EU/S3/08/6/A

European and External Relations Committee

Agenda

6th Meeting, 2008 (Session 3)

Tuesday 11 March 2008

The Committee will meet at 10.00 am in Committee Room 6.

1. Inquiry into the transposition of EU directives: Alex Neil MSP, Irene Oldfather MSP and Iain Smith MSP will report back from their respective inquiry visits.

2. Inquiry into the transposition of EU directives: The Committee will take evidence from—

Linda Fabiani MSP, Minister for Europe, External Affairs and Culture

3. Scottish Government’s European priorities: The Committee will take evidence from—

Linda Fabiani MSP, Minister for Europe, External Affairs and Culture

4. Inquiry into international development: The Committee will take evidence from—

Dr Neil Thin, University of Edinburgh

Mozammel Huq, Convener and Professor John Struthers, Scotland Study Group, Development Studies Association

Professor John Briggs, Vice-Chair, Centre for International Development, University of Glasgow

Dr Maurizio Carbone, University of Glasgow

Dr Jim Johnston Clerk to the Committee Tower 4, TG.01 Tel: 0131 348 5234 Email: europe@scottish..uk

EU/S3/08/6/A

The papers for this meeting are as follows:

Agenda item 1

Inquiry into the transposition of EU directives EU/S3/08/6/1

Agenda item 2

Inquiry into the transposition of EU directives EU/S3/08/6/2

Agenda item 3

Scottish Government’s European priorities (Private Paper) EU/S3/08/6/3(P)

Agenda item 4

Inquiry into international development EU/S3/08/6/4

EU/S3/08/6/1

European and External Relations Committee

6th Meeting, 2008 (Session 3)

Tuesday 11 March 2008

Inquiry into the transposition of EU directives – Regional visits

Background

1. At its meeting on 30 October 2007, the Committee agreed the remit for its reporter-led inquiry into the transposition of EU directives. It was agreed that the inquiry would focus on the two to three year period between a directive being agreed in and the requirement for it to be introduced into domestic law.

2. At its meeting on 11 December 2007 the Committee agreed that each Reporter should visit one of the three legislative regions identified; namely, , Germany and Spain.

3. The reports of the visits are attached at Annexe A and Alex Neil, Iain Smith and Irene Oldfather will speak to their respective reports at the meeting.

Recommendation

4. The Committee is invited to consider the attached reports.

EU/S3/08/6/1 Annexe A Report of a visit to Germany 11 to 13 February 2008

1. This is the report of my visit to Germany from 11 to 13 February 2008. In order to obtain a comparison two adjacent regions were visited; Bavaria and Baden-Württemberg. Both regions have legislative powers and have exclusive legal competence in the areas of police, media, culture and education. During my visit I had meetings with the respective governments and in each of these regions. A number of key themes emerged from these meetings and these are set out below.

Formal versus informal influence

2. The relevant provisions concerning EU matters are set out in Article 23 of the German Basic Law (set out below). The regional governments’ involvement in EU matters is primarily as a result of their membership of the Bundesrat (the Second Chamber of the Federal Parliament). In matters relating to regional competence the Federal Government is obliged to accept the position of the Bundesrat. In terms of parliamentary involvement, all draft EU proposals should be supplied to the regional parliaments in advance of consideration by the Bundesrat. However, the regional government is not obliged to accept the view of its respective parliament or represent this view in the Bundesrat.

3. A key theme that emerged from our discussions was that while the German Basic Law provides for formal engagement by the regional governments in the EU legislative process it was clear that both governments and parliaments consider these formal procedures to be insufficient to ensure that regional interests are effectively represented at EU level.

5. As a result, both the regional governments and parliaments have developed informal methods for influencing the content of EU legislation. Both regional governments have established offices in Brussels with a minimum of 30 to 40 members of staff. The offices work directly with the EU institutions and relevant stakeholders to try to influence the content of draft EU proposals and legislation. The success of these informal methods was exemplified by Commission proposals for legislation curbing car emissions. The Bavarian Government was alerted to this idea when they met with representatives of the Commission and were able to secure an early copy of the draft directive which it sent back to Munich. In Munich the Bavarian Government circulated the draft amongst key stakeholders (such as BMW and Volkswagen) with the aim of achieving a common Bavarian position. The Bavarian Government then submitted its views to the European Commission through its office in Brussels and to the Federal Government in Berlin.

6. The parliaments also consider that the formal processes do not allow for sufficiently early parliamentary engagement. As a result, members use their party links to influence the content of EU proposals. For example, the CSU members of the Bavarian Parliament have a “jour fixe” every EU/S3/08/6/1 Annexe A two months with CSU members of the Bavarian Government to discuss EU matters. They will also work with CSU MEPs to learn about new EU developments. Further, both parliaments highlighted the role of the Committee of Regions particularly in relation to its subsidiarity network.

The role of the Government and the parliament

7. Under the German constitution the regional governments are in an unusual position of having both an executive role, at a regional level, and a legislative role as members of the second Chamber of the Federal Parliament (the Bundesrat). Constitutionally, therefore, the Bundesrat has a key role in ensuring that regional interests are effectively represented both at an EU and at a federal level. The role of the regional parliaments in relation to EU matters is less clear, both in terms of “upstream” and “downstream” activity. At a substantive level, the scrutiny function of the parliaments appears to be exercised predominantly by individual members through their party contacts, while the focus of the respective European Committees is on ensuring that subsidiarity has been respected by the Federal Government and the EU institutions.

Moving forward

8. It was apparent from our meetings with both governments and parliaments that they are continually seeking new ways to improve their scrutiny of EU developments and thereby influence the content of draft proposals and legislation affecting their regional interests. In the last few years, the Baden-Württemberg Government has increased its staff in Brussels to 30 to 40 while the Bavarian already has 50 members of staff. The Baden-Württemberg Government is also working with second chambers in other legislative regions such as Austria, Catalonia and Italy to develop its subsidiarity scrutiny function in relation to the Lisbon Treaty.

9. The Baden-Württemberg Parliament has recently appointed an officer in Brussels to keep the Parliament informed of relevant developments. Further, out the outset of our discussions, the Bavarian Parliament indicated that it wanted to improve its engagement in both “upstream” and “downstream” activities in relation to EU matters and cited the example of the Services Directive (see below) as a positive example of parliamentary intervention. Both parliaments see the Lisbon Treaty as providing an increased role for regional parliaments and are looking to develop internal protocols to carry out this scrutiny function effectively.

