Select Committee on European Scrutiny Minutes of Evidence

Examination of Witnesses (Questions 347 - 359)



  347. Minister, can I very warmly welcome you on behalf of the European Scrutiny Committee to this evidence session in the Scottish Parliament. It is a great pleasure for us to come up here to take evidence. I understand that we are the first Select Committee to take evidence in the Scottish Parliament, so it is a particular pleasure to be here, and very much a particular pleasure to see you as an old former Westminster colleague and your now raised position in the Scottish Parliament. We all watch with a bit of fondness and admiration for the good job that you are doing in the Scottish Parliament, so it is particularly good to have you here to answer our questions. Minister, the Committee is doing this inquiry into the governance of Europe and we are hoping to publish that report in April. As part of that inquiry we are particularly keen to look at how devolved assemblies and the Scottish Parliament deal with European issues and to look at how best we, from the Westminster side, can work with each of those assemblies and the Scottish Parliament to be more effective. That is the purpose of our inquiry and we hope to publish in April, as I say. Can I ask the first question. Do you share the view of the Scottish Parliament's European Committee that Scotland faces significant difficulties in the European Union because it is Member States which negotiate, even in policy areas devolved within the UK?

  (Mr Wallace) No, I do not wholly share that view. I think it would be wrong to over-estimate the difficulties. That is the devolution settlement, it is one which was substantially voted for by the Scottish people, that we are a sub-Member State administration. If anyone in the course of your inquiry can come up with a better wording than "sub-Member State administration", it would be a great contribution. My experience has been one where I do think that in practice, although by no means perfect and always capable of improvement, in the practical day-to-day workings that it by and large works. I think that, in many respects, is a testament to some very good working relationships both at official level and at ministerial level and I think that applies even allowing for a coalition dimension in the Scottish Executive between the Scottish Executive and the United Kingdom Government. Certainly the channels are almost invariably open for a free flow of information. I would say in the day-to-day workings of it it by and large works. That is not to say it could not be improved but it by and large works.

  348. The Commission refers in its Governance White Paper to greater flexibility in Community legislation to take account of regional and local conditions. In what sort of areas is that needed?
  (Mr Wallace) I think one example might well be in dealing with the environment. Indeed, flexibility and an earlier entry point, a better recognised entry point for sub-Member State administrations, was something which we argued in terms of the White Paper that we submitted jointly with COSLA. I think what it does allow is an opportunity for parliaments, such as the Scottish Parliament, which do have responsibilities for implementing European Union legislation to do so in a way which is consistent with Scottish interests and particular circumstances within Scotland. Environment is one where if you put a general framework you can mould the legislation to suit particular Scottish circumstances. I think that is probably likely to be a far more effective way of implementing European Union legislation than at Brussels level every last `t' being crossed and `i' being dotted because what you then find is probably an inflexibility which does not always accord with circumstances on the ground. If one of the overriding concerns of this Committee, indeed of the current debate on the future of Europe, is connecting the European Union with the citizen then I do believe that an element of flexibility is very important in doing that otherwise you can find that you are pushing square pegs into round holes and those do not always necessarily fit.

Jim Dobbin

  349. The issue I wanted to ask you about was subsidiarity and how that applies to Scotland. The definition of subsidiarity sometimes means different things to different people and quite often it is difficult to introduce it or enforce it. How important is it to the Scottish Executive that subsidiarity be better defined and possibly enforced? Or, like the Scottish Parliament's European Committee, would you place more emphasis on a right of involvement for the sub-Member State authorities in European decision-making? We are looking at the relationship between sub-Member States and Member States.
  (Mr Wallace) I think subsidiarity is very important indeed. I think as a political concept of decisions being taken at the level closest to the people which is consistent with effective administration it is one which generally I and the Executive would support. In putting it into European terms, I do think there is a need for it to be better defined and better established and I hope that might be one thing that emerges from the current series of debates. My recollection of the Treaty of Maastricht is there is an element there that sees subsidiarity only going down to the Member State level and I do not think there is an adequate recognition as yet that within Member States there are constitutional arrangements, obviously most recently in the United Kingdom and indeed, as your Committee is well aware, there are many other European Member States, and that ought to be given better recognition. Obviously within the United Kingdom we have our own version, as it were, of subsidiarity set out in the Scotland Act of those matters which are the responsibility of the Scottish Parliament and those matters which are reserved to the Westminster Parliament. I do think it would be very helpful indeed if that was given better recognition within a European context. It is not revolutionary. After all, these nations, Member States, for themselves have worked out their own internal constitutional arrangements and to ask for that to be better recognised is something which should not prove too much of a hurdle. We might want to go on and discuss how we than take that forward and enforce it but I do think that subsidiarity is an important dimension in the current debate on European governance.

