagement.

Timescale for consultation (paragraphs 315-322)

62. The Committee recognises the challenges imposed by the eight-week timetable for reporting on issues of subsidiarity. The Committee understands that the time available for the Scottish Parliament to respond will be far less than the eight weeks.

63. The Committee undertakes to develop a process for considering issues of subsidiarity where the EERC liaises with UK Parliament committees and, in drafting a response for approval by the Scottish Parliament, incorporates a view from the Solicitor to the Scottish Parliament, the appropriate subject committee (time permitting) and the Scottish Government.

64. The Committee supports the request by the House of Lords to the UK Government proposing to other European Council members that the Council would not, under normal circumstances, place a qualifying proposal on its agenda for eight weeks, plus the four weeks of August where they fall within that eight-week period.

Examples of protocols and/or mechanisms developed by other devolved parliaments with legislative powers (paragraphs 323-337)

65. The Committee notes that the subsidiarity mechanisms developed in the various devolved parliaments with legislative powers are dictated in part by the constitutional status of the devolved parliaments with legislative powers in the various jurisdictions.

66. The Committee notes the tendency to incorporate scrutiny for subsidiarity purposes within a wider process of EU Scrutiny.

67. The Committee notes the extensive use made in other jurisdictions of the various subject committees as EU scrutiny is mainstreamed across the parliaments.

Response to the inquiry and recommendations for the Scottish Parliament
(paragraphs 345-357)

68. The Committee considers that the changes introduced by the Treaty provide an opportunity for the Scottish Parliament to examine the way it currently conducts European engagement and scrutiny.

69. The Committee recommends that the Parliament should seek to develop a European Strategy for engagement and scrutiny that clearly defines the parliamentary objectives and priorities, sets out the roles and responsibilities of Committees, the relationships with external bodies and sets out the detailed processes and mechanisms for effective scrutiny. The implementation of the strategy would need to extend beyond the European and External Relations Committee, to cover the subject committees, the Parliament as a whole, the Presiding Officer and the Scottish Parliament’s office in Brussels.

70. The Committee considers that a deeper engagement with Europe by the subject committees is vital in implementing a Parliament-wide European strategy, particularly in monitoring and scrutiny.

71. The Committee recommends that the Parliament ensures that there is capacity within the system to take a pro-active approach and there is capacity to respond to issues as they arise.

72. The Committee considers that development and implementation of a European strategy would require changes to procedures and may require changes to standing orders.

73. The Committee considers that there is a significant role for the Scottish Government in facilitating the delivery of the strategy.

74. The Committee undertakes to develop a European strategy and ‘road map’ on behalf of the Parliament, in consultation with the subject committees and conveners, the Scottish Parliament’s Legal and Information Services, the International Relations Office, the Presiding Officer and external bodies including the Scottish Government and the UK Parliament’s European committees. The Committee considers that this new strategy should be in place in the final year of the current Parliament.

75. The Committee recommends that the Parliament endorse this approach in responding effectively and appropriately to the challenges for the Parliament contained within the Treaty.

76. In reforming its current engagement model, the Committee considers that:

  • The role of the European and External Relations Committee would be that of overseeing and co-ordinating European relations as a whole, horizon-scanning on behalf of the Parliament, acting as an informed and competent conduit for the subject committees and, where necessary and possible, acting as a safety net.

  • The active scrutiny role would rest primarily with the subject committees, which they would do under their own volition (by prioritising issues, initiating research, conducting inquiries etc.)

  • At the core of the proposed new model would be the creation of ‘European Union Co-ordinators’ on each subject Committee. EU Co-ordinators would act as conduits between the European and External Relations Committee and their own committee and would have a number of specific roles in relation, for example, to highlighting the EU dimension where relevant to policy debates. The idea is based on a model that has been successfully utilised in the Bavarian Parliament and the Flemish Parliament and reflects the original aspirations of Standing Orders (rule 6.8.4) to have strong links between the European and subject committees.

77. In order to achieve a strategy of this nature a number of dialogues will need to take place:

  • A discussion within the Parliament over the strategy as a whole – the European and External Relations Committee commits itself to promoting a debate on this report in autumn 2010.

  • A dialogue with the Standards, Procedures and Public Appointments Committee and other Parliamentary authorities over changes to the Parliament’s standing orders etc – the Committee commits to pursuing this dialogue in autumn 2010.

  • A dialogue with the Scottish Government on its contribution to Explanatory Memoranda etc. – the Committee commits to discuss with the Government its contribution.

  • A dialogue with the subject committees – the Committee commits to discuss with the Conveners Group and with committees individually their role in a new strategy.

  • A dialogue with the new UK Parliament European committees – the Committee commits to pursue through the vehicle of ECUK (the chairs of UK European committees) an arrangement with Westminster over the receipt of representations from the Scottish Parliament on European legislation.

Introduction

Background

78. At its meeting on 18 March 2008, the Committee agreed to conduct an inquiry into the impact of the Treaty of Lisbon on Scotland and, on 13 May 2008, agreed an approach to the inquiry. The Committee subsequently put the inquiry ‘on hold’ to await the outcome of the second Irish referendum on the Treaty of Lisbon. Following the Irish referendum, on 17 November 2009, the Committee agreed a revised approach to the inquiry.

79. The Treaty of Lisbon came into force on 1 December 2009. The Treaty of Lisbon amends the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC) which is renamed the Treaty on the Functioning of the European Union (TFEU). There are 11 new protocols to the Treaties. The Treaty of Lisbon (“the Treaty”) includes a number of key aspects which the Committee considered were likely to have an impact on Scotland and, in particular, on the respective roles of the Scottish Parliament and the Scottish Government.

80. The purpose of the inquiry was to inform the Scottish Parliament of the likely impact of the Treaty on Scotland, in particular the implications for change in the role of the Parliament and its scope to influence EU legislation. The Committee considered that this would assist the Parliament in determining the need for procedural changes and revisions to internal scrutiny mechanisms.

Remit of the Committee inquiry

81. The remit of the inquiry was to consider the impact of the Treaty on Scotland as it relates to devolved matters. The inquiry focused on three main areas:

  • Extended and new competences: the implications of the extended and new competences outlined in the Treaty that apply to devolved areas and the impact that these changes might have on the Scottish Parliament and the Scottish Government.

  • Institutional and Procedural changes: the implications of (a) the key changes to the functions and powers of the European Parliament, the Court of Justice of the EU, the European Commission and the Council of Ministers and (b) the extension of OLP into new and devolved areas and the implications of these changes for the Scottish Parliament and the Scottish Government.

  • Subsidiarity: How (a) the protocol on the application of the principles of subsidiarity and proportionality will impact on the role of the Scottish Parliament, and (b) the Scottish Parliament might work with the UK Parliament and devolved assemblies in respect of the subsidiarity provisions of the Treaty and examples of protocols and/or mechanisms developed by other devolved parliaments with legislative powers from which the Scottish Parliament could learn.

82. The Committee agreed that, as much of the evidence on the provisions of the Treaty was likely to be of a complex and technical nature, an adviser should be appointed to assist in assessing the evidence and supporting the Committee in its consideration of the issues. The Committee appointed Dr Laura Cram, Reader in Politics at the University of Strathclyde, as adviser to the inquiry.

83. The Committee launched a call for evidence on 17 November 2009 and wrote to a number of organisations to highlight the consultation. The Committee also held seven evidence sessions over four meetings on 23 February, 16 March, 23 March and 20 April 2010. A list of those who contributed oral evidence is included in the extracts of the minutes of proceedings at Annexe E; and the Official Reports are included at Annexe F. A list of those who provided written evidence is included at Annexe G.

The Impact of the Treaty OF LISBON on Scotland

84. The Treaty of Lisbon amends the TEU and the TEC which is renamed the TFEU. The TEU includes articles on general principles, institutional arrangements, foreign, security and defence cooperation, and treaty ratification, amendment and withdrawal from the EU. The TFEU sets out the policy areas in which the European Union will have an element of competence, along with the rules governing the operation of the EU institutions. In addition, there are 37 protocols attached to the Treaty, 11 of which are new.

85. The inquiry into the Treaty identified three key respects in which the Treaty was likely to impact upon Scotland and upon the work of the Scottish Government and the Scottish Parliament. First, as a result of the extension of competences, particularly shared and supporting competences, in areas of devolved policy or in areas with significant devolved interest. Second, in relation to the changed institutional and decision-making powers and processes in place at the EU level. Third, with respect to the inclusion of the subsidiarity protocol.

Chapter 1

Implications of the extended and new competences which apply to devolved areas

Extension of the range and reach of shared competences

86. For the first time, the TFEU provides lists setting out the division of policy areas into the three different types of EU competence: exclusive competence, shared competence and supporting competence. The Treaty significantly extends the range and reach of ‘shared’ competences between the EU and member states. Where the EU has supporting competence, member states retain exclusive competence but EU institutions may provide ‘support’ or ‘coordination’ with respect to European aspects of these areas. Annexe C provides a list of competences. Many of the areas of shared or supporting competence are devolved matters and most areas of devolved competence are now subject to some degree of EU involvement.

87. In considering the implications for Scotland and the Scottish Government, Donald Henderson, EU Director and head of the Brussels Office for the Scottish Government, noted in his written evidence that:

“the new or expanded areas of competence in energy, climate change, sport and tourism will provide further opportunities for the Scottish Government to promote its key priorities. Inevitably a greater number of officials will need to have an increased awareness of Europe and will need to monitor developments closely to make the most of any new opportunities.” Before the Treaty came into force we carried out an internal impact assessment exercise to ensure officials were aware of the potential impact, and could take the action required to get the best from the new arrangements…The Action Plan on European Engagement, published in September 2009, focuses on the key areas where Scotland can take a leading role (e.g. research and creativity), where hawse have well developed expertise (e.g. justice and home affairs) or large resources (e.g. energy and fisheries).”1

88. Fiona Hyslop, Scottish Government Minister for Culture and External Affairs (“the Minister”), told the Committee that the Scottish Government would continue to focus on the key policy areas that it wanted to influence:

“We also need to have arrangements in place to ensure that if things are not happening we can protect our interests in a defensive way.”2

89. The Minister stressed that the challenge for the Scottish Government would be in ensuring that the UK Government became as responsive to Scottish interests in these areas as it currently is in the justice area.3

90. The Committee recognises that the Treaty extends the range and reach of shared competences and most areas of devolved competence are now subject to some degree of EU involvement.

91. The Committee notes that, in the event that the EU proposes formal legislation in areas of shared or supporting competence, the UK Government and not the Scottish Government would negotiate any legislation at EU level, even in areas of devolved competence.

92. The Committee welcomes the approach taken by the Scottish Government in undertaking an early internal impact assessment of the potential impact of the Treaty. The Committee notes that the Scottish Government has sought to raise awareness of staff, has identified a need for new advice for officials on engaging with the European Parliament and has begun to identify ways to improve internal systems.

93. The Committee urges the Scottish Government to give further consideration to raising the level of knowledge and awareness of the extended and new competences within the Scottish Government and more widely within its agencies and NDPBs.

Freedom, security and justice and the UK opt-in

94. The area of freedom, security and justice (FSJ) becomes a shared competence under the Treaty.

95. FSJ issues are addressed in Part 3, Title V TFEU. Most decisions in the area of FSJ will now be made using the ordinary legislative procedure (OLP), exceptionsinclude the area offamily law and any decision to establish a European Public Prosecutor which still requires unanimity. Where OLP applies, qualified majority voting will be used in the Council and the ability for an individual member state to veto a proposal is removed.

96. Justice issues in the Treaty of Lisbon are dealt with in five chapters:

  • General provisions;
  • Policies on border checks, asylum and immigration;
  • Judicial cooperation in civil matters;
  • Judicial cooperation in criminal matters; and
  • Police cooperation.

97. Under Protocol 21 on the position of the United Kingdom and Ireland in respect of the area of FSJ, the United Kingdom is required to opt into measures pursuant to Part 3, Title VTFEU.

98. Professor Florian Becker considered that the inclusion of FSJ as a shared competence in the Treaty was likely to have little impact on Scotland due to the special provisions (the opt-in) negotiated by the UK.4 However, Donald Henderson stated that:

“there are important implications for Scotland in the area of Freedom, Security and Justice, particularly how it impacts on our separate and distinct legal system. While the Treaty extends majority voting to much of FSJ, it also extends the existing opt-in mechanism which covers visas, immigration, asylum and civil law, to include criminal law and police cooperation. Unanimity is retained for the most sensitive areas, such as operational police cooperation, the creation of a European Public Prosecutor, and measures concerning family law with cross border implications. The Treaty also extends the jurisdiction of the European Court of Justice in relation to FSJ matters…We will need to ensure that Scotland’s unique situation is represented in the formulation of the UK negotiating line in FSJ issues, and continues to work to ensure the UK takes account of our interests.”5

99. The Law Society of Scotland (LSS) explained that the Treaty’s provisions on the future EU regime for dealing with family law, criminal law, succession law, and criminal and civil procedural law had an additional significance in Scotland as these were important areas of devolved competence. The LSS noted that these were also areas where Scots substantive and procedural law were often different from the rest of the UK, and Scottish institutions – such as the Crown Office and Procurator Fiscal Service, the courts, the prisons and the legal profession – formed separate and distinctly regulated bodies. The LSS considered that, in a UK context, these factors made the Scottish position potentially more complex and added a particular dimension to implementation of legislation and to pre-legislative policy considerations and negotiations.6 Michael Clancy, of the LSS, told the Committee that Article 67(1) of TFEU provided recognition of the different legal systems that existed within the European Union and he suggested that it was important to “make sure that the different legal system element” is “properly recognised and respected”.7

100. The Treaty allows for the creation of a European Public Prosecutor on the unanimous vote of member states. The LSS8 and Councillor David Bremner9, Independent Councillor for Landward Caithness, voiced concerns about the possible implications of this for the Scottish legal system. Articles 81 and 82 (TFEU) provided a legal basis for the adoption of measures to support the training of the judiciary and judicial staff. Councillor David Bremner raised concerns about the prospect of the homogenisation of judicial training in a European context and the issues that this might raise in relation to the training of Scottish judges.

101. Sir David Edward KCMG PC QC also stated that proposals in the area of FSJ would have to be carefully monitored for compatibility with the Scottish legal system. He noted:

“The Treaty on the Functioning of the European Union states that the European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences. That implies that the European prosecutor could be involved in the actual process of prosecution in Scotland. There are many ways in which that could be done that would be perfectly compatible with the Scottish legal system, but one would need to be sure that the mechanism was compatible.”10

102. Sir David cited other examples related to the field of judicial cooperation in civil and criminal matters that may have implications for Scotland, such as the taking of evidence and the value of evidence.11

103. The Royal Society of Edinburgh (RSE) raised concerns in relation to the ‘opt-in’ system secured by the UK for all FSJ matters (including the possibility of ‘opting-out’, or being forcibly ‘opted-out’, of a piece of legislation at a later stage if it does not sign up to further amendments). The RSE considered that this may have difficult and complex consequences for Scotland that must be fully explored and understood. The RSE raised particular concerns in relation to the risk that Scotland may be forced to adopt legislation that does not suit its own legal system, or, conversely, may be unable to take advantage of EU legislation that would be beneficial.12

104. The Association of Chief Police Officers in Scotland (ACPOS) broadly welcomed the institutional changes and considered that the new and extended competences would bring opportunities to develop enhanced cooperation between enforcement agencies across Europe. However, ACPOS expressed reservations in relation to the opt-in, considering that there was potential for a divide between the UK Parliament if a different position was taken by the Scottish Parliament and Scottish Government. In such circumstances ACPOS considered that it would be important for Scotland to have an effective voice to influence the UK position in relation to the decision to opt-in.13

105. This position was reiterated by Professor Michael Keating in written evidence to the Committee. He considered that the UK Ministry of Justice and its predecessors had not always been sensitive to the existence and needs of the Scottish legal system. He suggested that it was vital that mechanisms be put into place to secure Scottish interests. Professor Keating also stated that more complications arose from the way that the UK government had chosen to opt-out of many of the provisions of JHA and of the broader Area of Security and Justice (which includes the Schengen free travel zone).14

106. When questioned on the issues surrounding the UK power to opt-in, Fiona Hyslop stated that the proposals that were in development and the processes that had been followed to date had been “very sensitive to the UK's unique position” as a member state that had two legal systems. She also stated that the level of cooperation in working to identify when things cut across the Scottish legal system was “greater than in other areas, competences and responsibilities” and there had been improvement.15

107. Mario Tenreiro, from the European Commission sought to reassure the Committee that, at the EU level, the Commission was aware of the distinct nature of the Scottish legal system:

“We know about the issue, so when a proposal is prepared, studies and consultations are conducted and the Commission tries as much as possible to take into account all the different elements, including the specificities not only of the UK but of other member states where regional Parliaments, which sometimes have legislative powers, raise similar concerns…”.16

108. The current undertakings agreed between the House of Lords and the UK Government in relation to parliamentary scrutiny of opt-in decisions make no special provision for the involvement of the Scottish Parliament. However, writing as Chair of the House of Lords EU Select Committee, Lord Roper stated that: we “shall wish to take full account of the views of the Scottish Parliament” and recognised the “desirability of providing discussion in the event of disagreement”.17 The evidence from the European Scrutiny Committee of House of Commons did not address the scrutiny of opt-in decisions by the Scottish Parliament.18

109. Michael Clancy from the LSS commented on how scrutiny of the FSJ opt-in could be exercised suggesting that specific arrangements would have to be put in place. He considered that relationships should be much more embedded to ensure that there is a free flow of information between the Scottish Parliament and the UK Parliament.19

110. The Committee raised the issue of the Scottish Parliament’s scrutiny of the UK Government’s decision to opt-in to FSJ legislation with Chris Bryant, then UK Government Minister for Europe. Responding to the Committee, Chris Bryant stated that he did not think that that was a role for the UK Government:

“The Scottish Executive needs to ensure, first, that it is accountable to the Scottish Parliament and, secondly, that it makes its case to the UK … The accountability of ministers in the Scottish Executive is a matter that the Scottish Parliament must resolve with them.20

111. The Committee agrees that there are important implications for Scotland in the area of freedom, security and justice, particularly in respect of how it impacts on Scotland’s separate and distinct legal system – extending majority voting to much of freedom, security and justice, extending the existing opt-in mechanism to include criminal law and police cooperation and extending the jurisdiction of the European Court of Justice.

