D. CORRESPONDENCE ABOUT COMMITTEE REPORTS |
66. ENHANCING PARLIAMENTARY SCRUTINY OF THE THIRD PILLAR
(6TH REPORT, SESSION 1997-98)
Letter from the Rt Hon Jack Straw MP, Home Secretary,
to Lord Tordoff, Chairman of the Committee
This letter, and the accompanying memorandum, set out the
Government's initial response to the report of the European Communities
Committee on Enhancing Parliamentary Scrutiny of the Third Pillar"
(Session 1997-98, 6th report).
The Government warmly welcomes this report as a further important
contribution to the development of thinking about effective Parliamentary
scrutiny of the Third Pillar, following on from the Committee's
1993 report on the same subject. The present report offers some
further very helpful reflections of the issues raised in the 1993
report, in the light of some three and a half years' experience
of the working of the Third Pillar, and raises some important
new questions about further scrutiny arrangements on Justice and
Home Affairs matters once the new Treaty of Amsterdam comes into
In presenting this initial response to the Committee's conclusions
I would draw attention particularly to two general points. The
first is that the Government is fully committed to the principle
of greater openness. You will recall that, in my oral evidence
to the Committee on 16th July, I said that I wanted Parliament
to be given the fullest possible opportunity to examine draft
EU legislation on JHA matters in detail before it was adopted
by the Council (evidence, paragraph 288.)
My second point, also reflecting a manifesto commitment,
is that the Government has undertaken to overhaul the process
of scrutinising European legislation in general. We are currently
considering the scrutiny arrangements, including those for scrutiny
of the Second and Third Pillars of the Maastricht Treaty. I would
obviously not want to anticipate the outcome of this exercise,
which is not yet complete, by offering responses to those conclusions
in your Committee's report which, as it seems to me, have a potential
read-across to scrutiny of other pillars. Fortunately, however,
I think that really only applies to a minority of the Committee's
conclusions. I have in mind particularly conclusions (iv) and
(xii), relating to the criteria for the deposit of documents;
(ix) to (xi), on the principle of a Parliamentary scrutiny reserve
and a minimum period for scrutiny; (xvi), concerning reporting
to Parliament on meetings of the JHA Council; and (xxi), about
Parliamentary oversight of common position texts. The Government's
reactions to these conclusions will be made known in due course
when we have completed our consideration of the scrutiny process
as a whole.
Meanwhile, the attached memorandum sets out the Government's
response on all the other conclusions in your Committee's report.
I am glad to say that, as the memorandum shows, we are able to
respond positively to the overwhelming majority of them.
17 November 1997
Memorandum by the Home Office
1. This memorandum sets out the Government's response to
22 of the report's 29 conclusions. The remaining seven conclusions
raise issues which have implications beyond the Third Pillar,
and which the Government proposes to address in its wider consideration
of the processes for scrutiny of European legislation. This memorandum
accordingly does not deal with the report's conclusions numbered
(iv), (ix) to (xii), (xvi) or (xxi).
2. The other conclusions of the Committee's report, together
with the Government's response, are set out below.
Timing of deposit of documents for scrutiny
(i) Early deposit of Third Pillar proposals is essential
if the Committee is to exercise its Parliamentary scrutiny function
and make an effective contribution to the debate on Third Pillar
(ii) The existing undertaking to deposit the first full text
of a Third Pillar proposal should be replaced with an undertaking
to deposit the text of Third Pillar proposals when they are first
tabled by the Presidency, the Commission or a Member State for
consideration in a working group, the relevant steering group,
the K4 Committee or the Council.
