CHAPTER 2: NATIONAL PARLIAMENTARY SCRUTINY
Principles behind the UK System
64. Under our terms of reference we are asked
by the House to "consider European Union documents and other
matters relating to the European Union". This is complemented
by a resolution of the House of 6 December 1999 under which a
Government Minister should not normally agree to a proposal in
the Council before we have completed our scrutiny of it.
65. Along with general provisions, this Scrutiny
Reserve Resolution makes specific reference to the codecision
procedure. It states that ministers should not agree to "a
Common Position, to an act in the form of a Common Position incorporating
amendments proposed by the European Parliament, [or] to a Joint
Text" before we have completed our scrutiny.
66. In addition, the then Minister for Europe,
Jim Murphy MP, wrote to us on 1 July 2008 announcing that
the Government would interpret the Scrutiny Reserve Resolution
as applying to agreement to a General Approach too. In other words,
for the Minister to give his agreement to a General Approach,
Common Position or Joint Text in the Council both the Lords and
Commons Committees need to have completed scrutiny of the proposal.
THE GOVERNMENT'S ROLE IN PROVIDING
INFORMATION TO FACILITATE THIS SCRUTINY
Some jargon simplifiedpart four
|An explanatory memorandum is the paper submitted to Parliament by the Government on a European document. It provides a summary of the document and its implications for UK law and sets out the Government's views on it.
A supplementary explanatory memorandum is an additional paper submitted to Parliament by the Government in cases where the document analysed in the original explanatory memorandum has changed enough to require an update. It provides analysis of similar points.
67. Our scrutiny is based, in large part, on
information provided to us by the Government. The Cabinet Office
issues detailed Guidance to Departments outlining how and when
they should keep Parliament informed of European proposals and
the negotiations being held on them. This is, at present, not
available publicly. The Director for the EU at the Foreign and
Commonwealth Office, Matthew Rycroft, provided written evidence
to us on behalf of the Government. His evidence announced a revision
of the Guidance and included those aspects of the revision related
68. As Mr Rycroft points out, the revision
of the Guidance aims to make clear to "Departments that it
is their responsibility to consider carefully and proactively
at every stage when an update to Parliament is needed" (p 1).
69. He goes on to note that the revision of the
Guidance is a move away from "a purely document-based approach
('we must deposit x document when it arrives') and towards a significance-based
approach ('this piece of information/decision is or will be significant
in negotiations and we must therefore update Parliament')"
(p 1). In addition, the annex to his evidence contains the
text of the section of the Guidance which deals with codecision;
Box 5 outlines the most significant points at which the Guidance
requires Parliament to be informed.
70. These guidelines are, by necessity, complex.
Figure 2 sets out the requirements on Departments in flow chart
Scrutiny actions flowchart
71. The Cabinet Office's Scrutiny Guidance to
Departments is not currently available to the public; Matthew
Rycroft's exposition of the changes made to it with regard to
codecision is, to our knowledge, the most substantial instance
of the Guidance being made public. We consider that the case
for publishing the Guidance is strong and consequently ask the
Government to put the Scrutiny Guidance in the public domain.
Key information the Government should provide to the Committee
under the Scrutiny Guidance
Assessment of the adequacy of
the information we have from the Government
THE OPPORTUNITY TO GIVE OUR VIEWS
AT EACH READING OR WHERE A TEXT HAS CHANGED SUBSTANTIALLY
72. The Guidance makes clear that the Committee
is updated on a proposal before each reading regardless of whether
we have lifted the scrutiny reserve or not. To allow us to do
this we are provided with:
- an explanatory memorandum on the Commission's
proposal: the text on which the first readings in the Parliament
and Council are based;
- a ministerial letter on the Council's Common
Position: the text on which the Parliament conducts its second
- a ministerial letter on the Parliament's second
reading: the text which the Council considers at its second reading;
- a ministerial letter on the Joint Text: the text
on which Parliament and Council must vote at third reading.
73. In addition, paragraph 3.4.1 of the Guidance
requires that "as soon as it is clear that the proposal to
be considered by the Council will differ substantially from the
original text, the Scrutiny Committees must be informed by a supplementary
explanatory memorandum or by ministerial letter even if the proposal
was cleared previously by the Committees". The deposit of
a supplementary explanatory memorandum also has the effect of
re-imposing the scrutiny reserve. Caroline Flint stressed that
this is to allow the Government to explain the changed "policy
implications" of a text which is "substantially"
different (Q 2).
74. We consider that the existing requirement
for an update before each reading is useful for those proposals
which are agreed after the full cycle of three readings. This
requirement should continue for all proposals.
