House of Commons - European Scrutiny

Select Committee on European Scrutiny Thirty-Third Report

3. THE EU's LEGISLATIVE PROCESS AND SCRUTINY BY NATIONAL PARLIAMENTS

33. In this part of our Report we try to ensure that national parliaments and others have sufficient time to scrutinise proposed EU legislation and seek to influence it before decisions are made; otherwise national parliaments have no possibility of seeking to reconnect citizens and EU decision-making. We recognise that the matters discussed here are somewhat technical, but they have a major impact on national scrutiny of EU legislation and on the potential for involving citizens in EU decision-making.

34. In practice, legislative and other proposals are often put forward for agreement before national parliaments have had time to consider them, sometimes on the basis of last-minute negotiation. Examples of difficulties we have experienced include the following:

In April 2000, Council Conclusions on a Community position were not agreed until the first day of the CITES Conference;

A draft Council Decision on transmissible spongiform encephalopathies making major changes in policy originated on 16 June 2000 and was discussed in the Council on 19 June;

The official text of a draft Recommendation on mobility within the Community for students and others was issued immediately before the meeting of the Education Council where it was to be discussed (we observed that this not only prevented scrutiny but made it 'doubtful that Ministers themselves can adequately consider such proposals, giving rise to a risk that poorly-drafted legislation will be agreed');

The text of the European Social Policy Agenda was presented to Ministers on 28 November 2000 only hours before agreement was to be reached (the Minister observed that last-minute scrutiny of texts had become increasingly prevalent, and left no time for consultation of any kind);

No scrutiny was possible in November 2000 of texts produced at the last minute of the Council Directive on equal treatment in employment, in which major changes such as derogations relating to the armed forces and special provisions on Northern Ireland appeared for the first time;

Time constraints imposed by the Presidency in March 2001 prevented the final text of the draft Directive on sectors excluded from the Working Time Directive being submitted for scrutiny;

A new text of the draft Directive on informing and consulting employees was issued on 8 June 2001 for discussion in Council on 11 June;

Numerous significant changes were made to the proposal for a European Arrest Warrant at around the time of the Justice and Home Affairs Council in December 2001 with a view to their immediate adoption;[60]

The Presidency was seeking political agreement on proposals concerning public procurement on 21 May although only parts of a text in French were then available.[61]

Particular problems are experienced towards the end of the EU's six-monthly Presidencies and in Justice and Home Affairs matters. We recognise that proposals relating to the Common and Foreign Security Policy sometimes have to be agreed urgently.

35. It could be argued that allowing more time for national parliaments and others to scrutinise proposals would slow down an already cumbersome legislative process. Indeed much of the emphasis in the Commission's White Paper on European governance is on speeding up the process, for example by agreeing proposals subject to co-decision[62] in one reading rather than two,[63] and the Laeken Declaration also asks how the co-decision procedure could be 'simplified and speeded up'.[64] However, by far the longest part of the process is often securing the agreement of Member State governments to a common position on proposals such as the Community patent, the Single European Sky and electricity and gas liberalisation. Under the co-decision process the remaining stages are already time-limited.[65] In fact existing procedures sometimes combine the worst of both worlds: extremely long periods needed for governments to reach agreement and frequently a lack of the small amounts of time needed for scrutiny when it most matters; in other words the process is organised primarily for the benefit of governments, sometimes with little regard for the needs of national parliaments, regional and other authorities and citizens. Furthermore, the inappropriate speed with which last-minute texts are agreed means that Ministers themselves are unlikely to be able to consider them adequately and creates a risk of badly-drafted legislation being agreed. Time for scrutiny by national parliaments should be seen not as an optional add-on but as a fundamental aspect of accountability. Therefore, we do not regard building some time into the system for scrutiny by national parliaments as unreasonably slowing down the legislative process.

36. There are two ways in which adequate time for scrutiny ought to be ensured at present: the Protocol on the role of national parliaments in the EU (part of the Amsterdam Treaty) and the scrutiny reserve resolution passed by the House of Commons (which has counterparts in some other national parliaments). The Protocol was originally proposed by our predecessor Committee in 1995, and was pressed for by the Government.[66] It provides that

37. Our predecessors pointed out a number of defects in the draft Protocol, all of which remained in the Protocol as agreed, including:

it leaves the Council to decide which of its acts are legislative;

an additional (possibly shorter) notice period is needed for significantly revised proposals;

lack of specific provisions in the Protocol for determining whether the notice period can be overidden on grounds of urgency.[68]

The UK Permanent Representative told us that the Protocol was 'generally applied', albeit with rare exceptions,[69] but it is not clear that any detailed monitoring is taking place.

