Select Committee on European Communities Sixth Report



  62.    During the course of the enquiry several witnesses suggested that there should be a minimum period of time allowed for national parliaments to scrutinise Third Pillar proposals before their adoption by the Council. Much of the evidence referred to the text of the draft Protocol on the role of national parliaments in the Dublin Draft Treaty on European Union published by the Irish Presidency prior to the Dublin European Council in December 1996. This text has been overtaken by the draft Amsterdam Treaty and the modified Protocol on the role of national parliaments contained therein, on which we comment in Part III.

  63.    Justice favoured the introduction of a minimum scrutiny period of four weeks before an item was placed on the Council agenda for decision but recognised that there were difficulties in determining when the four-week period would commence (QQ 96-7). In their view the four-week period should be supported by an internal scrutiny reserve so that if the Government failed to provide the Committee with a document under the proposed four-week notice provision the Committee would be able to rely upon the internal scrutiny reserve (Q 108). Statewatch also supported a minimum notice period of at least one month (p 34). The Meijers Committee argued that a twelve-week minimum notice period should apply (p 111). Liberty believed that the current scrutiny arrangements for the Third Pillar provided Parliament with inadequate time to debate, consult outside interested parties and to make recommendations to the Government and supported the Meijers Committee recommendation (p 108). Both the Law Society of Scotland and the General Council of the Bar supported the introduction of a minimum notice period for national parliaments (pp 105, 101)

The practice in other Member States' Parliaments

  64.    In Germany, the Federal Government must allow the Bundestag the opportunity to formulate its opinion before it participates in European Union law-making activities[27] (p 82). In the Netherlands both Chambers of the Dutch Parliament must be allowed two weeks to consider Third Pillar instruments before the meeting of the Council. The Dutch First Chamber commented that, in practice, the two-week period may be shorter for a number of reasons (for example the documents not being available in Dutch) and that this has been a bone of contention between the Parliament and the Government (pp 85-6). In Austria, according to Article 23e § 1 of the 1994 Amendment to the Federal Constitution, the Minister concerned has to inform the Nationalrat and the Bundesrat of all Third Pillar matters in time to enable them to comment on them (p 74). Although the evidence received from the Finnish Parliament does not indicate whether there is a minimum period required for Parliamentary scrutiny of Third Pillar proposals, the Finnish Government is required to await the outcome of Parliamentary scrutiny of Third Pillar proposals before agreeing to their adoption by the Council (p 77). In Sweden there are no rules governing how far in advance documents should be forwarded to the Parliamentary Advisory Committee on EU Affairs (PACEA). In practice, documents are forwarded when they appear, often leaving very short timescales for their consideration (p 14).


  65.    We believe that granting Parliament a minimum period of time to scrutinise Third Pillar instruments is essential to permit effective Parliamentary scrutiny of the Third Pillar. The minimum period of time should allow the Committee to consider a proposal, obtain outside evidence (if necessary) and forward recommendations to the Government. We strongly support the view expressed by Justice that a minimum scrutiny period should be reinforced by the introduction of a formal Parliamentary scrutiny reserve for the Third Pillar. These are complementary rather then competing measures and their joint introduction would help to safeguard Parliament's scrutiny prerogatives.

  66.    We welcome the inclusion of the Protocol on the role of national parliaments in the draft Amsterdam Treaty and its extension to Third Pillar instruments. We comment further on this matter in Part III. However, the Amsterdam Treaty is unlikely to be ratified by all the Member States for at least eighteen months and we see no reason for delaying the introduction of a minimum scrutiny period in the interim.

  67.    We do not consider that identifying the time for commencement of the minimum notice period poses insurmountable difficulties. At the start of each Presidency term, the dates for Justice and Home Affairs Council meetings are published. We recommend that the Government should not agree to the adoption in the Council of a Third Pillar proposal which has been deposited in Parliament within a six-week period preceding the date of the Council unless it has received confirmation from the relevant Parliamentary Committees that scrutiny of the document has been completed. Where the relevant Minister asks the Committee to forgo the six-week minimum period because of important policy considerations or the need for urgent action, the Committee undertakes to consider such requests sympathetically. We consider that the introduction of a minimum scrutiny period would reinforce the onus on Government to ensure that Third Pillar documents are deposited at the earliest possible date.

  68.    It is not the desire of the Committee to be obstructive or to embarrass the Government in the Council. We simply wish to ensure that Parliamentary scrutiny procedures for the Third Pillar are as effective as possible and allow Parliament to play a constructive role in the Third Pillar legislative process. We believe that the desire of Presidencies to chalk up successes during the course of their term in office is not a good reason for overriding effective scrutiny by national parliaments. Allowing Parliament to have an input into Third Pillar proposals before their adoption can only be beneficial to the Government and may have the advantage of highlighting some matters which might require more careful consideration than initially thought. In addition, where Parliament has contributed to the formulation of a Third Pillar proposal it should help to ensure that any domestic legislation needed to implement the measure will have a smoother passage through Parliament.