75. However, where we have cleared a proposal
from scrutiny, the provision of a ministerial letter would not
have the effect of re-imposing the scrutiny reserve. Only a newly
deposited document or Supplementary Explanatory Memorandum has
this effect. Hence,
at paragraph 3.4.1, the Guidance requires that Departments consult
us, on a case-by-case basis, as to whether a supplementary explanatory
memorandum is required or whether a minister letter is sufficient.
The effect of this is to allow us to re-impose the scrutiny reserve
where we judge changes made to a proposal to be sufficiently important.
Again, this requirement should continue for all proposals.
76. Nonetheless, where proposals are agreed at
early stages this approach is not sufficient because we are not
always given the opportunity to scrutinise changes proposed and
agreed in informal trilogues.
ENSURING EFFECTIVE SCRUTINY OF PROPOSALS
ADOPTED AT EARLY STAGES: ABOUT WHAT SHOULD WE BE INFORMED
77. The Guidance recognises the importance of
keeping our Committee up to date on the progress of negotiations
in informal trilogues. Paragraph 3.5.2(i) requires that the Government
updates us "as soon as it is clear that significant progress
is being made" towards an early deal. We sought clarification
of this from Caroline Flint. She told us that significant progress
is to be interpreted as "where there is a real chance of
a first or second reading deal being reached ... where the changes
to reach that deal would alter the text of the document but not
substantially change the policy"(Q 2).
78. There remains, however, the question of how
to define when progress should be deemed to be "significant"
or a difference "substantial". Connected to this is
the question of how many updates on changes we need to receive.
It is clear that a text may be reissued a very large number of
times during negotiations and that the majority of these versions
of a text would not be of use to us in our scrutiny. Andy Lebrecht,
the UK's Deputy Permanent Representative to the EU, put this tension
to us succinctly: it is not normally possible to say "'Yes,
this document matters and that one does not matter' and [to know]
that objectively and in advance. On the other hand, if committees
were to get every single document, you would be swamped and it
would be meaningless" (Q 65).
79. Mr Lebrecht did, however, indicate that
staff at the UK Representation to the EU were responsible for
identifying which iterations of a proposal are important: "our
responsibility is to make sure the Departments know what is going
on, certainly know if it is significant and if it is new"
(Q 68). Under the current system it is up to each Department
to decide whether to pass this on to Parliament. We would assume
that in the majority of cases a development judged to be significant
and new by the Representation in Brussels would also be of interest
to us in our scrutiny work.
80. We recognise that there is a genuine difficulty
in determining whether a change in a proposal is sufficient to
warrant an update to us. There would be little merit in receiving
every iteration of a proposal. In this respect we agree with
the general approach taken by Caroline Flint that we should always
be updated where a change has "policy implications".
We consider that this language should be used in the Cabinet Office
Guidance in place of references to "significant" or
"substantial" changes or progress.
81. We consider that, where the UK Representation
has alerted a Department to a change, that should be a cue to
the Department to update the Committee immediately.
ENSURING EFFECTIVE SCRUTINY OF PROPOSALS
ADOPTED AT EARLY STAGES: DEPARTMENTAL PERFORMANCE
82. Despite the clear requirement in the Guidance
for an update to Parliament where changes with policy implications
are likely to be made, there have been occasions where we have
not been kept up to date on negotiations which have led to the
adoption of a substantially different text to that which we originally
83. The experience of our sub-committee on environment
and agriculture, for example, is that "Government Departments
(DEFRA in this case) can be sluggish in providing updates on the
progress of inter-institutional negotiations, sometimes only providing
them when prompted by Committee staff. There is also a problem
with updates only being received after a first or second reading
deal has been struck".
Notification of the Common Position reached on the Plant Protection
Products (Pesticides) Regulation
was, for example, not received until three months after the vote
in the Council. This is a particularly important example since
the proposal, although always subject to criticism, was modified
in the course of codecision and became more controversial in the
UK. Other sub-committees reported similar difficulties.
84. We can see no justification for a Department
withholding or delaying information on changes with policy implications.
We urge Ministers to recognise the importance of every Department
working hard to keep Parliament fully informed of the progress
of negotiations on EU legislation and to impress this on their
officials. In this respect we commend the initiative taken
by the previous Minister for Europe in writing to senior staff
in the Foreign and Commonwealth Office in May 2009 reminding them
of the obligations of the scrutiny reserve.
85. Additionally the Cabinet Office should
be more proactive in monitoring and enforcing the application
of the Guidance by Departments.
86. For our part, we note the opportunities taken
by the House of Commons European Scrutiny Committee in questioning
Ministers over the scrutiny performance of their Departments.
