Scottish Parliament
European Committee
Official Report

Meeting 4, 1999

previous page contents page 14 September 1999

Col 132 individually.

Allan Wilson: Does not the same apply to academia? It would be difficult for us to engage with individual institutions. We should engage with the Committee of Scottish Higher Education Principals as a representative of all higher education institutions, as opposed to adding to the list of eight institutions that we already have.

Ms Oldfather: That brings us back to the question of issues. It depends on what we want to do and where we are coming from. I know that some universities have done proactive work on Europe. Perhaps they are the universities that we should contact, but it depends on what we are looking to gain from the process. We should capitalise on the expertise that we have in Scotland.

The Convener: I return to the points that Margo and Allan raised. We need an early and thorough discussion, with some brainstorming, to consider the issues that we should address.

Dr Sylvia Jackson: The distinction between the what, in terms of the issues, and the who, in terms of who has the expertise in the area that we might want to draw on, is a good starting point. The yellow document from the Commission on the Amsterdam treaty is quite a concise statement and provides many important starting points, for example, the gender issues that Cathy raised, job creation and so on. We should study the document between now and the next meeting and tell Stephen what we feel are the critical issues.

The Convener: We will take that paper as a starting point, ask for members' views on the process and the issues, and organise an early briefing session.

Bruce Crawford: If we are using the yellow document as a starting point, some of the issues that were raised in the presentation become important. I have never set eyes on the national plan for the creation of jobs that was mentioned in the presentation. If we are to start from the perspective of the presentation, we need some scene setting so that I can understand where the heck we are going.

The Convener: We know what we are doing then.

Subordinate Legislation

The Convener: We will move on to the consideration of the subordinate legislation.

Stephen Imrie: If the committee agrees, it might be useful if I spent a couple of minutes running through the procedure for Scottish statutory instruments and how it impacts on the committee, because I appreciate that it is fairly new for most 

Col 133 members; it certainly was new for the clerks. We have gone up a learning curve with regard to how the committee might deal with SSIs. If I go over the process, it will help the discussion.

Rule 6.8.1 of the standing orders states that the European Committee must consider and report on

 "(b) the implementation of European Communities legislation".

In practice, that means that the committee must consider and report on Scottish statutory instruments. The procedures of the Parliament have been elaborated during the past few weeks. In most cases, the European Committee will not be nominated as the lead committee for SSIs because the objective of parliamentary procedure is to scrutinise the policy content, which is a subject committee function, or the legal content, which falls within the remit of the Subordinate Legislation Committee.

Your task is broadly to consider whether a particular SSI is the appropriate method for the Scottish Executive to employ to implement EC legislation in a given area. In practice, the European Committee will report its views to the nominated lead committee, which is decided by the Parliament on a motion of the Parliamentary Bureau.

The timetable for that process, in particular for the end date, is set by the SSI in question. The end point is the date by which the Parliament as a whole must either approve or annul the SSI. Usually, the end date is 40 days after the document has been received formally by the Parliament, but it can be shorter than that. Our committee has to work to a tighter time scale—before the fixed end point—because we report to lead committees; lead committees then report to the whole Parliament.


It is my considered opinion—it is only an opinion of the clerk and it is up to the committee to attach whatever weight it judges appropriate to it—that this committee may not have a substantial amount to say about any particular SSI. Procedures in the Parliament are such that the subject matter is dealt with by the lead committee and the legal matter is dealt with by the Subordinate Legislation Committee. We have a particular role.

However, if this committee, in looking through SSIs, wishes to object, because it thinks that an SSI is the wrong way for the Executive to implement EC legislation in Scotland, the procedure would be for an individual member of this committee to lodge a motion in the chamber office objecting to the SSI. That would then be addressed to the lead committee. The member of the European Committee who lodged the motion 

Col 134 would have to attend the lead committee and speak to the motion. The decision would be taken by the lead committee.

The best procedure for us would be to come to agreement on all the SSIs, whether committee members wish to object or not. If we object, a member should be nominated to lodge a motion and attend the lead committee.

I would like to stress the fact that no committee of the Parliament can amend SSIs—they involve yes-or-no questions. The Parliament either approves or annuls SSIs. We have six of them, I think, on our current agenda, and the consideration of subordinate legislation will be a regular function of the European Committee. We can expect to see similar volumes at every meeting. We are mandated by the standing orders to consider them, and the committee must determine the detail to which it wishes to do that and report on them. We are required to put each SSI on to our agenda formally, consider it and report on it to the nominated lead committee.

