Examination of Witnesses (Questions 360
MONDAY 18 MARCH 2002
WALLACE, QC, MSP, MR
360. Just following on from that, the British
Government itself is arguing for more openness in the Council
of Ministers, particularly with regard to legislation, and I think
if that proposal actually comes about it does add a new ingredient
to the whole process of determining the UK line in negotiations
with the Council. Just taking up your point, if there is to be
more flexibility, more transparency, is there any need to modify
the Concordat, particularly paragraph 19 which was quoted by Mr
Connarty? What is the process for modifying the Concordat? Is
there a process?
(Mr Wallace) Yes, there is a process. Obviously it
would start with discussions Minister to Minister but the Concordats
were examined at the first Joint Ministerial Committee involving
the Prime Minister, Deputy Prime Minister, First Minister and
Deputy First Minister of Wales, First Minister and Deputy First
Minister of Northern Ireland, and the equivalent in Scotland.
That meeting takes place once a year and probably would be the
appropriate forum if there was to be any significant change in
the Concordats. Obviously a lot of discussion would go on before
that. I am not aware of anyone actually opening up that discussion
yet but clearly, as I say, we would want to discuss both with
the British Government and the Committee ways of improving at
least the knowledge of what might be on an agenda. That might
involve some Concordat discussion, we would have to look carefully
at the terms of it to see whether it did or not because it would
all be subject anyway to the confidentiality of the exchanges
between ourselves and the British Government. I think Mr David
is taking it on one step further, and we certainly would support
the idea of the Council in its legislative role being more open,
more transparent, and that would be very helpful. Whether it requires
a change to the Concordats to give the UK Government the green
light to go and agree that I doubt very much, but it would be
very healthy and it is something which ourselves and the British
Government are very much at one on, seeing that opened out. I
think Peter Hain said in his evidence to you that it must be one
of the few legislatures that does not actually deliberate in public.
361. Just a small question. Since this seems
to be in the political ether that it might be discussed, might
this be the sort of thing that would be discussed alongside any
proposals that might be put forward to amend the Scotland Act
to allow 129 Members to remain in the Scottish Parliament?
(Mr Wallace) No, because it is not legislative. The
one thing the Concordats are not is legislative. I am not sure
whether the Concordats were ever formally noted by the Westminster
Parliament, they certainly were the subject matter of debate and
approval in the Scottish Parliament, but you do not need primary
legislation to amend them.
362. Mr Wallace, I know you are very committed
to freedom of information.
(Mr Wallace) Indeed, I am.
363. And we have heard the watchwords of "transparency"
and "democracy" and "accountability" and "scrutiny".
I am just a little bit intrigued that we seem to be arguing about
it in terms of the inter-relationship between the UK and the European
Union but when it comes to Scotland's relationship within the
UK most things are covered by confidentiality. If parliamentary
questions are asked both in the Scottish Parliament and in the
Westminster Parliament it is almost impossible to scrutinise the
line which has been developed either by the Scottish Executive
or the Westminster Government because they are the subject of
confidentiality. Do you not think it is a bit incongruous, on
the one hand, to be talking about transparency and greater democracy
at a European level but that things should remain confidential
within the UK?
(Mr Wallace) I think there is a confusion as to what
we are seeking to be more transparent at a European level and
what is the nature of the relationship between the Scottish Executive
and the United Kingdom Government. What I have just said is that
the European Council in its legislative mode should be more transparent
and open, that is when it is legislating. By no measure could
it be said that the negotiations that take place between the British
Government and the Scottish Executive amounts to legislation.
These are the internal workings of Government, the candour and
frankness that goes with that. A study of most countries' freedom
of information legislation, including the one which we are currently
taking through the Scottish Parliament, still reserves internal
workings of Government as a class exemption for the reasons which
I have just given. If we want proper candour, if we want to ensure
that we get the information flowing, then I think that element
of confidentiality is necessary. If that was thought to be compromised
in any way then we might well find that information was drying
up but also, and this is a point which cannot be emphasised too
much, which is the difference between legislation and, as it were,
working out a common line which might be taken by the United Kingdom
at a Council meeting where we want to make sure that Scottish
interests are there and they are fully taken account of, that
would not be helped in obtaining our ultimate objective if that
line and what our bottom line might be was then known to every
other Member State. It may well be that we get a far better deal
than the bottom line but I can pretty well assure you that if
the bottom line was public because confidentiality had broken
down or was not observed then I do not believe that would be in
Britain's or Scotland's interest.