Early engagement

10. An overriding theme to emerge from our meetings was that both governments and regional parliaments place great emphasis on early engagement in the EU legislative process. While the regions will have responsibility for transposing directives falling within their respective EU/S3/08/6/1 Annexe A competences, they are of the view that it is too late at transposition stage to try to affect content. For the regional governments, early engagement means attempting to influence the content of a proposal before it is even published by the Commission, as demonstrated in the example of the directive on curbing car emissions. To this end, the Brussels offices will contact directly the EU institutions, hold regular networking events and work with the relevant stakeholders to achieve a common regional position.

11. For the regional parliaments, this means early identification of relevant draft proposals (through party contacts and in the case of Baden- Württemberg, the Brussels Officer) and holding inquiries with relevant stakeholders with a view to influencing their content. A key example of success was in relation to the Services Directive the draft proposal of which would have involved amendment of 30 to 40 Bavarian State laws. The European Committee worked with other relevant Parliamentary Committees and held three hearings with representatives from the European Commission, the European Parliament and key stakeholder organisations. As a result of this collaboration the Parliament was able to influence the content of the draft directive.

Alex Neil MSP

Meetings were had with the following:

Officials from the European and International Affairs Department of the Bavarian Staatskanzlei (Bavarian Government)

Dr Martin Runge, Convener of the Committee for Federal and European Affairs, Bavarian Parliament Professor Urusal Mannle, Deputy Convener of the Committee for Federal and European Affairs, Bavarian Parliament Officials from the Bavarian Parliament

Frau Christa Vossschulte, Deputy President of the Baden-Württemberg Parliament and member of the European Committee Officials from the Baden-Württemberg Parliament

Officials from the Division for European Politics, Baden-Württemberg Government

Constitutional arrangements in relation to EU matters

1. Article 23 of the German Basic Law (Grundgesetz) sets at the position of the federal and regional governments in respect of EU issues. Under Article 23(2) the Bundestag (the first Chamber of the Federal Parliament) and, through the Bundesrat (the Second Chamber of the Federal Parliament made up of representatives from the State Governments), the Länder (State Governments) participate in EU EU/S3/08/6/1 Annexe A matters. The Federal Government is obliged to keep the Bundestag and the Bundesrat informed, comprehensively and, at the earliest possible time.

2. Under Article 23(3) the Federal Government must provide an opportunity for the Bundestag to state its position before participating in EU legislative acts. The Federal Government should take the position of the Bundestag into account during negotiations.

3. Under Article 23(4) the Bundesrat should participate in the decision making process insofar as it would be competent to do so in a comparable domestic matter or insofar as the subject falls within the competence of the German Länder.

4. Even where the matter is within the exclusive competence of the Federal Government, the position of the Bundesrat should be taken into account where Länder interests would be affected (Article 23(5)).

5. Where the matter relates primarily to an area of Länder competence the exercise of the rights of the German Federation as a Member of the EU should be delegated to a representative of the Länder designated by the Bundesrat (Article 23(6)), with the participation and concurrence of the Federal Government.

EU/S3/08/6/1 Annexe A Report of a visit to Belgium 25 to 26 February 2008

Background

1. This is the report of my visit to Belgium from 25 to 26 February 2008. In order to obtain a comparison I met with representatives from both the government and the parliament in all three of the legislative regions of Belgium; , Brussels Capital Region and . All three regions have exclusive legislative competence in the following areas: regional economy, employment, agriculture, water policy, housing, public works, energy, transport (except reserved federal level), the environment, town and country planning, nature conservation, credit, and foreign trade. Federal and regional law have equal status.

2. Under the principle of in foro interno, in foro externo, the competences of the federal and regional governments remain the same for both internal and external affairs.

3. This report sets out the key findings of my visit.

Representation in the Council of Ministers

4. Although my visit primarily focussed on the transposition process, there was some discussion on the general position of Belgium in respect of the EU legislative process. Under the Co-operation agreement of 1994 regarding the representation of Belgium in the Council of Ministers, Belgium will be represented by a regional minister where the matter falls within a regional competence. In those areas where competence is “mixed” (i.e relates to both a federal and regional competence) the “lead” Minister will be accompanied by an adviser from the federal or regional minister (as appropriate).

The transposition process: the role of the regional government

5. The transposition of an EU directive in Belgium follows the standard process used for ordinary domestic legislation. Both the Flemish and Wallonian Governments have internal guidelines for the transposition process while the Brussels Capital Region Government is planning to draw up similar guidance in the near future.

6. In 2005 the Brussels Capital Region Government appointed a dedicated officer responsible for co-ordinating the transposition of directives. The officer works closely in each case with the relevant ministers and administration(s). The officer’s primary role is to act as a facilitator. The Government is hoping to appoint an additional person (a lawyer) who will assist with the technical and legal aspects of the transposition process.

7. One of the first issues to determine is which government is responsible for transposition of the directive. While no competences are shared EU/S3/08/6/1 Annexe A between the federal and regional governments, competences can be “mixed”. An example of this is “waste management” which is the responsibility of the regional government; waste transportation, however, is the responsibility of the Federal Government. The position is not always clear cut and in some cases it is necessary to seek the opinion of the Administrative Court to determine competence. Decisions over competence can significantly delay a directive’s transposition.

8. All three governments are currently considering the transposition of the Services Directive which impacts on both regional and federal competences and there have been meetings with the Federal Government to divide up responsibilities for transposition. For its part, the has set up a steering group to co-ordinate transposition with representatives of each relevant department. The President of the Steering Group is also a member of the Federal Steering Group.

9. A further decision for the regional government is whether the draft legislation should take the form of a or an arreté. In the latter case, the legislation is not subject to the approval by the parliament. Only where the government has the existing legal basis can an arreté be used.

10. Once the legislation has been drafted by the relevant administration it will be the subject of three separate readings by the Minister. After the first reading, the draft legislation may be considered by relevant stakeholders and experts or, in the case of the Flemish Government, strategic advisory bodies. The nature of this consultation will depend on the region, the type of legislation and the area in which it falls. For example, there appears to be an established consultation procedure for environmental matters. The strategic advisory bodies are a new development within the Flemish regime and should involve “civil society”. The strategic bodies will provide an opinion the length and nature of which will depend on the timescale allow. In general, however, external stakeholder involvement appears to be ad hoc.