112. The Committee considers that the ‘opt-in’ system secured by the UK for all freedom, security and justice matters may have difficult and complex consequences for Scotland. The Committee is concerned that, as the UK has the right to ‘opt-in’, there is a risk that Scotland may be forced to adopt legislation that does not suit its own legal system, or, conversely, may be unable to take advantage of EU legislation that would be beneficial. The consequences of the opt–in system for Scotland must be fully explored and understood.

113. The Committee urges the Scottish Government to ensure that Scotland’s unique situation is represented in the formulation of the UK negotiating line in freedom, security and justice issues, and to continue to work to ensure that the UK takes account of Scotland’s interests.

114. The Committee recommends that the Scottish Parliament’s Justice Committee give further consideration to the possible implications of the extension of EU competence into the area of freedom, security and justice for Scotland and the consequences of the UK opt-in.

115. The Committee also recommends that the Scottish Parliament’s Justice Committee consider the requirement for inter-parliamentary procedures to ensure that, in relation to any decision to exercise the UK opt-in, the views of the Scottish Parliament are taken into account.

EU Charter of Fundamental Rights

116. The Charter of Fundamental Rights of the European Union sets out in a single text, for the first time in the European Union's history, the whole range of civil, political, economic and social rights of EU citizens and all persons resident in the EU

117. The Charter was adopted by EU institutions in December 2007 at the same time as the Lisbon Treaty was agreed. Although the Charter will have the same legal value as the TEU and TFEU (Art 6 TEU), it has not been reproduced in the Treaties. In addition it is made clear that ‘the provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties’ (Article 6 TEU). The Charter will apply to the EU institutions and to member states, but only when the latter are implementing EU law.

118. The rights guaranteed by the Charter are divided into six sections: dignity, freedoms, equality, solidarity, citizens' rights and justice.

119. The UK Government negotiated a Protocol (Number 30) that seeks to clarify the application of the Charter in the UK and to restrict the European Court of Justice’s ability to strike down UK law.

120. Concern was expressed in relation to the inclusion of the EU Charter of Fundamental Rights (“the Charter”) in the Treaty and the implications of this for Scotland. In its written submission, the LSS stated:

“...this is of particular importance in Scotland as legislation passed by the Scottish Parliament is required under the Scotland Act 1998 to be compatible with both Convention rights and Community law (section 29). Where this stipulation is breached, the provision in question is “not law”, and thus the issue of clarity in the application of the Charter is all the more acute in areas of competence devolved to the Scottish Parliament. It is particularly important that there should be no inconsistency between the requirements of Convention rights and the Charter.”21

121. Both the LSS and Councillor David Bremner questioned the extent to which Protocol No 30, which seeks to clarify the impact of the Charter on UK Law, would provide a meaningful safeguard. It is expected that the impact of these provisions will emerge through case law in the Courts. 22 23

122. The Committee notes the importance of ensuring consistency between the requirements of the Convention on Human Rights and the EU Charter of Fundamental Rights. Clarity in the application of the Charter is necessary and, to that end, the Committee recommends that the Scottish Parliament and the Scottish Government monitor emerging case law and the implications for Scots law. The Committee seeks reassurance that the Scottish Government will monitor this and recommends that the policy memorandum accompanying legislation include a section confirming that the proposed legislation complies with both the Convention on Human Rights and the EU Charter of Fundamental Human Rights.

Climate change and energy

123. The extension of the EU remit to include climate change and energy was identified in evidence as having significant implications for Scotland. Energy is now an area of shared competence between member states and the EU. Although energy remains a reserved matter in the UK, Scottish Natural Heritage noted the significance for Scotland of this development and suggested that, given the importance of renewable energy in Scotland, this may be an area the Scottish Parliament might wish to monitor.24

124. EDF Energy commented that the Treaty is an important step towards the development of a strong, European-wide energy policy framework and suggested that the Treaty would provide a stronger legislative base for EU measures on security of energy supply, renewable energy, energy efficiency and interconnection. EDF Energy also welcomed the recognition of climate change in the Treaty, commenting that it was an issue that could not adequately be tackled solely at the national level.25

125. Professor Drew Scott from the University of Edinburgh also drew the Committee’s attention to the new competences of climate change and energy suggesting that the inclusion in the Treaty of broad general statements on energy policy and climate change would give the Commission the legal basis on which to publish specific proposals for action. He considered that any legislative instrument that opened up a market or changed the conditions in which a market operated was bound to have an economic consequence. He also suggested that these two areas were of acute interest to the Scottish Government and to the people of Scotland.26

126. The Committee recognises that the extension of competence to include climate change and energy may have significant implications for Scotland. The Committee recommends that the Scottish Parliament’s Economy, Energy and Tourism Committee monitors the developments in legislative proposals for energy and climate change.

Territorial cohesion

127. In written evidence, COSLA noted the inclusion for the first time of Territorial Cohesion as an EU objective in the Treaty. According to COSLA:

“This new Treaty objective has profound implications at a time where there are emerging concerns about the EU Budget Review and the future of EU funding available for local communities in Scotland post 2013. The new objective provides a legal basis to argue that EU funding to those local areas where it can provide added value shall be made available. EU Cohesion, Rural Development etc are not just one-off programmes but in different shapes and forms, EU funding should be made available to support and address the gaps in the functioning of the EU internal market.”27

128. The Committee recognises that the extension of competence to include territorial cohesion may present opportunities for Scotland which merit further examination. The Committee undertakes to monitor developments in this area.

Supporting competences

129. The Treaty of Lisbon provides the European Union with supporting competence in a number of new areas (see Annexe C). This allows the EU to “carry out actions to support, coordinate or supplement the actions of Member States” (Article 6 TFEU).

130. The EU has ‘supporting’ competence in the areas of research, development cooperation and humanitarian aid, protection and improvement of human healthcare, industry, culture, tourism, education, professional training and youth and sport, civil protection and administrative cooperation. Supporting competence specifically excludes the harmonisation of laws and regulations of member states.

Sport

131. Article 165 of the Treaty sets out a new area of competence for the EU concerning education, vocational training, youth and sport. Sport Scotland considered that this provided the EU with the legal basis to take action to support, coordinate or supplement the activity of member states in respect of sports policy and, in doing so, recognised the role that sport could play in forging both national and European identity and bringing people together. For Sport Scotland, the most significant implication was the introduction of a competence for sport, which recognised the benefits of sport in its own right and therefore raised the profile of sport in European politics. Sport Scotland considered that this had the potential to improve opportunities for joint working between EU member states and regional parliaments, as well as increase sources of funding for sport at EU level, and enhance debate and recognition around sporting issues. In its written submission, Sport Scotland stated that a legal basis for sport was also likely to provide a more solid foundation for political exchanges, which may include the establishment of a formal Council of EU Ministers of Sport.28

Culture

132. In relation to the extension of EU competence in the area of culture, the Scottish Arts Council (SAC) noted that culture was a devolved matter and, as such, it was necessary that a strong relationship be maintained between MSPs and MEPs to ensure that Scotland’s policies, issues and priorities regarding culture were reflected at a European level.

133. In written evidence the SAC noted that the Union would have exclusive competence in the area of commercial intellectual property as included in the common commercial policy. The SAC considered that strengthening links between MEPs, MPs and the Committee offered an opportunity to share and disseminate the opportunities, or challenges, that changes in European policy may present for Scottish creative practitioners.

134. The SAC also referred to Article 16(2) of the Treaty strengthening the Union’s powers to change data protection laws in the future and highlighted that it was important that public bodies be alerted as soon as possible to any possible changes to legislation relating to the protection of the processing of individuals personal data.29

Education and skills

135. Youthlink Scotland, commenting on Article 6(e), stated that it was broadly supportive of this area of action considering that it had the potential to create and expand opportunities for young people and those who worked with them to develop cross-European initiatives and to participate in EU-wide programmes.30

136. School Leaders Scotland provided a general welcome for the new provisions in the light of the growth of international education in skills and the huge increase in the numbers of pupils from different parts of the EU in schools and the emphasis on supporting, coordinating and complementary action, especially in the fields of education, youth, sport and vocational training. However, some concerns were raised by School Leaders Scotland as to how the new supporting competence would operate as they considered it was inextricably linked to shared competences in the social policy area and specific Articles in the Treaty. 31

137. Skills Development Scotland (SDS) noted that in relation to SDS competence, little appeared to have changed in the Treaty. However, it stated that this did not suggest that there was room for complacency and suggested that it would be essential that, where devolved policy was being considered (for legislation or otherwise) by the EU institutions, Scotland could keep itself informed and capable of scrutinising such activities.32

Healthcare

138. The NHS European Office commented on the extension of supporting competence to the protection and improvement of human healthcare suggesting that, though the office noted a greater emphasis on cross-border action in the text, it did not consider that there had been significant change in competence in the area of public health. Nevertheless, and independent of Treaty changes, the office observed a trend of increasing EU activity in this area, and stated it would be interesting to observe future developments in the context of Article 168 TFEU.33

139. The Committee notes that supporting competence has often preceded the emergence of shared competence in the EU context. The Committee considers that the trend towards extension of supporting competence is both significant and is of importance to Scotland and the Scottish Parliament. As many areas of supporting competence are devolved or have significant devolved interest, the Committee undertakes to monitor developments in these areas. The Committee notes again that, should the EU begin to legislate in areas of supporting competence, the UK Government and not the Scottish Government would negotiate any legislation at EU level even when such legislation impacted upon areas of devolved competence.

Chapter 2

Implications of the key changes to institutional and decision-making powers at the EU level

Key changes to the functions and powers of the European institutions

The European Parliament

140. Under the Treaty, the European Parliament is responsible for exercising legislative and budgetary functions jointly with the Council.

141. The key change for the European Parliament as a result of the Treaty of Lisbon is the extension of OLP. As detailed later in this report, OLP has been extended to 40 new areas of legislation. In addition, the Treaty restricts the number of Members of the European Parliament to 750 plus the President.

142. There was general consensus in the evidence that the European Parliament was strengthened by the Treaty and that this had significant implications for the EU legislative process and for relationships between domestic executives and legislatures and the European Parliament.

143. Joint decision-making between the Council of Ministers and the European Parliament, has become the standard mode of decision-making. This is now known as OLP. The European Parliament will also now play a key role in the election of the President of the Commission on a proposal from the European Council as it has the power to endorse (or not) the proposal.

144. According to Professor Florian Becker the newly introduced budgetary procedure of Article 319 of the TFEU gaves the European Parliament and the Council of Ministers equal rights in adopting the budget of the EU. The participation of the European Parliament in the endorsement of the College of Commissioners provided for an increase of legitimacy and democratic accountability of the Commission. The maximum number of seats in Parliament is reduced from 785 to 750 in order to enhance the efficiency of parliamentary procedures.34 Professor Florian Becker stated:

“In recognition of the strengthened role of the European Parliament and the increased status of national parliaments in the Treaty, the European Parliament has detailed a series of current and prospective measures for enhancing collaboration between national parliaments and the European Parliament. These include: enhanced pre–legislative dialogue; joint parliamentary meetings; regular joint committee meetings; inter-parliamentary meetings at the level of committee chairs; cooperation at parliament chair level; visits by national parliaments to the European Parliament to take part in meetings of corresponding committees; meetings of political groups or parties at European level; the creation of a permanent network of corresponding committees; meetings of chairs of specialised committees; the invitation of MEPs once a year to speak in plenary sessions of European Affairs committees. No reference is made to how these measures will apply to the parliaments of devolved bodies with legislative powers.”35

145. In written evidence, Catherine Day, Secretary-General of the European Commission, emphasised the extended role of both the European Parliament and national parliaments. She suggested that the Treaty strengthened the democratic control of the European Union, with a stronger role for both the European Parliament and national parliaments:

“…it generalises, with some exceptions, the codecision procedure (now ordinary legislative procedure) and thus extends the areas where the European Parliament takes a greater role in legislative matters. At the same time, the new Treaty recognises the central importance of national parliaments in the democratic fabric of the EU, by making clear for the first time that “national Parliaments contribute actively to the good functioning of the EU” and by introducing a number of specific new procedures, including the subsidiarity check mechanism set out in Protocol 2 of the Treaty.” 36

146. Mario Tenreiro, from the European Commission, emphasised the sensitivity in the Treaty to the ‘regional’ dimension.37

147. The Committee recognises the strengthened role of the European Parliament and the increased status of member state parliaments but stresses that it will be important to take account of the regional and local dimension.

The European Court of Justice

148. The European Court of Justice is responsible for ensuring that the Treaties are respected by member states. In addition it is responsible for ensuring that member state law is compatible with European Union law and for ensuring that European law is interpreted consistently across all 27 member states.

149. The Treaty extends the jurisdiction of the European Court of Justice. In written evidence to the Committee, Professor Florian Becker stated that the Court of Justice now had jurisdiction for all actions taken by the EU, except in the area of foreign affairs and security policy.38 The LSS stated:

“Under the Lisbon Treaty the European Court of Justice gains full jurisdiction in the area of freedom, security and justice rather than being limited to preliminary rulings in relation to those Member States which have chosen to confer jurisdiction on it. Enhancing the role of the European Court of Justice should facilitate consistency, clarity and legal certainty“39

150. Article 263(4) of the TFEU states that any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

151. Sir David clarified the position for the Committee stating that:

“For this purpose, both the Scottish Parliament and the Scottish Government would count as “persons” with a right of action. It isn’t easy, in the abstract, to envisage circumstances in which the Scottish Parliament or Government could, or would, take action under Article 263(4). But it is conceivable that measures in the field of FSJ might be so completely incompatible with the working of the Scottish legal system that the Scottish Parliament or Government would want to contest it.”40

152. He gave the example that measures taken under Article 86 to set up a European Prosecutor’s Office might be incompatible with the status and functions of the Lord Advocate. Sir David also stated:

“One would expect that, in such a case, the necessary steps to block the measure would already have been taken by the UK government. But assuming that all other attempts to block the measure had been tried and failed, it is possible that the Scottish Parliament or Government could sue under Article 263(4) to seek its annulment.41

153. The Committee notes that the jurisdiction of the European Court of Justice has been extended to all actions taken by the EU, except in the area of foreign affairs and security policy.