364. Just a small question. While I accept the
question as regards candour and openness between the UK Government
and the Scottish Executive, could the issues not be put into categories?
How often are you in a situation where there is an absolute need
for confidentiality on an issue in those discussions? Could it
not be opened up on the basis of transparency on issues that do
not need that same level of confidentiality?
(Mr Wallace) That might be taking us into the territory
of the answer I gave earlier to Mr Connarty, that there might
well be some things, for example, what is coming up, what is on
the agenda. Sometimes even an agenda item might give away more
information than might be in anyone's interest. That might well
come into that sort of area where, as I have indicated, we want
to talk to both the UK Government and the Scottish European Committee
to see what more we could say. It may well be in particular if
there was greater openness post-Council as to what actually happened,
that might be an area for the future, if there is a greater openness
in the Council where more information could be given. I think
it is very difficult just to go through things at the moment on
a case by case basis and say "that is in", "that
is out". I rather strongly suspect that information does
get into the public domain on things which do not really attract
importance of confidentiality. It would be no secret, I would
have thought, in advance of a key Fisheries Council to know that
Ministers were discussing this. Indeed, we had a debate in the
Scottish Parliament before the last Fisheries Council when it
was made clear, you can read the text of the debate, and no doubt
Parliament was given an opportunity to say what they thought were
the important issues and the Minister responded to various points
and no doubt on that there did not need to be any clever reading
between the lines to see what kind of points would be pressed
by the Scottish Ministers when it came to the Council meeting
and the pre-discussions with the United Kingdom counterparts.
365. Moving on to the Council of Ministers'
meetings. Can I ask you, Deputy First Minister, what proportion
of Council of Ministers' meetings are attended by Scottish Executive
(Mr Wallace) I understand the current figure since
devolution is 27, which is about ten per cent.
366. Does that include formal and informal Council
of Ministers' meetings?
(Mr Wallace) I think it does. I think that information
has been made available. Indeed, it does include informal because
my then colleague, Mr Angus Mackay, attended the informal Council
on Regional Policy at Namur on 13 July last year and Nicol Stephen
attended the informal Council of Ministers for Lifelong Learning
in Portugal in March 2000 and, indeed, Sam Galbraith attended
an informal meeting of Ministers of Education in Finland in September
367. You say about ten per cent?
(Mr Wallace) About ten per cent.
368. In an answer on 25 February you said it
was about 12.8 per cent.
(Mr Wallace) There probably have been some Councils
since then. It is in that area. Twenty-seven is the actual figure.
369. Are you slightly concerned that a proportion
of the documents from the Council of Ministers do not actually
show Scottish Executive Ministers as being present?
(Mr Wallace) No, if they were present and made a contribution
either verbally or in the discussions that went on it does not
bother me over much that the documentation does not show it, the
more important fact is that they were there.
370. Are you not concerned that perhaps it makes
it difficult for parliamentarians to hold Ministers to account
when we are getting conflicting evidence from the Scottish Executive,
from the Council of Ministers, from other people? Does that not
(Mr Wallace) No. We answer parliamentary questions
honestly. Various committees, be it the European Committee or
the subject matter committee, can no doubt call Ministers and
call them to account. I think it would be a great embarrassment
for a Minister if it was said that they were present at a meeting
and they were not. I have no evidence that any of the answers
we have given are inaccurate.
371. Is it not the case that the Scottish Executive
has actually claimed at least in one case to have been at a meeting
that they were not?
(Mr Wallace) Not to my knowledge. I understand there
was an error once with regard to Ross Finnie but I think that
error was clarified.
372. How valuable do you rate the attendance
of Scottish Executive Ministers at Council of Ministers' meetings?