11. Following a second reading by the Minister, it is compulsory to seek the view of the Administrative Court who may disagree with the legislative instrument that the Government is planning to use.

12. Discussions among the regional governments on transposition takes place on an ad hoc basis and will depend on the nature and type of legislation.

13. Likewise, engagement between the federal and regional governments will depend on the subject matter of the directive and whether it relates to a mix of regional and federal competences or a “mixed” competence such as energy. We heard that late transposition has been a problem for Belgium and, as a result, the Federal Government appears to be taking closer oversight of the transposition of directives falling within the EU/S3/08/6/1 Annexe A competence of the regional governments. On the day of our visit, the Federal Government indicated that, for the first time, it would transpose legislation in areas of regional competence where the regional government had failed to transpose on time.

14. All of the governments emphasised that differential implementation is a common feature of the Belgian federal system and occurs both in domestic law and in the transposition of EU directives. The Wallonian Government considered that the scope for differential implementation would, in any event, be less likely in the future given the increasingly prescriptive nature of directives.

15. We received differing responses from the governments in respect of “transposition notes” and correlation tables. The Wallonian Government indicated that these were not normally provided, as did the Flemish Government which pointed out that in many cases correlation tables would contain blanks where the responsibility for transposition was “shared” with the federal government. Only in the Brussels Capital Region did the Government indicate that it produced a table showing how each relevant Article in the directive had been transposed.

Parliamentary engagement in the EU legislative process

16. The draft legislation is first considered by parliamentary committee and then by the plenary. As stated above, the parliamentary procedure for transposing directives is, apparently, the same as that for domestic legislation. One parliament indicated that in many cases members would be unaware that legislation had originally derived from EU legislation.

17. Our discussions on parliamentary engagement in EU matters tended to focus on three key themes: 1) the provision of EU documentation 2) Government reports to the Parliament and 3) engagement in the development of EU proposals.

18. In terms of information provision, the Institutional Reform Special Act requires both the Federal Government and the regional governments to supply the legislative proposals issued by the European Commission to their Parliament as soon as they are forwarded to the Council of Ministers and it further provides explicitly that the parliaments can submit opinions on these legislative proposals to their government.

19. Further, at the time of the signing of the European Constitution, Belgium made a unilateral declaration in which it stated that in the Belgian institutional context the Federal legislative chambers as well as the Community and Regional Parliaments must be regarded as chambers of the “national” Parliament. This declaration was also attached to the Lisbon Treaty.

20. In December 2005 the seven legislative assemblies in Belgium signed a cooperation agreement for implementation of the Subsidiarity Protocol. EU/S3/08/6/1 Annexe A The inter-parliamentary cooperation agreement is based on two pillars 1) the flow of parliamentary information from and to the EU institutions 2) parliamentary scrutiny of subsidiarity. The agreement states that the parliaments of the regions, just like the Federal Parliament, are entitled to receive all preparatory documents and legislative proposals directly from the relevant EU institutions.

21. In terms of reporting to the parliament on EU issues, including late transposition, the Flemish Government indicated that it reported on these matters to the parliament on a regular basis. In the Brussels Capital Region the Government presents an annual report to the Brussels Parliament about European affairs on the following issues: 1) implementation of EU treaties 2) the evolution of EU proposals 3) EU acts that have to be implemented in the next twelve months and 4) EU acts for which the transposition is late.

22. However, the extent to which the regional parliaments monitor and attempt to influence the content of draft legislation is less clear. Only the has a European Committee. For example, the Brussels Capital Region Parliament indicated that for the first time its Environment Committee had considered a draft directive and undertaken a subsidiarity check on behalf of the regional parliament. The President of the Wallonian Parliament, as a former MEP, has great personal interest in EU developments.

23. For its part, the Flemish Parliament has made attempts to increase its engagement during the development of EU proposals. In 2005 the Parliament appointed two “euro-promoters”. We understand that the purpose of these two officials is to promote engagement by the parliamentary committees on EU issues falling within their respective remits and to stimulate debate. As a result, a number of committees have organised hearings with representatives from the Commission, MEPs and relevant stakeholders on EU proposals relating to nutrition, sport, cultural mattters and transport.

24. The officials will approach the president of the relevant Committee with their proposals for a hearing and/or inquiry on a specific EU issue.

Iain Smith MSP

List of meeting undertaken:

Officials from International Relations and the Transposition of EU Law, Wallonian Government

Jose Happart, President of the Parliament of Wallonia Official from the Parliament of Wallonia

Eric Tomas, President of the Parliament of the Brussels Capital Region EU/S3/08/6/1 Annexe A Officials from the Brussels Capital Region Parliament Official from the Brussels Capital Region Government

Official from the Flemish Government

Officials from the Flemish Parliament

Constitutional Framework

1. At Federal level the government retains control over justice, defence, federal police, social security, monetary policy, the public finances and public debt, nuclear energy and state-owned companies such as the Belgian postal service and the Belgian rail network. The Federal government is also responsible for the obligations of Belgium and its federal institutions towards the EU and NATO. It also controls substantial parts of the public health system, home affairs and foreign affairs.

2. Below the federal level the country is divided into three legislative ‘Regions’ (Flanders, Wallonia and Brussels Capital Region); three cultural ‘Communities’ (Flemish Dutch-speaking; French-speaking; German-speaking) and four official linguistic zones (Dutch; French; German and the bilingual Brussels Capital Region).

3. The three Regions (Flanders, Wallonia and Brussels Capital Region) are geographical states with their own legislative and executive branches. The legislative powers of the Regions, which are set out in the Belgian constitution, are the regional economy, employment, agriculture, water policy, housing, public works, energy, transport (except reserved federal level), the environment, town and country planning, nature conservation, credit, and foreign trade. They also supervise the provinces, municipalities and utility companies of their Region.

EU/S3/08/6/1 Annexe A

Background

1. This is the report of my meetings with the Catalan Government and the Catalan Government on 26 February 2008.

The Spanish Federal System

2. Spain is divided into 17 autonomous communities, all with self- government. Catalonia, the Basque Country, Galicia and Andalusia have greater powers than the other 13 regions.

3. The way in which Catalonian self government operates is regulated by its Statute of Autonomy, this was signed in June 2006. For the first time this Statute included a Chapter on the European Union (this is set below).