Mr Connarty

  350. I think in a sense that is the nub of the matter. Having read the report of the Scottish European Committee it is clear that they see agreements being made in the Council of Ministers and a proposal put forward by the Commission but because of the devolved nature of the legislative power of the Scottish Parliament they have to deliver but they have no input into its formation. On the one hand they argue that they should be closer to the discussion and decision-making position and also it would appear they argue that they should have the right to design it in such a way that if they wish, because of their own parliamentary aspirations, they would not deliver it if it was not, in fact, acceptable under subsidiarity. That seems to be the nub of their argument, that since they have to deliver they should be there designing it. I just wonder what exactly is the formal position of the Executive on the proposals and opinions put forward in the Scottish European Committee's report?
  (Mr Wallace) We have responded to the Committee's report and if the Committee has not already got a copy of that response we will make sure you get one.

  351. I wondered if you would like to put it on the record.
  (Mr Wallace) I was not sure whether you had that. I just wanted to make sure you actually do have it because it does go through it recommendation by recommendation. I think Mr Connarty does touch on issues which in one respect pick up the point of subsidiarity but also the one which we argued in terms of the submission we made to the White Paper process of the European Commission, one of early involvement. Mr Connarty says if we are responsible ultimately for delivering we should have some say in the shaping of it, I could not agree more with that, and I do not necessarily think the current structures permit that as well as it could be. If I can give the Committee a practical example of that. At the present time the regulations relating to maritime cabotage, a subject which I know is of importance in Scotland because of the shipping arrangements in the Isles, stipulate that no subsidy can be given to mainland-to-mainland ferry services. It makes no reference to peripherality, social economic factors, it is not allowed. If you think for a moment of Scotland where, in fact, a ferry across a short passage of sea linking two parts of the mainland which might otherwise take about an hour, two hours, to get round on minor roads if you have to drive right round, that does suggest there was insufficient thought given to a particularly Scottish—there may be other countries too—dimension to that when that particular piece of European legislation was being drafted. I think we would argue that if there was earlier input and if there was the framework to allow for earlier input, some of these issues could be teased out at a much earlier stage. In terms of being asked as a Parliament ultimately to deliver implementation, I think what goes hand-in-hand with that is a reform to allow us an earlier opportunity, and a meaningful opportunity, to actually shape that legislation through our input. I have often felt in European legislation getting in the lift on the ground floor is often more important than sitting at the table when the lift reaches the sixth floor and it has all been signed off. That is something we have argued for and would consider to be particularly important. In terms of greater involvement in scrutiny, we are very conscious of the Committee's concerns about that and, indeed, we have indicated that we want to actively engage with them in finding ways in which it can be improved in terms of the flow of information both pre-Council and post-Council. I would not want to pretend that by any stretch of the imagination we have got that right but, as I indicated in the debate we had in the Parliament a fortnight ago, we would want to engage more with the Committee to see how we can improve that flow of information.

Mr Tynan

  352. You made the point regarding a good working partnership with the UK Government and obviously that is vitally important. I do not want to talk about negotiation, it is more a dialogue with the UK Government. Are you happy with the process at the present time as regards consultation and your ability to influence the UK negotiation position in EU matters?
  (Mr Wallace) The answer to that is yes, although obviously we have got negotiations that go from Department to Department, it is not all channelled through a live responsibility for European external affairs, these issues would be done on an individual departmental basis. For example, as the Justice Minister I have contact with both the Lord Chancellor's Department and the Home Office with regard to European decision-making in the field of justice and home affairs where there is a devolved relevance. Not surprisingly, the one that is most intensive is the Environment and Rural Development Department, not least for agriculture and fisheries, where I am certainly aware there are many comings and goings and negotiations, not just involving the Scottish Executive but also the Northern Ireland Executive and the National Assembly of Wales. I strongly suspect that the efficacy of it will no doubt vary from one Department to another, possibly depending on individuals, it may even depend on the subject matter. I am not aware of any individual colleague really sounding alarm walls and saying that they are hitting brick wall after brick wall in the negotiations with the Whitehall Departments.

  353. Okay. Do you feel that the Scottish Executive receives enough information as regards future Council agendas at the present time?
  (Mr Wallace) What we do as an Executive is early in each Presidency a forward look is prepared, principally prepared with the help of our office in Brussels, and that deals with the priorities of the current Presidency based on intelligence gathered within the Union, where we expect there may be some difficulties, where we expect there to be opportunities. That deals with it overall but also deals with it on a subject matter by subject matter basis as well which includes the dates of Councils and the likely agenda items at these Councils. That happens at the moment and we would maybe want to look forward possibly to formalising that more within our own internal structures within the Scottish Executive. Certainly we do have that information, I suspect, about as early—It is an issue I have just been querying over the weekend, could we get it any earlier, but the response I had was very often that information is only starting to come through in Brussels at the start of a Presidency rather than in the months before.

  354. Could I take the point as regards the mainland ferry services that you were speaking of. Do you believe that if there had been involvement earlier of the Scottish Executive with the UK Government then that would have been resolved? Do you feel that there is enough early involvement at the present time in all matters?
  (Mr Wallace) I suspect, and I will correct myself later if I am wrong on this, that is something which predates devolution. I could not be entirely certain about that but I suspect it possibly does. From what I said earlier, I think there is scope to improve earlier involvement. I am not sure that is necessarily an internal matter within the United Kingdom between the United Kingdom Government and the devolved administrations but rather one which I think the institutions of the European Union and the Commission in particular need to examine. That is something which certainly we have very much put on the agenda that we would like to see pursued in the current debates on the future of Europe.