(Mr Wallace) It depends on the subject matter. If
it is entirely reserve matters then I do not believe that it would
be a good use of Scottish Ministers' time. If it is a matter where
there are important issues for Scotland then I believe it can
be very worthwhile indeed.
373. Of the areas that the Council has responsibility
for, more than 50 per cent of them could be counted as being devolved
areas. Can you explain why Scottish Executive Ministers only attend
10 per cent of meetings but do not attend the other 40 or 50 per
cent of meetings which do touch on devolved areas?
(Mr Wallace) Take my own portfolio, a good part of
what is discussed can be devolved. The figure you gave is because
we say somewhere something like 50 per cent of the work of the
Scottish Executive deals with matters which have a European dimension.
For example, the Justice and Home Affairs Committee's principal
items were on asylum and immigration, these would not involve
Scottish Ministers, these are reserved matters. That does not
mean to say that a substantial part of the issues relating to
law reform are not devolved, it just means that on that particular
agenda it would not be high on the priorities of Scottish Ministers
given that the Scottish Parliament does not have responsibility
for that. What we try to do is look at the agendas, see what is
coming up, see if there is anything of particular relevance. I
think Mr Robertson was given a parliamentary answer recently about
the agenda of the Agriculture Council on 18 February where we
did not identify an issue of particular interest to Scotland but
that does not mean to say a substantial part of agriculture has
a devolved interest. We try to be pragmatic and look at whether
priority should be given to attendance at that Council or not.
374. Just a last question on the Council of
Ministers. Fisheries obviously is a classic example where the
Scottish fisheries industry is the overwhelming majority of the
UK's fishing industry. Why does the UK in Scotland not follow
the example of, say, Flanders, which is in a similar situation
to Scotland having the overwhelming majority of the Belgian fishing
industry, where the Flemish Government leads every single Fisheries
Council of Ministers meeting on behalf of Belgium because it has
the overwhelming responsibility for that interest, as opposed
to Scotland where I do not think a Scottish Fisheries Minister
has ever led a British delegation to a Council of Ministers' Fisheries
(Mr Wallace) I do not think a Scottish Minister has
led a British delegation. I think Scottish Ministers have certainly
participated, and participated very effectively. I think it is
getting results that counts, not who sits at the table. Let us
remember that Scotland is represented at every Council meeting
because we are part of the United Kingdom and I very strongly
believe that having the clout of the United Kingdom's weight at
the table is something that we, within the Scottish Executive,
375. Obviously European Council meetings are
very important but in many ways the formal meetings of the Council
are the end of a process. We have talked about Scottish representation
through UK representation on the Council, but with regard to the
working groups we do not see that many Scottish Executive officials
participating in the working groups of the council. In fact, Scottish
Executive officials have only been present at something like 1.6
per cent, that is 75 out of 4,500 working group meetings. Do you
think that is a satisfactory level of participation or would you
like to see more?
(Mr Wallace) It is easy to say yes, we would like
to see more, but I have to be persuaded that, in fact, at the
working groups we did not attend we would have contributed something
that might have made a difference. I would want to look at that
further. I do not get feedback that somehow or another we are
losing out. Clearly if there are ways in which we can improve,
so much the better, and I think I indicated earlier, and you are
right in your initial point, that the Council of Ministers is
sometimes the sign-off and further down is what is important.
It is perhaps even further down than the working groups that you
are talking about because, as I indicated, it is at the very early
stages of the legislation process that we think there ought to
be greater involvement of the sub-Member State administrations
and that is why we would like to see some Code of Practice to
formalise that in a way which is not there at the moment.
376. Minister, we have not discussed the role
of the Commission yet and its relationship with the Scottish Parliament.
The role of the Commission is changing in its relationship with
the European Parliament and I am quite sure that will continue
with national parliaments. In its Governance White Paper recently
the Commission recognised that there was the need to get into
that relationship or to make contact early on in the pre-legislative
process. What sort of direct contacts do you have with the European
Commission particularly in areas of new legalisation?