Central Coordination

4. There is no central coordination for addressing pan Spanish issues, but there are sectoral conferences for different policy areas which bring together the appropriate representatives of the 17 regional governments and the Spanish Government. The sectoral conference for European issues is known as the Conference for Affairs Related to the European Communities.

The Issue of Confidentiality

5. The Catalan and Spanish Governments have an agreement on confidentiality with regard to negotiations at European Union level. The Spanish Government also has a “last say” clause which allows for flexibility during European Council negotiations.

Representation of Autonomous Communities in the European Council

6. The Conference for Affairs Related to the European Communities adopted an agreement in December 2004 which permitted regional Ministers to attend European Councils and represent the Spanish view in the following areas;

o Employment, Social Policy, Health and Consumer Affairs o Agriculture and Fisheries o Environmental Issues o Education, Youth and Culture

7. These Council formations are those for which the autonomous communities have exclusive competence. It is the responsibility of the different sectoral conferences relating to each policy area to agree a EU/S3/08/6/1 Annexe A unified regional position to be represented in the Spanish position in the European Council.

8. Two civil servants from the autonomous communities are also permitted to serve in the Spanish Permanent Representation in Brussels and to represent the views of the autonomous communities.

Formal Influencing Mechanisms

9. The Catalan Government said it participated in European Commission consultations, for instance they responded to Green Papers on Maritime policy and Researchers Mobility.

10. They went on to describe how they try to interact with the European Union legislative process:

o Important to catch what the European Commission is planning at an early stage. o From this, select what is important to Catalan interests. o Find out what the Spanish Government is doing on the issue and engage with them. o Follow the Council Working Group discussions on the issue. o Engage with Catalan MEPs. o Effectively use all available channels to engage with the European Commission and promote the Catalan viewpoint.

11. They were keen to point out that it was important to engage with the process (both formally and informally) at an early stage.

Informal Mechanisms

12. In addition to the formal mechanisms, the Catalan Government also highlighted informal ways in which it seeks to influence the European Union. This included use of the Catalan Representation in Brussels (which is staffed by 17 people), through the Committee of the Regions and through contact with Catalan MEPs.

Subsidiarity

13. The issue of subsidiarity is one currently being considered by both the Catalan Government and Parliament. The Government made the point that they saw subsidiarity as a tool for participation and not as an end in itself.

Development and Application of European Union Law

14. Article 188 of the Statute makes the Catalan Government and Parliament responsible for developing and applying European Union law in areas within its competence. If there is a different viewpoint in different autonomous communities it does not matter because each EU/S3/08/6/1 Annexe A community is free to do its own things as long as it complies with European and Spanish law. This can result in differential implementation.

The Role of the Parliament

15. The Catalan Parliament is currently looking at ways in which it can maximise its engagement with European Union issues in the wake of agreement of the Lisbon Treaty. The Committee is keen to widen its engagement from that which it currently undertakes. For instance, they pointed out that Article 187 of the Statute of Autonomy gives the Catalan Parliament the right to establish relations with the European Parliament in areas of common interest.

16. The Parliament’s European Committee has regular evidence sessions with the Catalonian Europe Minister. It also regularly takes evidence from Catalonia’s MEPs.

17. The European Committee believes that the first and second protocols on subsidiarity provide new powers for regional parliaments.

Irene Oldfather MSP

List of Meetings Undertaken

Meeting with Anna Repullo, Coordinator of the Secretariat for the European Union and Guillem Rovira, Director of EU Institutional Affairs

Meeting with the Committee of Acció Exterior (Committee of External Affairs) of the Parliament of Catalonia

Constitutional arrangements

Chapter II. Relations of the Generalitat with the European Union

ARTICLE 184. GENERAL PROVISION

1. The Generalitat participates, under the terms established by this Estatut and the legislation of the State, in affairs related to the European Union that affect the powers or interests of Catalonia.

ARTICLE 185. PARTICIPATION IN THE TREATIES OF THE EUROPEAN UNION

EU/S3/08/6/1 Annexe A 2. The Generalitat shall be informed by the State Government of initiatives for review of European Union treaties and of subsequent signing and ratification processes. The Government of the Generalitat and Parliament shall address, to the State Government and to the Cortes Generales, the observations that it deems pertinent to this effect.

3. The State Government may include representatives of the Generalitat in Spanish delegations taking part in processes for review and negotiation of original treaties and those for adoption of new treaties, in matters affecting the exclusive powers of the Generalitat.

ARTICLE 186. PARTICIPATION IN THE FORMATION OF THE STATE POSITION

4. The Generalitat participates in the formation of State positions before the European Union, especially before the Council of Ministers, in matters concerning the powers or interests of Catalonia, under the terms established by this Estatut and the legislation on these matters.

5. The Generalitat shall participate bilaterally in forming the State positions in those European affairs which affect it exclusively. In other cases, participation shall be in the framework of multilateral procedures to be established.

6. The position expressed by the Generalitat is decisive for the formation of the State position if it affects its exclusive powers and if the European proposal or initiative could lead to especially important financial or administrative consequences for Catalonia. In other cases, this position shall be heard by the State.

7. The State shall provide the Generalitat with complete and up-to-date information about the initiatives and proposals presented to the European Union. The Government of the Generalitat and the Parliament of Catalonia shall address to the State Government and the Cortes Generales, as the case may be, the observations and proposals deemed pertinent to these initiatives and proposals.

ARTICLE 187. PARTICIPATION IN EUROPEAN INSTITUTIONS AND BODIES

8. The Generalitat participates in Spanish delegations to the European Union that deal with affairs within the legislative power of the Generalitat, and especially to the Council of Ministers and the consultative and drafting bodies of the Council and the Commission.

9. In areas falling within the exclusive powers of the Generalitat, the participation established in Section 1, permits the Generalitat, by means of preliminary agreement, to represent and chair these bodies, in accordance with the applicable regulations.

EU/S3/08/6/1 Annexe A 10. The Generalitat, in accordance with the State, participates in designation of representatives in the framework of the permanent State representation in the European Union.

11. Parliament may establish relations with the European Parliament in areas of common interest.

ARTICLE 188. PARTICIPATION IN OVERSEEING THE PRINCIPLES OF SUBSIDIARITY AND OF PROPORTIONALITY

12. Parliament participates in the processes to oversee the principles of subsidiarity and proportionality established by European Union Law in relation to European legislative proposals if these proposals affect powers of the Generalitat.