  355. Obviously we have now established a Scottish Parliament. Do you believe that Scottish interests are being successfully pursued and listened to by the UK Government in relation to the EU?
  (Mr Wallace) On the whole, yes. One could give a very good example of the Fisheries Council at the end of last year where there were items of critical importance to the Scottish fishing industry and Ross Finnie attended the Council, played a part in that, and by all accounts, as far as the industry was concerned, the outcome of that Council was one which was satisfactory from the Scottish viewpoint. That is a very good example but it was one where there were very clear critical issues involved and where Scottish ministerial input, following up on official input as well, was properly taken into account. I also think it is important that we recognise the work that is done by officials as well. I know from within my own Department there has been quite a lot of European legislation on common procedures or legislation relating to how we deal with children, access and contact with children, and I know that within my Justice Department there are officials there who work very co-operatively with the Lord Chancellor's Department and the Home Office on these issues and, indeed, have a recognition within the European Commission itself of having a very valuable contribution to make, not least because of the different Scottish jurisdiction. It is not just at ministerial level, I think it is important that we recognise what happens at official level too in channelling that. If it was seriously felt on a particular issue that the Scottish interest had not been adequately protected then ultimately, as Ministers, we are accountable to the Scottish Parliament for that and over almost three years there do not readily come to mind many occasions when an Opposition, which is pretty vigorous in its task of opposition, has jumped up and down and said that the Scottish interest was ignored.


  356. Mr Robertson?
  (Mr Wallace) We are about to get the example.

Mr Robertson

  357. No, Deputy First Minister, I was going to follow up on a question that Mr Tynan asked which was about the flow of information and how that works. You will appreciate that we, as a Committee, see a lot of paperwork from different UK Government Departments which explains the preparatory work, the information that is needed, what is on the agenda. Would you be concerned if I said to you that we had different inter-departmental communications which had the circulation list on them which named the different UK Government Departments with, say, for example, agricultural matters—a question that you said was very important a moment ago—on which the Scottish Executive was not listed?
  (Mr Wallace) I would want detail of that. If it was a matter that related to Scotland and these papers were free flowing and Scotland was being excluded, I would probably be surprised if it was anything of real substance. I would be very interested to have chapter and verse and then I could check whether in fact, albeit they may not listed, they had been consulted or not.

  358. Do you think that would be normal practice, to list some Government Departments but not others?
  (Mr Wallace) Quite frankly, I do not know.

Mr Connarty

  359. Can I move into, in a sense, the heart of the process of communication. I note in the evidence taking sessions, or submissions to the Scottish EU Committee, that confidentiality was discussed a number of times. Your Committee had evidence from Peter Hain, the European Minister, and maybe in writing from the Foreign Secretary but also from the First Minister, Jack McConnell, about the confidential nature of the agreement. I will quote from the Concordat, if you do not mind, section 19: "The UK Government will involve the devolved administrations as fully as possible in discussions about the formulation of the UK's policy position on all EU and international issues which touch on devolved matters." It goes on to say: "This must, obviously, be subject to mutual respect for the confidentiality of those discussions...." We had the same evidence given to us by the European Minister when we took evidence from him last week. The question is, from the Scottish Executive's point of view, could more information be made public about the discussions with the UK Government concerning European policy, something as simple as the fact that a meeting is taking place at all because it would appear that the public do not know when they are taking place, what their agendas are, what is being discussed in advance, although obviously the nature of the discussions may have to remain confidential? How far does the Executive think we need to go and should go to let people know these discussions are ongoing because it does appear at the moment that the Scottish Executive is not as involved as we know they are in discussions with the UK Government?
  (Mr Wallace) What we said in response to the Scottish Parliament Committee was we noted that the Committee wanted a broad indication of subjects currently being discussed between the Executive and the UK Government and we felt that arrangements could be developed which, whilst respecting confidentiality, would provide the Committee with a greater opportunity to contribute to the Executive's discussions with the United Kingdom Government on European matters. That is one of the issues that we would propose to discuss with the Committee and with the United Kingdom Government as to how best that could be achieved. We would want to examine the possibility of at least being able to share some of the items on the agenda. In terms of the content of these meetings, I think the Committee would readily recognise that if candour and a good flow of information is important—it is important—and if it is going to continue then there has to be an element of confidentiality and also self-evidently too if the subject matter under discussion is preparation for a Council meeting and what the UK line will be, it will not necessarily be to the UK's or Scotland's interests that these are openly discussed for other European Member States to pick up on if they were able to divine what our bottom line would be from the fact that these discussions were being given a much more public airing. I do not believe that would be in either British or Scottish interests. We did indicate in our response to the Committee's report that in discussion both with the Committee and the United Kingdom Government we would want to see if we could perhaps improve the knowledge of what is to be discussed so in that way the Committee could have input.

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