The Convener: I wish to clarify some things, Stephen. If a member of this or any other committee wishes to object to an SSI, can that member attend the lead committee and lodge a motion to object to it?

Stephen Imrie: Yes, that is the procedure: it has to be an individual member. We as a committee could come to a view and you, convener, could nominate a member.

The Convener: What strikes me as being slightly absurd is that, if any member, representing this committee, can lodge a motion, attend the lead committee and object, why bother bringing the matter to this committee in the first place?

Am I right in saying that this committee could not object? The relevant briefing paper mentions "affirmative or negative procedure", but, from what I took you to say, Stephen, it is not for this committee to make a decision, other than to send someone along to the lead committee to object.

Ms MacDonald: Is it possible to amend the standing orders so that the European Committee could give its view if it was so minded? There will probably be very few occasions when that would apply, but our view would be required to be heard—only our view, which cannot be bound.

I also thought, "Why bother?" because we have no more standing.

Ben Wallace: My understanding is that our role as the European Committee is to have a view on whether the SSI is the right way of implementing the EU directive. That being so, are we not doing things back to front? We should get the final product. For example, on the Environmental Impact Assessment (Forestry) (Scotland) 

Col 135 Regulations 1999, we are not the forestry experts; we should get the report back from the Rural Affairs Committee and the Subordinate Legislation Committee and read about what they think about it from the legal and rural affairs standpoints. We could then see from the overview—because we have the directive—whether the report is correct.

At the moment, we get the SSI and the directive that spawned that SSI—I was hoping that we would get them together—but we are not experts on either. If it was the other way round, that would give the committee more purpose, and we could come to a proper conclusion about whether the SSI was the right way of implementing the directive. As the convener and Ms MacDonald have said, what is the point? We do not know about forestry, so we just say, "Off we go to rural affairs."

Maureen Macmillan (Highlands and Islands) (Lab): I am getting totally confused. Have we got the directive?

Ben Wallace: No. The SSI is submitted today.

Stephen Imrie: I want to answer a couple of questions. We do not have the initial EC directive, but, if the committee wishes, I can attach the parent directive to the SSI.

Ms MacDonald: We would like the forestry committee to get that.

Stephen Imrie: An issue that was raised in another subject committee is the nature of the supporting explanatory documentation that committees receive on any SSI. It was felt that the Scottish Executive could supply a very short overview of the contents of the SSI to allow committee members to understand the legislation.

We are tied to chapter 10 of the standing orders, which says that any member can lodge a motion. However, what might work is for a committee member—the convener or otherwise—to object on behalf of the committee. The committee might want to raise the matter with the Procedures Committee.

The Convener: Even if a member objects, the power still lies with the lead committee. I can see the point of bringing the matter before the committee if we had some influence—where if we said no, that would be the end of it. However, I cannot see the point of a committee member objecting after our scrutiny when the final decision rests with the lead committee.

Maureen Macmillan: I am not exactly sure what I am supposed to scrutinise in an SSI.

Ben Wallace: Our specific role is to decide whether an SSI is the right way of implementing a directive. Decisions about the subject matter rest with the lead committee. The only way in which we 

Col 136 can decide on the directive is through examining information from forestry and legal bods.

Bruce Crawford: Can Stephen tell us a bit more about Ben's idea? I think that he has hit the nail on the head about the whole process.

My Machiavellian mind makes me think that someone could create merry hell with this. Is a member entitled to object on a matter without the committee's authority? All of us could then lodge objections to SSIs, which would make it difficult for the process to work. If that is so, perhaps some of the procedures need to be re-examined.

Where does it say that we cannot amend the SSIs or consider different wording if two committees decide that the wording is not right? It seems daft to throw the baby out with the bath water, when perhaps a small adjustment could secure the Parliament's unanimity. The whole matter seems a little arcane.

Stephen Imrie: May I advise you, Bruce, on your first point about any member attending the lead committee to object? Any member of this Parliament can take part—but not vote—in any committee meeting. I understand—although I will clarify this—that the taking of motions in the lead committee will follow the model of the Parliament. The Presiding Officer—and please correct me if I am wrong—can decide which motions to take. The parallel to that in the lead committee would be that the convener would decide which, if any, motions objecting to a particular SSI to take. There may not be a huge number of members objecting to an SSI; if there were, it would be for the convener to decide which motions to take.

