Select Committee on European Communities Eleventh Report



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 operation.

  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 proposals.

  (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 negotiation.

  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 Secretariat.

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 Secretariat.

Supplementary information

  (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 for adoption.

  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 undertakings.

  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.

Council agendas

  (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 original proposal.

  (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 interested organisations.

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 scrutiny

  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 negotiators intended.

  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.

November 1997

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