Select Committee on Constitution Second Report


170. The profound impact of the European Union (EU) on policy-making in the UK has been widely acknowledged. The devolved institutions are no exception to that. Many of the functions devolved in Scotland, Wales or Northern Ireland are heavily affected by the EU - notably agriculture and fisheries, but also the environment, economic development (where financial assistance can raise state aids issues), and, for Scotland, justice and home affairs. The Scottish Executive estimate that 80% of their business "has a strong EU dimension".[147] As well as the direct effect on devolved functions and policy, the EU is important as a broader arena in which the devolved administrations may wish to act. However, the United Kingdom remains the member state of the EU, and the devolved administrations have no direct legal relationship with the EU or its institutions (with the exception of the Committee of the Regions). The UK Government also retains responsibility for foreign relations under all three devolution settlements. Consequently, the United Kingdom has a pivotal role in the relationship between the devolved administrations and the EU.


171. The framework of relations between the devolved administrations and the EU is given effect formally in a number of ways. Some of these are legal: each of the devolved legislatures and administrations is under statutory obligations not to legislate or act in a manner that is contrary to EU law.[148] Beyond that, the arrangements for their dealings with the EU are set out in the Memorandum of Understanding.

172. Three provisions of this Memorandum are important. First, it provides that Ministers from the devolved administrations may attend EU Council of Ministers meetings, and may speak at those meetings, albeit they do so on behalf of the United Kingdom as a whole. The decision whether they may attend is one for the lead UK Minister, and the devolved administrations must adhere to the single agreed United Kingdom 'line' in those meetings.[149] Second, the devolved administrations are involved in the formulation of that line. That involves the copying of correspondence, liaison at official level, some bilateral meetings and the use of the JMC (Europe).[150] However, that is subject to obligations of confidentiality that appear to be even more stringent than generally apply under the Memorandum of Understanding.[151] It also assumes "maximum co-operation on both sides".[152] Thus the devolved administrations are involved in the formulation of the United Kingdom line but on the basis that they may not disclose to anyone - including their own legislature or assembly - what disagreements they may have had with the UK Government over the formulation of that line. Third, the devolved administrations are responsible for the implementation of EU obligations affecting functions devolved to them. That may involve the administration of a part of the United Kingdom quota, where the obligation is a quantitative one. It also involves the devolved administrations undertaking to assist the UK Government in the event of proceedings before the European Court of Justice, and to pay any financial liabilities the United Kingdom may incur as a result of any failure by the devolved administrations to implement EU obligations properly.[153]

173. The Memorandum of Understanding expressly permits informal links between the devolved administrations and the EU institutions, particularly the European Commission.[154] In practice, there is extensive liaison of this sort, and the devolved administrations appear appreciative of the assistance they receive from the Foreign and Commonwealth Office in promoting such links.[155]

174. All three devolved administrations have their own offices in Brussels. The main functions of those offices are lobbying and the gathering of information, but staff in such offices have diplomatic status and are linked to the UK Permanent Representation to the EU (UKREP) in what a witness from the Cabinet Office called an "almost umbilical relationship".[156] This grants them access to information circulated among the member states, and so puts them in a different position to (unofficial) representative offices of other member states' sub-national governments. Other links include secondments: a total of eight staff from the devolved administrations were seconded to UKREP in April 2002, although in that capacity they were working for the UK Government and not the administration seconding them, as well as secondments from the devolved administrations directly to the European Commission.[157] In addition, Ministers from the devolved administrations are able to visit Commissioners or their cabinets to discuss concerns relating to a particular area and not the UK as a whole.[158]

175. This is particularly significant when it is coupled with the ability of Ministers from the devolved administrations to attend EU Council meetings. We were told that this has been used on quite a number of occasions: for example, twice by the Scottish Minister for Justice and Home Affairs; and five times by the Welsh Minister for Rural Affairs.[159] On some occasions these devolved administration members take the lead at Council meetings, speaking for the UK as a whole. On others, devolved administration Ministers speak (Mr Jim Wallace mentioned dealing with a point of Scots law, for example) while the UK Minister remains the lead Minister. The effectiveness of this was questioned by one witness, however, who likened the appearance of Ministers before the Council to "playing musical chairs".[160]

176. The devolved administrations are also able to establish links with sub-national governments from other EU states, such as Catalonia, Wallonia and Flanders or the German Länder. The UK Government itself would have difficulty establishing such links, and we were told that the Foreign and Commonwealth Office positively encourages such links.[161] We note that the existence of devolution therefore extends the reach of the external relations of the United Kingdom, by enabling governments from the UK to have relations with governments with which the UK Government itself could not.