The motions would be motions to annul, so they would all be very similar if not identical; they would involve the committee calling on the Parliament not to approve a particular SSI. I do not have at my fingertips the legalese that says that we cannot amend SSIs but only approve or annul them. If you wish, Bruce, I will come back to you and the committee on that. In my briefing before this meeting from the legal office and the Subordinate Legislation Committee, it was made clear to me that it was a yes-no issue, not an amendment issue.

Bruce Crawford: It would be useful if you could come back to us on that. I am interested only in simplicity.

Allan Wilson: I can see why it is a yes-no issue, because effectively the statutory instruments are already in force by the time they come to this committee. It is presumably meant as a constraint on the powers of the Executive that an individual committee with expertise in a particular field can annul a statutory instrument. It seems unlikely that that would happen in anything but the most extreme circumstances. I am with the convener: I 

Col 137 think that a lot of this scrutiny would be counterproductive in terms of our time, given all the other things that we have to do.

The Convener: What is the difference between our work and the work of the Subordinate Legislation Committee? I know that there is a European dimension to this, but is it not something that the Subordinate Legislation Committee could look at as well?

David Mundell: I have the pleasure of being on the Subordinate Legislation Committee.

The Convener: Do you not look at SSIs?

David Mundell: Yes, we look at SSIs, but only to determine whether they are technically valid; we do not comment on whether they are good or bad. This morning we referred one to this committee.

Members: Thanks.

David Mundell: It was two years late in being implemented and the Executive felt that it had to be implemented immediately, without the proper 21 days' notice to the Parliament. The Subordinate Legislation Committee felt that that was inappropriate: given that the SSI was already so late, the requirement for 21 days' notice should not have been waived.

Cathy Jamieson: I would like to sort out the practicalities of this. We had a similar discussion in the Transport and the Environment Committee, which may have been what Stephen was diplomatically referring to. This is the second time that this thick document in front of me has crossed my desk; last time I got to page 62, but I did not even attempt it again before this meeting. At the transport committee we suggested that, before a document went to the Subordinate Legislation Committee and then probably to two other committees, the Executive should be able to put information on one side of A4 paper, indicating what the document was about, what the impact would be and what the key issues were. All of us are going round in circles, and I do not think that that is an especially good use of our time.

Ms MacDonald: That is a very sensible suggestion.

Cathy Jamieson: It is far too sensible—that is the problem.

The Convener: Is that what the transport committee is asking for?


Cathy Jamieson: We have asked the Executive for that and I suggest that we do the same here.

The Convener: I think that we can endorse that. In the meantime, I wonder whether there is another avenue for looking at the process. I am 

Col 138 still unclear about the point of some of this. How could we go about asking why it needs to be dealt with in this way?

Stephen Imrie: The easiest thing would be for me to speak to the legal office, to get a deeper understanding of our interpretation of standing orders. I would report back in a written paper about what the legal office is saying our committee's role has to be in this respect.

The Convener: Why not ask it not only for a written paper but for someone speak to that at the next meeting?

David Mundell: One of the things that we discussed today at the Subordinate Legislation Committee was the fact that, because SSIs are the only things on our exciting agenda, people have looked at them more than they might have in another committee. Therefore, if there are issues, they should be flagged up in the reference to the other committee, even if they were not the issues that we were supposed to be examining. One of the issues that is being flagged up is that someone in the Executive has formed the view that directives should be implemented in Scotland and England on the same day.

The Convener: Someone in your party does not seem to like you—they put you on to two committees that have got to look at SSIs.

David Mundell: Amazingly, I asked to be on this committee, and my penance for achieving that was to serve on the Subordinate Legislation Committee.

The Convener: You will be an expert by the time this finishes.

The difficulty is this: while we struggle to understand the process, what do we do about the statutory instruments that are before us? None of the general headings look as though they are of such significance that we would want to impede the legal process.

Ben Wallace: I have gone through all of them except No 1, which I am afraid I could not get through. A lot of them, such as the one on spreadable fats, are technical. They say things such as margarine has to be over 80 per cent fat, otherwise it is not margarine. I could find no objection to that, but there has been little consultation on forestry. I have made efforts to find out people's views because the SSIs deal with impact assessment. The forestry SSI, 1999/43, and the town and country planning SSI, 1999/1 should be delayed.

The Convener: Allan has made the point that they are already in force. What would be the implication of doing some of the things that have been suggested?

Col 139 Ben Wallace: The forestry one is not in force.

The Convener: There is still time to look at the spreadable fats SSI.

Ms MacDonald: We have plenty of time for the fats one, if I remember.

Stephen Imrie: I understand that all these SSIs are negative instruments, in the sense that they will come into or remain in force unless the Parliament chooses to annul them.