ARTICLE 189. DEVELOPMENT AND APPLICATION OF EUROPEAN UNION LAW

13. The Generalitat applies and implements the law of the European Union within its jurisdiction. The existence of a European regulation does not modify the internal distribution of powers established by the Constitution and this Estatut.

14. If implementation of European Union law requires the adoption of internal measures that extend beyond Catalan territory which the competent autonomous communities are unable to adopt by means of collaboration or coordination mechanisms, the State shall consult the Generalitat on these circumstances prior to adopting the measures. The Generalitat shall participate in the bodies that adopt these measures or, should this participation be not possible, shall issue a preliminary report.

15. In the event that the European Union establishes legislation replacing the basic State regulations, the Generalitat may adopt the development legislation based on the European rules.

ARTICLE 190. MANAGEMENT OF EUROPEAN FUNDS

16. The Generalitat is responsible for the management of European funds in matters within its jurisdiction, in the terms established by Articles 114 and 210.

ARTICLE 191. ACTIONS BEFORE THE COURT OF JUSTICE

17. The Generalitat has access to the Court of Justice of the European Union within the terms established by European regulations.

18. The Government of the Generalitat may demand that the State Government bring actions before the Court of Justice of the European EU/S3/08/6/1 Annexe A Union in defence of the legitimate interests and powers of the Generalitat. The Generalitat shall collaborate in the legal defence.

19. The refusal of the State Government to bring the requested actions must be justified, and must be immediately communicated to the Generalitat.

ARTICLE 192. DELEGATION OF THE GENERALITAT TO THE EUROPEAN UNION

20. The Generalitat may establish a delegation to better defend its interests before the institutions of the European Union.

EU/S3/08/6/2

European and External Relations Committee

6th Meeting, 2008 (Session 3)

Tuesday 11 March 2008

Inquiry into the transposition of EU directives

Background

1. At its meeting on 30 October 2007, the Committee agreed the remit for its reporter-led inquiry into the transposition of EU directives. It was agreed that the inquiry would focus on the two to three year period between a directive being agreed in Brussels and the requirement for it to be introduced into domestic law. The Call for Evidence dated 2 November 2007 is attached an Annexe A.

2. The purpose of this evidence session is to seek the views of the Minister for Europe, External Affairs and Culture on the key issues that have emerged during the course of the inquiry.

Issues for discussion

3. In addition to the questions forming the inquiry remit (see Annexe A) Members may wish to focus on several themes in the course of this evidence session:

• The Scottish Government’s review of its own transposition procedures; • The transparency of the transposition process and the options for parliamentary scrutiny; • Stakeholder involvement in the transposition process; • The scope for tailoring “Scottish solutions to Scottish problems”.

Scottish Government’s Review

4. Members will recall that the primary aim of the inquiry was to build on the work of the previous committee’s inquiry into the scrutiny of EU legislation. In a letter to the Convener dated 3 September 2007 the Minister responded to the recommendations contained in that report. In particular, the Minister indicated that it was the Scottish Government’s intention to review the Government’s internal transposition procedures.

1 EU/S3/08/6/2

5. Members may consider that it would be helpful to obtain an update from the Minister on the progress of the internal review and whether the review will result in formal guidance being published. Members will be aware that during the course of the evidence sessions a number of stakeholders have commended the UK Government’s “Transposition Guide” 1 which sets out how to implement European directives effectively (see link below) and have indicated that a Scottish version of this guidance would be beneficial. In particular, in its evidence to the Committee on 19 February 2008, SEPA indicated that it would like to see the procedures address three particular scenarios in terms of transposition: 1) situations in which Scotland is part of a UK-Wide transposition; 2) situations where Scotland transposes in a different way and 3) situations where Scotland transposes separately but where that legislation is identical or similar to UK legislation.

6. As Members will know, the current procedures for the transposition of directives in Scotland (in relation to the UK Government) are set out in the Memorandum of Understanding (MoU) and the Concordat on Co- ordination of European Union Policy.2 Members may consider it would be helpful to ascertain whether, as a result of its review of the transposition procedures, the Scottish Government will be seeking a review of the Memorandum of Understanding.

The transparency of the transposition process and options for parliamentary scrutiny

7. One of the key objectives of the inquiry is to establish the relative transparency of the current transposition process and also to seek, where necessary, ways of improving transparency. This issue has arisen in relation to a number of different aspects during the course of the inquiry but has primarily focussed on the way in which the Scottish Government decides how to transpose an individual directive.

8. As Members know, currently there is no obligation on the Scottish Government formally to inform the Scottish Parliament of any new EU obligation which concerns devolved matters and which it will be the responsibility of the devolved administrations to implement. Nor is it required formally to consult the Scottish Parliament if it elects to use section 57(1) of the Scotland Act 1998. As Members will know, section 57(1) enables Westminster to implement EU obligations in a devolved area on a UK wide basis. As a result, the Scottish Government may decide to pass back responsibility for implementation to the UK Government.

1 http://bre.berr.gov.uk/regulation/documents/europe/pdf/transposition_guide.pdf.

2 http://www.dca.gov.uk/constitution/devolution/pubs/odpm_dev_600629.pdf

2 EU/S3/08/6/2

9. During the evidence sessions to date there has been discussion on the extent to which section 57(1) has been used and the types of cases where it has been used. In her evidence to the Committee on 27 November 2007 Dr Carter stated:

Devolution is tested every time a directive is implemented, because in each case a jurisdictional choice is posed. Is it Scotland or the UK?

10. Dr Carter also stated that:

It is a mistake to assume that the option to use a UK instrument is somehow a failure of devolution. It might well be that, after great consultation and consideration, that is, the best way of protecting Scottish interests.

11. Members may consider that the key issue for the Scottish Parliament is not the extent to which section 57(1) is used but the transparency of the decision making process and the extent to which it is subject to parliamentary scrutiny. One proposal considered by witnesses was the introduction of a memorandum on transposition or a transposition plan by which the Scottish Government would formally notify the Scottish Parliament on how it intends to transpose a particular directive. The plan could also include an indication of whether the Scottish Government is considering relying on section 57(1) and why, the likely timetable for transposition and the Scottish Government’s plans for consultation with stakeholders.

12. In his evidence on 11 December 2007 Russel Griggs from the CBI Scotland further suggested that the first stage in the transposition process should be consideration by the Government on how a directive could be used to achieve its aims within Scotland. This view was supported by subsequent witnesses.

