Keeping tabs on the EU

After a year of uncertainty, including the initial “no”-vote in Dublin and political procrastination by the Polish and Czech Presidents, the entry into force of the Lisbon Treaty on 1 December 2009 marked the end of a long EU reform process. Aside from the well-publicised institutional changes that it ushers in, including increased powers of co-decision for the European Parliament, it will also affect the scrutiny role of national parliaments with regard to subsidiarity checks, and of the Houses of Parliament specifically, as a result of the UK’s expanded right to opt in to the full range of justice and home affairs (JHA) matters.

The Treaty is silent on the role of sub-national parliaments in this process. However, EU scrutiny at sub-national level will also be indirectly affected by these reforms, and the Scottish Parliament’s role in this respect has important ramifications for the body’s relationship with the EU and the Scottish legal profession.

Before we consider this in detail, the operation of the UK and Irish scrutiny systems, and recent developments in Wales and Northern Ireland, are worthy of attention.

Scrutiny at Westminster

Westminster operates through the House of Commons European Scrutiny Committee, which considers EU documents emanating from Brussels, and the House of Lords EU Select Committee, which considers the same documents but also conducts regular inquiries and produces reports on more general and strategic issues primarily through its seven subcommittees.

Both committees consider each proposal on the basis of an explanatory memorandum provided by the relevant Government department, and conduct a sift to focus on what are identified as important issues. The “scrutiny reserve resolution” is fundamental to the operation of each committee’s work: the relevant minister can only provide the UK’s consent to a measure in the Council of Ministers after it has been cleared by each committee. The Government can override the scrutiny reserve in specific circumstances but must subsequently account for its actions to Parliament. This is in contrast to the “mandating” model, used in Denmark and Sweden, where a minister cannot act without first securing the national Parliament’s consent.

Dublin, Belfast and Cardiff

The Irish Parliament has two committees focused on EU matters: the Joint Committee on European Affairs, which considers more general matters (such as Ireland’s future in the EU), and the Joint Committee on European Scrutiny, which considers individual proposals in detail. The latter was instituted in 2002, between the two Nice Treaty referenda, partly because the Irish Government was keen to address publicly the “democratic deficit” concerns which had been raised.

This system was influenced by the Westminster scrutiny model and operates on a broadly similar basis. However, in contrast to the Westminster committees, which operate independently, the scrutiny committee can either ask for input into their report from the relevant sectoral committee or mandate such a committee to produce its own report.

The Northern Ireland Assembly does not currently have a distinct EU committee: responsibility for considering such matters falls within the (arguably very large) remit of the Committee for the Office of the First Minister and Deputy First Minister. However, the committee recently published a comprehensive report on European issues (13 January 2010), which makes a number of recommendations to enhance its EU scrutiny function, including the adoption of a “European engagement strategy”, the appointment of an officer in Brussels and “more targeted scrutiny of European issues by all statutory committees”.

The National Assembly for Wales’ European and External Relations Committee, chaired by ex-First Minister Rhodri Morgan, has always been very proactive on EU matters, monitoring the various proposals emanating from Brussels and selecting (or prioritising) matters for more detailed consideration. Its report on subsidiarity (March 2009) also recommended closer collaboration between the devolved assemblies and Westminster regarding EU matters, including subsidiarity checks under the Lisbon Treaty.

Scrutiny functions for both Assemblies will undoubtedly assume a higher priority in relation to EU measures if and when further powers are devolved.

Role of the Scottish Parliament

While relations with the EU, in general terms, are a reserved matter for the UK Government, ensuring that the UK’s obligations under EU law are given effect falls to the Scottish Government regarding devolved matters. However, consultation between the relevant UK department and the Scottish Government is on a confidential basis, and while they frequently attend relevant Council of Ministers meetings, it is rare for Scottish Ministers to lead a UK delegation. Therefore, how effective the Scottish Government is in ensuring that its representations have any bearing on the ultimate UK position is for obvious reasons difficult to ascertain.

The end result of these exclusively executive arrangements is that the Scottish Parliament is unlikely even to be aware of any policy disagreements that may exist between the two administrations. As the Parliament has a role in the implementation of EU measures which fall within devolved competence, such as fisheries and justice matters, ostensibly it should also have an interest in and seek to influence the development of the underlying policy.

However, the Parliament’s European and External Relations Committee (EERC) has so far failed to develop an effective scrutiny role regarding EU proposals, partly due to the lack of formal engagement with the Scottish Government, in contrast to the firmly established arrangements at Westminster. At present, the primary means through which the EERC receives information from Government is a six-monthly update from the Europe Minister on its EU priorities. These are the matters which the committee focuses on.