Ms MacDonald: They will come into force unless we say no. Let us just say yes.

Stephen Imrie: I have to use the language that I have been told to use by the legal office.

Ms MacDonald: Annul.

The Convener: Could we ask the lead committee to check? Who would it get back to?

Stephen Imrie: The lead committee would report to Parliament, not to our committee.

The Convener: It is a Byzantine system.

Cathy Jamieson: I had a note today to say that the forestry SSI would be discussed in the Transport and the Environment Committee, which is the lead committee. I was quite happy with getting the spreadable fats one out of the way.

Ben Wallace: Are we not in the wrong part of the chain? We should come back to it.

The Convener: Clearly, we need a paper and someone to speak to. We need a review of the process, which seems absurd. In the meantime, I would not want the committee to prejudice the Plant Health (Amendment) (Scotland) Order 1999. What should we do with the SSIs? If we do nothing, what effect will that have? Will anybody notice?

Ms MacDonald: That was my basic question. What if we say that we are annulling the lot of them and going for a cup of tea? What would happen?

Allan Wilson: Could not we note them?

Ms MacDonald: What would happen?

Stephen Imrie: It is not my place to comment on what would happen. If the Parliament chose to annul an SSI, in certain cases, the Executive would want to review the Parliament's difficulty with the SSI and consider whether to redraft it and send it back to the Parliament for reconsideration. Annulling an SSI would mean that that order would not become part of statute law.

The Convener: The report will go to the Transport and the Environment Committee, which I hope will pick up any issues of concern. The other SSIs do not seem to be controversial and I 

Col 140 suggest that we agree them as part of our process on the understanding that, for any future scrutiny and consideration, we want someone to explain to us exactly how that process works. Frankly, doing it this way demeans the whole process. Perhaps I am missing something, but I cannot see the point of it.

Bruce Crawford: It is probably taking the easy way out to say that we will just approve the SSIs, and I am worried about our role in the process. Something in one of those SSIs might prove to be horrendous. I do not want to be Pontius Pilate.

The Convener: Stephen advises me that all we are being asked to do is to comment on the SSIs.

Allan Wilson: Even if one of us were to find something in an SSI to which we objected, we could lodge a motion objecting to it with the lead committee that was considering it. Any one of us could do that individually, or we could do it collectively as a committee.

Bruce Crawford: Let us just annul them anyway. That will test the system, and I bet that the procedures will be right the next time.

The Convener: We nominate Bruce to go to the lead committee with an appropriate motion in the six cases.

Bruce Crawford: You are on.

The Convener: Stephen is panicking because that will be on the record. We were being facetious. I am in your hands. What does the committee want to do with the SSIs, given that we have been asked merely to comment on them?

Ms Oldfather: We should let them go through the due process on the basis that the lead committee will consider the matter, particularly in relation to forestry. I do not think that we will hold them up to make any meaningful comment today.

Maureen Macmillan: Can we just note them?

The Convener: We will do whatever is required. We will have another discussion on the process, which is unacceptable.

Bruce Crawford: Does that mean that, for the record, I must state that I was only joking earlier?

The Convener: If you turn up at six committee meetings to lodge a motion, we will know that you were not. The matter must be referred to the conveners liaison group. From comments that were made earlier, it is clear that ours is not the only committee that is struggling to understand the relevance of some of the procedures. The conveners need to examine that.

Col 141
Conveners Group

The Convener: The conveners group is asking for a change in the standing orders, so that the group has some locus in the eyes of the Parliament. We have also discussed such things as the timing of meetings, and whether they should clash with meetings of the Parliament. There is a problem in trying to cope with the amount of business that is beginning to develop, and we will have to comment on that.

Other than the items that have been raised, which I will take back, is there anything else that members of the committee feel should be referred to the conveners group?

Bruce Crawford: I have a question about the conveners group finding itself a place in the standing orders, and its future relationship with the Parliamentary Bureau. How will that work? I can see potential conflict.

The Convener: There is a suggestion that someone would attend the Parliamentary Bureau meetings on behalf of the conveners group, although not necessarily with voting rights. One option is that it would be a Deputy Presiding Officer. The suggestion is not that the group would be formally incorporated into the Bureau. You are right that that would create other difficulties.

The problem at the moment is that the standing orders do not allow for the existence of a conveners group. We all felt that if the Parliament and its committees were to have their due weight in relation to the Executive, that should be reflected in the standing orders. All the committees were anxious to maintain their independence and that of the Parliament from the Executive. We are also aware that procedural issues, such as the timing of meetings, should be discussed in a different forum. That is where things stand. If there is anything else, feel free to raise it.