13. Members may consider it would be helpful to explore with the Minister the Scottish Government’s views for improving transparency of the transposition process, the role of the Scottish Parliament in scrutinising this process and the introduction of a transposition memorandum or plan at the outset of the process.

14. On a related matter, Members may also wish to follow up the issue of transposition notes. In her letter of 3 September 2007 the Minister referred to the previous report’s recommendation in relation to the provision of transposition notes. She stated:

The Scottish Government is committed to transparent law making and we believe that the provision of transposition notes when transposing EU directives (except where the effort would be disproportionate, having regard to the benefit of the reader) into Scots law is an important practice

15. Members may also wish to explore the role of the Scottish Government in the transposition of a directive once a decision has been reached to allow the UK Government to implement legislation on a UK-wide basis

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and how the Scottish Government ensures that Scottish interests are still represented.

Involvement of stakeholders

16. Another key issue for the Committee’s inquiry is the nature and extent of stakeholder involvement in the transposition process. Witnesses have pointed to good examples of stakeholder involvement in the transposition process such as the Water Framework Directive. Members will recall that during the evidence session on 11 December 2007 the STUC referred to the importance of the timing of the consultation by the Scottish Government, indicating that this sometimes came too late in the transposition process. This view was echoed by subsequent witnesses. Members may consider that the introduction of a transposition memorandum might go some way to addressing this issue. SEPA also indicated that even changes in personnel can impact on the transposition process and could lead to shifts in either position or understanding.

17. Stakeholder witnesses made a number of suggestions as to how the transposition process could be improved including the development of durable social partnerships that could be utilised during the transposition process and the introduction of clear, accessible and timely information and guidance on the implications of directives impacting on Scotland.

18. In her letter to the Committee on 3 September 2007 the Minister stated that “whilst we will continue to actively encourage the role of Scottish stakeholders in Governments policymaking there are no plans at this early stage in the administration’s term in office to review the existing consultation procedures.” Members may wish to explore whether the Scottish Government has considered the issue of consultation with stakeholders as part of its internal review.

Differential implementation and section 57(2)

19. The inquiry has also looked at the issue of differential implementation of EU directives and the scope for tailoring Scottish solutions to Scottish problems. Members will recall that at its meeting on 27 November 2007 both representatives from the Europa institute and representatives from the Law Society of Scotland highlighted the potential disadvantages of implementing differentially in Scotland in certain cases, while recognising that a differentiated approach will be appropriate in others. For example, in its written evidence the Law Society of Scotland pointed to the possibility of “Forum Shopping” as a downside to differential implementation. Likewise, in his evidence to the Committee, Professor Jeffery referred to the situation in Germany where regional governments have exclusive competence in relation to certain EU issues:

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.in most places, the aspiration is for uniform implementation throughout the national territory to maintain a level economic playing field and/or equality of services to citizens.

20. Nevertheless, the Law Society of Scotland emphasised that:

There may be situations in which it is more appropriate for the implementation of a directive that affects an area of devolved competence in Scotland to be legislated for at Westminster. However, that would have to be done only after careful consideration.

21. Members may consider it would helpful to ascertain from the Minister the extent to which Scotland has taken a different approach from the UK Government in relation to transposition and how the Scottish Government reaches this decision in any given case.

22. Members will also recall that witnesses in previous evidence sessions have referred to the implications of section 57(2) of the Scotland Act 1998 and the perceived greater burden its places on Scotland in respect of transposition of EU legislation than on the rest of the UK. Section 57(2) states that the Scottish Government has no power to make any subordinate legislation that is incompatible with any of the Convention rights or with Community law. In its evidence to the Committee on 19 February 2008 SEPA indicated that it was unable to find any examples where environmental legislation had been more strictly interpreted in Scotland as a result of that provision. Nonetheless, in his evidence to the Committee on 8 January 2008 Andy Robertson from the National Union of Farmers stated that:

As I understand it, the official advice from lawyers in the Scottish Government is that the Scotland Act 1998 says – I think the relevant section is 57(2) - that there is no discretion and that the Scottish Government must implement EU legislation in full without deviation from its wording.

23. Members may wish to explore this issue with the Minister and the advice that is given to officials on this matter.

Early engagement

24. A key issue which arose during the Reporter’s meetings with regional governments and parliaments and which confirmed the findings of the previous committee’s inquiry is the need to “get in early”. In some cases, this might involve trying to influence the content of a proposal before it has been published by the Commission.

25. The relationship between early engagement in the EU legislative process and implementation of the final directive is explicitly recognised in the UK Government’s Transposition Guide which states:

It is vital to start considering implementation issues early on in the policy formulation process, preferably while the European Commission is still working on its proposal, or,

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at the latest, while it is being negotiated in the Council of Minister and the European Parliament.3

26. Members may consider that it would be helpful to explore with the Minister the stage at which the Scottish Government first considers issues that will be raised by transposition such as unique Scottish interests, the use of section 57(1) and stakeholder involvement and the process through which its own EU priorities are linked to the transposition process. Members may wish to explore the extent to which consideration of these issues by the Scottish Government is transparent and the role of the Scottish Parliament in this process.

27. Members may also wish to clarify how the Scottish Government ensures that it engages early at EU policy development stage and seek examples of directives where this approach has been successful in ensuring the representation of Scottish interests in the subsequent legislation.

Recommendation

28. The Committee is invited to consider the above issues during the evidence session with the Minister.

Committee Clerk March 2008

3 http://bre.berr.gov.uk/regulation/documents/europe/pdf/transposition_guide.pdf.

6 EU/S3/08/6/2 Annexe A Call for Evidence

The European and External Relations Committee has agreed to conduct a reporter-led inquiry into the transposition of EU directives. The primary aim of the inquiry will be to build on the work of the predecessor committee’s inquiry into the scrutiny of European legislation.

Key recommendations of the previous inquiry

The main issues which arose from the inquiry into the scrutiny of EU legislation relate to the Scottish Government’s effectiveness in:

• Representing Scottish interests at the EU level both in terms of the UK’s negotiating position and directly with Brussels; • Accounting for Scottish interests in transposing and implementing EU directives; • Consulting with stakeholders in relation to European legislation; • Progressing the Commission’s better regulation agenda.

