The Scottish Government

European Commission - Action Plan on Better Regulation

Joint Comments by Scottish Executive and COSLA

July 2002

Introduction

1. This note offers comments on the four communications adopted by the Commission on 5 ^th June 2002: the Communication on European Governance: Better Lawmaking; the Action Plan, 'simplifying and improving the regulatory environment'; Impact Assessment and the consultation document "Towards a reinforced culture of consultation and dialogue - Proposal - for general principles and minimum standards for consultation of interested parties by the Commission". This note has been prepared in consultation with local authorities in Scotland and the Ministers and Departments of the Scottish Executive.

2. Under the devolution settlement in the UK matters of EU policy are reserved to the UK Government in London. However, the Scottish Executive and Parliament (in partnership with local government) are responsible for the transposition of EC legislation in devolved policy areas into either primary or secondary legislation. Under the devolution settlement the Scottish Executive and Parliament are responsible for a wide range of policy including environment, health, and justice. Within this context the Scottish Executive has responsibility for ensuring 'better regulation' is delivered in Scotland through the Improving Regulation in Scotland (IRIS) Unit, both in relation to the transposition of EU legislation and domestic legislation. Consequently, the Scottish Executive and Scottish local authorities have developed their own experience and practice regarding better regulation.

3. The Scottish Executive fully supports the UK Government's response to the package of Communications on Better Regulation and has worked closely with the UK Government in agreeing a UK common position. The Scottish Executive and Convention of Scottish Local Authorities (CoSLA) have taken a particular interest in the European Governance White Paper and jointly submitted comments in March 2002 and once again feel that it would be valuable to the Commission if we were to outline our consideration of these further documents.

4. The First Minister of the Scottish Executive made a speech in Brussels on June 6, 2002 at a meeting of the Commission for Constitutional Affairs and European Governance of the Committee of Region, in which he provided a Scottish perspective to the debate on the future of Europe. The First Minister said:

5. The Scottish Executive and CoSLA are pleased to have this opportunity to underline our commitment to this agenda and to offer our experience on implementation of this agenda in Scotland.

Action Plan

6. The Scottish Executive and CoSLA welcomed the Commission's White Paper on European Governance as a major step forward and in particular its honesty and openness. While having reservations at the time regarding the pace of progress that was suggested within the White Paper, we are now pleased to see the Commission building on this work with these communications on better regulation and are confident that the Commission will wish to continue to make good and timely progress regarding this agenda.

Consultation

7. The Commission's consultation on general principles and minimum standards for consultation is in particular welcomed by both the Scottish Executive and CoSLA. For any regulation to be successful it is vital that everyone affected either directly or indirectly have an opportunity prior to its introduction to have their views taken into consideration and it is good to see the document registering that "the benefits of being open to outside input are already recognised". The Scottish Executive already has extensive guidance on consultation and this is a fundamental building block on which the engagement with stakeholders founds. Only through a thorough and open dialogue with stakeholders can decision-making be fully informed and transparent. Nevertheless, as the Commission acknowledges consultation presents its own difficulties if it is to be an effective and efficient addition to the decision-making and policy development process.

8. Feelings of 'disconnectedness' or disempowerment felt by citizens and stakeholders can be tackled through 'open' consultation. As part of this process it is felt by the Scottish Executive and CoSLA that ensuring a fully open consultation is vital and allowing anyone who wishes to comment that opportunity is core. This will require consultation at each level of the EU, that is not just with European and national associations of regional and local authorities, but with regional level administrations, sub-national consortia of local authorities, national associations and the wider public. While this may appear resource intensive and demanding, we believe that existing mechanisms and structures already allow for the efficient processing of this requirement. Furthermore the benefits to be gained by taking into consideration a wider range of views and increased involvement from the local business communities and others justify the additional effort required.

9. While we agree that the Commission should consider focused consultation procedures it is vital that this is not pursued at the expense of the 'open' consultation process which allows anyone to express their views.

10. A further aspect of the open consultation process is that the consultation is carried out where appropriate. The Scottish Executive and CoSLA note the Commission's definition that consultation will take place for 'major policy initiatives' which is explained to be 'those that will require an extended impact assessment'. This definition is unfortunately not as helpful as could be expected and we would wish to see further clarification of this point. Many policy initiatives can have a significant impact and only through consultation (in conjunction with an impact assessment) will this be assessed properly.

11. Finally, the Scottish Executive and CoSLA note with concern the Commission's decision to set a minimum period for consultation of 6 weeks. It is fundamental that if the consultation process is to be successful that everyone is given sufficient time to consider and formulate their response. The UK Government and the Scottish Executive each subscribe to a minimum period of 12 weeks. However, the logistics and complications of EU consultation make a standard consultation period of 16 weeks more suitable and we would hope that the Commission would reconsider in the light of responses to this consultation.

Impact Assessments

12. Within the UK, both the UK government and the Scottish Executive have used a process of completing a Regulatory Impact Assessment as an aid to policy development. This process is welcomed by stakeholders and has proven invaluable in policy development. Consequently we are delighted to see the Commission now recognise their value and is considering how best to implement a similar process at the EU level.

13. Once again the Commission communication explains that the impact assessment will be implemented for 'all major initiatives' and as explained in para 9, we consider this to be too restrictive a definition and would wish to see this revisited. Recognising the difficulties inherent in deciding which policies require an assessment the Scottish Executive and CoSLA believe that it is necessary that the Commission consider further how this definition can be adjusted to allow greater flexibility in the process.

14. In order to build upon and enhance the open dialogue the Commission seeks to establish through the consultation process, it would be valuable if the impact assessment were similarly subjected to an open and public consultation where appropriate. Many policy proposals have indirect and unintended consequences and it is those who will be affected that are best at assessing these impacts rather than policy officials . Only through consultation on the impact assessment will those affected have an opportunity to confirm or challenge the assumptions made within the document. This could either as part of the consultation itself or consulted upon separately, although to avoid unnecessary duplication and consultation fatigue we would recommend the former. We are confident that the Commission will wish to ensure that the impact assessment is as robust as possible.

15. For devolved matters within Scotland, the Executive has introduced a review procedure that requires that all regulatory impact assessments are revisited and subjected to a review within ten years of the regulation's introduction. Many believe that regulations increasingly become outdated and burdensome after their introduction as circumstances change, to respond to this possibility it was agreed that a review was appropriate for regulations to ensure they remain justified and 'fit for purpose'. The Commission may find the Scottish Executive's approach on this instructive and useful and the Improving Regulation in Scotland Unit within the Executive can provide further details if necessary.

Conclusion

16. Both the Scottish Executive and CoSLA warmly welcome the progress the Commission is making towards implementing a better regulation strategy and the commitment it is showing towards delivering what will be a genuinely open and consultative process. Including the valuable experience of stakeholders, in the community, businesses, the public, national groupings of local authorities or devolved administrations is vital if the policy developed at the EU level is to rise to the challenges the modern world presents and if we are to deliver on the aim of making the EU the most competitive and dynamic knowledge based economy in the world. We believe that the four communications on better regulation taken together go some way to helping to achieve this goal and with some adjustments will bring significant and beneficial changes to both the way the EU regulates and to the way it is perceived.