The EERC is alive to this issue.  A report in 2001 requested the institution of a “Scottish scrutiny reserve” function, as well as the dilution of the confidentiality requirement, but both points were resisted by the then Scottish Executive. Subsequently, EU matters began to be “mainstreamed” or referred to the appropriate subject committee for consideration, but this has not ensured that EU measures receive any kind of priority under the weight of domestic legislative scrutiny.

A European officer was also appointed, currently based alongside a team of Scottish Government civil servants in Brussels. Furthermore, the current EERC inquiry into the impact of the Lisbon Treaty on Scotland, to which the Law Society of Scotland made submissions, expressly acknowledges the potential importance of the extension of co-decision, as well as subsidiarity checks and how the committee should adapt their procedures and revise their internal scrutiny mechanisms so that they can influence draft EU legislation more effectively and at the optimum point in the process.

The way forward

Attitudes to the scope and impact of proposed EU legislation originating from Brussels can sometimes echo the limited reach of imperial Roman decrees north of Hadrian’s Wall. While the awareness and consideration of some EU policy areas such as agriculture and fisheries is good at Holyrood, work still needs to be done in relation to other significant policy areas, including justice.

The EERC, in co-operation with the Scottish Parliament’s subject committees, has considered individual measures in detail in the past – namely the Green Paper on Wills and Succession with the Justice Committee. However JHA measures, many of which have potential implications for devolved matters such as crime and policing, regularly appear to wash over the EERC. The fact that most JHA matters are now subject to co-decision, only serves to emphasise that the current arrangements cannot continue.

Two improvements to the committee’s scrutiny system could be the production of explanatory memoranda by the Scottish Government in relation to EU measures which have substantial implications for a devolved matter (the Welsh Assembly has called for this in relation to its own committee), and procedural changes to institute a Scottish scrutiny reserve, already requested by the EERC. Such suggestions will no doubt trigger the usual resource-related rebuttals, but were this matter to be awarded the priority it deserves, then the necessary reforms could be implemented without much difficulty, especially given the current Government’s longstanding commitment to placing Scotland at the heart of the EU.

The EERC has considered how to improve its scrutiny of EU legislation many times before, with limited outcomes to date. This, in part, has been due to executive obstinacy, but a more assertive approach from the committee is called for; and alongside sufficient political will from the Scottish Government, should ensure that improving scrutiny is awarded the priority it deserves. Without this approach, any tangible improvements will continue to be stillborn. A fresh approach is well overdue.

• Michael Torrance works for the House of Lords’ EU Select Committee and has also worked for the Law Society of Scotland and the Law Societies’ Joint Brussels Office.

• This article follows the grant of a Thyne Scholarship from ESU Scotland, which allowed the author to spend a period of time in Dublin meeting with officials of the House of Oireachtas (Parliament) and the Law Society of Ireland.

• Any views expressed in this article are the author’s own and do not in any way reflect the views of the House of Lords.

Role of the legal profession: an Irish comparison

While the Republic of Ireland, unlike Scotland, is a sovereign state, the distinctiveness of both jurisdictions and the similar sizes of the respective legal professions, as well as the historical ties between the two countries, mean that comparisons can be illustrative.

The Law Society of Ireland (LSI) has a dedicated EU and International Committee, the membership of which usually comprises practitioners with EU experience. It is charged with promoting the relevance of EU law in Ireland; engaging with the CCBE in Brussels; and the dissemination of information about EU matters to the relevant LSI subject committees.

Details of EU proposals are usually passed to the LSI by the Irish Government which, if considered to be of relevance to the profession, are responded to by a suitably qualified subgroup. More generally, the committee liaises with the Attorney General’s office on the proper implementation of EU legislation. Furthermore, the LSI regularly conducts outreach sessions to local bar associations on a variety of issues including topical EU matters, and co-operates with the Commission’s Irish office to co-sponsor an annual trainee debate.

The Law Society of Scotland currently spends a great deal of time considering EU matters. Proposals for new measures are usually received direct from the EU institutions, or the Scottish and UK Governments. The international officer will then identify the most significant issues for the profession, which are then sifted to the appropriate subject committee. Depending on their nature some responses are produced in co-operation with the Joint Brussels Office and submitted by it accordingly. The profession is kept updated through the website, the e-Bulletin and the Journal, and a quarterly “Legal Brief” is circulated to Scottish MEPs, MSPs, MPs and civil servants working on EU matters, which summarises recent LSS responses to EU proposals.

However, while consideration of individual EU matters is firmly integrated within the LSS’s work, it is suggested that a more holistic approach to the EU could be achieved by a dedicated EU committee within its structure. Such a committee, constituted on a similar basis to the LSI committee, could bolster the profession’s efforts in achieving a consistency of approach and a more defined process in relation to how EU matters are dealt with. It could also assist in the positive promotion of the EU among the profession.