154. The Committee notes that the Scottish Parliament or the Scottish Government could take action under Article 263(4) against an act or against a regulatory act which is of direct concern to them and does not entail implementing measures.

The European Commission

155. According to Article 17 (TEU):

“The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union’s external representation. It shall initiate the Union’s annual and multiannual programming with a view to achieving interinstitutional agreements.”42

156. The European Commission is recognised in the Treaty as being the primary initiator of European legislation.

157. According to the Treaty, from 2014 the number of commissioners shall be two thirds of the number of member states. This would mean under the current membership 18 commissioners with each member state having a commissioner for two out of three Commission terms.

158. The role of the European Commission as ‘engine’ of European integration is confirmed in the Treaty and the role of Commission President is strengthened in relation to the College of Commissioners.

159. According to the LSS:

“…the shift of emphasis in the right of initiative in legislating in this area to the Commission and away from member states (subject to certain exceptions) can only help increase the possibility of coherent and high quality policy-making and help to avoid the potential pitfalls of a system where policy proposals can be largely driven by issues problematic for only certain member states. Moreover, the European Commission will be better placed to take into account other relevant Community policies such as those arising in fields of activity like social policy, equality policy or external relations. “Unlike the Member States, the Commission has the explicit role of ‘guardian of the treaties’ and can be held to account both by the European Parliament and European Court of Justice if it fails to give due weight to the rights of individuals as set out at a European level.”43

160. The first Commission to be sworn in following ratification of the Treaty comprises one commissioner from each member state. Professor Florian Becker detailed the changes that will take place after 2014 and the implications of them, stating that, from November 2014, the number of members would be reduced to the number corresponding to two thirds of the member states, (Art. 17(5) TEU). He explained that the reduction of commissioners was intended to ensure the efficient functioning of the Commission; however, this change also meant that, in the future, not all member states would be in the position to nominate a commissioner at all times. This situation would be addressed with a system of equal rotation.44

161. The Committee notes that the role of the European Commission as ‘engine’ of European integration is confirmed in the Treaty and the role of Commission President is strengthened in relation to the College of Commissioners. From November 2014 on, the number of Commissioners will be reduced to the number corresponding two thirds of the member states.

162. The Committee notes the view of the LSS that a greater legislative role for the Commission should ensure better EU legislation.

The Council of Ministers

163. The Council of Ministers is made up of representatives from member state governments. Under the Treaty of Lisbon most decisions to be taken in the Council of Ministers will be by qualified majority vote. Exceptions to this include foreign affairs, tax and social policy, where unanimity will still be required.

164. The process of decision-making in the Council of Ministers has undergone some significant changes in the Treaty. Professor Florian Becker confirmed that unanimity was no longer necessary in most of the decisions taken by the Council of Ministers, except in sensitive areas like Foreign, Tax or Social Policy as well as when the Treaties are changed. He explained:

“This change simplifies the process of decision-taking within the Council against the background of a growing Union. He suggests that from 2014 on, the principle of double majority will be the rule in decisions taken by the Council. Accordingly, in order to come to a 55 per cent of the Member States have to assent which at the same time represent 65 per cent of the population of the European Union.”45

165. The Committee notes that the process of decision-making in the Council of Ministers has undergone some significant changes. Unanimity is no longer necessary in most of the decisions taken except in sensitive areas. Taxation, social security, most aspects of foreign policy, the common defence policy, operational police cooperation, the European Public Prosecutor, family law, enlargement to new members, the finances of the Union, citizenship and certain institutional issues, for example, electoral systems and the linguistic regime, remain subject to unanimous vote.

The Committee of the Regions

166. In addition to the institutional changes identified above, a number of submissions highlighted the changes in the powers of the Committee of the Regions which may be of significance for Scotland. The European Parliament noted that the Committee of the Regions would be able to bring cases before the Court of Justice of the European Union; its members' term of office would be increased to five years (to match the mandates of the European Parliament and European Commission); and its relations with the European Parliament would be defined more clearly.46

167. COSLA also drew attention to the changed role of the Committee of the Regions (CoR) confirming that, in addition to bringing an issue to the European Court of Justice to protect CoR prerogatives, the CoR can challenge alleged EU infringement of the principle of subsidiarity. COSLA considers that, in practice, this should mean that the CoR will enjoy the same rights as the European institutions. In preparation for this future scrutiny role, a subsidiarity monitoring network has been set up between CoR and the Brussels offices of local government associations. The European Parliament is now formally required to consult the CoR alongside the Council of the European Union and the European Commission (thereby formalising the current practice of CoR-European Parliament cooperation).47

168. COSLA suggested that cooperation between COSLA and MSP CoR members should be reinforced in the future for matters of common devolved interest, from policy coordination in CoR opinions as well as actively substituting each other, wherever possible, in CoR official meetings.48

169. The Committee notes that the Committee of the Regions will be able to bring cases before the Court of Justice of the European Union, its members' term of office will be increased to five years and the European Parliament is now required to consult the Committee of the Regions alongside the Council of the European Union and the European Commission.

Implications of changes to decision-making powers at EU level

Extension of ordinary legislative procedure into new and devolved areas

170. The codecision procedure was introduced by the European Union in the Maastricht Treaty of 1992. It gave the European Parliament joint legislative rights with the Council. The Amsterdam and Nice treaties saw the number of areas covered by codecision extended so that around 80 per cent of all EU legislation was decided that way. Under the Treaty of Lisbon this procedure is renamed the ordinary legislative procedure and its application is extended to a further 40 new Articles. A number of these articles refer to areas of devolved competence. For example, the area of freedom, security and justice, agriculture, fisheries, structural funds, sport and tourism.

171. Professor David Judge highlighted the significant expansion of OLP under the Treaty. He stated:

“Some 85 legal bases (activity areas) are now encompassed by the OLP, nearly double the number of areas covered under the Treaty of Nice, and which now cover some 95 per cent of EU legislative activity. This includes areas where the EP formerly only had a right of consultation (most notably agriculture and fisheries, freedom, security and justice, judicial matters, liberalisation of services in specific services, and cooperation with third countries); areas in which the EP had no previous involvement (such as common commercial policy); and new policy areas, (for example, measures to support crime prevention, incentive measures for public health, energy, civil protection and tourism) Several of the areas now encompassed by the OLP – most notably justice and security, judicial matters, agriculture and fisheries, and tourism – are major devolved competences of the Scottish Parliament.”49

172. The shift to more extensive use of OLP was welcomed by Professor Florian Becker as leading to an improvement in legitimacy and democratic accountability of the decisions taken in those areas.

“Before the Treaty came into force, decisions in those areas were taken by the Council of Ministers whereas the European Parliament only had to be consulted. Codecision thus creates a level playing field between the European Parliament and the Council of Ministers. COSLA also states that the generalisation of codecision would have a positive impact in Scotland due to the enhanced influence that this means for the Scottish MEPs and CoR members.”50

173. In the Scottish Government’s written submission, Donald Henderson stated that the extension of OLP would help increase opportunities for the Scottish Government to influence the European Parliament as well as Council on new legislative frameworks proposed by the European Commission.

“As 90 per cent of all EU legislation is now co-decided with the European Parliament (EP) and any proposed legislative framework from the Commission will require both Council and EP agreement. This will have particular impact on the areas of fisheries, agriculture and justice and the ways in which officials engage with the EU Institutions.”51

174. The LSS considered that one of the concrete benefits of the reforms under the Treaty is the transfer of criminal law and policing to OLP. The LSS suggested that this should provide consistency in the framework for law-making in this area and therefore in transparency and comprehensibility.52

175. The Committee considers that the ordinary legislative procedure should enable the Scottish Parliament to make representations directly to the European Parliament in a greater number of policy areas.

176. The Committee notes the Scottish Government’s recognition that the increased powers for the European Parliament will have a significant impact on the Scottish Government’s EU engagement. The Committee will monitor the Scottish Government’s ongoing engagement with European Parliament Committees as part of its scrutiny of the Scottish Government’s EU priorities.

Implications for fisheries

177. In written evidence to the Committee, the Scottish Fishermen’s Federation (SFF) stated that the most significant change for Scottish fishing as a result of the Treaty was the extension of OLP to cover fisheries. The SFF pointed out that this now applied to all matters of fishery regulation except the setting of total allowable catches (TACs and quotas) and effort control (days at sea) – collectively known as “fishing opportunity”.

178. The SFF highlighted the immediate practical implication for the Scottish fishing industry of the overall process, i.e. the opinions of the European Parliament and in particular those of the Fisheries Committee would become considerably more relevant. The SFF believed that this increased the importance of (a) tracking carefully the activities of the Fisheries Committee and the Parliament and (b)lobbying the individuals concerned to influence their decision-making in favour of the interests of Scottish fishing. The SFF noted that, while this demanded extra effort from “an already stretched representation”, it also created an extra opportunity to influence. The SFF considered that the “balance of benefit” would “only become clear with experience”.53

179. The SFF welcomed a further potential outcome of the shift to OLP namely a reformed CFP to be in force by 2013, with the consultation having begun in early 2009. The SFF stated that the current policy had been “consistently criticised for excessive central micromanagement” and the most commonly offered remedy was “decentralisation”. The SFF considered that the move to OLP would make it considerably more difficult than before for the Union to engage in “complicated and detailed central prescription”. The SFF added that this could have the effect of encouraging or incentivising devolution of responsibility for detailed management more closely to the stakeholders regionally or locally: “The fishing industry of Scotland has long advocated this and has sought to demonstrate with practical actions its benefits”.54

Implications for agriculture

180. The National Farmers Union for Scotland (NFUS) commented that the main implication of the extension of OLP to cover agricultural policy and budgets was a requirement for Scottish industry, the Scottish Government and the Parliament to deal much more closely with MEPs. The importance of the distinct nature of Scottish agriculture in driving engagement with the EU was noted. The NFUS considered that it would be increasingly critical that Scotland’s view was heard in Brussels, particularly as the agricultural industry in Scotland was very different compared to other parts of the UK and EU – for example, 85 per cent of Scotland being classed as a Less Favoured Area (i.e. facing particular disadvantage) compared to only 14 per cent in England). The NFUS stated that ensuring policy priorities reflected the distinct industry dynamics in Scotland was critical.

181. The NFUS noted a similar dynamic in the agricultural sector where they refered to attempts to secure agreements on the Common Agricultural Policy becoming more difficult as the EU had expanded to encompass 27 member states. The NFUS considered that:

“... full codecision powers for the Parliament in this area will add to the complexity. However, whilst timetables for agreeing reform are likely to lengthen, the trend of the policy recently has been to allow greater flexibility on implementation. This is an obvious symptom of the increasingly difficult task in agreeing a ‘one-size-fits-all’ policy. Whilst greater flexibility over implementation at home could create market distortions across the single market, it could also be important for Scotland given agriculture here is unique in many ways and therefore requires particular policy tools. The strengthened emphasis behind the principles of subsidiarity should also help in this regard”.55

182. Linked to the responses from the NFUS and the SFF was the response from the Scottish Parliament’s Rural Affairs and Environment Committee (RAEC). RAEC stated that on codecision it:

“... would be keen to explore ways of developing further channels of communication with committees of the European Parliament, specifically the AGRI and PECH Committees. This would clearly be beneficial as an additional means of seeking to ensure that the Scottish perspective is taken into account during deliberations on draft European legislation.”56

183. The RAEC considered that one option for developing stronger relations with committees of the European Parliament would be holding bi-annual meetings with MEPs in a roundtable format to discuss policies of relevance to the Committee.

184. The Committee considers that the extension of OLP offers significant opportunities for Scotland. Both the Scottish Parliament and the Scottish Government consequently need to explore channels of communication with the European Parliament – including European Parliament rapporteurs and committee chairs, CoR rapporteurs and committee chairs, engaging with existing networks in Brussels, development of the Scottish Parliament’s early warning and horizon-scanning mechanisms via its Brussels office, the Commission’s Work Programme and at the earliest stages at official level ensuring that the Scottish Parliament has the information and capacity to act.

Parliamentary scrutiny of ordinary legislative procedure – first reading deals and the use of informal trilogues

185. In theory the extension of OLP to further policy areas should be a good thing for member state parliaments and devolved parliaments with legislative powers as it provides them with a further route of influence into the legislative process (by working with Members of the European Parliament). However, evidence from both UK Houses of Parliament suggested that the increased use of OLP might not achieve this.

186. Both the House of Lords EU Select Committee and the European Scrutiny Committee of the House of Commons cautioned against an over-optimistic interpretation of the role of national parliamentary scrutiny in relation to OLP. The process of agreeing legislation under the ‘ordinary legislative procedure’ through ‘first reading deals’ and the issue of ‘informal trialogues’ were raised by both committees. The European Scrutiny Committee of the House of Commons stated that shortening the number of readings to which a proposal was subjected inevitably reduced the number of opportunities for national parliamentary scrutiny. It could also accelerate the legislative process at the expense of effective scrutiny. The Committee stated that it was particularly concerned about the use of “informal trilogues”, a forum for confidential and binding negotiations, in first reading deals:

“…informal trilogues consist of a representative of the relevant European Parliament committee (usually the rapporteur), the Commission, and the Presidency – no other Member State is present. So it is difficult for governments to follow the course of trilogue negotiations and to feed in their views, let alone inform national parliaments when to do so. It is also difficult for the Council and the European Parliament to change a text agreed in an informal trilogue. In practice, we are often not told of trilogue changes until too late – once the negotiation is concluded.” 57

187. Professor David Judge provided the Committee with an indication of the scale of this fast-track procedure and of its implications for Parliamentary scrutiny. He suggested that:

“…such a procedure holds considerable attractions for the main legislative institutions and serves to institutionalize informal interorganizational negotiations. Initially, first reading agreements were seen as being particularly appropriate for technical and relatively uncontroversial dossiers, but, increasingly, ‘politically urgent’ files have come to be adopted at an early stage. The Climate Action and Renewable Energy (CARE) package – agreed between the co-legislators in December 2008, and which became law in June 2009 – provides one example where legislation was fast-tracked in order for agreement to be reached (in this case in advance of the Copenhagen Summit).”58

188. The shift towards agreement at first reading stage had, by the end of the 2004-2009 (6th) Parliament, effectively become the norm for concluding codecision files. At that time, 72 per cent of 454 codecision files were concluded at first reading stage and, in the final session of that Parliament, 80 per cent of the sessional total (of 142 files) were concluded at first reading. Early second reading agreements also accounted for a further 10.8 per cent of concluded files (alongside 12.1 per cent of ‘normal’ second reading agreements’). Over the 6th parliament as a whole, only 5 per cent of files were concluded at third reading. This was in contrast to the 1999-2004 parliament in which just 28 per cent of the 403 codecision files were concluded at first reading, and 22 per cent received a third reading.59

189. In written evidence, the House of Lords referred to its report Codecision and national parliamentary scrutiny60in which it noted the extra difficulties of scrutinising dossiers that were subject to codecision, particularly because of the use of trilogues and the tendency to truncate the full legislative process with a first reading deal or early second reading deal. The report included recommendations for improvements to the scrutiny system at Whitehall-Westminster level to address these difficulties. The report noted that, should the Treaty come into force, these difficulties would be “magnified by the expansion of codecision into new areas: notably agriculture, fisheries and justice and home affairs.”61 The European Scrutiny Committee of the House of Commons stated that it would be inviting the UK Government to reflect on how to ensure that sufficient opportunity was given for effective parliamentary scrutiny of first reading deals.62

190. Professor David Judge noted that there were some aspects of the EU decision-making process that mitigated the negative effects of early reading deals and trilogue decisions. He stated:

“If the speed and intensity with which trilogues are conducted is identified as a problem for those seeking to track the progress of legislative files (whether national or sub-national parliaments, MEPs, national governments, NGOs, or lobbyists), the ‘problem’ is mitigated, in part, by the fact that, by the time of trilogue negotiations, the views of the main participants will already have been revealed in some detail. The respective stances of the institutions will have been identified publicly in Commission proposals, EP committee discussions, EP Hearings, committee reports and mandates. In this sense, trilogue discussions are conducted within the broad parameters of preceding discussions, so that those tracking the file will know the scope for ‘give and take’ in trilogues.”63

191. The Committee notes that the Treaty extends the ‘ordinary legislative procedure’ to 40 new articles covering some 95 per cent of EU legislative activity. Several of the areas now encompassed by the ordinary legislative procedure, most notably justice and security, judicial matters, agriculture and fisheries, and tourism, are major devolved competences of the Scottish Parliament.