38. The defect which most concerns us is that the Protocol does not apply to revised proposals, which may contain significant new provisions, as in some of the examples cited above. Indeed, Sir Stephen Wall commented that the six-week rule was 'helpful but is in a way largely irrelevant because when a proposal comes forward it is very rarely adopted within six weeks. The first six weeks are in one sense the least important part of the legislative timetable'.[70] COSAC (the conference of European affairs committees of national parliaments and the EP) proposed in October 2000 that there should be a minimum of 15 days (or one week in urgent cases) between the final reading of a text in COREPER and the Council decision on it.[71] Even this would not deal with a situation where a revised text is produced just before a Council meeting. The Minister for Europe agreed with us that 'wherever possible this should not happen'.[72]

39. National scrutiny reserves should also in principle ensure time for scrutiny. The resolution passed by the House of Commons provides that Ministers should not agree to a proposal in Council until it has been cleared from scrutiny by this Committee, or (if we have recommended a debate) until the House has come to a resolution on it, subject to certain exceptions.[73] In our case, documents are cleared from scrutiny regardless of our view of their merits once we have obtained sufficient information about their likely impact and the Government's stance on them, any questions we have put to Ministers have been answered and any debate we have recommended has taken place.

40. However, scrutiny reserves have no formal standing in the Council (though they are registered with the Council Secretariat). They cannot prevent proposals being agreed, except when there is a requirement for unanimity and a Minister insists on postponement; otherwise they can only discourage a particular Minister from participating in an agreement. Part of the problem is that relatively few countries make much use of scrutiny reserves, reflecting the fact that the rigour of scrutiny varies from one parliament to another (a matter we discuss later);[74] the UK Permanent Representative mentioned the UK, Denmark, Sweden and the Netherlands as frequent users, though 'a large number of other countries do actually enter scrutiny reserves from time to time'.[75] Not being willing to participate in an agreement when other Member States wish to proceed can have unhappy consequences:

it can make the country concerned potentially part of a blocking minority, even though the proposal or revised proposal may be one it has been striving for;

it can mean that the country concerned is not party to a compromise agreement, and therefore that its interests are not defended against EP amendments harmful to those interests.[76]

In such circumstances we are sometimes reluctantly driven to accept that a UK Minister acted reasonably in breaching the scrutiny reserve resolution.[77]

41. We see potential remedies for the problem in three areas: better organisation of EU business, new rules on intervals between stages of legislation, and greater standing being given by the Council to national scrutiny reserves. (It would also help if more national parliaments were actively engaged in scrutiny, as we discuss later.)[78] Better organisation of EU business, especially in the Council, is certainly important. A number of specific changes could contribute to it:

More consistent notice of agenda items. Agendas are required to be transmitted 14 days before Council meetings, but in practice are frequently amended up to the last minute (especially in the case of the Justice and Home Affairs Council).[79] The Swedish Prime Minister has proposed stronger rules in respect of European Council agendas 'in order to avoid "bouncing" of unprepared items and anomalies'.[80]

Better planning of the legislative process — in fact the 'project management approach' which the Home Office is seeking to bring about in Justice and Home Affairs matters, with 'the Presidencies saying what proposals will come forward at what times so that we can try to anticipate and give information to our scrutiny committees about the processes in advance'.[81]

An end to the system of six-monthly Presidencies, which, according to the Foreign Secretary (Jack Straw) induce 'artificial peaks of activity'.[82] This is because towards the end of their six months Presidencies put on pressure for agreements which can be claimed as their achievements.[83]

Tighter rules about scope, so that significant new provisions are not added to proposals at a late stage.

Prompt publication of texts by the Commission, which sometimes produces them late, as in the case of budget documents,[84] occasionally even when subject to a legislative deadline.[85]

Prompt transmission of documents to Member States. In 1997 our predecessors were told that a pilot project for an electronic system was expected to be completed by the end of 1998,[86] but no progress appears to have been made.

42. As regards scrutiny reserves, the most radical option would be for the Council's rules to require that Ministers had parliamentary clearance before agreeing to proposals. If parliamentary democracy is a fundamental EU principle, a clear implication is that national parliaments should be able to scrutinise the activities of their Ministers in the Council. On the other hand, making this an EU requirement could also be regarded as a breach of the principle of subsidiarity. Since we see little likelihood of such a requirement being agreed, we do not pursue it here.

