Select Committee on European Scrutiny Minutes of Evidence


Examination of Witnesses (Questions 360 - 379)

MONDAY 18 MARCH 2002

THE RT HON JIM WALLACE, QC, MSP, MR ALAN LISTER AND BARBARA DOIG

Mr David

  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.

Mr Connarty

  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.

Mr Robertson

  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.

Mr Tynan

  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.

Angus Robertson

  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 Ministers?
  (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 1999.

  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 concern you?
  (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 meeting?
  (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, value.

Mr David

  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.

Jim Dobbin

  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 see improved.

Mr Connarty

  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.


 
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