192. The Committee shares the concerns of the House of Lords and House of Commons Committees in relation to legislative transparency and the need to ensure sufficient opportunity for parliamentary scrutiny of first reading deals.

193. The Committee considers that the extension of OLP will have particular impact on the ways in which the Scottish Parliament and Scottish Government engage with the EU Institutions.

Enhanced cooperation and the open method of coordination

194. The Treaty of Lisbon consolidates powers in the previous Treaty allowing a group of member states to agree legislation covering only those member states party to the agreement. The Treaty specifies that legislation cannot take place in areas of exclusive EU competence or under the Common Foreign and Security Policy. Whilst all member states are able to participate in any Enhanced Cooperation procedure, only those who take part have voting rights in the Council and are subject to the subsequent law.

195. The open method of coordination (OMC) provides an alternative procedure for cooperation between the member states which does not require binding legislation. National policies can be directed towards certain common objectives using this intergovernmental method. The member states are evaluated by one another (peer pressure), with the Commission's role being limited to surveillance. The European Parliament and the European Court of Justice play virtually no part in the OMC process.

196. The OMC takes place in areas which fall within the competence of the member states, such as employment, social protection, social inclusion, education, youth and training.

197. The Royal Society of Edinburgh (RSE) raised questions about the wider significance of the extended use of policy instruments such as the OMC for Scotland. The RSE noted that the Treaty constitutionalised provisions for the open method of coordination and for enhanced cooperation, potentially extending European influence into areas that had formerly been the preserve of member states and, in many cases, were the responsibility of the Scottish Parliament, for example social policy, education or research. “These mechanisms are largely intergovernmental, making the relationship between the Scottish Parliament and Government and the UK Government critical.”64

198. Professor Michael Keating also highlighted the potential future significance of instruments such as enhanced cooperation. He suggested that there may be differences between the UK and Scottish governments and parliaments about the areas in which they would like to proceed: “the open method of coordination, a largely intergovernmental process, which extends into areas of social policy that are the responsibility of the Scottish Parliament.”65

199. The Committee notes that the intergovernmental nature of the open method of coordination and enhanced cooperation procedures requires close relations with the UK Government to ensure that the Scottish dimension is represented.

200. The Committee notes the need to be vigilant in relation to the implications of the extended use of the open method of coordination in areas of devolved competence.

Protocol No 26 ‘On Services of General Interest’

201. Article 106 of the Treaty on the Functioning of the European Union states:

”In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Members shall neither enact nor maintain in force any measure contrary to the rules contained in the Treaties, in particular to those rules provided for in Article 18 and Articles 101 to 109.”66

202. Articles 18 and 101 to 109 refer to non-discrimination on the grounds of nationality and competition rules.

203. Protocol 26 on Services of General Interest allows member states to forego the rules set out in Article 106(1) in the event that “the essential role and wide discretion of national, regional and local authorities in providing, commissioning and organising services of general economic interest as closely as possible to the needs of users.

204. This provision may have significant implications where Scottish and UK interests did not coincide and should particular Scottish services be classified as being of general economic interest. COSLA welcomed the commitment to “enable local authorities to decide the best way of providing local services both individually and jointly”. Specifically, COSLA considered that the Protocol could ensure that the European Commission adopts a more consistent and proportionate approach to public procurement, by allowing more local flexibility in EU-wide tendering requirements.67

205. Commenting on Protocol 26, Sir David stated that:

“... it could be helpful in countering an excessively doctrinaire competition based approach to the provision of public services, particularly in the remoter parts of Scotland – e.g. ferry or postal services ... Protocol 26 does not amend Article 106(2) or remove public services from the scope of the competition and state aid rules. But there has been a tendency in the past, when applying those rules, to insist on “testing the market” in situations where, in reality there is no “market”; where there is no real prospect of cross-border competition from other Member States; and where, even if there were, the degree of market distortion is minimal.”68

206. Sir David suggested that it would still be necessary, when commissioning public services, to define and impose the “public service obligations” in an objective and transparent way, and to adopt transparent methods of funding them; to that extent, nothing had changed. He considered that the significance of Protocol 26 for Scotland was that it provided a “solid, treaty-based foundation for a pragmatic, non-doctrinaire approach to the economics of providing public services in outlying/less favoured areas.”69

207. The Committee welcomes the recognition of the need for discretion in providing public services. The Committee considers that protocol 26 could be particularly helpful in the provision of services in the remoter parts of Scotland.

208. The Committee draws the attention of the Scottish Government to the potential room for manoeuvre in commissioning services of general interest under Protocol 26.

The “Citizens’ Initiative”

209. The European Citizens’ Initiative is an innovation of the Treaty of Lisbon, aimed at increasing direct democracy in the European Union. The initiative enables one million EU citizens, who are nationals of a significant number of member states, to call directly on the European Commission to bring forward an initiative of interest to them in an area of EU competence.

210. The subject of the citizens’ initiative must function within the boundaries of the existing European treaties and the powers of the European Commission.

211. The legal basis of the citizens’ initiative is set out in Article 11, paragraph 4 of the Treaty on European Union (TEU) and Article 24, paragraph 1 of the Treaty on the Functioning of the European Union (TFEU).

212. This Article gives citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. The “citizens’ initiative” allows no fewer than one million EU citizens to petition the European Commission on any area of policy covered by the Treaties (with certain caveats).

213. The West of Scotland Colleges Partnership (WoSCoP) referred to Article 11 of the Treaty on European Union in its written evidence. According to WoSCoP, the “citizen’s initiative” offered “an opportunity for devolved regions and nations and smaller member states to complement and supplement the role of MEPs, the European Council and member states’ government mechanisms to engage, directly, in informed communication and dialogue with European institutions in order to impact on European policies, priorities and programmes.”70

214. WoSCoP considered that “Article 11 should provide added dynamism to the development and implementation of a more coherent, inclusive and joined up mechanism for bringing together the diversity of Scottish interests and expertise in the domain of European policy, priorities and programmes.” WoSCoP urged the Scottish Parliament to encourage the Scottish Government to maximise benefits of Article 11 of the Treaty by committing itself to building upon existing (Scottish) good practice and effective arrangements for engaging with representative associations in Scotland.71

215. The NFUS, however, sounded a note of caution on the implications of Article 11. It stated that, whilst there was “no compulsion for the Commission to act”, it would “have to answer to the Parliament” if it did not. It added that there were “inherently controversial areas in agricultural policy, like all other policy areas; issues relating to animal welfare and biotechnology for example.”72

216. The Committee welcomes the scope for enhanced engagement offered by Article 11. The Committee understands that there is a Commission Communication which begins to set out how the provisions contained in Article 11 will operate but notes that as yet there is little evidence as to how this will work in practice. The Committee will wish to monitor the development of this initiative.

Implications of the changes for the Scottish Parliament and the Scottish Government

217. The changed institutional powers generated significant consensus in the evidence on the need to establish internal and external mechanisms to facilitate the establishment of an early-warning system or a system of horizon-scanning. The changed institutional dynamics created by the Treaty have highlighted the importance of the European Parliament and potentially the Committee of the Regions as sources of potential collaboration or influence. The need for robust mechanisms for engaging with executives and legislatures at the Scottish, UK and EU level and to allow effective parliamentary scrutiny to take place is again highlighted. The prospects for new and promising partnerships and networks through which influence might be pursued were also raised.

Implications for the role of the Scottish Parliament

218. Sir David highlighted the importance of a careful and judicious deployment of resources:

“Scotland is a small country; it does not have vast resources and we must make economical use of the resources that we have. Therefore, the closest possible cooperation between the Parliament, the Scottish Government, the resources in Brussels, the Scotland Office and UKREP is important”.73

219. However, Sir David added that it was important for the Scottish Parliament to maintain an independent view, stating that, although the Parliament “must avoid doing double work and must use the resources that are available”, it nevertheless must also “maintain an independent view and take an independent position”. Linked to this, he suggested that it was important that the Parliament kept itself informed of EU issues and did not just rely on others to flag issues up.74 This view was echoed by professors Scott, Judge and Keating when they gave evidence to the Committee.

220. Michael Clancy from the LSS summarised the situation with regard to the effect of the extension of OLP on the Scottish Parliament:

“The ordinary legislative procedure should enable the Scottish Parliament to make representations directly to the European Parliament. For me, that would certainly be a significant change to the way that things are done at the moment—it is very likely that it could result in some satisfactory change. From a legal perspective, there are issues about the loading on the European Parliament's relevant committees, because no Scottish MEP sits on the Committee on Legal Affairs or the other committee that deals with justice matters, which means that there is no natural linkage. However, that should not stand in the way of the Parliament making direct representations to the European Parliament and exercising this new democratic transparency.”75

221. Closer working with Scotland’s MEPs was highlighted by most witnesses as being necessary as a result of the extension of OLP. The evidence suggested that the Scottish Parliament and the Committee should work closely with Scotland’s MEPs and the Scottish Parliament should also target rapporteurs for particular pieces of legislation and chairs of specific subject committees of interest to Scotland such as the AGRI and PECH Committees. In addition, it was suggested by Professor Judge that the Scottish Parliament should engage with MEPs from across the EU in order to get a different perspective.76

222. In his written submission Professor David Judge provided a range of specific suggestions for Scottish Parliament engagement at the EU level:

  • “More direct engagement between national parliamentarians (along with national governments) with the EP’s rapporteurs and other members of the negotiating team during the OLP process. There are, of course, practical limits upon the capacity of EP negotiators to brief representatives from national and regional parliaments during the course of rapid codecision negotiations, and of national MPs to absorb and act upon such information expeditiously.”

  • “Increasing the monitoring activities of the Brussels Offices of national and sub-national parliaments (for example, the European Officer of the Scottish Parliament and the UK National Parliament Office) in tracking progress on appropriate EU legislative proposals.”

  • “Increased contacts between national and sub-national MPs and MEPs from other member states.”

  • “More interaction of elected representatives at national and EU level in political party or political group networks. The EPP, for example, has established a network for its MEPs and national MPs to exchange ideas and gain a greater understanding of their respective positions in relation to EU policies.”

  • “Making greater use of the Interparliamentary EU Information Exchange (IPEX). IPEX provides a database of scrutiny documents generated by national parliaments which enables the rapid exchange of information about the progress of legislative files.”

  • “Building upon the EP Resolution of 7 May 2009 and the Lisbon Treaty’s Protocol on National Parliaments, to encourage participation in joint committee meetings and hearings to enhance the transmission of information between parliamentarians, and so seek to influence legislative decisions processed under OLP. There is an increasing recognition by MEPs and national and sub-national MPs that ‘it is only by joining forces that they can enhance parliamentary scrutiny of the executive at both Union and Member State levels’.”77

Implications for the Scottish Government

223. In relation to the overall change in institutional structures as a result of the Treaty, the Scottish Government concluded:

“In terms of the changed institutional structure, the increased powers for the European Parliament will also have a significant impact on the Scottish Government’s EU engagement. Changes to legislative procedures, including Comitology procedures and the extension of Qualified Majority Voting, to enforcement with accelerated infractions proceedings, and new legal rights of the Committee of the Regions may also have a significant impact on the way we carry out our EU business.”78

224. The Scottish Government stated that, under the Treaty, it had become even more important for regular and effective engagement between the UK and devolved administrations, including the UK Permanent Representation to the EU (UKRep), to ensure Scottish Government positions were considered and understood fully, for example around the FSJ opt-ins and on any subsidiarity mechanism:

“The Scottish Government has made efforts to ensure Scottish interests are fed into the UK policy process - formally and informally – for example through constant contact between policy officials, through Scottish Ministers’ efforts to influence UK positions at Council meetings, through the Joint Ministerial Committee (JMC) machinery, and on the ground in Brussels through the Scottish Government’s office in Brussels.”79

225. It was explained that Scottish Ministers, the Government’s Brussels Office and Scottish-based officials had regular engagement with Commission, MEP and Council representatives. The Scottish Government considered that this engagement was shaped by EU business as it emerged:

“It is important to make any engagement as early in the policy development process as possible in order to increase our influence in the debate, and the changes under the Treaty make this even more crucial. The Scottish Government contributes to formal UK consultation exercises which follow Commission proposals, although Scottish views are not always fully articulated in the final UK response. The Scottish Government also responds independently to proposals that are of particular importance to Scotland....”80

226. The Scottish Government stated its intention to ‘step up’ direct engagement with the European Parliament.

227. Donald Henderson suggested that the role of the European Parliament and the extension of OLP was the area where the Treaty brought about the biggest change to the Government’s day-to-day engagement in Brussels – with the extension of OLP into areas crucial to Scotland, such as agriculture, fisheries and justice.81

228. Donald Henderson suggested that the Scottish Government was seeking to develop a closer relationship with the Scottish MEPs in order to help exert influence on legislation and was shifting from a sole concentration on Scotland’s MEPs to engaging much more with non-Scots MEPs:

“... particularly conveners and rapporteurs—on subjects that are of key interest to us. On fisheries, agriculture and financial services, we have regular engagement with rapporteurs and/or conveners…partly because of the major shift in the role of the European Parliament, particularly on agriculture and fisheries…”82

The need for enhanced scrutiny of EU business

229. The evidence submitted to the inquiry was consistent in recognising the need to develop mechanisms that allowed for the enhanced scrutiny of EU business at all stages of the process including (a) ‘upstream’ setting of the agenda; (b) the development of an ‘early-warning system’ or ‘horizon-scanning’ to identify legislation in the pipeline; (c) the scrutiny of draft legislation by the relevant committee; and (d) the ‘downstream’ monitoring of the implementation of legislation) - in relation to all levels of legislative activity (Scottish, UK and EU); in relation to both executive and legislative bodies at all three levels, and in relation to both horizontal issues of European engagement and policy-specific legislation.

Implications for enhanced engagement and scrutiny

230. In its written submission to the Committee, the RSE provided a detailed set of suggestions for enhanced engagement and scrutiny. The RSE proposed that, when considering the design of such mechanisms, the Committee should examine its role in respect of how it related to other committees of the Parliament. It considered that internal systems had to be in place that would allow the relevant MSPs to scrutinise proposals and form an opinion quickly. Key to this approach would be effective “horizon-scanning” to ensure that the Parliament was aware of what was in the legislative pipeline (or even under preliminary discussion) at a very early stage, before it was too late to intervene. The RSE considered that it was important to remember that, once a project reached the formal legislative stage in the EU system, it was “very difficult indeed to change the thrust of the proposal.” The RSE suggested that, while the two should work in conjunction, the Scottish Parliament should not rely principally on the Scottish Government to report upcoming issues of importance to Scotland that are being discussed at EU level. It should instead consider its own resources and aim to bolster its own capacity for horizon-scanning, perhaps in conjunction with the UK Parliament, particularly the House of Lords.83

231. The RSE considered that effective contact with Scotland’s MEPs, and more widely with the European Parliament, would be indispensable in monitoring developments at European level, particularly in light of the significant extension of areas in which decision-making would now be subject to OLP:

“Consideration should be given as to how these relations can be developed and formalised.”84

232. The RSE also stated that European cooperation was increasingly moving toward working in consensual and coordinated ways so opportunities for Scotland could come from being in the right place at the right time and having the right networks. The Scottish Parliament should look to build relations with other devolved parliaments in order to learn from and share their experiences and to build alliances that will strengthen their presence in European networks.85

Upstream – early scrutiny and intelligence gathering

233. Extensive evidence was presented to the Committee on the need for early scrutiny and intelligence gathering at the earliest stages of EU policy-making, before the stage of legislative proposals and explanatory memoranda. Mario Tenreiro from the European Commission told the Committee that:

“…the Commission is an open body. It is there for citizens in general and clearly for regional and local authorities to engage in dialogue with, when appropriate, when responding to consultations, and it takes requests into account…” 86

234. Michael Clancy told the Committee where the LSS thought engagement should be targeted. He asserted that anyone who dealt with European legislation or the European institutions knew that, by the time a proposal became a green paper, thoughts were “fairly well formulated” and it was “quite difficult to dissuade people from a particular perspective”, so representations needed to be made “at the earliest opportunity”:

“As soon as there is sensitisation about a proposal coming down the track, he considered the Scottish Parliament ought to be getting involved with Commission officials to discuss with them areas that might be of concern to the Scottish legal system and to identify the issues which they should take into account when preparing the consultation paper that is to follow. He stated that in that sense, the Parliament's initiative in having an officer in Brussels is extremely commendable”. 87

235. Professor David Judge reinforced the need to secure early intelligence suggesting that, when scrutinising EU legislative dossiers, national and sub-national parliaments had acknowledged the importance of ‘upstream thinking’; of not only understanding the substantive issues associated with Commission proposals but also of securing ‘intelligence’ about the developing and changing views of the co-legislators as files were progressed. He suggested:

“As national parliaments have long recognised, the pre-legislative stage, before the Commission formally submits its proposal to Council and EP, is vital to effective scrutiny. Under OLP this stage assumes even more importance. In which case national parliaments have been advised to engage more actively in pre-legislative scrutiny through examining the Commission’s Green/White papers, Annual Statements, and Communications; and to engage in pre-legislative discussions with counter-part committees in the EP.”88

Downstream monitoring

236. As well as early intelligence and ‘upstream’ scrutiny, a number of responses highlighted the continued importance of ‘downstream’ monitoring of the implementation process and of the impact of ongoing case law and judgements of the European Court of Justice. The Scottish Government referred to the importance of its responsibility for transposition of EU law and for any infractions.89 Some respondents commented on the need to monitor the development of particular fields such as FSJ, Article 11 and the citizens’ initiative, areas of supporting competence and instruments such as the open method of coordination and enhanced cooperation. The full impact of many measures in the Treaty was likely to emerge only over time.