43. A less drastic option would be to amend the Council's rules of procedure so that decisions could not be made when there was one or more national scrutiny reserve outstanding. It would be for Member States to decide whether a particular measure (such as a text only slightly revised) merited a scrutiny reserve. Several safeguards would be required:

There would need to be provision for genuine cases of urgency;

The rules must not be open to abuse by a national parliament withholding clearance in order to delay a measure it disliked. The remedy here could be for scrutiny reserves to expire after a certain length of time;

On the other hand, it would be important that provisions relating to urgency or abuse did not allow scrutiny reserves to be overridden solely for political or administrative convenience; thus reasons for urgency would have to be strictly defined and unanimity or other special procedures might apply when urgency was claimed. Ministers would be answerable to their national parliaments for proceeding in such circumstances.

44. As regards an amendment to the Protocol setting minimum times between stages of legislation, we asked the UK Permanent Representative about the feasibility of COSAC's proposal for a 15 day interval between agreement in COREPER and in the Council. He pointed out that at present the gap is often much less — in fact sometimes only a day:

45. Asked about the potential impact of provisions to prevent texts being redrafted at the last minute and immediately agreed in Council, the Permanent Representative told us that this would dramatically affect the process of negotiation:

46. However, we do in fact wish to 'fundamentally change the decision-making process'[89] in so far as we seek to prevent last-minute redrafting which makes major changes, leaves no time for scrutiny and potentially gives rise to ill-drafted and ill-considered legislation. There would obviously need to be provision for urgent measures, such as those deemed necessary following 11 September 2001. The effect of prescribing an interval of time would be to move forward the deadline for reaching agreement.

47. Our aim of securing adequate time for scrutiny could be achieved by either of the methods discussed here. We recognise that this is a difficult area: either method would introduce new inflexibility into a complex system, but on the other hand the present flexibility is sometimes exploited to the disadvantage of national parliaments and others. If the EU's legislative process was better organised, or there were rules to prevent significant new provisions being introduced without warning at a late stage, there would be much less need for change. Our main concern is substantially revised texts, but we see no prospect of defining 'substantially revised'. We advocate either incorporation of national scrutiny reserves into EU procedures or a minimum length of time between consideration of a text by COREPER or publication of a new text and its agreement by the Council, in either case with tightly-drawn provisions allowing for cases of urgency (which might require unanimity), but we are open to suggestions which would reliably achieve the same effects by less formal means. We do not believe this would add significantly to the length of the EU's legislative process, and it might improve the quality of EU legislation.

European Council deadlines

48. The letter of February 2002 from the Prime Minister and the German Chancellor (Gerhard Schröder) on reform of the Council and the European Council suggested that the European Council should set deadlines for the Council to reach agreement instead of itself seeking to secure agreement when the Council has been unable to do so.[90] This could potentially worsen the problem of last-minute negotiation and re-drafting. Sir Stephen Wall believed this would not be the case because 'generally speaking where the European Council is setting deadlines it is because the system has got bogged down rather than the reverse and what the European Council is doing effectively is trying to use its bully pulpit role to get action where action has not been taken'.[91]

49. However, a European Council deadline was imposed recently in respect of the proposal for a European Arrest Warrant, and although we were able to put questions to the Minister several times and have a debate on one of the versions of the proposal, we did not have adequate time for scrutiny of the final, heavily-amended version, which unexpectedly did not contain an important amendment which the Minister had earlier indicated would be incorporated. We noted that 'the presentation of radically changed texts in the last days of a Presidency, with calls for their immediate adoption, does not appear to us to be an appropriate way of determining changes at EU level to the criminal law'.[92] An FCO official cited that deadline as a reason why it would be difficult always to have a 15 day gap between discussion in COREPER and the Council.[93] Any argument about urgency was flawed in this case because the measure is not to come into effect until 2004.[94] Another European Council deadline, relating to public procurement, resulted in the Spanish Presidency seeking political agreement to proposals on 21 May 'on the basis of individual pieces of text in French'.[95]

50. The Minister for Europe said that the setting of deadlines by the European Council would not be common,[96] but we remain concerned, given the problems already experienced. We emphasise that any deadlines set by the European Council and the timing of the negotiations intended to meet such deadlines must provide enough time for national parliamentary scrutiny in advance of Council decisions on new texts.