(Mr Wallace) I think you are right to say that the
White Paper did reflect that and I think reflected it possibly
as some of the input which we had put in our joint submission
with COSLA. There are relationships between officials and their
opposite numbers, officials in the Commission. Again, it is not
a very pragmatic basis, those relationships have built up, again
probably not surprisingly, most in the areas of agriculture and
fisheries where there is the most direct involvement. Also, I
am aware in my own Department on some of the law reform issues
that officials do have that input. Also I would want to emphasise
the importance to us of our Brussels office. That is a very good
interface between the Scottish Executive and the European Commission,
both in terms of feeding in but also of keeping up-to-date, getting
intelligence. I think the fact that the issue is mentioned in
the Commission White Paper is a reflection of the fact that it
could be better and that is one of the things that we want to
377. Moving on to another view. Reading through
the evidence given to the Scottish EU Committee, they were clearly
very impressed by Alain Lamassoure's contribution in which he
said, and I will quote him, "My conviction, which is shared
by the Constitutional Affairs Committee of the European Parliament,
is that it is time to take into account in the basic law of the
European Union the existence of administrative or political regions".
As you know he has, in fact, had a European Parliament report
which floats the idea of `Partners of the Union' status for regional
and other authorities with legislative powers, such as the Scottish
Parliament. What is your view, or the Executive's view, of the
suggestion that sub-Member State authorities with legislative
powers, such as the Scottish Parliament, should have `Partners
of the Union' status conferring such rights as direct access to
the Commission, consultation on proposed legislation and access
to the European Court of Justice? Are these rights the Scottish
Executive wants or is thinking about?
(Mr Wallace) I am aware of Monsieur Lamassoure's suggestion
of `Partners of the Union'. I do not get too hung up on names,
I think it is more important what the substance of it would involve,
and that is why I have already indicated we do believe that more
could be done for early involvement by the sub-Member State administrations
into the making of legislation which might involve direct access
to the Commission on that, why we think that there ought to be
a subsidiarity watchdog which in many respects could give another
element of safeguard of interests, such as the interests of sub-Member
State organisations, and, as I think I indicated in an earlier
answer, a more formal recognition by the institutions of the Union
that we exist. As I said, it should not upset the Member States
because the Member States have already done that within their
own administrations. We have got a question mark over the direct
access to the European Court of Justice more for practical reasons
than any ideological reason. I think we have linked this very
much to the issue of subsidiarity and if decisions or laws were
being made by the European Union which we felt went against the
grain in terms of subsidiarity it is far better that there is
an early political intervention to stop that than frankly recognition
of the fact that the European Court of Justice does already have
a backlog of cases and how long would it take before any particular
case could be litigated. Our approach has been practical. If we
were to find that there was some mechanism which would be much
speedier which could involve the European Court then that is something
we might be prepared to consider but the view we have taken up
until now, which I think has been reflected in various things
that the Executive has said and published, is that a better safeguard
would come from a political watchdog than a judicial one. There
is no ideological objection, it is just a practical one.
378. I take the balance of your reply to mean
that you do not necessarily want to go to the courts but if there
was access to the courts or, alternatively, access to a subsidiarity
watchdog, can you think of any occasion on which the Scottish
Executive or the Parliament might, in fact, have been tempted
to go either to the courts or to that watchdog on a matter that
they have had to deal with?
(Mr Wallace) I think it is probably too soon to have
done that. I did give the example earlier where it would have
been better at an earlier stage. I am not sure that necessarily
would have been one then that lent itself to going to the courts
or a subsidiary watchdog, I think that is legislation that did
not properly take place.
379. Since you complained about it, how else
would you Why not resolve it?
(Mr Wallace) I think I am right in saying, and I will
be corrected if I am not, we have now managed to get some resolution
of that in one or two cases in terms of the CALMAC arrangement
which was basically done through political lobbying. I think the
point was it might have been done at an earlier stage and it would
have entailed less work at a later stage. I think that was the
point I was making, that if you can get in on the ground floor
you can save yourself a considerable amount of time and effort
and hard lobbying at a later stage.