Select Committee on European Union Forty-Fourth Report


Appendix 3

Scrutiny of EU Legislation - the sift process

4 March 2003

The sift process - the background

The Select Committee has delegated to the Chairman the task of conducting a first sift of all the documents formally deposited for scrutiny. The Chairman examines each document and its explanatory memorandum (EM) and decides whether it should be referred to one or more of the Sub-Committees or to the Select Committee itself or an ad hoc Sub-Committee (this is extremely rare) or cleared from scrutiny. The clerks and the Legal Adviser aid the Chairman in this process. The sift is undertaken once a week when the House is in session and as required during recesses.

In practice the Legal Adviser reads all the EMs and (aided by the Legal Assistant) formulates a recommendation on each document. Subject to time constraints, this is then discussed with the Clerks of the Sub-Committees. An "agreed" recommendation is then forwarded to the Chairman. The results, in particular the list of those documents cleared by the Chairman from scrutiny, are made available to Sub-Committees as they wish. About a quarter of all documents (we receive our 1000 a year) are sifted to a Sub-Committee.

Relevant criteria

No criteria for determining which documents should be cleared on the sift (and which not) have been defined either by the Select Committee, the Chairman or the Clerk to the Select Committee. In broad terms, the political, practical or legal implications of the document are examined. Some of the factors which, in the light of experience, the Legal Adviser considers may be relevant in advising the Chairman whether to sift a document to a Sub-Committee for further examination are:

-  Nature of the document (a Green or White paper, draft legislative proposal or routine report)

-  Scope (including geographic) of application of proposal, including degree of UK interest

-  Policy implications (usually identified and assessed by Government - any acknowledged problems of which the Committee should be aware and/or might have a view)

-  Legal problems (vires, subsidiarity, extension of competence, implementation issues)

-  Broad political/public impact (the tabloid test - "Surely you could not have let that pass without examination!")

-  Existing media coverage

-  Reactions of European Parliament or other national parliaments

-  Advice from reputable NGO or other interested party

-  Previous involvement of Select or Sub-Committee, whether in relation to an earlier sifted document or an earlier (general or focused) Report

-  Completeness of the documentation/EM (in particular the absence of a Regulatory Impact Assessment where the measure could have substantial implications for producers, suppliers, users, consumers or taxpayers - note this case of "fridges")

-  Particular interest/expertise of members in the Sub-Committee.

The time factor

The EM includes a section dealing with the timetable. The time factor is always a relevant consideration in how a Sub-Committee handles a document, but shortness of time should not be decisive as to whether a document is sifted. But even where a Sub-Committee takes a document in anticipation of the sift, shortness of time may curtail effective scrutiny. Sub-Committees must do their best in the circumstances and should not be put off raising issues even at a late stage where those issues are considered significant. In particular, Sub-Committees should not become resigned or feel pressured into clearing a document merely because it is listed for a particular Council in the near future.

The Scrutiny Review Report considered the question of the sifting of documents at the later stages of the legislative cycle. Where a document (usually an earlier version) remains under scrutiny then any later version should be sifted to the Sub-Committee. Even where the earlier version has been cleared the new document and EM should be sifted where, for example, they identify a new issue, or show a major change in Government policy or appear to contradict earlier Government explanations.

Particular problems may arise where a measure is subject to co-decision and goes into the conciliation process, where it is discussed between representatives of the Council and the European Parliament. Practical experience is that there may be little the Committee can do at this stage. Deals are being struck and the Sub-Committee may feel itself to be very much the outsider. So far as the sift is concerned, the key, if not decisive, issue would seem to be the extent of previous involvement and continuing interest of the Sub-Committee. The question in practice is not what the Committee might be able to do at this late stage in the process but whether the Committee's questions have been answered and its views properly considered by Government.

Finally, it is always open to a Sub-Committee to alert the Chairman in advance that it wishes to see all documents relating to a proposal.

The Scrutiny Reserve, and our Orders of Reference

Text of the Scrutiny Reserve Resolution, agreed by the House on 6 December 1999,

(1) No Minister of the Crown should give agreement in the Council to any proposal for European Community legislation or for a common strategy, joint action or common position under Title V or a common position, framework decision, decision or convention under Title VI of the Treaty on European Union--

(a) which is still subject to scrutiny (that is, on which the European Union Committee has not completed its scrutiny); and

(b) on which the European Union Committee has made a report to the House for debate, but on which the debate has not yet taken place.

(2) In this Resolution, any reference to agreement to a proposal includes--

(a) agreement to a programme, plan or recommendation for European Community legislation;

(b) political agreement;

(c) in the case of a proposal on which the Council acts in accordance with the procedure referred to in Article 251 of the treaty establishing the European Community (co-decision), agreement to a common position, to an act in the form of a common position incorporating amendments proposed by the European Parliament, and to a joint text; and

(d) in the case of a proposal on which the Council acts in accordance with the procedure referred to in Article 252 of the treaty establishing the European Community (co-operation), agreement to a common position.

(3) The Minister concerned may, however, give agreement to a proposal which is still subject to scrutiny or which is awaiting debate in the House--

(a) if he considers that it is confidential, routine or trivial or is substantially the same as a proposal on which scrutiny has been completed;

(b) if the European Union Committee has indicated that agreement need not be withheld pending completion of scrutiny or the holding of the debate.

(4) The Minister concerned may also give agreement to a proposal which is still subject to scrutiny or awaiting debate in the House if he decides that for special reasons agreement should be given; but he should explain his reasons--

(a) in every such case, to the European Union Committee at the first opportunity after reaching his decision; and

(b) in the case of a proposal awaiting debate in the House, to the House at the opening of the debate on the Committee's report.

(5) In relation to any proposal which requires adoption by unanimity, abstention shall, for the purposes of paragraph (4), be treated as giving agreement.

European Union Committee's Orders of Reference, 19 November 2002

To consider European Union documents and other matters relating to the European Union.

The expression "European Union documents" shall include the following documents:

(i) Any proposal under the Community treaties for legislation by the Council or the Council acting jointly with the European Parliament;

(ii) Any document which is published for submission to the European Council, the Council or the European Central Bank;

(iii) Any proposal for a common strategy, a joint action or a common position under Title V (provisions on a common foreign and security policy) of the Treaty on European Union which is prepared for submission to the Council or to the European Council;

(iv) Any proposal for a common position, framework decision, decision or a convention under Title VI (provisions on police and judicial co-operation in criminal matters) of the Treaty on European Union which is prepared for submission to the Council;

(v) Any document (not falling within (ii), (iii) or (iv) above) which is published by one Union institution for or with a view to submission to another Union institution and which does not relate exclusively to consideration of any proposal for legislation;

(vi) Any other document relating to European Union matters deposited in the House by a Minister of the Crown.

the committee have power to appoint sub-committees and to refer to such sub-committees any of the matters within the terms of reference of the committee; the committee have power to appoint the chairmen of sub-committees, but such sub-committees have power to appoint their own chairman for the purpose of particular inquiries; two be the quorum of such sub-committees;

the committee have power to co-opt any Lord for the purpose of serving on a sub-committee;

the committee have power to appoint specialist advisers;

the committee and any sub-committee have power to adjourn from place to place;

the committee have leave to report from time to time;

the reports of the Select Committee from time to time shall be printed, notwithstanding any adjournment of the House;

the minutes of evidence taken before the European Union Committee or any sub-committee in the last Session of Parliament be referred to the committee;

the minutes of evidence taken before the committee or any sub-committee from time to time shall, if the committee think fit, be printed.


 
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