237. The NHS European Office noted the impact of key European Court of Justice judgements in the health sector where the application of other parts of EU law to the health sector has also led to a number of unanticipated yet important developments. In particular, the enforcement of the ‘fundamental freedoms’ via case law of the European Court of Justice (ECJ) has had far-reaching implications for health policy-makers. The NHS European Office cited the example of the series of ECJ cases relating to patient mobility and cross-border healthcare which led to a Commission proposal for a Directive on patients’ rights in cross-border healthcare.90

Wider UK Engagement

238. The evidence consistently called for the development of robust mechanisms to ensure systematic and timely consultation of and engagement with devolved governments and parliaments. Lord Roper, Chair of the EU Select Committee of the House of Lords, stated that there was a need to ensure that the Scottish Administration was fully engaged with the relevant UK Government departments and with the UK Parliament on matters of civil and criminal justice and policing at EU level.91

239. In the written evidence, the RSE stated that the implications of the Treaty for extending the influence of the EU may lead to an increase in instances where Scottish and UK interests diverge.

“As neither the Scottish Parliament nor Government have constitutional access to the EU level it is important that robust mechanisms, principally in the form of consultation and negotiation, for communicating with both the UK Government and the UK Parliament be put in place.” 92

240. The RSE considered that the same applied to the European Parliament and, where appropriate, the national or regional parliaments of other member states and the Scottish Parliament should work closely with the Parliament’s counterparts in Wales and Northern Ireland in pressing for effective mechanisms to be set up that will allow for proper consultation.93

241. In his evidence, Lord Roper referred to the Conference of Community and European Affairs Committees of Parliaments of the European Union's subsidiarity pilot exercises (COSAC).94 Michael Clancy suggested that “it would be a good thing if COSAC were willing to allow one of its six UK delegates to be a representative of the Scottish Parliament or, if that proved not to be possible, some special relationship could be established between COSAC members and committee members to ensure that views could be regularly exchanged.”95

242. The Committee recognises the importance of engagement at all stages of the EU policy process: including ‘upstream’ setting of the agenda; the development of an ‘Early Warning System’ or ‘horizon-scanning’ to identify legislation in the pipeline; the scrutiny of draft legislation by the relevant committee; and the ‘downstream’ monitoring of the implementation of legislation.

243. The Committee recognises that this engagement needs to take place in relation to all levels of legislative activity (Scottish, UK and EU), in relation to both executive and legislative bodies at all three levels and in relation to both horizontal issues of European engagement and to policy specific legislation.

244. The Committee recognises it is important to make any engagement as early in the policy development process as possible in order to increase the Scottish Parliament’s influence in the debate.

245. The Committee notes that it currently engages in early analysis of emerging proposals via the annual scrutiny of the Commission’s Work Programme, discussion with subject committees, and monitoring of the Parliamentary priority areas via the Scottish Parliament’s Brussels office. In the past year the Committee has sought to promote a more active approach to early engagement, selecting strategic areas for engagement, using rapporteurs and working with the subject committees. Experience suggests that there are issues (of priority and workload amongst others) in seeking to encourage subject committees to undertake systematic early engagement and these will need to be addressed.

246. The Committee concludes that in order for the Scottish Parliament to be fully effective in engaging in Europe it, with support from its Brussels office, should have an increased role in early warning and horizon-scanning and the subject committees will have a significant responsibility for making early contact in their individual policy areas.

247. The Committee notes the significant consensus on the need to establish internal and external mechanisms to facilitate the establishment of an early-warning system or a system of horizon-scanning. The Committee recognises the changed institutional dynamics and the importance of the European Parliament and potentially the Committee of the Regions as sources of potential collaboration or influence. The Committee supports this view.

248. The Committee agrees with the evidence suggesting the need for robust mechanisms for engaging with executives and legislatures at the Scottish, UK and EU level to allow effective parliamentary scrutiny to take place and the Committee considers that there could be further scope for new partnerships and networks through which influence might be pursued.

249. The Committee recognises the need to engage with the European Commission and European Parliament, Committee of the Regions rapporteurs and committee chairs, existing networks in Brussels, the development of the Scottish Parliament’s early warning and horizon-scanning mechanisms via the Commission’s Work Programme and Brussels office and at the earliest stages at official level ensuring that the Scottish Parliament has both the information and capacity to act.

250. The Committee welcomes the Scottish Government’s emphasis on early engagement and will monitor the development of its approach in seeking to build relationships with the Scottish MEPs, and conveners and rapporteurs on subjects that are of key interest to Scotland.

251. The Committee highlights the potential value of closer working with the European Parliament and the need to develop closer working relationships between the Scottish Parliament’s subject committees and the European Parliament. The Committee recommends that the Scottish Parliament should seek to engage more systematically with the Scottish MEPs, should target rapporteurs for particular pieces of legislation and Chairs of specific subject Committees which are of interest to Scotland and should seek to engage with MEPs from across the EU.

252. The Committee has considered a number of options for improving the link with MEPs, including an ‘open door’ policy where MEPs could be invited to raise issues of concern for inclusion on the agenda of the European and External Relations Committee and speak to them. In addition the Committee proposes to create a regular item in its business for MEPs to update the Committee, and proposes an annual meeting (possibly in Brussels) to analyse jointly the European Commission’s annual Work Programme.

Scrutiny of the EU legislative process in the UK

253. Witnesses stressed the need to gather as much information as possible on legislative proposals and related matters. Leading on from this gathering of information, Professor Judge from Strathclyde University suggested that the issue is how the Scottish Parliament seeks to scrutinise the legislative process. In oral evidence he stated;

“In the past, the committee has rightly focused on the actions and priorities of the Scottish Government and has sought to identify and influence activity at an early stage. You need to get in early and identify what I think you call ‘early intervention issues’, on which the Scottish Government and the Scottish Parliament can have an impact. Then you can establish your reporting system and get evidence from ministers and stakeholders, which you feed into the European system. The issue is whether you then want to deal with legislative proposals in any great detail. That brings us back to the problem of who lodges explanatory memoranda and what you do with them. That takes you into the details of legislation, which are difficult for any Parliament.”96

The use of explanatory memoranda

254. Evidence questioned the use made by the Scottish Parliament of the Explanatory Memoranda produced by the UK Government on EU legislative proposals. Whilst no specific suggestions were made as to how the Parliament could make use of the memoranda there were some notes of caution. These included the suggestion that with 20 to 30 documents deposited each week it would be easy to become overwhelmed by documents. In addition, Professor Michael Keating from Aberdeen University suggested that EU legislative documents were “often moving targets” meaning that the explanatory memorandum was “often very different from the final piece of legislation.”97 This suggests a requirement for the Scottish Parliament to follow legislation throughout the process and not just engage at the explanatory memorandum stage.

255. In oral evidence, the Scottish Government stated that it was undertaking an internal audit of the explanatory memorandum system that should be available in May 2010 (Annexe D). In addition, the Minister told the Committee:

“I think that we need better tracking, which would involve the Scottish Parliament's being able to track what the Scottish Government has. The current tracking focuses only on what Westminster puts into the system. We must have a tracking mechanism that allows both the Scottish Government and the Scottish Parliament to know what is in the system.”98

256. Vanessa Glynn from the Scottish Government European Unit reiterated the need for “a judicious and proportionate system which would make best use of limited resources” suggesting that, although the unit wanted to audit the system, care was required not to set up mechanisms that were “disproportionate to the Parliament's needs” and “over and above” what was being provided by Westminster:

“We want to consider what is happening and we want to think about what value-added and resource-effective improvements we can make. It would be impossible for me to say what those might be until we have undertaken the audit.”99

257. The Committee welcomes the commitment of the Scottish Government to undertake an audit of its internal process for tracking and responding to explanatory memoranda (EMs). The Committee notes the submission provided by the Scottish Government and would welcome further discussion with the Scottish Government on the nature of reporting to the Parliament. As a minimum the Committee would anticipate receivingregular (monthly) reports from the Government identifying the EMs received by the Government and, highlighting those to which it has responded and those that raise issues of subsidiarity.

Relationship between the Scottish Parliament and UK institutions

258. The UK is the member state of the EU and has the responsibility for legislating at EU level. The UK government has a responsibility to consult devolved government on matters of European business which relate to devolved matters. The Treaty significantly extends the range and reach of EU jurisdiction into matters of devolved competence. Involvement in the EU decision-process is ‘reserved’ as foreign policy. Under the Memorandum of Understanding the Scottish Government is responsible for any penalties and costs associated with infractions or failure to implement EU law.

259. The complexity of the relationship between devolved bodies and the UK institutions in relation to EU issues was highlighted by Professor Michael Keating. In written evidence, he suggested that the issue of the relation of devolved parliaments with the EU was longstanding. He considered that there could be a two-fold loss of power. Devolved competences could be lost directly to Europe; and central governments, having to present a single national position, could use Europe to impose their own views. Professor Keating suggested that devolved governments had sought to redress this by seeking a role in the determination of their member states’ European action; and by acting directly within European institutions, they had sought influence ‘upstream’ in the formulation of European policies; and ‘downstream’, in the implementation of European legislation and directives.100

Scrutiny of the Scottish Government’s engagement in the Joint Ministerial Committee (Europe)

260. The Committee sought to explore how the Scottish Parliament can scrutinise the Scottish Government’s input into Joint Ministerial Committee (Europe) JMC(E) meetings. In oral evidence, the Minister cited the JMC(E) as an important avenue for putting forward the Scottish position in development of the UK Government’s negotiating line.101 The Minister added that she thought the operation of the JMC(E) had improved recently:

“The operation of the JMC process in its entirety has been improved recently. The fact that the refreshed joint memorandum of understanding was finally signed and agreed at the most recent JMC domestic meeting has given a bit more life and impetus to JMC operations in general. It is interesting that the JMCE continued to meet while other JMC committees such as JMC domestic fell into abeyance. I have attended only two JMCE meetings so far, but my view is that the JMCE has been particularly helpful in forward planning for European council meetings.”102

261. Chris Bryant told the Committee that he felt the current mechanisms in place were adequate to ensure that the Scottish dimension was considered in UK policy-making, given the extension of EU competence to cover a number of devolved subjects. He stated:

“The Scottishness of the British position is guaranteed on several different levels. The first is by the fact that there are Scottish members of Parliament sitting in Westminster, many of whom are in significant posts in Government and who play a key role in determining the UK's position. In particular, the Secretary of State for Scotland has a role in ensuring that other ministers are fully aware of Scottish interests.”103

262. He also referred to the formalised processes for consultation of the Scottish Executive through the joint ministerial committee on Europe and the joint ministerial committee on domestic affairs:

“Scottish Executive ministers sit on those committees alongside other ministers—that is why they are called the joint ministerial committees. From my experience of the JMCE … it is the key moment when all the devolved Administrations can have significant input into the British line that will be advanced in a meeting. It is also an opportunity to have some fairly broad-horizon discussions about the future and about any specific issues that might have arisen.”104

263. In relation to the Scottish Parliament’s scrutiny of the Scottish Government on their input into the JMC process, Chris Bryant stated:

“If I was a member of your committee, I would say that it is not good enough for a minister to blame the UK Government for somehow not allowing them to tell you what they said at the JMCE. The UK Government would be absolutely happy for Scottish Executive ministers, either in open session or in closed session if that is what you prefer, to talk about what they say in JMCE meetings. The European Scrutiny Committee would send me off having boxed my ears aggressively if I were to try to use an argument that was based on secrecy. It is difficult to put draft Council decisions in the public arena because they change all the time. They are part of a negotiating process and we do not always want to reveal our hand in that process. Nonetheless, we have decided to provide draft Council decisions to the European Scrutiny Committee and the House of Lords European Union Select Committee on a confidential basis and on the understanding—which I am sure those committees will fully respect—that the information is not for public dissemination. We are doing that in order better to inform those committees' understanding of what we are up to.”105

264. In oral evidence, the Minister suggested that there might need for greater clarity as her understanding was that the workings of the JMC(E) in relation to coming to negotiating positions were not relayed or reported and were not subject to questions from the Westminster Parliament to ministers. She stated:

“What does happen—and should happen in Scotland in parallel—is that the Parliamentary Under-Secretary of State for Europe in the UK Government is accountable to the appropriate Westminster committee in the context of scrutiny of and accountability for the positions that are taken. Similarly, I see my role as being responsible to the European and External Relations Committee in the context of scrutiny of and accountability for the positions that the Scottish Government takes at JMCE or in other areas. However, I am fairly certain that the UK Government would agree that we cannot necessarily divulge the content of discussions about what the negotiating position will be in advance of European council meetings, because the UK Government will want to reserve its position on that. Again, the issue comes down to trust and the relationships that are built up at JMCE meetings….I think that it would be perfectly in order for me to relay what happened at a JMCE meeting, but not in a way that would prejudice the UK negotiating position going into a European council meeting. That is how I see the position.”106

265. The Committee is concerned that the mechanisms for consultation with the devolved administrations require improvement. In particular, the Committee considers that there appear to be significant discrepancies in how Whitehall departments manage the interests of the devolved administrations and ensure that these are adequately taken into account in arriving at the UK position on any issue. The Committee considers that there should be a standard process for all departments in taking the interests of the devolved administrations into account. To this end the Committee urges the Scottish Government to encourage the Whitehall departments to adopt a standardised and consistent approach based on best practice.

266. The Committee has been concerned for some time now that the process by which the Scottish contribution to the UK position is incorporated and the UK position is reached is not sufficiently transparent. The Committee considers that the process should be open to scrutiny by the Scottish Parliament. The Committee considers that there needs to be a common understanding at the Scottish and UK levels of what information can be disclosed and at what point in time. There needs to be a clear and agreed position on this.

267. The Committee recognises that in any process there will be concerns to protect the UK negotiating position in the time between the JMC(E) and the European Council meetings. However the Committee considers that the Scottish Government should be able to report to Parliament (via the EERC) the Scottish position prior to the JMC(E), provide agendas in advance of the JMC(E) meetings, report the outcome of discussions at JMC(E), the agreed UK position and outcome of Council deliberations following theCouncil meetings. To this end the Committee welcomes the offer from the Minister for Culture and External Affairs to work with the Committee in seeking to improve the current process for scrutiny.