177. Two other formal institutions linking the devolved administrations and the EU deserve comment. One is the Joint Ministerial Committee meeting in its European format. That has met four times in the last year, in preparation for the EU summits at Stockholm, Laeken, Barcelona and Seville. Its work appears to be rather less formal than that of other JMC meetings, in the sense that it is concerned with informing the devolved administrations about matters to be discussed at the forthcoming EU summit and seeking their views about those matters. This form of the JMC therefore appears to be less driven by a formal agenda or the need to take decisions. Its most recent meetings have therefore been concerned largely with the work of the Convention on the Future of Europe chaired by Mr Giscard d'Estaing. The JMC (Europe) is considered to be valuable by all involved.[162] However, this may partly reflect the fact that the devolved administrations are conscious that EU relations are solely a matter for the UK Government, and that the work of this format of the JMC does not directly relate to devolved functions.

178. The other is the Committee of the Regions, established under the Maastricht treaty in 1993. The Welsh First Minister described this as "a great disappointment", although the Scottish Minister with responsibility for European External Affairs was more positive about it.[163] However, none of the evidence we heard suggested it plays a dominant part in the European relations of the devolved administrations. Rather, the devolved administrations appear to find their other contacts and networks in Brussels more useful. The Committee of the Regions' potential to play a prominent role in the European policy of the devolved administrations remains unexploited for the present.

179. Overall, the Welsh First Minister was eager to contrast the position of the devolved administrations in the United Kingdom with that of sub-national governments from other European countries, such as Spain. For the Spanish Autonomous Communities, such direct representation and ready involvement in EU mattes would be "inconceivable". He even considered their position to be advantageous in comparison with the German Länder, which can attend Council meetings but whose broader influence on German EU policy appears to be limited.[164] Evidence from the Spanish Government indicates that the only opportunity for the Autonomous Communities to influence EU policy is through the Sectoral Conference on European Union Matters, and that direct formal access to EU institutions other than the Committee of the Regions does not exist.[165] Whatever the shortcomings of the ability of the devolved administrations to affect UK policy at EU level (and they were decried by the President of the National Farmers' Union Scotland[166]), there is no doubt that the devolved administrations have better access to EU institutions, both formally and informally, than their counterparts elsewhere in Europe.


180. We have been concerned to examine whether devolution has affected the transposition of EU obligations. Historically the United Kingdom has had a good record for implementing EU obligations within the period specified, but there have been some suggestions that this has been undermined by devolution.[167]

181. We were pleased to note that such difficulties as there have been in this respect have now been largely resolved, partly thanks to support from the UK Government in making extra staff available to the devolved administrations to deal with the administrative work involved in transposition.[168] We trust that this will continue to remain the case.

182. However, we note the limited discretion available to the devolved administrations in how they implement EU legislation falling within the ambit of devolved functions. The Welsh Assembly Government helpfully distinguished between four sorts of EU legislation in this respect:

(a) legislation allowing for little or no discretion by the Member State (and so by the devolved administrations too, if the issue falls within devolved competence);

(b) legislation allowing for limited discretion but which requires precisely equivalent legislation across the Member State, because of its subject matter;

(c) legislation allowing for wide discretion at Member State level, but which raises the issue of whether such discretion can be used in different ways by devolved administrations because they choose to, without an objective basis for such policy difference; and

(d) legislation which allows expressly for administration to be carried out by sub-national administrations, of which there appears to be little in practice.[169]

183. In particular, our attention was drawn to the third category, in the context of the requirements set out in the Drinking Water Directive for the level of nitrate residues, and whether those need to be the same across the United Kingdom because of the EU law principle of equal treatment.[170] We appreciate that the issues involved are technical and legal in nature. However, if the point of devolution in general is to enable differences in policy to emerge, then it would be regrettable if member states did not have the discretion to permit the means of implementation to vary between devolved areas within the state.

184. The answer to this problem lies not so much in the hands of the UK Government but rather - as Mr Jim Wallace suggested - in the hands of those who draft EU legislation. EU law could, as appropriate, allow for a greater latitude in its implementation.[171]. Those involved in negotiations, such as the staff of UKREP, also need to be aware of the need for such latitude.
Box 6

A Problem in Agriculture: Modulation

A similar difficulty arises in relation to modulation. Modulation is the term used for money paid to farmers not by way of subsidy but to support rural development more generally, in accordance with rural development plans. Separate rural development plans exist for England, Scotland, Wales and Northern Ireland, and each seeks to achieve rural development in different ways. However, EU law only permits a member state to apply a single rate of modulation (that is, the amount of money diverted to activities under the rural development plans). The devolved administrations cannot in fact decide to adopt their own rates of modulation, although the power to fix the rate is in law devolved.