  69.    In its 1993 Report the Committee accepted that the need for secrecy might restrict what could be disclosed to Parliament but stated that Ministers should be reluctant to displace the presumption of public availability of documents and had to be prepared to explain the need for secrecy to Parliament when the matter under discussion became public knowledge. The Government in its response agreed that secrecy might restrict disclosure of documents under the Third Pillar but undertook to take reasonable steps to ensure that such an exception would only be used where absolutely necessary. During the debate in the House on the Report, the then Minister of State at the Foreign and Commonwealth Office repeated the Government's assurance, saying that "we do not anticipate that security and confidentiality will apply frequently"[28].

  70.    The Commons Committee in its Report, The Scrutiny of European Business, acknowledged that certain matters under the Third Pillar could be classified as confidential. Where the relevant Minister had satisfied himself of the need for confidentiality he could withhold the document from Parliamentary scrutiny and at a later stage or after its adoption provide an Explanatory Note explaining his reasons. The Commons Committee undertook to accept any reasonable case for confidentiality. Where a Third Pillar proposal contained certain provisions which could be deemed confidential the Commons Committee suggested that the Government could submit an un-numbered Explanatory Note which would provide as much information as possible on the proposal without revealing its confidential aspects.

  71.    The Home Office outlined the types of document which were unlikely to be deposited (operational documents about particular police operations) but stated that it was not aware of any Third Pillar documents falling within scrutiny criteria, which had not been deposited in the past three years on the basis of security and confidentiality considerations[29] (p 10), commenting that that was not altogether surprising, because "however secret and sensitive the subject may be, if people are getting down to wanting to produce a text about it that will have some binding force, then that has to be a public document at the end of the day" (Q 10).

  72.    Justice questioned whether there were any Third Pillar documents for which exclusion from scrutiny as a whole could be justified, and suggested that if a document was deemed to be confidential it should still be shown to the Chairman of the Committee so that he had some idea of what it contained (QQ 104-5). Justice would welcome the Council drawing up and publicising guidelines on what constituted secrecy and confidentiality under the Third Pillar. There was a need to ensure a consistent approach throughout the European Union rather than trying to draw up rules solely for the United Kingdom which might conflict with European rulings (Q 109). Liberty acknowledged that there might be a need for confidentiality and possible secrecy with proposals falling within the Third Pillar but submitted that Parliament should and must be the judge of the documents which could be made available to the public, and decide if security and confidentiality required secrecy (p 109).

  73.    Professor Birkinshaw suggested that Parliament should seek an undertaking from the Government that wherever material was kept back because of reasons of security or confidentiality a public interest test would apply, as under the revised United Kingdom Code on Access to Information (1997) (p 94). The Meijers Committee took the view that all legislative proposals should be made available to the Parliament. Security and confidentiality considerations might exceptionally justify not informing the general public on certain decisions. Parliament, however, had the right to be informed, unless it agreed that national security interests took precedence over the interests of Parliamentary scrutiny. Third Pillar arrangements and rules on confidentiality should not, however, restrict the national rules on parliamentary scrutiny of issues relating to national security (pp 110-11). The Law Society of Scotland considered that security and confidentiality considerations should have a bearing on whether certain proposals should be excluded from scrutiny. They suggested that where this arose there should be some form of certification from the relevant Minister which might be assessed by the Speaker of the House of Commons and the Lord Chancellor (p 105).

  74.    The Home Secretary commented that the occasions where secret documents were tabled at Justice and Home Affairs Councils were likely to be limited, not least because a very large number of people would see these documents. He undertook, however, to examine the range of Third Pillar business which might be considered confidential or secret to see whether in practice it was already covered by existing arrangements for scrutiny within the domestic field, or whether there was a need to bring about additional scrutiny arrangements to cover these matters (QQ 306-7).

The practice in other Member States' Parliaments

  75.    The evidence received from the French Assemblée Nationale indicated that only documents which concerned operational matters would be withheld by the Government (p 80). In Sweden the Government decides what documents it wants to send to the relevant Parliamentary Committee. Documents submitted to the Committee become "official" under the Swedish Freedom of the Press Act. However, the Committee can deny access to documents if publicity is deemed harmful to Sweden's relations with the Union or another State. The power to declare a document as "classified" lies with the Committee (p 90). In the Netherlands, Third Pillar documents may not be withheld from Parliament, although when required sensitive documents are handled with the utmost care (p 86). The Federal Government in Austria must inform the Nationalrat and the Bundesrat on all projects of the European Union. The Amendment to the Federal Constitution adopted in December 1994 does not provide for any circumstances which allow Third Pillar proposals to be withheld from Parliamentary scrutiny (p 74). In Finland no Third Pillar proposals can be withheld from Parliament. The basic rule is that all documents are deemed to be public. However, Section 54f of the 1928 Parliament Act states that the Grand Committee (the Finnish Parliament's European Affairs Committee) can determine that a matter is confidential and determine the degree of confidentiality applicable (p 76).


