The Royal Society of Edinburgh (RSE) is pleased to respond to the Scottish Parliament European Committee Inquiry into Governance and the future of the European Union: what role for Scotland? The RSE is Scotland’s premier Learned Society, comprising Fellows elected on the basis of their distinction, from the full range of academic disciplines, and from industry, commerce and the professions. This response has been compiled by the General Secretary with the assistance of a number of Fellows with experience in constitutional law and the workings of the European Union.

The specific issues identified in the inquiry are addressed below:

How can the subsidiarity principle be enacted in practice?
The Society welcomes the Commission’s concern with the need to create the means for greater consultation with its citizens, which flows through the European Governance White Paper. However, while the Paper might create more effective and perhaps better judged policies, it does not deal with the issue of people’s alienation from the Union’s work. To deal with alienation, not only must there be greater consultation but it must be seen to be credible from the ordinary citizen’s point of view, and not solely among the existing circles of power and political elites.

As it stands, the White Paper could be seen as a perfect example of why there is such an alienation problem. It is extremely prescriptive and seems to offer a one-way street to the dialogue on reforming decision making. An example appears on p23 where the complexity and the unpopularity of Community law/regulations is said to be due to the tendency of Member States to add to the costs of Community measures, or make them more complex when implementing them. Nowhere do they admit the possibility that people might see the Community adding to the cost and complexity of domestic legislation/decision making, in a way that is unnecessary or unwanted given the perceived preference (adequacy) of domestic legislation which at least has the advantage of being discussed and consulted through the domestic parliament’s other democratic bodies. If the Commission is going to take the line that the Member States are always at fault, despite the fact the Member States are more pluralist and open, it is little wonder the Commission faces alienation and a credibility deficit.

What seems to be missing is any discussion, and any proposals which would allow the population to discuss, propose or suggest the objectives of government in Europe; the targets of policy; to prioritise those targets and perhaps adopt sanctions when the associated policies are not forthcoming or are not implemented properly. It is what people are used to doing within their own political systems, so to take it away at the European level is bound to cause frustration and resentment at the integration process.

Therefore, the focussing on objectives, targets, priorities and means should not be withdrawn further into the European institutions (as proposed on p29-33), but should be put out to debate more widely in the institutions of the Member States. The Scottish Parliament should be asked to demand a two-way dialogue on these questions for its citizens, as a way of generating a political solution to people’s alienation from the Union. Subsidiarity is primarily a matter of political will. It has to be reiterated by the Council, the Commission and the Parliament and supported by the Court in interpreting EU law. The paternalistic style and approach adopted in this White Paper, even if done for the best reasons, is unlikely to do much to resolve it.

How can competencies and powers be defined and shared between the EU institutions, the Member States and the sub-Member State regions/nations?
There is no simple formula for power-sharing between the different levels of government in Europe, and certainly not one that all Member States could agree on. The detailed application of EU law through Directives and Regulations can be settled only by negotiation among and within the Member States. This should, however, be informed by the principle of subsidiarity.

What role might there be for a new 2nd Chamber in the EU, or a reformed Committee of the Regions or the other measures being proposed to increase the powers of the nations/regions of the EU? How can regions or sub-Member State institutions (such as the Scottish Parliament) be involved or are such new institutions to be limited to national parliaments and parliamentarians?
There could well be a role for a second chamber. Regional and other local institutions need to participate fully in the Union’s consultation processes and some kind of independent body, representing directly the interests of different regions and/or sectors of society, would be a system where people could know that they were influencing things and getting their concerns heard - for example through their MSPs, MEPs or MPs who might be seconded to serve on the Committee. The Committee of the Regions, however, has been most conspicuous by its invisibility, despite the earlier hopes placed on it, and there is no consistent pattern of sub-Member State institutions within the Union. The importance of the Member States in the decision making process, therefore, is likely to continue for the foreseeable future and the final decision-making seems likely to remain with the Council of Ministers.

What mechanisms are there to enable the Scottish Executive to play an increased role in developing policy within the UK in relation to EU issues, and how can effective parliamentary oversight be achieved?
The Scottish Executive is involved in the Whitehall processes for establishing the UK’s negotiating line in the Council and to the extent that the Scottish Executive becomes responsible for implementing an EU instrument by virtue of its devolved powers, it is accountable to the Scottish Parliament.

What form will the proposed "active involvement" of Scotland and other constitutional regions/nations in the IGC process take? Secondly, if a ‘Convention’ is formed to take the IGC process forward, what role is there for Scotland and other regions/nations who are not Member States of the EU?
Scotland should be involved in preparations for the IGC through the established procedures for settling the UK’s negotiating line. Additional "active involvement" along with other regions of the EU, for example in preparing a statement for presentation to the IGC, may be worth considering but in the real politick of the EU it may not be very effective.

Once passed, how can legislation be transposed and implemented in a more efficient and transparent fashion, and what measures can the Scottish Executive adopt to make this so?
Legislation to give effect to obligations arising from EU Membership is no different from any other kind of legislation. Full consultation on the practicalities with those likely to be affected is essential and goes with the grain of the concern of the Parliament and the Executive for openness.

What ‘rights’ should sub-Member State regions/nations and their citizens enjoy in relation to say, for example, possible redress through the European Court of Justice, the right to cross-border collaboration with other territorial authorities in other member states and also to legally enforceable fundamental rights?
The principle of subsidiarity would suggest that the rights of sub-member state regions should be a matter for the Member State. The prescription of such ‘rights’ at EU level, if it could be negotiated among the Member States, could pose difficulties and might even hamper the development of practical exchanges and collaboration of the kind which already occur, for example, between Scotland and the Baltic States.

What status should the European Charter of Fundamental Rights have?
Given that U.K. and Scottish law is still adjusting to the consequences of the Convention of Human Rights, one would hesitate to give any effect to the European Charter of Fundamental Rights beyond what it has already.

Additional Information
In responding to this inquiry the Society would like to draw attention to the following Royal Society of Edinburgh responses which are of relevance to this subject: How the Scottish Parliament Should Work (June 1998); Protecting our Rights: A Human Rights Commission for Scotland (July 2001) and Enquiry into the application of the Consultative Steering Group Principles in the Scottish Parliament (September 2001)

September 2001

Further information is available from the Research Officer, Dr Marc Rands