(iii) Where a Third Pillar proposal develops in such a way
that a composite text only appears when all the substantive issues
have been resolved and the proposal is ready for presentation
to the Council for adoption, the Government should provide an
Explanatory Note to the Committee when the initial work commences,
outlining the nature of the proposal being negotiated, its implications
for the United Kingdom and the Government's policy stance in the
3. The Government agrees with the general principle expressed
in conclusion (i), and further agrees that the existing undertaking,
to deposit the first full text of a Third Pillar proposal, has
on occasions hindered Parliament's ability fully to scrutinise
proposals at an early stage of their formulation. The Government
therefore undertakes to deposit for scrutiny the first available
English text of proposals originating from the Presidency, the
Commission or a Member State, at whatever point they are tabled
in the negotiation process (working group, steering group, the
K4 Committee or the Council).
4. The Government sympathises with the Committee's views
on the difficulty of dealing with proposals for which composite
texts emerge only late in the negotiating process. While it accepts
the principle of conclusion (iii), it believes that, if applied
literally, it would present practical difficulties, since it would
require Ministers not only to draw the Committee's attention to
new work at the earliest possible stage, but also to offer a view
on the work's likely development and the Government's likely attitude
to it. Drafting Explanatory Notes on the basis of what might be
an incomplete proposal, or one which was unclear or seriously
deficient, would not be straightforward, and would be likely to
require the production of further Explanatory Notes as the proposal
evolved. Where there was some expectation of receiving without
much delay a fuller or better text, the Government believes that
it would probably be sensible to delay the production of an Explanatory
Note until it was available. This is, however, an area in which
it would obviously be desirable for Departments with Third Pillar
responsibilities to maintain close liaison with the Committee
Criteria for deposit
(v) Where Government Departments are in doubt as to whether
a proposal falls within the criteria for deposit, we recommend
that they contact the Committee Secretariat to discuss the matter
on an informal basis.
5. The Government welcomes this proposal, and notes that
the successful implementation of several of the Committee's conclusions
will in part depend on Departments responsible for Third Pillar
matters further developing good working relations with the Committee
(vi) Where a document is the subject of an enquiry by the
Committee or one of its sub-Committees the Government must ensure
that the Committee is kept informed of significant developments
on the proposal at the earliest possible opportunity.
(vii) The Government should provide Supplementary Explanatory
Notes outlining substantive changes to any Third Pillar proposal
which has been deposited in Parliament irrespective of whether
it would require, if adopted, primary legislation in the United
Kingdom or not. The Government should err on the side of furnishing
material rather than withholding it from Parliament.
(viii) While we would not expect the Government to supply
all subsequent versions of a Third Pillar text that had been deposited
in Parliament, at the very least we would expect to see the draft
text of a Third Pillar proposal which was due to go to the Council
6. The Committee illustrated, in paragraph 49 of its report,
the sort of changes in proposals which it would regard as substantive.
The Government finds these illustrations helpful. Examples of
such changes which were given were (i) in the legal nature or
content of a proposal; (ii) in the role assigned to any of the
EU institutions under the proposal; and (iii) which might have
consequences for the rights and freedoms of the individual or
7. In keeping with its manifesto commitment to openness,
the Government has no intention of withholding from the Committee
material which the Committee has indicated that it would find
useful for the proper discharge of its scrutiny function. The
Government is concerned, however, about the undifferentiated application
of the Committee's conclusions to Third Pillar proposals. These
often do not develop steadily through successive draft texts,
but can progress rather erratically, with many new draft texts
often containing amendments which have only a short life-span.
The Government is reluctant to undertake to deposit texts every
time substantive amendments are made if, in its judgment, the
amendments do not represent significant new developments in the
process of negotiation.
8. The Government believes that a more appropriate course
would be for it to provide the Committee with amended texts of
proposals where these amount to major revisions to texts which
have been deposited for scrutiny, and it undertakes to do so in
future. In determining whether an amended text would represent
a major revision, the Government will be mindful of the Committee's
illustrative examples, but will not feel bound by them. The Government
believes that closer liaison between Departments responsible for
Third Pillar matters and the Committee Secretariat will be helpful
in this context. In particular, it will be important through these
contacts for Departments to obtain clear information as to the
Committee's intentions and timescale with regard to any particular
proposal, so that informed judgments may be made as to how the
Government may best facilitate the Committee's enquiries.