  76.    We accept that certain Third Pillar documents, such as matters concerning police operations, are not suitable for deposit in Parliament. We believe, however, that the basic principle should be that Third Pillar documents are depositable and the exceptions for confidentiality and secrecy must be interpreted narrowly[30]. Where a Minister has satisfied himself that there is a need to withhold a document from scrutiny on the grounds of confidentiality or secrecy he must be prepared, at a later stage or after its adoption, to provide Parliament with an explanation why he has done so. The Committee supports the Commons Committee's recommendation in paragraph 101 of its report, The Scrutiny of European Business, that unnumbered Explanatory Notes could be used where some of the details of a Third Pillar proposal were confidential[31].


  77.    At present the Government provides, at the beginning of each Presidency, a schedule of all Council meetings proposed during the Presidency term. This is supplemented on a monthly basis by a memorandum from the Cabinet Office setting out the matters provisionally listed for discussion at such meetings. The monthly forecast of business does not, however, indicate what matters are due to be discussed at Justice and Home Affairs Councils and there are no formal procedures in place for the transmission of such Council agendas to the Committee.

  78.    The Commons Committee in its report, The Scrutiny of European Business, suggested that the deposit of Third Pillar proposals should be complemented by the regular submission of Council agendas and outcomes. They acknowledged, however, that agendas are notoriously changeable and there would be a need to establish a sensible cut-off which would be a compromise between timely submission and achieving as authoritative a version as possible.

  79.    The Home Office understood the reasons why the Committee should want to have early notice of matters to be discussed at a Council meeting and indicated its willingness to provide agendas as soon as they were available but did not believe that it would be possible to set a minimum time period for their submission in advance of a Council meeting. The Home Office indicated that it would gladly undertake to provide the Committee with a note of the likely matters to be discussed as soon as reliable information was available. It was not the usual practice under the Third Pillar for a Presidency to publish a Justice and Home Affairs agenda at the beginning of its term. Third Pillar practice made such a step unattractive to Presidencies because a Presidency could be caused embarrassment, domestically and within the European Union, if it committed itself to achieving a particular result during its Presidency and then failed because of circumstances beyond its control. For this reason Presidencies tended not to finalise the agenda until shortly before the Council meeting (p 10, Q 3).

  80.    Mr Hill from UKREP explained the mechanics involved in preparing the agenda for Justice and Home Affairs Councils. The agenda was compiled in two tranches. The agenda outlining the matters for substantive discussion at the Council ("B" points) was put to COREPER normally three weeks in advance of the Council. Some of these matters might be resolved in the interim period and would then be transferred from the "B" point list to the "A" point list[32]. The provision of the definitive list of "A" points to be discussed at Council meetings was a persistent problem. Often the "A" point list was not available until 24 or 48 hours before the Council. However, for planning purposes UKREP compiled an unofficial "A" point list based on informal talks with the Council Secretariat and the Presidency. Mr Hill explained that it was unlikely that Member State delegations would be caught by surprise because before an "A" point was placed on the Council agenda it would have to have been cleared by COREPER and have obtained the necessary clearances from Ministers. Although an "A" point would not be formally discussed at the Council it would have already been carefully examined and submitted to ministers and all necessary ministerial clearances would have been obtained (QQ 211-15). As regards the K.4 Committee, Mr Hill commented that the availability of the agendas of meetings depended upon the efficiency of the Presidency in office and the Council Secretariat and the notice they received of the requirement for the K.4 Committee to look at a particular proposal (Q 211).

  81.    Several witnesses argued that Council agendas should be provided to Parliament. Justice recognised that there were difficulties in the formulation of the Council agenda but agreed that it would be valuable to have sight of agendas even at a late stage "because at least then you know what is happening in terms of the progress of work and what is actually being discussed" (QQ 76-7). Liberty recommended that the Government should be obliged to provide Council and K.4 Committee agendas or information relating to the proposed discussion to Parliament as soon as possible and at least two weeks in advance (pp 108-9). The Meijers Committee saw no reason why the agendas of both the K.4 Committee and the Council should not be available to Parliament and regarded the provision of such documents as essential for effective parliamentary control of the legislative process (p 111). Statewatch suggested that when agendas were made available to UKREP they should be immediately transmitted to Parliament (p 35). Statewatch also drew attention to the Danish Government's practice of forwarding to Parliament before Council meetings a report summarising the issues arising on each item on the Council agenda (Q 180).