Further Briefing

The Convener: Allan has already suggested an informal briefing. That should be our priority, but in the meantime is there anything else that members wish to have prepared?

Allan Wilson: I received a letter from Stephen Imrie—presumably as did the other members—saying that a paper on the financing of objective 2 regions was to follow. I have not received that paper.

Stephen Imrie: The Executive informed me that it would try to get that paper to us by this meeting, but that it would require ministerial clearance because, in its opinion, it contained a number of important issues. I had not received the paper by the time of this meeting, but as soon as I do I will 

Col 142 circulate it to all committee members.

The Convener: Before I close the meeting, I would like to point out that there will be some problems with the timing of our meetings over the next few weeks because of some of the deadlines that we have to meet. At the moment, I am not sure what will be happening during October. Stephen, could you identify some of the potential problems for us?

Stephen Imrie: I can advise the committee that earlier in the week I was approached by the Scottish Executive development department to discuss two consultation documents that will be sent to the committee. The first is the document that the committee has already seen—the draft special programme for the Highlands and Islands. That will become a full programme which contains all the financial and priority elements that we thought were missing from the first draft. It will come to the committee for further consultation.

The second document, which will be received on an identical time scale, is the Scottish operational programme for objective 3 expenditure under the new programme round for European structural funds. Broadly, that will cover employment, the labour market, social inclusion and equal opportunities.

I am advised by the Executive that neither of those documents will be cleared by the minister before Monday 4 October. According to European structural fund regulations, the member state must report by 1 November. That means that we have between 4 October and 1 November to ensure that members' views are heard in time to get them incorporated in the documents and over to Brussels. We do not have a committee meeting scheduled until what would be the October recess—I think that 12 October is the date.


Dr Sylvia Jackson: Is it not 5 October?

Stephen Imrie: We do not have a meeting on 5 October, because we follow a fortnightly pattern. The next meeting will be on 28 October.

The Convener: I have discussed with Stephen the possibility of having an early meeting, but by the time the documents are cleared by the minister, members will have only one or two days in which to consider detailed and important documents. That is our dilemma. Either we go for an early meeting, which will not give us sufficient time to absorb and scrutinise the documents, or we return during the recess, which might be inconvenient. The other possibility is to meet on that Friday.

We need time to consider the documents if we are to do them justice.

Col 143 Ms Oldfather: When is the earliest that members could expect to receive the documents?

Stephen Imrie: The earliest I expect to receive the documents is 4 October. The final document on the special programme would be completed on the evening of the previous Friday and given to the minister over the weekend. Assuming that the minister signed it off on Monday, we would receive the document late on Monday afternoon.

Ms Oldfather: Would it be possible to schedule an extra meeting that week, perhaps on Thursday lunchtime, or at 5 pm?

The Convener: We have to assume that the minister will sign off the documents on the Monday, so that members will have at least two to three days to consider them. If we hold a meeting on the Thursday, we are constrained by parliamentary business. I do not know what members' business or other business is scheduled—that is a matter for the Parliamentary Bureau. We might be able to hold a meeting at 5 pm, but it might need to be at 5.30 pm or even at 6 pm, depending on other business. Friday is a possibility, but we shall come up against other problems thereafter.

Would members prefer to meet at the end of that week or later?

Ms Oldfather: I would prefer the end of the week. Many members of the committee live in the west—would it be possible for us to meet in Glasgow on that occasion?

Col 144 The Convener: That would require permission and is not for us to decide.

Is it agreed that I try to arrange a meeting for the end of the week? It depends on the day that the minister signs off the documents. I am not happy to hold a meeting when members have had only a couple of days to examine the documents.

Bruce Crawford: The alternative is to meet on the Tuesday of the next week.

Maureen Macmillan: The problem is that that is Scotland's week in Europe. I hope to be in Brussels in Scotland House.

The Convener: Yes, several things are already arranged for that week.

Allan Wilson: I would rule out the week after if there is to be a constraint because of the late arrival of the documents.

The Convener: Will the committee allow me to take soundings from the minister about when we are likely to receive the documents, so that we can schedule a meeting at an appropriate time?

Members: Yes.

The Convener: We already have the objective 3 document. Would members like that to be circulated now?

Members: Yes.

The Convener: Thank you for attending today's meeting.

Meeting closed at 16:04.

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Scottish Parliament 1999
Prepared 14 September 1999