Guidance for policy officials: explanatory memoranda

Part 2: Handling Explanatory Memoranda

The process

15. Whenever an EU institution publishes a proposal for new legislation or another policy document, it appears in the Official Journal and officials in the UK Permanent Representation to the EU ( UKRep) transmit the details to the Foreign and Commonwealth Office ( FCO). The FCO deposits the documents at Westminster, and the Cabinet Office sends an EM request (also known as a commissioning minute) to the lead Whitehall department(s).

16. The Whitehall lead officials then have 10 working days to produce an EM.

17. Whenever an EU document relates to an area of devolved competence, the Scottish Government should be consulted in the drafting of the EM. It is, therefore, essential that all policy officials in the Scottish Government who have responsibility for implementing EU obligations know the identity of the main contact in their counterpart Whitehall Department and maintain good working relations with them.

18. The Scottish Government EM inbox will be sent a copy of all commissioning minutes to the Whitehall leads on day one of the 10 day process. The European Relations Division logs the request onto a database and categorises them according to subject matter: 1) devolved; 2) reserved and with devolved interest or; 3) fully reserved.

19. Where the EM concerns a devolved matter or has a devolved interest, the European Relations Division forwards it to the most appropriate policy lead. It is important to note that this process is complementary and should not be used as a substitute to direct contact between Scottish Government and UK Government officials.

20. In all cases, please ask your UK Government counterpart to copy in the EM inbox ( EM.scotexec@gov.scot) so that we can see that you are dealing with the request.

What do I do when I receive an EM request?

21. The key question for policy leads is whether the proposed EU action is, or will be, in accordance with the subsidiarity and proportionality principles. For more guidance on assessing this, please see paragraphs 23 - 31 .

Step 1 - Upon receiving an EM, you should first check that the subject matter of the EU proposal is devolved and falls within your policy area.

• Consult SGLD if you have any queries about its devolved status.
• If the EM is for you, go to step 2.
• If it's not for you, please forward to a more appropriate recipient and notify the EM Mailbox of the new contact as soon as possible.

Step 2 - Read and consider whether the EU legislative proposal, or anything possibly giving rise to a legislative proposal, is in accordance with the subsidiarity and proportionality principles. For further guidance, please see paragraphs 23 - 31.

• If you have a subsidiarity or proportionality concern, go to step 3.
• If you have no concerns about subsidiarity or proportionality, go to step 4.

Step 3 - You should flag your concern to the European Relations Division and email the Whitehall lead immediately to outline the Scottish Government's position, copying in the EM inbox.

Step 4 - Consider whether there is anything raised in the document that you would like to comment on.

• Remember that this is an invaluable opportunity to comment on EU legislation and flag Scottish Government concerns to the UK Government at an early stage.
• Cabinet Office guidance outlines what should be included in the EM, along with the standard template for completion. A copy of their standing advice on consulting the DAs is available on request from the European Relations Division.

• If you do have comments or concerns, go to step 5.
• If you have no comments, go to step 6.

Step 5 - Email the Whitehall lead with your comments and ask for sight of the draft EM before it is issued for clearance.

• Engage with your Whitehall counterpart as soon as possible to ensure that Scottish interests are represented in the EM.
• Copy the EM inbox into all correspondence to keep the European Relations Division informed.
• If you become aware of any subsidiarity concerns expressed by your Whitehall counterpart at any stage in the drafting process , please contact the European Relations Division immediately.

Step 6 - Issue a nil return to the Whitehall lead, thanking them for the opportunity to comment. You may also wish to request sight of the draft EM before it is submitted to a UK Minister for clearance.

• Engage with your Whitehall counterpart as soon as possible to ensure that Scottish interests are represented in the EM.
• Copy the EM inbox into all correspondence to keep the European Relations Division informed.

22. Do not hesitate to contact the European Relations Division for advice if you have any queries about any part of this process.

Assessing Subsidiarity

23. The key question for policy leads is whether the proposal breaches the subsidiarity principle. This principle aims to ensure that decisions are taken as closely as possible to citizens of the EU.

24. It 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.

25. Please note that the principle of subsidiarity only applies to the shared and supporting legislative competence of the EU. If the proposal falls in an area of exclusive EU competence (for example, competition rules), then the question of subsidiarity does not arise - Member States have agreed that the Union should take all action in this area. For an overview of the legislative competence of the EU, please see Annex A.