That has clearly caused some problems for all three devolved administrations, and the implication of what we were told is that the rate of modulation was determined to accord with priorities for England and then applied across the United Kingdom. It was also clear that it was only the supply of matching funding by HM Treasury that made it possible for the devolved administrations to accept the modulation package as tabled by DEFRA. Had the UK Government used its discretion in financial matters differently, the outcome would have been very different and it is likely that a major dispute would have arisen.[172]


185. We have discussed above the means by which the devolved administrations have an input into EU policy. There are behind-the-scenes consultations about what the United Kingdom line should be. The content of those negotiations, and the success (or otherwise) of the devolved administrations in having their views incorporated in that line, remain confidential. Like the conduct of many other aspects of intergovernmental relations, they rest on a high level of co-ordination at official level and a high level of goodwill at political level.[173] In some cases - as with agriculture - this is done through formal regular meetings at Ministerial level. In many other cases, it is done through less formal meetings or contact by telephone, letter or e-mail. The process is not an open one, for the devolved administrations let alone the general public, and it is one in which the UK Government retains a high level of control.

186. So far as the process itself is concerned, we find it hard to see how matters could be otherwise. The true test of whether the process is the right one will ultimately be in its outcomes. But there is a problem, as the obligations of confidentiality imposed on the devolved administrations mean they cannot tell anyone, including their own assemblies or legislatures, when the outcome of the process has been unsatisfactory.

187. We have already noted the satisfaction expressed regarding European constitutional issues and the work of the JMC (Europe). However, we also received evidence suggesting that there have sometimes been tensions in the relationship arising from detailed questions of policy. These seem to be most common in agriculture (see Box 7). The evidence we received also suggested that most such problems have so far been satisfactorily resolved within the existing framework.[174] However, that does not rule out the possibility of those problems occurring in the future, and one or two of the issues mentioned to us will require ongoing attention from the UK Government and specifically the Department for Environment, Food and Rural Affairs.
Box 7

EU Issues Causing Problems in Agriculture

We were told that issues have arisen in relation to the payment of agri-monetary compensation for farmers in both Scotland and Northern Ireland.[175] For example, issues such as CAP reform and animal health have been matters where the UK position appears to be dominated by English concerns rather than those most suiting Northern Ireland.[176] For Scotland problems have arisen in relation to the suckler calf premium as well as fisheries, while for Wales it has been sheepmeat.[177]

188. We are conscious that co-operation between the parties is not just an implicit assumption in this area, but an explicit one (although the Memorandum of Understanding has nothing to say about what would happen if such co-operation were to decline).[178] We are conscious that the United Kingdom has one seat in the Council of Ministers and must therefore speak with one voice there. We are aware of the speed with which negotiations within and around Council of Ministers meetings can proceed, and the need for the United Kingdom's negotiating line to be able to accommodate the outcome of such negotiations very quickly. Reconciling the need for speed with the requirements of devolution is akin to squaring the circle. Nonetheless, we see no reason why devolved administrations should not be consulted to the same extent as Westminster Departments. Advances in communication technology should mean that this consultation problem is not insoluble.

189. Given that relations with the EU are not devolved and that the devolved administrations are affected significantly by EU law, the adaptation of the devolved governments to the process of EU law making has been remarkable for being less problematic than might have been expected. This is in large measure, as with so many other aspects of inter-institutional relations, attributable to goodwill between the UK Government and the devolved administrations, as well as to the work of officials. It is also attributable in part to the work done by the devolved administrations, encouraged by the Foreign and Commonwealth Office, in establishing links with Brussels. Nonetheless, as we have seen, there are problems, both immediate and prospective. The immediate problem is that of providing some flexibility for devolved areas in the transposition of EU law. That may be addressed more appropriately in the making of EU law. The longer term problem, when there is not the goodwill deriving from the same party dominating inter-institutional relations, can only be addressed in a UK context.

147   Memorandum by the Scottish Executive, para. 19; evidence volume, p. 110.  Back

148   As regards Scotland, see Scotland Act 1998, s. 29(2), s. 54 and s. 57; as regards Wales, see Government of Wales Act 1998, s. 106; as regards Northern Ireland, see Northern Ireland Act 1998, ss. 6(2) and s. 24.  Back

149   Memorandum of Understanding and Supplementary Agreements Cm 5240 (The Stationery Office, London, December 2001), Concordat on Co-ordination of European Union Policy Issues, paras B4.12-B4.15.  Back

150   Memorandum of Understanding, Concordat on Co-ordination of European Union Policy Issues, paras B4.4-B4.411.  Back

151   Memorandum of Understanding, Concordat on Co-ordination of European Union Policy Issues, paras B1.4, B2.4, B3.4 and B4.3; see also Memorandum of Understanding, para. 11.  Back

