Codecision and national parliamentary scrutiny - European Union Committee Contents


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[19].

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.


Some jargon simplified—part 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 to codecision.

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 form.

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


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 reading;
  • a ministerial letter on the Parliament's second reading: the text which the Council considers at its second reading; and
  • 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[20]. 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.


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.


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 scrutinised.

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"[21]. Notification of the Common Position reached on the Plant Protection Products (Pesticides) Regulation[22] 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.


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[23] 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.


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[24]. 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[25] 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"[26]. 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 national parliaments.

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.


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[27] 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 adopted.

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[28].

19   The full text of the Terms of Reference and the Scrutiny Reserve Resolution can be found here: Back

20   Para 1.16 and 4.7 of the Scrutiny Guidance Back

21   See Appendix 4 Back

22   COM (2006) 388 Back

23   Paragraph 43 Back

24   See paragraphs 27-34 of our report, Access to documents, 15th Report, Session 2008-09, HL Paper108 Back

25   REF-Supplementary written evidence FCO Back

26   5847/06 paragraph 2 Back

27   COM (2007) 303 Back

28 is a public website which allows national parliaments to share their scrutiny of European legislation. Back

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