Mechanisms to facilitate conflict resolution

268. The question of what mechanisms might be used to facilitate conflict resolution between devolved bodies and their UK equivalents was also raised. The LSS questioned what might happen if there were no agreement in this very public arena between the UK Parliament and the Scottish Parliament on the response to an issue, for example, of criminal policy with particular resonance in Scotland.107

269. In terms of Government-to-Government relations, Chris Bryant explained that, where there were disagreements over the UK Government’s negotiating position, the memorandum of understanding provided a route for considering how to address the issue.108

270. Fiona Hyslop referred to improvements in the JMC processes for dispute resolution mechanism and stated that the Scottish Government had tried to find a system through which differences, whether on FSJ or other areas, could be dealt with as early as possible and preferably at official level, if possible. She suggested that this would mean that the only disputes that ministers would end up having to deal with would be those that were acute or that concerned issues of real substance or principle. She stated:

“I suspect that a number of disputes have continued for a long period and have been carried over from the previous Administration to ours because resolving them has just not been a priority for anyone. I suspect that institutional inertia or events such as changes of ministers can sometimes lead to issues not being responded to. I hope that the new dispute resolution process will ensure that only serious differences on points of principle are escalated up the system. I also hope that it will provide a proper process for dealing with some of the broader issues that might come up, which should cover some of the disputes that might arise within the UK.”109

271. Paul Cackette from the Scottish Government emphasised the position of the JMC process for dispute resolution as a method of last resort and that significant amounts of work were carried out at an early and timely stage in the development of, and discussions about, the proposed UK line in the negotiations, in order to minimise the risk of difficulties arising:

”It is a matter of ensuring, as far as possible, that such difficulties are not elevated to a level where ministerial engagement and involvement is necessary. I think that there is on all sides recognition of the desirability of ensuring that there is agreement in that respect.” 110

272. In a letter to the Committee Sir David stated that it was also the Government’s view that no impasse would occur in such a situation:

“for the UK to opt into a decision it must be in the best interest of the UK as a whole. One of the factors the Government takes into account in opting in is the likely impact of the proposal on the fundamental principles of UK criminal justice systems.”111

273. The Minister confirmed that this was the case, stating:

“…it is our current constitutional arrangement and, unless and until we have our own representation as a member state, we have to acknowledge that the UK is the lead member state.”112

274. The UK Government Minister for Europe, Chris Bryant, made it clear what would happen where there was a disagreement between the UK Government and the Scottish Government on EU policy. He stated:

“Foreign affairs is not a devolved responsibility, so if there is no means of resolution, the UK Government wins, I am afraid. It is the UK Government that decides who it puts in the chair and who advances the argument. If it is a Scottish Executive minister who sits in the British chair at a council meeting, that minister must advance the UK argument, not just their own personal or Scottish argument.”113

275. The Committee welcomes the recent progress on updating the dispute resolution process but considers there is scope for further improvement in the process and in the transparency of the process.

Chapter 3

The protocol on the application of the principles of subsidiarity and proportionality and the role of the Scottish Parliament

Key aspects of the subsidiarity protocol

276. From the point of view of national and regional parliaments with legislative powers across the European Union one of the most significant aspects of the Treaty is the inclusion of new strengthened provisions on the principle of subsidiarity. These provisions provide national parliaments and, where appropriate, regional parliaments with legislative powers with a stronger role in the European Union legislative process.

277. The Protocol sets out how the principles of subsidiarity and proportionality will be administered under the Treaty.

278. Under Article 2 of the Protocol, the European Commission is required to consult widely before proposing legislative acts. Significantly this consultation should “where appropriate, take into account the regional and local dimension of the action envisaged”. The European Commission ‘need not’ conduct consultations in cases of “exceptional urgency”, though it has to provide reasons for doing this within its proposal.

279. From the perspective of regional parliaments with legislative powers, Article 6 provides the substantive powers in the Protocol. It provides national parliaments with eight weeks (this is an increase from the six weeks proposed in the failed European Constitutional Treaty) to send a reasoned opinion to the Presidents of the European Parliament, Council and Commission “stating why it considers that the draft in question does not comply with the principle of subsidiarity”. Significantly, for the Scottish Parliament it then adds that “it will be for each national parliament or each chamber of a national parliament to consult, where appropriate, regional parliaments with legislative powers”.

280. Three key aspects of the protocol on the application of the principles of subsidiarity and proportionality emerged from the evidence in relation to the role of the Scottish Parliament in the scrutiny process. First, the right of national parliaments to scrutinise legislation and to raise objections on the grounds of the contravention of the principle of subsidiarity. Second, the statement in Article 6 that it is for “national parliaments to consult where appropriate regional parliaments with legislative powers”. Third, the obligation in Article 2 that the Commission consult widely before proposing legislative acts and that this consultation should ‘where appropriate, take into account the regional and local dimension of the action envisaged.

The right of national parliaments to scrutinise legislation and raise objections

281. The extent to which the right to object to EU legislative proposals will be influential in practice or will significantly change existing scrutiny processes has been questioned by the European Scrutiny Committee of the House of Commons, which suggested that the substance of the subsidiarity Article in the Treaty was the same in its effect as the Article in the TEC and examination of EU proposals for compliance with the principle of subsidiarity is a long-established and fundamental part of the scrutiny process of the European Scrutiny Committee of the House of Commons.

282. The European Scrutiny Committee considered that whether a proposal complied was a matter of political judgement and was unlikely to be capable of an entirely objective assessment:

“…it is very rare for the whole of a proposal to be inconsistent with the principle [of subsidiarity].”114

283. The European Scrutiny Committee considered that it was less rare for one of the provisions of a proposal not to comply. The European Scrutiny Committee saw no reason to expect that this would change, although the extension of the EU’s competence would offer additional areas for subsidiarity disputes:

“Where we [the Committee] have had concerns in the past, we have drawn them to the attention of the Government and, where it [the Government] shares our assessment, Ministers have taken up the concerns with the Commission and other Member States...”115

284. The Committee also saw no reason to expect that this would change. The Committee expected the Commission to listen to the views of devolved parliaments with legislative powers, even if the number of opinions did not reach the levels set for the yellow and orange cards.

“For these reasons, the Committee doubts whether the Treaty’s subsidiarity provisions about the role of national parliaments will make much practical difference to the influence enjoyed by the UK Parliament.”116

National parliaments’ consultation with devolved parliaments with legislative powers

285. There was some dispute in the written evidence as to whether the consultation of devolved parliaments with legislative powers was mandatory or permissive.

286. The RSE stated that Article 6 placed an onus on the national parliament to consult regional parliaments ‘where appropriate’. It stated that this was the first time that the Treaty had accorded separate status to the national parliaments and, more specifically, to the separate chambers of bicameral parliaments, placed the onus on them to consult regional parliaments with legislative powers “where appropriate”.117

287. Professor Florian Becker stated that, according to Article 6(1) of the Protocol, the UK Parliament was under an obligation “to consult, where appropriate, regional parliaments with legislative powers” such as the Scottish Parliament.118

288. Lord Roper, however, provided the House of Lords interpretation of Article 6:

“In the UK, the "national parliament" is the Westminster Parliament. It does not include the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly. According to the new Protocol on subsidiarity and proportionality, before voting for a yellow card national parliaments may consult regional parliaments "where appropriate". In other words, in the view of the European Scrutiny Committee of the House of Lords the reference to consulting regional parliaments is permissive, not mandatory. It creates an opportunity, not an obligation.”119

289. Professor Keating confirmed this interpretation, suggesting that a clear expectation was created, but not an obligation. Only Belgium had a provision stipulating that its regional parliaments were part of the national legislature and thus empowered to invoke this clause. Professor Keating suggested that the Scottish Parliament would have to rely on Westminster:

“Since ex hypothesi the UK Government would not already have objected, we can assume that the House of Commons would not do so and may therefore be that the House of Lords would be the place on which to focus. In any case, a provision within the UK to give effect to the expectation in the Treaty is necessary.”120

290. Sir David confirmed that there was no legal obligation to consult the Scottish Parliament: he stated:

“It is clear from looking at other language texts of the protocol that article 6 does not impose a legal duty on national Parliaments, or chambers of national Parliaments, to consult. Article 6 simply says that "It will be for"—in the sense that it will be the job of—each national Parliament to consult. That seems consistent with the idea of subsidiarity. It is not for the EU to define how such consultation is to be done.”121

291. Sir David stressed, however, that consultation was increasingly the convention:

“An underlying problem is the preservation within the Scotland Act 1998 of the concept of parliamentary sovereignty, whereby Westminster at least theoretically has total competence to legislate on any matter whatsoever. The terms of the treaty do not impose any duty on Westminster to consult. However, as a matter of practice, the Sewel convention is becoming, if I may so put it, hardened into at least pretty soft law and is getting harder. Therefore, it would be difficult for Westminster to justify a situation in which the Scottish Parliament had not been consulted on a matter on which it should have been consulted. ”122

292. Paul Cackette from the Scottish Government said that it was the Scottish Government’s view that the term “where appropriate” should be given a wide meaning:

“Even if a proposal on the face of it dealt with an issue that is firmly within the reserved area of competence, the proposal could easily have crossovers to, or implications for the operation of, areas of devolved competence. An example that comes to mind from a number of years ago is a proposal relating to asylum and immigration, which are reserved, that also had a direct impact on the administration of the courts system in Scotland, which is devolved. He stated that is exactly the kind of thing on which I would expect the concept "where appropriate" to be given a wide meaning, so that this Parliament is given a full opportunity to contribute to discussions that affect its interests.”123

293. The Committee recognises there is some dispute in the written evidence as to whether the consultation of devolved parliaments with legislative powers is mandatory or permissive. The Committee is persuaded that Article 6 does not impose a legal duty on national parliaments, or chambers of national parliaments, to consult but considers that the Scottish Parliament should be consulted where appropriate. The Committee considers that consultation is increasingly the convention and it would be difficult for Westminster to justify a situation in which the Scottish Parliament had not been consulted on a matter on which it should have been consulted.

Consultation between the European Commission and the Scottish Parliament

294. The implications of Articles 2 and 5 of the protocol for relations between the Scottish Parliament and the European Commission were identified in evidence. Professor Florian Becker stated:

“According to Article 2 of the Protocol, the Commission shall consult widely, taking into account the regional and local dimension before proposing a legislative act. Moreover, under Article 5 of the Protocol, draft legislative acts need to be justified explicitly with regard to principles of subsidiarity and proportionality. The statement shall, in case of a directive, also include an assessment of the proposals’ financial and administrative burden for the Member States and – if necessary – for the regional legislation.”124

295. The RSE also stated that Article 2, which constituted a ‘requirement’ on the part of the Commission to consider the regional and local dimension, was a key point of the protocol. It stated further:

“The principle of proportionality is of central importance: While much focus in this area has been on subsidiarity, the principle of proportionality is also of major significance to Scotland. Article 5(4) of the Treaty of European Union, provides that “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”. This is important as it restricts the EU from legislating in intricate detail except where absolutely necessary, allowing for more flexibility for appropriate implementation of legislation across member states and at sub-state level. This is a key tool for legislative regions as it has not always been possible to gain at sub-state level the degree of flexibility that states have in applying regulations.”125

296. Donald Henderson commented on Article 2 and stated that the Scottish Government’s belief was that, if the Commission was to introduce sound legislation that would fit across a continent of more than 500 million people in 27 member states and the different communities within those member states, wide and genuine consultation would always be necessary.126

297. Mario Tenreiro from the European Commission suggested that the Scottish Government and the Scottish Parliament could assist the Commission in suggesting the areas where it would like to be consulted:

“Generally, you should let us know your main concerns and the main dimensions that you would like us to consider, and you should ask us to be aware of the areas or proposals in which you have competence and special concerns. That can be done in the abstract, so if you send us a simple letter to explain your position and your concerns in general, we can take stock of that and be more attentive to these issues.”127

298. The Committee recognises that the principle of proportionality, introduced in Article 5(4) of the Treaty on European Union is of major significance to Scotland as it restricts the EU from legislating in intricate detail except where absolutely necessary, allowing for more flexibility for appropriate implementation of legislation across member states and at sub-state level.

299. The Committee welcomes the requirement, set out in Article 2 of the Protocol on the Application of the principles of subsidiarity and proportionality, on the Commission to consider the regional and local dimension. The Committee also considers that there is merit in the Scottish Parliament providing a list of devolved subject areas to the Commission as an indication of where the Parliament would wish to be consulted as provided for by Article 2 of the Protocol on subsidiarity.

Potential significance for Scotland of the subsidiarity provision

300. Professor Michael Keating reiterated the importance of the subsidiarity protocol for Scotland and emphasised the need for a formal mechanism to deal with the protocol:

“The subsidiarity protocol is extremely important for Scotland because, in the past, European legislation may have been too detailed and encroached on the Scottish Government's discretion or may have had to be implemented uniformly throughout the UK because there was not enough flexibility within it. The protocol is a way of enabling Scotland to apply European legislation more flexibly, so it is very important that the Scottish Parliament should get some mechanism for making use of it. It is vital that that be taken advantage of. The Parliament cannot invoke the protocol directly itself; whether we are talking about the early warning procedure or the recourse to the Court of Justice, it must go through either the UK Parliament or the Committee of the Regions.”128

301. Professor Keating suggested that the problem with going through the UK Parliament was that it had a Government majority and the Government, by definition, had already agreed the position.

“We are talking about a redress against something that the Council of Ministers wants to do—so it is difficult to envisage the House of Commons taking up the matter. One possibility is that the House of Lords might take it up. That route might be more likely. However, some formal mechanism must be put in place to enable the Scottish Parliament to make its view known and Westminster to respond before the protocol is invoked. Similarly, if the Scottish Parliament wished to go to the Court of Justice on the ground that subsidiarity has been violated—this is less likely than the previous scenario—there must be some formal mechanism whereby it goes to one House of Parliament in London or both and the UK Parliament has to give some formal response. It would not have to agree with the Scottish Parliament, but it would have to reply. If we had a proper territorial second chamber, that would be the obvious place to go but I suspect that, at the moment, the House of Lords might be a better route. Then there is the Committee of the Regions. It must also set up some mechanism so that it can respond to requests from devolved Parliaments that it invoke the protocol. Formal mechanisms become important under the protocol. In the past, my emphasis has been on informal mechanisms, but the protocol is formal and you need to have a procedure for it.”129

302. The Scottish Parliament’s Rural Affairs and Environment Committee highlighted the potential significance for Scotland of the subsidiarity provision:

“On subsidiarity, the Committee welcomes provision within the Treaty to strengthen the ability of national parliaments to monitor policies which may be best dealt with at a national level, and if necessary to trigger procedures to enforce subsidiarity. For example the Committee would have sought to engage with the UK Parliament had there been scope to influence directly the terms of (or the implementation requirements of) the regulation on the electronic identification of sheep (EID), as it is widely acknowledged that its requirements are ill-fitting and costly for farmers in Scotland.”130

303. A number of key issues emerged from the evidence in relation to the establishment of mechanisms to facilitate scrutiny, feedback and conflict resolution in relation to the subsidiarity protocol: First, the process for consultation ‘where appropriate’; second, the problem of the eight-week scrutiny period and, related to this, the issue of parliamentary recess; third, the importance of relationships with both Houses of the Westminster Parliament, with government in Scotland and the UK, with other devolved parliaments with legislative powers and with the EU institutions.

Mechanisms to facilitate scrutiny, feedback and conflict resolution

304. The European Scrutiny Committee of the House of Commons stated:

“Because of the very short time allowed for the submission of reasoned opinions, we believe that: each of the devolved legislatures should obtain draft EU legislation, vet it and tell the European Scrutiny Committee as quickly as possible if they identify any non-compliance with the principle of subsidiarity; and we should invite the comments of the devolved legislatures on our draft report in support of an opinion if the draft makes reference to a matter on which one or more devolved legislatures have expressed a view to us. If a devolved legislature were not ready to express its views until after we had proposed a draft opinion, or if we disagreed with the views, we would send the legislature’s views to the Government.”131

305. Lord Roper relates the procedure detailed in the Annual Report (2009) of the House of Lords EU Select Committee:

“If a potential subsidiarity issue is detected, we may alert some or all of the devolved assemblies, at staff level, on a case-by-case basis. This has not arisen since the Treaty came into force on 1 December 2009. If it does, we would hope to receive an indication of views from the Scottish Parliament, NAW and NIA, and would take account of them if time allowed.”132

306. Lord Roper also made the point that the national parliamentary bodies did not have a sole right of initiative in relation to scrutiny of EU legislation:

“We have no monopoly of initiative in this. I should also explain that we scrutinise all EU documents, not just those subject to the reasoned opinion procedure, and we examine all aspects, not just subsidiarity. Therefore, if the Scottish Parliament, or the NAW or NIA, is concerned about subsidiarity, or any other matter, in relation to any EU proposal, it is welcome to let us know.”133

307. Donald Henderson noted that, for the first time, the Scottish Parliament had a treaty-based opportunity to comment on whether Commission legislative proposals adhered to the subsidiarity principle where those concerned areas of devolved competence. He stated that the Scottish Government was keen to work with the Scottish Parliament to ensure that the process would operate effectively for Scotland and be an integral part of the Westminster subsidiarity arrangements but added:

“… we are very aware that any proposed subsidiarity mechanism is an issue for the legislatures to agree. We look forward to hearing more about the proposals agreed through the ECUK forum to enable this discussion to be taken forward.”134

308. The Committee’s inquiry also examined how the Scottish Parliament might work with the UK Parliament and devolved assemblies in respect of the subsidiarity provisions of the Treaty. All those witnesses who gave evidence agreed that it was important that the Scottish Parliament put in place a system for assessing documents for subsidiarity purposes.