26. To assess whether the proposal is in accordance with the subsidiarity principle, you should consider the following:

• Does the issue under consideration have transnational aspects which cannot be satisfactorily regulated by action of Member States acting separately?
• Would action by Member States alone, or lack of Union action, conflict with the requirements of EU Treaties ( e.g. the need to correct distortion of competition)?
• Would a lack of Union action significantly damage Member State's interests?
• Would action at Union level produce clear benefits by reason of its scale or effects, compared with action at the level of the Member States alone?

27. It's important not to confuse subsidiarity with disagreement with the action. The questions we are answering on subsidiarity are whether a policy cannot be sufficiently achieved by Member States and whether it is better achieved at the EU level (because of the scale or effects). Where you think that policy issues can be addressed sufficiently by Member States, you should explain why.

28. If the issues at hand are particularly sensitive or complex, seek advice from SGLD.

Assessing Proportionality

29. Once you have completed the subsidiarity check, the next step is to examine proportionality. Under the proportionality test, the ' content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.' ^[3] For more information, please see Annex A .

30. To assess whether the proposal is in accordance with the proportionality principle, you should consider:

• Whether the EU measure has left as much scope as possible for national decision making;
• Whether the proposed legislation imposes on national, regional or local authorities or on civil society any constraints which are illogical, superfluous or excessive given the objective and;
• Whether the proposals respect well established national arrangements and the working of Member States' legal systems.

31. Remember that national parliaments cannot object to EU proposals on the grounds that they go beyond what is proportionate to achieve the given objective alone. However, this is another invaluable opportunity for the Scottish Government to represent Scottish interests and influence the UK negotiating position at an early stage.

Consultation

32. Where the proposal may confer powers or responsibilities, or will have implications for local government, you should consult and engage with representative bodies of local government, including COSLA, where possible. You should be aware that on issues of key importance for local government, it is likely that politically agreed positions and impact assessments, including on subsidiarity concerns, are available from them well before the final draft legislation is tabled, so it may be prudent to get in touch with them before the EM is made.

33. You should also consider whether the EU proposal may affect the Scottish islands and rural communities in a particular way and ensure that the appropriate bodies are consulted.

34. However, be wary that deadlines to respond to EM requests are extremely tight and consultation may not always be possible.

What happens next?

35. Once the EM has been finalised and cleared by the relevant UK Minister, the Whitehall lead will circulate it for information. The European Relations Division will forward on the finalised documents to the policy lead and to the Scottish Parliament.

36. Policy leads should file the EM in the relevant policy file in objective.

37. The European Relations Division will flag 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. The committee will then come to a view on whether it agrees with the subsidiarity concern.

38. The clerks will usually contact the Scottish Government policy lead to ask them to explain the issues and may ask your portfolio Minister to give evidence on the proposals. Please be aware that there may be a tight deadline for response in order to meet Committee timetables. An example of such a response is available on request.

39. Therefore it is essential that your Minister is kept abreast of all key developments and your Whitehall counterparts are aware that the Scottish Parliament will be considering the proposals.

40. If the committee disagrees with your assessment that subsidiarity and/or proportionality is breached, no further action need be taken.

41. However if it is agreed that there is a concern, the committee will 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.

Tips for dealing with EMs

• Establish good relationships with your Whitehall counterparts. We hope that through early engagement and good communication in a spirit of mutual respect, we will ensure that where the Scottish Government has comments to make, these will be taken fully on board. This is something the European Relations Division will monitor closely and raise with Cabinet Office if necessary. Please flag any concerns you have regarding communication with Whitehall.
• Remember that EU legislative proposals are not designed with devolution in mind. This being the case, you should be careful to consider if there are any requirements which will prove particularly difficult to implement in Scotland.
• Bear in mind that your desk officer in Brussels is in a good position to influence EU proposals (particularly at the earlier stages of the formal legislative process). When you receive a document highlighting particular implications for Scotland, it is worth contacting Brussels officials to agree a course of action and register your interest/concerns with UK Government counterparts. For more information, please see Influencing EU Policy Guidance for Policy Officials available at: http://www.gov.scot/Topics/International/Europe/Policies/Strengthening-Relationships/Obligations/Influencing-EU-Policy