We and our sub-committees will be more active in arranging witness
sessions to seek oral explanations from Ministers where their
Department has provided us with insufficient or untimely information.
In future we will not hesitate to name and shame those Departments
consistently providing insufficient or untimely information.
ENSURING EFFECTIVE SCRUTINY OF PROPOSALS
ADOPTED AT EARLY STAGES: SOME SAFEGUARDS
87. The procedures set out in the Scrutiny Guidance
are in stark contrast to the systems operated in some other Member
States. In France, for example, the information available to the
parliament is much more extensive than that provided to us. The
written evidence from the Sénat indicates that they are
well informed on negotiations through "receipt of diplomatic
telegrams" (p 90). M Léglise-Costa clarified
this: "the reports of the Permanent Representation [to the
Paris-based secretariat for European affairs] are transmitted"
to the parliament with very few exceptions (Q 100). In addition
two members of staff from the French parliament are housed in
the French Permanent Representation where they are able to access
documents from the Council (Q 103). Where they consider that
a Council document related to a codecided proposal would be of
interest to their parliamentary committees they are free to forward
this to them.
88. It is rightly the Government's responsibility
to be open to Parliament on the negotiations it is conducting
in Europe and to keep us informed of the progress on these. However,
we consider that an arrangement, similar to that operated between
the French Permanent Representation and the staff from the French
Parliament, to allow our EU Liaison Officer to view and forward
Council documents related to codecision negotiations would be
beneficial. This would in no way prejudice the requirements
in the Scrutiny Guidance for the Government to provide information
directly to the Committee as the obligation on the Government
to provide this information is an important part of being accountable
to Parliament. However it would be a useful safeguard in ensuring
that we are able to conduct our inquiries on the basis of prompt
access to the right documents.
89. In the previous chapter
we cited the negotiations on the Returns Directive as an example
of where we were not given sufficient information by a Department.
In this case we, and a large part of the media in Brussels, were
aware that the negotiations were being held on a very different
text. Given the role of the UK Representation in ensuring that
Departments are always aware of important changes and negotiations,
it is inconceivable to us that the Home Office was not aware of
the renewed negotiations. However repeated staff requests for
an update were rebuffed by the Home Office.
90. To prevent a recurrence of this situation
we consider that there should be an obligation on Departments
to provide a full update on the progress of negotiations or a
supplementary explanatory memorandum to us as and when we request
one. Again, this would not compromise the important principle
that the Government is responsible for providing documents to
Parliament without request.
KEY POINTS IN THE NEGOTIATIONS
91. In spite of the difficulties presented by
the differing path of negotiations on each Proposal, a number
of those we spoke to sought to identify points in the negotiations
where an update to Parliament would almost always be useful. From
the Commission's point of view Una O'Dwyer identified two: first
when a rapporteur presents their draft report to their committee,
and second when COREPER holds a discussion on a proposal (Q 154).
Hubert Legal, from the Council Legal Service, agreed that the
first COREPER discussion was usually a "milestone" and
added that the "decision to send a letter to the President
of Parliament indicating that the Council would be ready to support
[certain European Parliament] amendments" was also a very
important, and legally binding, step (Q 197).
92. For those proposals which we are holding
under scrutiny only, we consider that we should be provided with
a short update on negotiations after a discussion is held in COREPER
on a proposal.
93. In addition we consider that where we
are holding a proposal under scrutiny we should always be notified
in advance of a decision taken by COREPER to send a letter from
the Presidency to the Parliament indicating Council's agreement
to amendments to be proposed by the Parliament. This should enable
us to give our views in good time.
94. The experience of our sub-committees also
indicates that a Presidency compromise text has often been the
trigger for renewed negotiations and that such texts would be
useful for scrutiny. Presidency compromise texts which aim
to restart stalled negotiations on a proposal or which introduce
changes with policy implications should be made available to the
Committee regardless of whether we are holding the proposal under
scrutiny or not.
95. Throughout our inquiry we have been aware
of a potential obstacle to our receipt of those documents we need
to be able to conduct effective scrutiny: the LIMITE marking.
This is not a security classification but a distribution marking.
It is applied to a document by the Council's administration based
on its view as to the application of EC Regulation 1049/2001 on
access to documents.
Article 4(3) of the Regulation provides that disclosure is to
be refused if it would "seriously undermine the institutions'
decision making process, unless there is an overriding public
interest in disclosure". Hubert Legal told us that the Council
Secretariat might mark a document LIMITE because it, for example,
(i) includes an opinion from the Legal Service, (ii) refers to
the views of a particular Member State, or (iii) makes preparatory
or provisional drafting proposals (Q 208).