309. In his written submission, Professor Florian Becker stated:

“The Scottish Parliament should co-operate, for example, with the Welsh Parliament to give the regions a stronger voice in the UK Parliament - Scotland can also exercise some influence through the Committee of the Regions. One important aspect of the Treaty of Lisbon in relation to this European institution is that the Committee of the Regions has been granted the right to “bring such actions against legislative acts for the adoption of which the Treaty on the Functioning of the European Union provides that it be consulted.” (Article. 8(2) of the Protocol)”135

310. Professor Drew Scott from Edinburgh University suggested:

“The Committee could develop a traffic light approach in relation to consideration of subsidiarity where the Parliament would rely on the Scottish Government to give a green light to indicate that there is no subsidiarity element and that it does not take a strong stance on the legislative proposal in question. Amber could mean that there might be an issue of subsidiarity and a significant devolved matter, which the Scottish Government could look into. Red could mean that there is definitely an area of devolved competence.”136

311. The Committee notes a number of key issues emerging from the evidence in relation to the establishment of mechanisms to facilitate scrutiny, feedback and conflict resolution in relation to the Subsidiarity Protocol: the process for consultation ‘where appropriate’; the problem of the eight-week scrutiny period and, related to this, the issue of parliamentary recess and; the importance of relationships with both Houses of the UK Parliament and with the Scottish Government.

312. The Committee recognises the need to engage with other devolved assemblies in the UK and throughout the EU in relation to the formulation of an opinion in relation to subsidiarity.

313. The Committee recognises that the Scottish Parliament cannot invoke the subsidiarity protocol directly itself. The Scottish Parliament must go through either the UK Parliament or the Committee of the Regions. The Committee considers that some formal mechanism between the Scottish Parliament and Westminster must be put in place to enable the Scottish Parliament to make its view known and the UK Parliament to respond before the protocol is invoked.

314. The Committee considers that any internal procedure for identifying and tracking issues of subsidiarity should be part of a wider scrutiny process. However, the Committee considers that it may be possible to identify areas in which subsidiarity is more or less likely to arise. The Committee recommends that the Solicitor to the Scottish Parliament undertake an analysis of the areas where subsidiarity may arise to support a focused approach to early warning/engagement.

Timescale for consultation

315. The very tight time-scale allowed for national parliaments to raise issue in relation to subsidiarity (eight weeks from receipt of the proposal in their chosen language) is raised repeatedly in the evidence.

316. Lord Roper and Dr Wright, University of Dundee, both referred to the limitations of the consultation period revealed by the COSAC subsidiarity pilot. Lord Roper also noted that the summer recess has been a recurring problem:

“The Scottish Parliament rises in early July and returns in early September while we rise in late July and return in early October; in practice, therefore, there are three months during which the two parliaments are unable to talk to each other formally. The Commission has announced that it wilI “stop the clock” in August, and this is welcome. But if the Council of Ministers does not do the same, there is still a risk of proposals being agreed to before parliaments at any level have in practice had a chance to take a view on subsidiarity. The House of Lords has asked HMG to propose to other Council Members that the Council would not, under normal circumstances, place a qualifying proposal on its agenda for eight weeks, plus the four weeks of August where they fall within that eight week period, after the adoption of the proposal by the Commission; and they have agreed to do so. You may wish, in your report, to add your weight to this campaign”.137

317. Lord Roper stated further:

“In anticipation of the timing pressures, the House of Lords EU Select Committee has established a number of procedures to expedite the scrutiny process. Lord Roper details the following procedures: the document could be fast-tracked through the sift, if necessary in advance of the EM; the Government could be asked for a prompt EM or part-EM; appropriate members and staff could be stood by to act in recess if necessary; In addition: depending on the procedures adopted by the House, such reports might have to be agreed and published in haste. “The chairman of the committee is authorised in urgent cases to present the report of a sub-committee to the House on behalf of the committee” (Companion to the Standing Orders 10.51), and this procedure might have to be used.”138

318. To take maximum advantage of the provisions of the subsidiarity protocol, relations with other bodies at UK- and EU-level were identified as being important. The RSE stated that, in order that Scotland’s interests be properly represented at EU level, robust mechanisms of communication with the UK Government and UK Parliament had to be in place. The RSE suggested that the Scottish Parliament must also give consideration to increasing its capacity for “horizon-scanning” which would be vital to ensuring that it could act on EU activity under discussion before it is too late to intervene.139

319. Various organisations, including the RSE, COSLA and ACPOS, suggested that it was important that the Scottish Parliament foster its relations and press for effective communication with both chambers of the UK Parliament.

320. The Committee recognises the challenges imposed by the eight-week timetable for reporting on issues of subsidiarity. The Committee understands that the time available for the Scottish Parliament to respond will be far less than the eight weeks.

321. The Committee undertakes to develop a process for considering issues of subsidiarity where the EERC liaises with the UK Parliament committees and in drafting a response for Parliamentary approval incorporates a view from the Solicitor to the Scottish Parliament, the appropriate subject committee (time permitting) and the Scottish Government. A proposed process is attached as Annexe B.

322. The Committee supports the request by the House of Lords to the UK Government proposing to other European Council members that the Council would not, under normal circumstances, place a qualifying proposal on its agenda for eight weeks, plus the four weeks of August where they fall within that eight week period.

Examples of protocols and/or mechanisms developed by other devolved parliaments with legislative powers

323. Professor Michael Keating from Aberdeen University suggested that the Scottish Parliament could learn from devolved jurisdictions in other EU member states. He indicated that the strongest arrangements were in Germany and Belgium as part of their federal structures:

“In Germany, the Länder are represented in the Bundesrat and can, in effect, get the Bundesrat to invoke the subsidiarity protocol. As such, the Länder can make that happen. In Belgium, there is a provision so that if any of the devolved Parliaments—the community or regional Parliaments—wants to invoke the protocol, the Belgian Parliament is obliged to take it up. I cannot imagine Westminster conceding that, but that is the strongest example. In other countries where the subsidiarity protocol applies, such as Spain and Italy—it hardly applies in France—a solution is still being worked out; one has not been come up with yet.”140

324. Evidence was received from the Flemish Parliament, the Basque Parliament and the Bavarian Parliament.

Evidence from the Flemish Parliament

325. Most of the competences of the Flemish Parliament, like those of the Scottish Parliament, are shared or supporting competences in the EU framework. The Flemish Parliament details the provisions in Declaration 51 which was made by the Kingdom of Belgium in conjunction with the signing of the Treaty and provided it with a special status in relation to the Treaty. In order to adapt the Belgian federal system to the Treaty and to allow Belgian regional parliaments to play a role in the subsidiarity procedure, it has been established that every Belgian parliament is a national parliament for the exercise of its competences.

326. To implement Declaration 51 the 7 Belgian Parliaments are negotiating a cooperation agreement. In this cooperation agreement, all Belgian parliaments acknowledge that, according to Declaration 51 and the Belgian Constitution each parliament (federal and regional) has to be recognised as a national parliament in the exercise of its competences. All of the legislative proposals and consultation documents of the European Commission will be simultaneously and collectively received by all Belgian parliaments, and every parliament can separately and autonomously examine whether the legislative proposal respects the principle of subsidiarity. The reasoned opinions of all 7 Belgian parliaments will be collated and sent to the European Commission on behalf of the Belgian parliamentary system.

327. The Flemish Parliament also details a range of ways in which it seeks to scrutinise and influence EU policies. These include: the establishment of a European Office; oral and written questions; interpellations, motion and resolutions; hearings and committee meetings with the competent minister, officials of the European Commission or other players in the EU decision-making process. EU business is dealt within the relevant committee. Horizontal European policy is dealt with in the standing committee for Foreign Policy, European Affairs, International Cooperation and Tourism. In addition in every standing committee a member of parliament is assigned as ‘europromotor’ and it is his or her task, together with the European Office, to stimulate debate and discussion about European policy in the standing committee. The members of the Flemish Parliament have some specific instruments at their disposal to scrutinise the European decision-making process: a six-monthly publication of the Flemish Government with the most recent developments in European policy in fields that are important for Flanders; monthly reports on EU-policy by the Flemish minister for Foreign Affairs; studying the draft European legislation and consultation documents from the European Commission that are sent to the national parliaments; participating at Joint Parliamentary Meetings and Joint Committee Meetings organised by the European Parliament. At these meetings, members of the European Parliament and of the national parliament discuss European policy.

Evidence from the Basque Parliament

328. The Basque Parliament stated that, in the case of Spain, the Spanish Parliament had already decided to consult autonomous regional parliaments every time that a European institution asked for the sending of a statement on a draft European legislative act.

329. The Basque Parliament also detailed a procedure for establishing an ‘early warning system’ in relation to the subsidiarity protocol: once the initiative had been received at the Parliament’s main register, a file would be opened for it and all the necessary documents would be sent to Presidency and the Parliament’s Bureau. The Bureau, during its next session, would classify the initiative and send it out to the parliamentary groups at the same time as setting a deadline for these groups to make any observations they felt necessary. It would also send the initiative to the corresponding sectoral commission. What is more, it would have documents sent to the Basque Government and the provincial councils of the three Basque provinces in those cases in which the competences of the provinces are specifically affected by the initiative. If the nearest meeting of the Bureau was not to be held until more than two working days after receiving the documents at the register, the task mentioned in point 2 would be carried out by the Speaker of Parliament, without this precluding any ratification by the Bureau in its corresponding session of the decisions taken. The chairperson of the corresponding sectoral commission, would call a meeting of said commission in as short a space of time as possible and would take all the necessary steps to facilitate the appearance before the commission of those people it deemed necessary. Once the commission’s session has finalized, together with any necessary appearances before it and, in the light of any observations made by parliamentary groups, and, where necessary by the Government and/or provincial councils, the commission would prepare a statement of reasons stating whether the European initiative complied with the principle of subsidiarity, as stipulated in the European treaties in force. The Parliament’s bureau would ensure that the procedure was carried out correctly and that the opinion was sent before the stipulated finalisation date. Finally, the statement would be sent to the Parliament’s Bureau which would send it to be published in the Basque Parliament’s Gazette and to the Spanish Parliament via Presidency.

330. The Basque Parliament also noted the important role played by government in the scrutiny process: The Government has a role to play in the whole process, since it has to send in as brief a period as possible: the information about the European legislative initiative, its effect on the rights and interests of the autonomous region and its opinion on compliance with subsidiarity. The Basque Parliament notes the need for a mechanism to deal with issues which arise when Parliament is in recess. When Parliaments are not in session, some sort of automatic mechanism needs to be designed so that a reply can be made to the Commission without the need for authorization. In relation to the scrutiny process, a standing sub-committee is proposed. In addition to creating some sort of technical unit within Parliament, a standing sub-committee, in charge of examining draft European legislation, could also be set up. If the sub-committee sees that there is a draft piece of legislation that looks like it is not going to comply with the principle of subsidiarity, it could ask a working-group to write a proposal to be presented at and approved by whatever Commission is in charge of making a definitive resolution.

Evidence from the Bavarian Parliament

331. The Bavarian Parliament based its new mechanism for responding to the Subsidiarity Protocol on a series of key principles: Any completely new structures should be avoided. The new mechanism should be based on existing procedures. According to the German constitution, the German “Länder” (like Bavaria) can influence the German EU policy through the “Bundesrat”, in which the governments of the Länder (not their parliaments) are represented. So the involvement of the Bavarian Parliament in the “early warning system” had to be arranged with the Bavarian State Government. Therefore, the base of the new mechanism was the agreement about the information of the Bavarian Parliament by the Bavarian State Government, which was signed in 2003, and which already included a section on the information on “European issues”.

332. The relevant EU documents should be forwarded to the Bavarian Parliament by the Bavarian State Government as quickly as possible, since eight-week period of the subsidiarity protocol is rather short. The Bavarian Parliament considered that it was clear, that, at least at the beginning, it would not be easy for the Parliament to identify those EU legislative proposals which possibly could infringe the subsidiarity principle. Therefore, the Bavarian Parliament demanded a preliminary assessment for each EU-legislative proposal from the Bavarian State Government regarding the subsidiarity principle.

333. The Bavarian Parliament also provided details of the new mechanism it had devised to implement the early warning system’ in relation to the subsidiarity protocol: All EU legislative proposals that are of relevance for the German “Länder” (the “Bundesrat” itself identifies the relevant proposals) are promptly forwarded to the Bavarian Parliament by the Bavarian State Government. Within 2 weeks, the Bavarian State Government provides a summary of the legislative proposal, as well as a preliminary assessment (“erste Einschätzung”) regarding the subsidiarity principle. If the Bavarian State Government believes that there is an infringement of the subsidiarity principle or the EU has no competence for that legislative proposal, the preliminary assessment contains reasons for this opinion. All this information is received electronically, and it is forwarded to the “coordinators” on European issues of the political groups in the parliament. If the preliminary assessment states that there is an infringement of the subsidiarity principle, a motion of the Parliament is prepared, which asks the Bavarian Government to ensure that the opinion of the “Bundesrat” on that legislative proposal will also contain critical statements on the subsidiarity issue, and reasons for this motion are given. That motion is discussed in the next meeting of the Committee on Federal and European Affairs of the Bavarian Parliament. If necessary, additional oral information is given by a representative of the competent ministry. Mostly, the motion is adopted by the Committee; but there are cases where the Committee did not share the opinion of the State Government and therefore decided not to adopt a motion. If there is not enough time to have the motion which was adopted by the Committee confirmed in a plenary session of the Parliament, the adoption by the Committee, according to the rules of procedure, is sufficient. Therefore, it is always possible to have a position of the Bavarian Parliament within the eight-week-period. Some time after the “Bundesrat” has decided on its opinion, the Bavarian State Government reports to the Bavarian Parliament on how it has dealt with the opinion of the Parliament. Those EU legislative proposals where the State Government does not assume an infringement of the subsidiarity principle are also discussed by the Committee to check whether the assessment by the State Government is correct.

334. The Basque Parliament, and the Bavarian Parliament, like the Flemish Parliament, handles European Union issues in a range of relevant sectoral committees not only in the Committee for European Affairs. The Bavarian Parliament equivalent to the Flemish ‘Europromoter’ is the ‘coordinator of European issues’.

335. The Committee notes that the subsidiarity mechanisms developed in the various devolved parliaments with legislative powers are dictated in part by the constitutional status of the devolved parliaments with legislative powers in the various jurisdictions.

336. The Committee notes the tendency to incorporate scrutiny for subsidiarity purposes within a wider process of EU Scrutiny.

337. The Committee notes the extensive use made in other jurisdictions of the various subject committees as EU scrutiny is mainstreamed across the parliaments.

General Conclusions

338. The Treaty of Lisbon offers the very real prospect of improved democratic oversight of the EU decision-making process with potential for a substantially increased role for, and respect for, national parliaments, devolved parliaments with legislative powers and devolved governments including the Scottish Parliament and Scottish Government.

339. As a result of the extension of EU competences and the changed institutional and decision-making structures, the Treaty offers new routes of influence for the Scottish Parliament and Scottish Government in the EU decision-making process in areas of significant interest to Scotland – most notably via the European Parliament and in new areas of competence such as energy and climate change as well as in existing priority areas such as agriculture and fisheries.

340. The UK is the competent member state and the Treaty competences now extend into many areas of devolved competence as well as to areas of significant devolved interest. EU legislation takes precedence over national legislation and the Scottish Parliament and Scottish Government need to be vigilant that even welcome or favourable legislation from the EU may have significant implications in relation to which level of government within the UK then becomes the decision-maker in any given field.