  82.    The Home Secretary took the view that there was no reason why the Committee should not be informed about the draft agendas at the same time as the Home Office. He confirmed that the Home Office would do its best to ensure that this occurred (Q 290). As regards the proceedings in expert committees and steering groups, the Home Secretary commented that these documents often did not emerge from the Council Secretariat until some time after the meetings. He was reluctant to give a commitment that every single document that came out of summary proceedings would be made available but was prepared to review the present arrangements to see where greater access to documents might be feasible (QQ 291-2).

The practice in other Member States' Parliaments

  83.    The French Senate and Assemblée Nationale receive the agendas for Justice and Home Affairs Councils but not the agendas for meetings of the K.4 Committee (pp 80, 78). The Assemblée Nationale indicated that it also receives, among the documents transmitted under the heading of the Third Pillar, the Council Secretariat's summary of proceedings in expert committees, steering groups and the K.4 Committee (p 80). The German Bundestag automatically receives the agendas of the Justice and Home Affairs Council as well as a report of the results of the Council meeting but does not receive the agenda for K.4 Committee meetings (p 83). The Advisory Committee on European Union Affairs in the Swedish Riksdag receives the agendas of Council meetings. The relevant minister is supposed to submit a written commentary on the Council agenda together with specific ministerial memoranda on topics of greater interest (p 89). In the Netherlands both Houses of Parliament receive an annotated agenda together with the draft documents and any other relevant information for Council meetings but not for K.4 Committee meetings (pp 86-8). The Austrian Parliament receives the agendas, minutes, and press releases of both the Council meetings and K.4 Committee meetings (p 74). The Finnish Parliament receives the agendas of Council and COREPER meetings. The agendas of the meetings of the K.4 Committee are not received on a regular basis. However, any matter coming up before the K.4 Committee, which in the ordinary course of business would require Parliamentary scrutiny must be notified to the relevant Parliamentary Committee by the Government (p 77). The Irish Oireachtas Joint Committee on European Affairs receives copies of the Council agendas (p 85). In Italy the Government is committed to providing the Italian Parliament with information before Council meetings (p 13).


  84.    We consider that the provision of Council agendas in advance of the Justice and Home Affairs Council is essential. Only if the Committee has sight of Council agendas can it ensure that all documents meeting the criteria for deposit have been properly deposited in Parliament. In addition, the agenda will alert the Committee to any matters which may be coming up for decision and which are still being considered by the Committee thus enabling the Committee to take appropriate action.

  85.    Whilst we accept the evidence from the Home Office that Council agendas are not formalised until shortly before the Council meeting, we were impressed by the evidence from Mr Hill of UKREP which clearly indicated that the Government would have a clear idea in advance of a Council meeting as to what matters were likely to be considered and should not be taken by surprise. We note from the evidence received from other Parliaments that, despite the shortcomings involved in compiling Council agendas, other Member State governments are able to provide details, and in some cases annotated commentaries on the matters to be discussed. We recommend that the Government should forward to the Committee at least two weeks in advance of the Council meeting either a copy of the provisional agenda or, if this is not available, a note outlining the matters likely to be considered. The agenda should be provided as soon as it is available thereafter. We urge the Government to consider making arrangements for the direct transmission of Justice and Home Affairs Council agendas from UKREP to the Committee. This would reduce the delays involved in waiting for the agenda to reach Whitehall before being forwarded to Parliament.

  86.    We accept that it would not be feasible to require the Government to make available the agendas of meetings of the K.4 Committee two weeks in advance. We are, however, concerned at the total lack of transparency in the proceedings of the K.4 Committee. Given its important role in the Third Pillar legislative process we recommend that the Government should be required to furnish the Committee with a note of the proceedings of the K.4 Committee within a week after each meeting. We would also urge the Government to consider providing the Committee with more information on the proceedings of the various working groups and the steering groups.

27   Paragraph 3 Article 23 of the Basic Law. Back

28   House of Lords Hansard, 12 April 1994, col. 1501. Back

29   In a letter dated 7 May 1996 responding to a letter from the Chairman of the Committee (printed in Correspondence with Ministers, 2nd Report, Session 1995-96 (HL Paper 19), p 16) the Home Secretary commented that the Annual Report on the Threat of Terrorism to EU Member States was a classified document dealing with security matters and was not eligible for deposit. See Correspondence with Ministers, 9th Report, Session 1995-96 (HL Paper 74), p 28. Back

30   The provisions on transparency and openness in the draft Amsterdam Treaty are discussed in paragraphs 0 to 0 below. Back

31   House of Commons Select Committee on European Legislation, 27th Report, Session 1995-96 (HC Paper 51-xxvii). Back

32   "A" points are matters on which all outstanding points have been settled and agreed before the Council. "A" point items are adopted by the Council during its meeting without any further debate. Back

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