96. Note 5847/06
from the General Secretariat of the Council sets out more detail
on the LIMITE marking and instructs that documents marked LIMITE
may be given to "any member of a national administration
of a Member State".
This the Government has generally, though inconsistently, interpreted
as prohibiting the provision of LIMITE documents to Parliament
even though, as they acknowledge, "this may have an impact
on national parliamentary scrutiny" (p 1).
97. It is clear to us that not providing LIMITE
documents can and does adversely affect our ability to scrutinise
effectively. Sub-Committee F put this succinctly: "only in
the minority of cases are the right documents provided for scrutiny.
Most of them are LIMITE and therefore not given to us". Members
are, however, sometimes able to obtain these documents unofficially
from the internet, from the websites of lobby groups or other
98. Both Caroline Flint and Matthew Rycroft signalled
the Government's willingness to come to an arrangement under which
we could receive LIMITE documents (p 1; Q 20). As a result
we raised the issue with Hubert Legal from the Council's Legal
Service. He told us that the decision on whether a national parliament
should be given LIMITE documents was entirely for the government
of each Member State (Q 207) and that the Council Secretariat
"see no problem" with giving automatic access to LIMITE
documents to national parliaments (Q 208). Indeed, many Member
States already provide LIMITE documents to their parliaments.
M Leglise Costa, for example, confirmed that France interpreted
LIMITE to include national parliaments (Q 94).
99. In line with the practice in many other Member
States and the evidence from the Council's Legal Service we consider
that there is nothing in the Council's Rules of Procedure to prevent
provision of LIMITE documents to the Committee. In future we
expect the Government to provide relevant documents to the Committee
even if they are marked LIMITE.
LIMITÉ DOCUMENTS: CONSTRAINTS
100. Note 5847/06 sets out the restrictions imposed
by the LIMITE marking. These are not burdensome: LIMITE documents
may be sent by email, may be disposed of without shredding and
require no "specific protection measures". However their
content may not be published either on the internet or in hard
copy. Hubert Legal put this in context: "if the consequence
of a document being given to a parliament is that it becomes immediately
and automatically accessible to the general public then it is
no longer being treated as a LIMITE document". This he said
would include making reference to positions taken in LIMITE documents
in documents which are made available to the public (Q 208).
101. A UK parliamentary committee can publish
what it chooses. However, because of the way in which we in the
Lords conduct scrutiny and fuller inquiries, we consider that
there would not be any significant difficulty under our current
practice in observing the rules on the treatment of LIMITE documents.
Under current practice we publish our scrutiny letters to the
Government and their responses but do not publish the documents
this scrutiny is based on. So there is nothing to suggest that
we should start publishing LIMITE documents.
102. In our scrutiny correspondence and reports
we do make reference to the documents we have used during our
work. Given, however, that the reason for receiving these documents
is to allow us better to follow the negotiations and to ask the
right questions, we consider that it will always be possible,
again on a voluntary basis, to phrase our correspondence and reports
in such a way as to respect the requirement that the contents
of the LIMITE document are not disclosed.
Addressing the results of our
scrutiny to other parliaments
103. The primary purpose of our scrutiny work,
as set out in the Scrutiny Reserve, is to seek to influence
the Government and to hold ministers to account for the decisions
and actions they take in the Council. However, the evidence we
received indicates that there is also interest in our work in
Brussels and the Member State capitals. The FCO told us that our
work is "clearly valued in Brussels and would benefit from
a wider audience" (p 2). Arlene McCarthy MEP gave the
example of our report on the Timeshare Directive
which she had used to table amendments (Q 233). Tim Ambler
and Professor Francis Chittenden, from London Business School
and Manchester Business School, saw no reason why we should not
seek to influence legislation as this leads to better laws being
104. For some time our practice has been to make
our reports available to MEPs; we note the interest that has been
expressed in our work. In future we will seek to make the results
of our scrutiny on codecided proposals available to MEPs involved
in negotiations. We will keep other national parliaments updated
through the IPEX database.
19 The full text of the Terms of Reference and the
Scrutiny Reserve Resolution can be found here: http://www.parliament.uk/documents/upload/EU%20ToR.doc Back
Para 1.16 and 4.7 of the Scrutiny Guidance Back
See Appendix 4 Back
COM (2006) 388 Back
Paragraph 43 Back
See paragraphs 27-34 of our report, Access to documents,
15th Report, Session 2008-09, HL Paper108 Back
REF-Supplementary written evidence FCO Back
5847/06 paragraph 2 Back
COM (2007) 303 Back
www.ipex.eu is a public
website which allows national parliaments to share their scrutiny
of European legislation. Back