'Provisional agreements'

51. A scrutiny reserve can only be effective if it is clear what constitutes agreement in the Council. Our scrutiny reserve applies to 'political agreement' in the Council, and therefore both we and our Lords counterparts were concerned when we found the Council beginning to reach 'provisional agreements' on proposals we had not cleared, apparently bypassing our scrutiny reserves. For example, in May 2001 provisional agreement was reached on measures relating to mutual assistance in criminal matters and to human trafficking.[97] The UK Permanent Representative told us that all the examples of provisional agreements dated from about May 2001 onwards and all were Justice and Home Affairs matters.[98] However there was also a case of a document said by the Home Office to have been 'agreed in substance' in December 1999,[99] and there have been innovative terms in other policy areas, such as 'common orientation' instead of common position (on maritime safety and on radio spectrum policy) and 'general orientation' instead of general approach (on telecommunications).[100]

52. The crucial question for us is whether aspects of a provisional agreement could be reconsidered if we subsequently identified matters of concern. The Minister for Europe, Community and Race Equality at the Home Office (Angela Eagle) told us that 'provisional agreement does not stop you from reopening the issues that you have agreed if something important comes up. It is an attempt to work through the texts and see the lie of the land and get as much consensus around 15 States as possible so that you know where you are instead of leaving all of that work ... to the end'.[101] She told our Lords counterparts in respect of two of the documents subject to provisional agreement that 'If the Committee were to identify a new point of major importance on either instrument, the Government would be prepared to pursue it if we considered there were a realistic prospect of securing an amendment to the text and provided of course that we agreed with the Committee.'[102] However, the question at issue is precisely whether matters subject to provisional agreement can be re-examined with 'a realistic prospect' of success. In the cases of provisional agreement so far, the EP's opinion had not yet been considered or there was a requirement to reconsult the EP; 'Ministers therefore considered that they could take a general position in support of a text, while retaining the possibility of pursuing issues raised by our Parliament at the point when the Council returned to the European Parliament's opinion'.[103] There have not been any examples of issues being reopened following provisional agreement, but this may just reflect the small number of such agreements.[104]

53. According to the Government, the Council's legal service identifies three categories of decision or outcome:

'terms referring to a decision adopting a definitive position on a text, subject to finalisation of that text by the Legal/Linguistic experts: "political agreement"; and

'terms referring to a decision stating a position on a text before fulfilment of the legislative-procedure preconditions for voting, in particular delivery of the European Parliament's opinion: "general approach".'[105]

The Government says that it will seek to ensure that only these terms are used, and considers that it can approve a general approach without breaching the scrutiny reserve resolution.[106] We intend to keep a close watch on examples of 'general approaches', and will not be fully reassured until we have seen examples of issues subsequently identified by ourselves or our Lords counterparts raised successfully in the Council.

Consultation by the Commission

54. Over the years there has been improvement in the consultation undertaken by the Commission on proposed legislation, with increased publication of Green and White Papers. We welcome the fact that the Commission is now proposing 'a reinforced culture of consultation and dialogue', to be underpinned by 'a code of conduct that sets minimum standards'.[107] This could provide national parliaments and others with increased opportunities to examine proposals for legislation at an early stage and to seek to influence them.

60 ESC, 1999-2000, HC 23-xxiii, para. 7; HC 23-xxiv, para. 10; HC 23-xxix, para. 22; 2000-01, HC 28-iii, para. 13; HC 28-v, para. 10; HC28-xi, para. 11; 2001-02, HC 152-i, para. 25; HC 152-xvii. See also ESC, 1999-2000, HC 23-v, para 10; HC 23-xv, para. 6; HC 23-xviii, para. 16; HC 23-xix, para 2; HC 23-xxi, para. 6; 2000-01, HC 28-i, para 16; HC 28-vi, para. 13; HC 28-vii, para. 2; HC 28-ix, para. 13; 2001-02, HC 152-ii, para. 36; HC 152-iv, para. 5. Back

61 Letter from the Parliamentary Under-Secretary of State for Competition, Consumers and Markets, DTI (Melanie Johnson MP) to the Chairman of the Committee, 14 May 2002. Back

62 See paras. 88-91 below. Back

63 European governance: a White Paper, pp. 20, 22-3. Back

64 See also Q. 96. Back

65 See Article 251 EC. Back

66 HC 239, 1994-95, paras. 65-8; HC 51-xxviii, 1995-96, paras. 77-92; HC 36-xiii, 1996-97. Back

67 Treaty of Amsterdam, 1997, Cm 3780, pp. 89-90. Back

68 HC 36-xiii, 1996-97, paras. 27, 35, 51-7. Back

69 QQ. 124, 136. Back