9. The Government also undertakes to furnish the Committee
with the final text of a proposal going to the Council.
(xiii) The provision of Council agendas in advance of the
Justice and Home Affairs Council is essential.
(xiv) 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.
10. The Government cannot guarantee to supply the Committee
with provisional or final agendas in advance of Council meetings,
since these documents are sometimes received by member states
only very shortly before the meetings themselves. The Government
undertakes, however, to send provisional or final agendas to the
Committee as soon as they are received. Where neither form of
agenda has been made available in good time, however, the Government
also agrees to supply the Committee, where possible, two weeks
in advance of the date of the Council meeting, with a note of
issues likely to be discussed at the Council. Provisional or final
agendas will then be supplied when they are available.
Proceedings of the K4 Committee
(xv) The Government should be required to furnish the Committee
with a note of the proceedings of the K4 Committee within a week
after each meeting.
11. The Government notes the Select Committee's concern at
what it described as the total lack of transparency in the proceedings
of the K4 Committee" (report, paragraph 86), but does not
agree with the proposal that the Committee should be furnished
with a note of the proceedings of the committee.
12. The function of the K4 Committee is essentially to act
as an intermediate, problem-solving body, and its effectiveness
lies in its ability to resolve difficulties before Ministers need
to become involved. It is therefore often concerned with the detail
of the negotiating positions of member states, which it is not
normally appropriate to reveal. The Government also stresses the
point of principle that the officials constituting the K4 Committee
are responsible to their respective Ministers, and that the undertakings
given to the Committee elsewhere in this memorandum will ensure
that Ministers act in the best knowledge of the views of the Committee.
Openness: before ratification of the Amsterdam Treaty
(xvii) There are no compelling reasons for restricting access
to Third Pillar proposals save where that can be justified on
the grounds of secrecy or confidentiality.
(xviii) The Government should consider making available to
interested organisations on request the first draft of any Third
Pillar document which has been deposited in Parliament together
with any subsequent drafts which contain material changes to the
(xix) We urge the Government to explore with other Member
States the possibilities for publication of Third Pillar proposals
in the interim period prior to ratification of the Amsterdam Treaty.
13. The Government fully supports the Committee's current
practice of consulting third parties where it feels it useful
to do so. It is, however, necessary to draw attention to the provisions
of Council Decision 93/371/EC, which contains important limitations
on the rights of access to Council documents. The Government nevertheless
favours greater openness in the Third Pillar, including greater
access to documents and proposals; and in the inter-governmental
conference leading up to the Amsterdam Treaty, the United Kingdom
successfully proposed that the new Article 255 (formerly Article
191a - access to documents) should also cover the Third Pillar,
and that Third Pillar proposals should be published. The Government
will seek to make progress during the UK Presidency on publication
of Third Pillar proposals, as well as on other openness measures.
Progress on this, which is not dependent on ratification of the
Treaty, would by definition ensure availability of proposals to
Openness: after ratification of the Amsterdam Treaty
(xxvi) We welcome the new provisions on transparency and
openness contained in the Amsterdam Treaty.
(xxvii) We are pleased to note that the provisions on transparency
and openness will be applicable to the Third Pillar by virtue
of Article K.13. We are, however, concerned that the Declaration
on Article 191a(1) could severely limit the application of the
new provisions on transparency and openness to Third Pillar.
(xxviii) We welcome the extension of the role of the European
Ombudsman to the Third Pillar.
14. The Government shares the Select Committee's welcome
for the new provisions referred to in conclusions (xxvi) and (xxviii).
15. With regard to conclusion (xxvii), however, the Declaration
on Article 255(1) states only that a member state should be able
to ask that documents it supplies are not released without its
consent. The Government believes that this is a reasonable courtesy,
but will nonetheless, in keeping with its commitment to greater
openness, seek to discourage member states from a restrictive
approach in this area.
