Guidance for policy officials: explanatory memoranda

Part 1: Early Influencing by Explanatory Memoranda

What are Explanatory Memoranda?

1. Explanatory Memoranda are the briefing mechanism used by the UK Government to inform and/or flag potential issues to the UK and Devolved Parliaments of EU legislative proposals and other activity that might lead to EU legislation, such as European Commission consultation papers.

2. They describe the general effect of the EU document, provide an explanation of the issue and an outline impact assessment, looking at financial, legal and policy implications and the implications for the Devolved Administrations ( DAs).

3. Paragraphs B4.32 - B4.34 of the Concordat on Co-ordination of EU Policy in the Memorandum of Understanding on Devolution ^[1] provides that DAs should be consulted when an Explanatory Memorandum ( EM) is being prepared so that they can advise whether the proposal would have any impact in an area of devolved competence, and where appropriate, provide suitable text for inclusion in the EM.

4. The EM process thus offers the Scottish Government an invaluable opportunity to comment on EU legislation and influence the UK's negotiating position at an early stage.

The Role of the Scottish Parliament

5. Under the Lisbon Treaty's 'yellow/orange card' procedure, national parliaments have an opportunity to object to legislative proposals with a view to having them amended or withdrawn, by submitting a reasoned opinion.

6. Such an objection may only be made on the grounds that the proposal does not comply with the subsidiarity principle. This principle requires both that the objectives of the proposed action cannot be sufficiently achieved by the Member States acting on their own, and that they can be better achieved by action on the part of the EU. For further information on the subsidiarity principle and where it applies, please see Annex A.

7. The House of Commons and House of Lords have one 'vote' each ^[2] and thus both have the opportunity to issue a reasoned opinion in respect of the proposal, within an eight week period to the institution proposing the draft document, outlining why it does not comply with the principle of subsidiarity.

8. Whilst the Scottish Parliament does not have a vote, it is able to feed in its views to the reasoned opinions and influence both chambers of the UK Parliament on the draft proposal where there are concerns over the implications of the proposal in devolved matters.

9. Therefore, the key question for the Scottish Parliament, in consultation with relevant stakeholders, is whether the EU is attempting to legislate in an area which is in the legislative competence of the Scottish Parliament and the objectives of the relevant proposal can be better achieved by the Scottish Parliament acting alone.

10. To do this, the Scottish Parliament often takes advice from Scottish Government officials about new EU proposals through EMs. It is therefore essential that policy officials respond to EMs as soon as possible, to enable the Scottish Parliament to influence the reasoned opinions of the UK Parliament.

11. The European Relations Division will flag any subsidiarity concerns raised in an EM to the Scottish Parliament's European and External Relations Committee, which will refer to the relevant subject committee for consideration. If the committee agrees with the concerns, it is required to report to the Scottish Parliament, which will debate and agree on (or otherwise) the motion to transmit its views to the European Committees at the House of Commons and the House of Lords.

12. The EM process is, therefore, a vital mechanism in notifying the Scottish Parliament of EU proposals which relate to devolved matters.

13. The next step then hinges on the action of the national parliaments of other EU Member States. A 'yellow card' will be raised, if a third or more of EU national parliaments submit reasoned opinions - the threshold drops to a quarter for legislation in the field of cooperation in criminal matters - the originating institution is usually bound to review its proposal with a view to maintaining, amending or withdrawing it.

14. To raise an 'orange card', more than half the Member States must submit reasoned opinions and if the originating institution decides to maintain the proposal, it must submit a reasoned opinion in support of this decision to the Council of the EU and the European Parliament, each of which can strike down the proposal.