It was clear from the initial inquiry that there are a number of concerns among stakeholders in relation to the effectiveness of the transposition of EU directives. The inquiry highlighted a number of issues that the Committee considered warranted further investigation including:

• The Better Regulation Agenda and the role of the Scottish Government in respect of the European Commission’s initiatives and, in particular, the commitment to reduce the administrative burden target of 25% by 2012 • Differential implementation, i.e the freedom of the Scottish Government to go its own way and “tailor Scottish solutions to Scottish problems” • The need for greater transparency and collaboration during the transposition process and early and ongoing engagement with stakeholders which may, in turn, address issues such as “gold plating”

As such, the Committee has agreed that the new inquiry should focus specifically on the two to three year period between a directive being agreed in Brussels and the requirement for it to be introduced into domestic law. The key issue is the extent and process by which Scottish interests and needs are addressed effectively during the transposition process.

The Committee is also aware that the Scottish Government is currently conducting an internal review of its procedures for the transposition of EU directives. In addition, the UK Government has recently published an updated “Transposition guide” on how to implement EU directives effectively. This will be considered as part of the Committee's inquiry.

http://www.cabinetoffice.gov.uk/regulation/documents/europe/pdf/transpositio n_guide.pdf

7 EU/S3/08/6/2 Annexe A Inquiry Remit

The remit of the inquiry is to examine the transposition of EU directives into Scottish law. In particular, the Committee is seeking responses to the following questions—

• How effective are the Scottish Government’s transposition procedures? • How transparent are the Scottish Government’s transposition procedures? • How effective is the Scottish Government in working closely with the other devolved administrations and the UK Government during the transposition process? • Is there adequate and timely consultation with stakeholders whose interests on which a new directive will directly impact? • Are there effective mechanisms to ensure the accountability of the regulators within the transposition process? • To what extent does the transposition process allow for “differential implementation” and tailor Scottish solutions to Scottish problems? • How effective is the role of the Scottish Parliament within the transposition process? • Are there examples of good practice of effective, collaborative and transparent transposition within other EU legislative regions?

The Committee is interested in hearing from organisations and individuals who have had direct experience or knowledge of the transposition process in Scotland either from a legal or academic perspective or as a stakeholder. The Committee is particularly interested in receiving specific examples of this process, including consultation and engagement with the Scottish Government and the relative transparency of the process.

Format of the Inquiry

In addition to this call for written evidence, the Committee has agreed that there should be four stages to this inquiry. The purpose of each stage is set out below.

Stage 1

The purpose of Stage 1 will be to obtain information on the nature of directives and the scope and extent to which member states can tailor provisions to suit their respective jurisdictions and the needs and interests of their particular stakeholders. It is proposed that evidence is taken from representatives from the European Union institutions, legal groups and academics.

Stage 2

The purpose of Stage 2 will be to learn from the actual experience of stakeholder organisations which have been involved in the transposition process. Stakeholders will be advised of the specific remit of the inquiry and

8 EU/S3/08/6/2 Annexe A its focus on the period between agreement at EU level and implementation at domestic level. In providing evidence to the Committee stakeholders will be encouraged to provide specific examples of their experience and also suggest ways in which the process could be improved.

Stage 3

The purpose of Stage 3 will be to learn from the experience of other regional parliaments in the scrutiny of their respective governments during the transposition process. This will include taking evidence from organisations and individuals that have knowledge of the transposition process on a pan- European basis.

Stage 4

The purpose of Stage 4 will be to obtain the views of the Minister and the regulators on the preliminary findings of the inquiry.

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The current process for the transposition of EU directives in the UK

1. The current process for the transposition and implementation of EU legislation in the UK is set out in the Memorandum of Understanding (MoU) and the Concordat on Co-ordination of European Union Policy. http://www.scotland.gov.uk/Publications/1999/10/MofU#B

2. It is the responsibility of the lead Whitehall Department formally to notify the devolved administrations at official level of any new EU obligation which concerns devolved matters and which it will be the responsibility of the devolved administrations to implement.

3. It is then for the devolved administrations to consider, in consultation with the lead Whitehall Department, how the obligation should be implemented, including whether the devolved administrations should implement separately, or opt for UK legislation. Section 57(1) of the Scotland Act 1998 enables Westminster to implement EU obligations in a devolved area on a UK wide basis. As a result, the Scottish Government may decide to pass back responsibility for implementation to the UK Government.

4. Where a devolved administration opts to implement separately, the Concordat provides that the devolved administration will have a responsibility to consult the relevant Whitehall departments on its implementation proposals to ensure that any differences of approach produce consistency of effect and, where appropriate, of timing.

5. Where EU legislation provides for the possibility of local measures or derogations within Member States (that is, differential implementation), subject to Commission approval, the relevant devolved administration is required to consult Whitehall on whether there are wider UK policy implications. If, following such consultation, a devolved administration wishes to proceed with such local measures, the request for approval is to be routed through UKrep (the UK’s Permanent Representation to the EU), involving the lead Whitehall Department as necessary.

6. Where the Scottish Government decides to implement separately it can do this through primary or secondary legislation. In the latter case, the draft statutory instrument will be supplied to both the relevant subject committee(s) and the Subordinate Legislation committee simultaneously by the Scottish Government. Legislation laid before the Scottish Parliament that transposes any European directive must be accompanied by a Transposition Note.

7. Further guidance on the UK transposition process can be obtained from the UK Government’s recently published “Transposition Guide” which sets out how to implement European directives effectively (see link below). This includes guidance on consultation with the relevant devolved administrations. http://bre.berr.gov.uk/regulation/documents/europe/pdf/transposition_guide.pdf.

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European and External Relations Committee

5th Meeting, 2007 (Session 3)

Tuesday 4 March 2008

Inquiry into international development – oral evidence sessions

Background

1. At the Committee’s meeting on 4 September, the Committee agreed to undertake an inquiry into international development issues.

2. The Committee consulted on possible issues for inclusion in the inquiry remit. A call for written evidence was made and Members held a round table discussion with stakeholders at the Committee’s meeting on 2 October 2007.

3. The remit for the inquiry was agreed at the Committee’s meeting on 30 October 2007: To take a strategic overview of international development issues within Scotland and to consider and report on the role of a Scottish Government international development policy and how value can be added to the international development work that is already on- going in Scotland. This will include consideration of the respective roles of: • Scottish Government (including a consideration of the UK context and roles of the UK Government/ Department for International Development and broader context of international development work undertaken by the House of Commons’ International Development Committee and European Parliament’s Development Committee); • Scottish Parliament (including relevant cross party groups and the Scotland branch of the Commonwealth Parliamentary Association (CPA)); • Business and private sector; • Public (including education and health) sector; • Wider civil society, including charities, voluntary sector and community groups; • Philanthropic foundations; • Academic sector.