Amsterdam Treaty: Schengen acquis
(xx) We welcome the Home Office undertaking to notify Parliament
of any decision to take part in the existing or future Schengen
acquis. As the United Kingdom has not been a party to the
Schengen Agreement and Parliament has not scrutinised the measures
already adopted it is crucial that any measure which it is intended
to accept is deposited in Parliament in time to enable it to consider
and comment on the desirability or otherwise of agreeing to apply
the measure in the United Kingdom. We recommend that such measures
should be treated in the same way as proposals for new legislation
under either the Community Pillar or the Third Pillar and that
the Government should make any application to participate in Schengen
measures subject to Parliamentary scrutiny.
16. The Government fully accepts the importance of early
notification to Parliament of any application to participate in
Schengen procedures. It therefore confirms the undertaking to
provide immediate notification of any such application, using
the Community Pillar or Third Pillar procedures as appropriate,
so as to make participation subject to Parliamentary scrutiny.
Miscellaneous points in the Amsterdam Treaty bearing on Parliamentary
At paragraph 115 of the Select Committee report it is recommended
that all proposals to be adopted under the new Title (III-A) should
be deposited in Parliament when they are first tabled by a Member
State or the Commission irrespective of whether or not the Government
intends to take part in the negotiations at the initial stage".
(xxii) We recommend that national Parliaments and the European
Parliament should explore the possibilities of enhancing the exchange
of information and documentation on Third Pillar matters.
(xxiii) We welcome the draft Protocol on the role of National
Parliaments as offering a substantial improvement over Declaration
13 to the Maastricht Treaty, though the present draft does contain
shortcomings which may reduce its effectiveness. Paragraph 3 should
apply to all Third Pillar irrespective of their origin.
(xxv) We recommend that decisions to override the minimum
scrutiny period should be taken by the same voting procedure required
for the measure concerned.
17. The Government agrees with the view expressed by the
Committee in paragraph 115 of its report, that it is important
for there to be an opportunity for early Parliamentary scrutiny
of proposals under the new Title. The Government's view is, however,
that the United Kingdom is unlikely to wish to participate in
the majority of such proposals. It accordingly suggests a modified
procedure, whereby all proposals under the new Title would be
deposited, but a full Explanatory Memorandum would be produced
only in the following circumstances:
- in the case where, at deposit or afterwards, the
Government decided to participate in the proposals; or
- where the Committee considered it necessary to request
an Explanatory Memorandum, such requests to be made within one
month of deposit of the proposal.
In all other cases, a brief covering memorandum only would
accompany the proposal.
18. This procedure would enable the Committee to scrutinise
all proposals made under the new Title and to seek further advice
from Ministers where, for example, the Government had not, or
had not yet, decided to participate in a proposal and the Committee
wished to recommend such participation or simply to clarify the
Government's reasons for non-participation.
19. The Government considers that taking forward conclusion
(xxii) is primarily a matter for Parliament itself.
20. With regard to conclusion (xxiii), the Government takes
the view that the minimum notice period should apply to proposals
from both the Commission and member states. Legal interpretation
of paragraph 3 is not a point for the United Kingdom Government
alone, but the Government undertakes to seek to persuade EU partners
that this approach is both logical and consistent with what IGC
21. The Government believes that the Committee's concern
at conclusion (xxv) is effectively met by the requirement in the
Protocol for the Council to state its reasons for applying the
emergency provision in the act itself; by definition the override
decision would therefore be subject to the voting procedure needed
for the measure concerned.
Amsterdam Treaty: electronic document transmission
(xxiv) We welcome the work being undertaken by the Council
in exploring the possibilities for the introduction of an electronic
document transmission system. The introduction of a full electronic
system would, in our view, mark a great step forward and we hope
that by the time the Amsterdam Treaty enters into force such a
system will be fully operational.
22. The Government agrees with the Committee's view that
the introduction of a full electronic system for the transmission
of documents from the Council Secretariat to member states would
be a significant and welcome step. There are a number of practical
and procedural difficulties to overcome before such a system is
operational, and the Government will continue to give careful
attention to its development, in co-operation with the Secretariat.