152   Memorandum of Understanding, Concordat on Co-ordination of European Union Policy Issues, para. B4.4.  Back

153   Memorandum of Understanding, Concordat on Co-ordination of European Union Policy Issues, para. B4.25.  Back

154   Memorandum of Understanding, Concordat on Co-ordination of European Union Policy Issues, paras B4.26-B4.28.  Back

155   Evidence of the Rt Hon. Rhodri Morgan AM, 27 May 2002, Q. 852.  Back

156   Memorandum by the Scottish Executive, para. 24, evidence volume p. 111; Memorandum by the Welsh Assembly Government, National Assembly for Wales, para. 20; evidence volume, p. 232; evidence of Peter Small CB, 10 June 2002, Q. 1177. The expression quoted was used by Sir Stephen Wall KCMG, LVO, 24 April 2002, Q. 205.  Back

157   Evidence of Sir S. Wall, 24 April 2002, Q. 208. See also evidence of the Rt Hon. Jim Wallace QC MSP, Q. 590.  Back

158   For example, the Scottish Executive visited the Agriculture Commissioner, Franz Fischler, to discuss suckler cow premium quotas; evidence of Ross Finnie MSP, 15 May 2002, Q. 412.  Back

159   Evidence of the Rt Hon. J. Wallace QC MSP, 16 May 2002, Q. 563; evidence of Carwyn Jones AM, 28 May 2002, Q. 974. See also evidence of Peter Small CB, 10 June 2002, Q. 1176. According to a Cabinet Office witness, Scottish Ministers have attended meetings of the Council of Ministers in its Agriculture, Fisheries, Youth and Education, Health, Culture, Environment and Justice and Home Affairs formats: evidence of Michael Roberts, 24 April 2002, QQ 231-32.  Back

160   Evidence of Mr Jim Walker, 15 May 2002, Q. 315.  Back

161   Evidence of the Rt Hon. J. Wallace QC MSP, 16 May 2002, Q. 600. Back

162   Evidence of Sir S. Wall, 24 April 2002, QQ 225, 235-36; evidence of the Rt Hon. J. Wallace QC MSP, 16 May 2002, Q. 578; evidence of the Rt Hon. R. Morgan AM, 27 May 2002, Q. 853.  Back

163   Evidence of the Rt Hon. R. Morgan AM, 27 May 2002, Q. 854; evidence of the Rt Hon. J. Wallace, 16 May 2002, Q. 579.  Back

164   Evidence of the Rt Hon. R. Morgan AM, 27 May 2002, Q. 852.  Back

165   Memorandum by the Ministry for Public Administration, on behalf of the government of the Kingdom of Spain, para. 12; evidence volume, p. 446.  Back

166   Evidence of Mr J. Walker, 15 May 2002, Q. 313.  Back

167   Memorandum by the Cabinet Office, para. 65; evidence volume, p. 21. Back

168   Evidence of Sir S. Wall and Mr M. Roberts, 24 April 2002, QQ 211 and 229-30; evidence of the Rt Hon. Helen Liddell MP, 10 April 2002, Q. 179. Back

169   Memorandum by the Welsh Assembly Government, National Assembly for Wales, paras 26-30; evidence volume, pp. 232-33.  Back

170   Evidence of the Rt Hon. H. Liddell MP, 10 April 2002, Q. 179; evidence of Sir S. Wall and Mr M. Roberts, 24 April 2002, Q. 229. See also evidence of Sir Muir Russell KCB, FRSE, 15 May 2002, Q. 496. Back

171   Evidence of the Rt Hon. J. Wallace QC MSP, 16 May 2002, QQ 584-88. Back

172   Evidence of Andy Lebrecht, 24 April 2002, Q. 264; evidence of Mr R. Finnie MSP, 15 May 2002, Q. 428; evidence of Mr C. Jones AM, 28 May 2002, Q. 995; evidence of Mr P. Small CB, 10 June 2002, Q. 1187.  Back

173   Evidence of Sir S. Wall, 24 April 2002, Q. 242.  Back

174   Evidence of Mr R. Finnie MSP, 15 May 2002, QQ 405-07; evidence of Mr C. Jones AM, 28 May 2002, QQ 973 and 977; evidence of Mr P. Small CB, 10 June 2002, Q. 1171 and QQ 1174-76.  Back

175   Evidence of Mr P. Small, 10 June 2002, Q. 1182.  Back

176   Memorandum by Northern Ireland Executive, Annex A 'Agriculture: A Case Study', paras 1 and 7; evidence volume pp. 320-21.  Back

177   Evidence of Mr R. Finnie MSP, 15 May 2002, Q. 407; evidence of Mr C. Jones AM, 28 May 2002, Q. 973.  Back

178   Memorandum of Understanding, Concordat on Co-ordination of European Union Policy Issues, para. B4.4.  Back

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