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1. The mechanisms for intergovernmental consultation established by the Concordat between different levels of government in the UK govern the possibility of direct Scottish Executive input in the development of UK policy on EU issues. As intergovernmental practices, they are not open to detailed public scrutiny, but the known facts concerning, e.g., Scottish ministerial participation at the Council, reveal an unsatisfactory level of involvement. Similar intergovernmental, or intragovernmental, practices presumably exist in other states. The present understanding of subsidiarity is one that leaves it to each state to make its own arrangements in such matters.
2. One advantage of transforming the Council into an open and public form of legislative debate (though, of course, not necessarily of pre-legislative consultation) is the leverage this would give to the Scottish Parliament in relation to important issues of European policy. Especially through the Committee system, but also by parliamentary questions and other modes of calling to account, MSPs would be in a position to establish what influence the Scottish Executive had achieved in the determination of policy. Where distinctive Scottish concerns could be signalled clearly in advance, it ought to be possible to take some steps to have these dealt with or alleviated. For example, if something like the Maritime Cabotage Regulation of 1992 were taking shape, the issue of the appropriateness of such a régime to the circumstances of Scottish island and peninsular ferries could be raised early enough to make possible the insertion of suitable qualifications or exceptions. If the UK government refused to take appropriate action in the Council, the allocation of responsibility would be clear.