THE FRAMEWORK OF RELATIONS 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.
THE TRANSPOSITION AND IMPLEMENTATION
OF EU OBLIGATIONS
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.