341. Given the devolved interest in many areas of extended EU competence and the role of the UK government as interlocutor with the EU, there is a need for improved mechanisms to ensure representation of the Scottish position in the UK negotiating line and for the scrutiny of this process.

342. Given the significance of areas like freedom, security and justice for Scotland, there is a need for improved mechanisms to safeguard the Scottish position in any negotiations with the EU and to deal with conflict resolution within the UK.

343. The Subsidiarity Protocol offers a chance for the Scottish Parliament to challenge any incursion into areas of devolved interest. But to realise this power the Scottish Parliament needs to go through the UK parliament. A formal mechanism to ensure cooperation in this matter between the Westminster and Holyrood Parliaments is required.

344. The inquiry recommends an improved model of EU scrutiny and engagement at all levels of government and parliament in the UK, in relation to the Devolved Legislatures and in relation to the EU institutions – particularly the European Parliament. The Committee has recommended a more robust approach to EU engagement and scrutiny in response to the findings of the inquiry.

Response to the Inquiry and Recommendations for the Scottish Parliament

345. The Committee considers that the changes introduced by the Treaty provide an opportunity for the Scottish Parliament to examine the way it currently conducts European engagement and scrutiny.

346. The Committee recommends that the Parliament should seek to develop a European Strategy for engagement and scrutiny that clearly defines the parliamentary objectives and priorities, sets out the roles and responsibilities of Committees, the relationships with external bodies and sets out the detailed processes and mechanisms for effective scrutiny. The implementation of the strategy would need to extend beyond the European and External Relations Committee, to cover the subject committees, the Parliament as a whole, the Presiding Officer and the Scottish Parliament’s office in Brussels.

347. The Committee considers that a deeper engagement with Europe by the subject committees is vital in implementing a Parliament-wide European Strategy, particularly in monitoring and scrutiny.

348. The Committee recommends that the Parliament ensures that there is capacity within the system to take a pro-active approach to European engagement and the capacity to respond to issues as they arise.

349. The Committee considers that development and implementation of a European Strategy will require changes to procedures and may require changes to standing orders.

350. The Committee considers that there is a significant role for the Scottish Government in facilitating the delivery of the strategy.

351. The Committee undertakes to develop the European Strategy and ‘road map’ on behalf of the Parliament, in consultation with the subject committees and conveners, the Scottish Parliament’s Legal and Information Services, the International Relations Office, the Presiding Officer and external bodies including the Scottish Government and the UK European Committees. The Committee considers that this new strategy should be in place in the final year of the current Parliament.

352. The Committee recommends that the Parliament endorses this approach in responding effectively and appropriately to the challenges for the Parliament contained within the Treaty.

353. In reforming its current engagement model, the Committee considers that:

  • The role of the European and External Relations Committee would be that of overseeing and co-ordinating European relations as a whole, horizon-scanning on behalf of the Parliament, acting as an informed and competent conduit for the subject committees and, where necessary and possible, acting as a safety net.

  • The active scrutiny role would rest primarily with the subject committees, which they would do under their own volition (by prioritising issues, initiating research, conducting inquiries etc.)

  • At the core of the proposed new model would be the creation of ‘European Union Co-ordinators’ on each subject Committee. EU Co-ordinators would act as conduits between the European and External Relations Committee and their own committee and would have a number of specific roles in relation, for example, to highlighting the EU dimension where relevant to policy debates. The idea is based on a model that has been successfully utilised in the Bavarian and Flanders Parliaments and reflects the original aspirations of Standing Orders (rule 6.8.4) to have strong links between the European and subject committees.

354. The creation of a European strategy for engagement and scrutiny incorporating scrutiny of the Scottish Government, early engagement and scrutiny for subsidiarity will require significant debate, both within the Parliament and beyond. In order to achieve a strategy of this nature a number of dialogues will need to take place:

  • A discussion within the Parliament over the strategy as a whole – the European and External Relations Committee commits itself to promoting a debate on this report in autumn 2010.

  • A dialogue with the Standards, Procedures and Public Appointments Committee and other Parliamentary authorities over changes to the Parliament’s standing orders etc – the Committee commits to pursuing this dialogue in autumn 2010.

  • A dialogue with the Scottish Government on its contribution to Explanatory Memoranda etc. – the Committee commits to discuss with the Government its contribution.

  • A dialogue with the subject committees – the Committee commits to discuss with the Conveners Group and with committees individually their role in a new strategy.

  • A dialogue with the new Westminster European Committees (Houses of Commons and Lords) – the Committee commits to pursue through the vehicle of ECUK (the chairs of UK European Committees) an arrangement with Westminster over the receipt of representations from the Scottish Parliament on European legislation.

355. A proposed model for European engagement and scrutiny setting out the respective roles of the European and subject committees is outlined in Annexe A.

356. A note setting out the proposed process for consideration of subsidiarity is set out in Annexe B.

357. This model and process are proposed as starting points to facilitate the debate in the Parliament and beyond. It may be that in the course of the dialogues outlined above it is necessary to mould or amend them somewhat. However, the Committee believes that it has a responsibility to lead the debate by promoting specific proposals.

Next


Footnotes:

1 Scottish Government. Written submission to the Scottish Parliament European and External Relations Committee.

2 Scottish Parliament European and External Relations Committee. Official Report, 20 April 2010, Col 1534

3 Scottish Parliament European and External Relations Committee. Official Report, 20 April 2010, Col 1534

4 Professor Florian Becker. Written submission to the Scottish Parliament European and External Relations Committee.

5 Scottish Government. Written submission to the Scottish Parliament European and External Relations Committee.

6 Law Society of Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

7 Scottish Parliament European and External Relations Committee. Official Report, 16 March 2010, Col 1452

8 Law Society of Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

9 Councillor David Bremner. Written submission to the Scottish Parliament European and External Relations Committee.

10 Scottish Parliament European and External Relations Committee. Official Report, 23 February 2010, Col 1410

11 Scottish Parliament European and External Relations Committee. Official Report, 23 February 2010, Col 1410

12 Royal Society of Edinburgh. Written submission to the Scottish Parliament European and External Relations Committee.

13 Association of Chief Police Officers. Written submission to the Scottish Parliament European and External Relations Committee.

14 Professor Michael Keating. Written submission to the Scottish Parliament European and External Relations Committee.

15 Scottish Parliament European and External Relations Committee. Official Report, 20 April 2010, Col 1531

16 Scottish Parliament European and External Relations Committee. Official Report, 16 March 2010, Col 1447

17 House of Lords EU Select Committee. Written submission to the Scottish Parliament European and External Relations Committee.

18 House of Commons European Scrutiny Committee. Written submission to the Scottish Parliament European and External Relations Committee.

19 Scottish Parliament European and External Relations Committee. Official Report, 16 March 2010, Cols 1454-6

20 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Col 1467

21 Law Society of Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

22 Law Society of Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

23 Councillor David Bremner. Written submission to the Scottish Parliament European and External Relations Committee.

24 Scottish Natural Heritage. Written submission to the Scottish Parliament European and External Relations Committee.

25 EDF Energy. Written submission to the Scottish Parliament European and External Relations Committee.

26 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Col 1493

27 COSLA. Written submission to the Scottish Parliament European and External Relations Committee.

28 Sport Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

29 Scottish Arts Council. Written submission to the Scottish Parliament European and External Relations Committee.

30 Youthlink Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

31 School Leaders Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

32 Skills Development Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

33 NHS European Office. Written submission to the Scottish Parliament European and External Relations Committee.

34 In practice, the number of seats in the Parliament will be capped at 751 (750 plus the President).

35 Professor Florian Becker. Written submission to the Scottish Parliament European and External Relations Committee.

36 European Commission. Written submission to the Scottish Parliament European and External Relations Committee.

37 Scottish Parliament European and External Relations Committee. Official Report, 16 March 2010, Col 1444

38 Professor Florian Becker. Written submission to the Scottish Parliament European and External Relations Committee.

39 Law Society of Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

40 Sir David Edward. Written submission to the Scottish Parliament European and External Relations Committee.

41 Sir David Edward. Written submission to the Scottish Parliament European and External Relations Committee.

42 Consolidated version of the Treaty on European Union, Article 17(1) (C 115/25)

43 Law Society of Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

44 Professor Florian Becker. Written submission to the Scottish Parliament European and External Relations Committee.

45 Professor Florian Becker. Written submission to the Scottish Parliament European and External Relations Committee.

46 European Parliament. Written submission to the Scottish Parliament European and External Relations Committee.

47 COSLA. Written submission to the Scottish Parliament European and External Relations Committee.

48 COSLA. Written submission to the Scottish Parliament European and External Relations Committee.

49 Professor David Judge. Written submission to the Scottish Parliament European and External Relations Committee.

50 Professor Florian Becker. Written submission to the Scottish Parliament European and External Relations Committee.

51 Scottish Government. Written submission to the Scottish Parliament European and External Relations Committee.

52 Law Society of Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

53 Scottish Fishermen’s Federation. Written submission to the Scottish Parliament European and External Relations Committee.

54 Scottish Fishermen’s Federation. Written submission to the Scottish Parliament European and External Relations Committee.

55 National Farming Union Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

56 Rural Affairs and Environment Committee. Written submission to the Scottish Parliament European and External Relations Committee.

57 House of Commons European Scrutiny Committee. Written submission to the Scottish Parliament European and External Relations Committee.

58 Professor David Judge. Written submission to the Scottish Parliament European and External Relations Committee.

59 Professor David Judge. Written submission to the Scottish Parliament European and External Relations Committee.

60 House of Lords EU Select Committee, Seventeenth Report 2009 (21 July 2009): Codecision and national parliamentary procedure (HL 125). The report is available at:

http://www.publications.parliament.uk/pa/ld200809/ldselect/ldeucom/125/12502.htm

61 House of Lords EU Select Committee. Written submission to the Scottish Parliament European and External Relations Committee.

62 House of Commons European Scrutiny Committee. Written submission to the Scottish Parliament European and External Relations Committee.

63 Professor David Judge. Written submission to the Scottish Parliament European and External Relations Committee.

64 Royal Society of Edinburgh. Written submission to the Scottish Parliament European and External Relations Committee.

65 Professor Michael Keating. Written submission to the Scottish Parliament European and External Relations Committee.

66 Consolidated version of Treaty on the Functioning of the European Union, Article 106(1) (C 115/90)

67 COSLA. Written submission to the Scottish Parliament European and External Relations Committee.

68 Sir David Edward. Written submission to the Scottish Parliament European and External Relations Committee.

69 Sir David Edward. Written submission to the Scottish Parliament European and External Relations Committee.

70 West of Scotland Colleges’ Partnership. Written submission to the Scottish Parliament European and External Relations Committee.

71 West of Scotland Colleges’ Partnership. Written submission to the Scottish Parliament European and External Relations Committee.

72 National Farmers Union Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

73 Scottish Parliament European and External Relations Committee. Official Report, 23 February 2010, Col 1405

74 Scottish Parliament European and External Relations Committee. Official Report, 23 February 2010, Col 1405

75 Scottish Parliament European and External Relations Committee. Official Report, 16 March 2010, Col 1456

76 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Col 1501

77 Professor David Judge. Written submission to the Scottish Parliament European and External Relations Committee.

78 Scottish Government. Written submission to the Scottish Parliament European and External Relations Committee.

79 Scottish Government. Written submission to the Scottish Parliament European and External Relations Committee.

80 Scottish Government. Written submission to the Scottish Parliament European and External Relations Committee.

81 Scottish Parliament European and External Relations Committee. Official Report, 23 February 2010, Col 1389

82 Scottish Parliament European and External Relations Committee. Official Report, 23 February 2010, Col 1538

83 Royal Society of Edinburgh. Written submission to the Scottish Parliament European and External Relations Committee.

84 Royal Society of Edinburgh. Written submission to the Scottish Parliament European and External Relations Committee.

85 Royal Society of Edinburgh. Written submission to the Scottish Parliament European and External Relations Committee.

86 Scottish Parliament European and External Relations Committee. Official Report, 16 March 2010, Col 1446

87 Scottish Parliament European and External Relations Committee. Official Report, 16 March 2010, Col 1453

88 Professor David Judge. Written submission to the Scottish Parliament European and External Relations Committee.

89 Scottish Government. Written submission to the Scottish Parliament European and External Relations Committee.

90 NHS European Office. Written submission to the Scottish Parliament European and External Relations Committee.

91 House of Lords EU Select Committee. Written submission to the Scottish Parliament European and External Relations Committee.

92 Royal Society of Edinburgh. Written submission to the Scottish Parliament European and External Relations Committee.

93 Royal Society of Edinburgh. Written submission to the Scottish Parliament European and External Relations Committee.

94 House of Lords EU Select Committee. Written submission to the Scottish Parliament European and External Relations Committee.

95 Scottish Parliament European and External Relations Committee. Official Report, 16 March 2010, Col 1455

96 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Col 1500

97 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Col 1500

98 Scottish Parliament European and External Relations Committee. Official Report, 20 April 2010, Col 1529

99 Scottish Parliament European and External Relations Committee. Official Report, 23 February 2010, Col 1392

100 Professor Michael Keating. Written submission to the Scottish Parliament European and External Relations Committee.

101 Scottish Parliament European and External Relations Committee. Official Report, 20 April 2010, Col 1539

102 Scottish Parliament European and External Relations Committee. Official Report, 20 April 2010, Col 1543

103 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Col 1463

104 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Cols 1463-4

105 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Col 1471

106 Scottish Parliament European and External Relations Committee. Official Report, 20 April 2010, Col 1542

107 Law Society of Scotland. Written submission to the Scottish Parliament European and External Relations Committee.

108 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Col 1465

109 Scottish Parliament European and External Relations Committee. Official Report, 20 April 2010, Col 1543

110 Scottish Parliament European and External Relations Committee. Official Report, 20 April 2010, Col 1544

111 Sir David Edward. Written submission to the Scottish Parliament European and External Relations Committee.

112 Scottish Parliament European and External Relations Committee. Official Report, 20 April 2010, Col 1547

113 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Col 1468

114 House of Commons European Scrutiny Committee. Written submission to the Scottish Parliament European and External Relations Committee.

115 House of Commons European Scrutiny Committee. Written submission to the Scottish Parliament European and External Relations Committee.

116 House of Commons European Scrutiny Committee. Written submission to the Scottish Parliament European and External Relations Committee.

117 Royal Society of Edinburgh. Written submission to the Scottish Parliament European and External Relations Committee.

118 Professor Florian Becker. Written submission to the Scottish Parliament European and External Relations Committee.

119 House of Lords EU Select Committee. Written submission to the Scottish Parliament European and External Relations Committee.

120 Professor Keating. Written submission to the Scottish Parliament European and External Relations Committee.

121 Scottish Parliament European and External Relations Committee. Official Report, 23 February 2010, Col 1411

122 Scottish Parliament European and External Relations Committee. Official Report, 23 February 2010, Col 1411

123 Scottish Parliament European and External Relations Committee. Official Report, 23 February 2010, Col 1397

124 Professor Florian Becker. Written submission to the Scottish Parliament European and External Relations Committee.

125 Royal Society of Edinburgh. Written submission to the Scottish Parliament European and External Relations Committee.

126 Scottish Parliament European and External Relations Committee. Official Report, 23 February 2010, Col 1396

127 Scottish Parliament European and External Relations Committee. Official Report, 16 March 2010, Col 1447

128 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Col 1504

129 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Col 1504

130 Rural Affairs and Environment Committee. Written submission to the Scottish Parliament European and External Relations Committee.

131 House of Commons European Scrutiny Committee. Written submission to the Scottish Parliament European and External Relations Committee.

132 House of Lords EU Select Committee. Written submission to the Scottish Parliament European and External Relations Committee.

133 House of Lords EU Select Committee. Written submission to the Scottish Parliament European and External Relations Committee.

134 Scottish Government. Written submission to the Scottish Parliament European and External Relations Committee.

135 Professor Florian Becker. Written submission to the Scottish Parliament European and External Relations Committee.

136 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Col 1490

137 House of Lords EU Select Committee. Written submission to the Scottish Parliament European and External Relations Committee.

138 House of Lords EU Select Committee. Written submission to the Scottish Parliament European and External Relations Committee.

139 Royal Society of Edinburgh. Written submission to the Scottish Parliament European and External Relations Committee.

140 Scottish Parliament European and External Relations Committee. Official Report, 23 March 2010, Col 1506