4. The Committee invited written evidence and received 27 submissions. Members considered the written evidence at its meeting on 19 February 2008 and agreed a schedule for oral evidence sessions, beginning at the Committee’s meeting on 4 March 2008.

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5. Further information on the inquiry can be found on the Committee’s web pages1.

Witnesses

6. The Committee will take evidence from a panel of academics with experience in development issues.

7. Dr Neil Thin is a specialist in social planning with particular emphasis on the reduction of poverty and promotion of human rights in poorer countries. He frequently serves as a social development adviser and trainer for international development agencies such as the UK Department for International Development and international NGOs. He is a Director of the Intermediate Technology Development Group and of the Edinburgh Centre for Tropical Forests, and Adviser to the DFID Forestry Research Programme. Areas of interest include: social progress; poverty; social development policy and planning; human rights; civil society; forestry; South Asia (Karnataka, Tamil Nadu); Africa (Rwanda), Indonesia. Dr Thin participated in the Committee’s away day discussions in August 2007.

8. The Development Studies Association2 (DSA) aims to promote the advancement of knowledge on international development; disseminate information on development research and training; and encourage interdisclipinary exchange and cooperation. The Convener of the Scotland study group is Mozammel Huq. The group submitted written evidence to the Committee’s consultation on issues for inclusion in the inquiry remit (attached at Annexe A) and was represented on the Committee’s round table discussion by Professor John Struthers, University of Paisley.

9. The Glasgow Centre for International Development3 (GCID) brings together the University of Glasgow's expertise and experience in development issues to help develop and strengthen partnerships with institutions and universities in the south, and particularly, Sub-Saharan Africa. The chair of the centre’s board is Professor Peter Holmes.

10. Dr Maurizio Carbone4 is based in the University of Glasgow’s politics department. His main research interests are on the external relations of the European Union, foreign aid, the politics of international development, and the role of civil society in the development process.

1 Inquiry into international development – http://www.scottish.parliament.uk/s3/committees/europe/inquiries/InternationalDevelopmentIn quiry/InquiryIntoIntDevHomePage.htm 2 DSA - http://www.devstud.org.uk/index.html 3 GCID - http://www.gla.ac.uk/gcid/ 4 Dr Maurizio Carbone - http://www.gla.ac.uk/departments/politics/ourstaff/drcarbone/

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Recommendation

11. Members are invited to explore international development issues with the witnesses.

12. Members may wish to pay particular regard to the following issues which were highlighted in the call for written evidence:

• What should the strategic aim of any international development policy be? • How can a meaningful analysis of the needs of developing countries be made to inform any international development policy? • How should efforts be divided between raising awareness of international development issues within Scotland and focusing resources on granting project funding to NGOs to undertake projects in developing countries? • What are the most effective ways to raise awareness of the needs of developing countries and what Scots can do to help address these needs? • Should an international development policy have a geographical focus? • Should an international development policy have a thematic focus, such as on education, health, civil governance issues and, if so, how many and which themes should be included? • How can Scotland develop an innovative approach to international development policy in order to raise awareness, maximise the impact of project funding and ensure the sustainability of projects? • How should any Scottish Government international development policy be administered to ensure that it is efficient, accountable and transparent and meet agreed best practice standards? • How can the European and External Relations Committee add value to the existing international development work within Scotland?

Committee Clerk March 2008

3 EU/S3/08/6/4 Annexe A EVIDENCE FROM DEVELOPMENT STUDIES ASSOCIATION’S (DSA) SCOTLAND STUDY GROUP

The Development Studies Association’s (DSA) Scotland Study Group wishes to make written representations to the European and External Relations Committee of the Scottish Parliament concerning the ‘inquiry into international development issues’.

The objectives of the DSA are set out in its constitution: The objectives of the Association shall be to advance knowledge of the alternative processes and methods of socio-economic change, which studies are commonly referred to as development studies, through inter-disciplinary studies, meetings, conferences, and the dissemination of information about research results, operation and practice, course curricula, and training schemes. The Association aims to maintain and improve the high quality of development studies research, teaching and practice.

Scotland has a long history of fruitful business associations with developing countries, including Dundee’s past connection with jute processing in the Indian sub-continent, the continuing commitment of James Finlay to the tea and horticultural industry, and the significance for developing countries of engineering companies such as Weir’s Pumps (now part of the Clyde Pumps group), to name but a few.

There continue to be strong connections between Scotland and developing countries through religious, cultural and educational links. The religious associations are now closely tied to charitable and campaigning work through NGOs such as Oxfam and SCIAF.

Scottish universities have considerable links with developing countries through teaching and research. A notable recent development has been the formation of Glasgow University’s Glasgow Centre for International Development which brings together the international development interests of a diverse range of faculties (including Medical, Veterinary and Social Sciences).

We are mindful that international development is a reserved issue under the Scotland Act, and that a 2005 official document set out a Scottish policy towards international development. We are also mindful that the Scottish Government and the Scottish Parliament now wishes to review policy and activity for the furthering of international development.

We wish to suggest that the new expression of a Scottish policy towards international development could include some or all of the following elements:

a) Commitment of funds towards a limited number of postgraduate scholarships which would enable students from developing countries to study, and to undertake research, at Scottish universities in areas regarded as being a high priority;

4 EU/S3/08/6/4 Annexe A b) Commitment of funds towards collaborative research projects joining universities in Scotland and in developing countries in a search for solutions to scientific, technical, social and economic problems of development; c) Commitment of modest funds towards research, and the dissemination of research outcomes, regarding the nature of past, present and prospective connections between Scotland and developing countries with a particular focus on the extent to which the association between them is to mutual advantage; d) Commitment of modest funds towards meetings in Scotland which aim to explore means of further exploring and enhancing the relationship between Scotland and developing countries. e) The Scottish Government should tap into the potential that exists within Scotland from the Fresh Talent Initiative whereby non-UK graduates from Masters programmes in Scottish Universities are permitted to stay on in Scotland and work for two years before returning to their home countries. Many of these students have good entrepreneurial ideas and business contacts in their own countries which can be easily harnessed working alongside Trade and other associations in Scotland such as Scottish Trade International; the Chamber of Commerce and the CBI.

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