SELECT COMMITTEE ON EUROPEAN LEGISLATION
SESSION 1995-96: 27TH REPORT: THE SCRUTINY OF EUROPEAN BUSINESS
OBSERVATIONS BY THE LORD PRESIDENT OF THE COUNCIL
Introduction
1. The Government welcomes the Committee's comprehensive report into the arrangements
for scrutiny of European business in the House of Commons.
2. The report reviews the operation of the arrangements as they stand and makes
recommendations as to how they might be changed. A large number of the report's recommendations
are either directed to the Select Committee on Procedure, or cover matters on which the Select
Committee will wish to comment in its forthcoming review of the House of Commons' consideration of
European business. The Government has noted these recommendations with interest, and will consider
them further once the Select Committee on Procedure has concluded its review. This memorandum,
therefore, represents the Government's response only on those aspects of the report which concern
the existing arrangements.
3. The Government regards the Parliamentary scrutiny of all important documents coming
before the Council of Ministers as an essential part of the legislative process in the European
Community. As the Committee notes in its report (paragraph 16), the United Kingdom system of
scrutiny compares well with others in Europe. The Government attaches high priority to ensuring
that it fulfils its scrutiny commitments in a way which enables Parliament to carry out its scrutiny
function effectively, and to ensuring that the Committees have all the necessary information for
this task. The Government therefore welcomes the Committee's acknowledgement (paragraph 244) that
a large number of documents are dealt with each year without problem. It does, however, take very
seriously the problems with the operation of the system which the report identifies.
4. The Government's detailed response on each of the points raised is below.
Part IV: the operation of the scrutiny reserve resolution
5. The Government welcomes the Committee's view (paragraph 129) that in general the
scrutiny reserve system operates well and fulfils its purpose.
Accidental lifting of the reserve (paragraphs 130-136)
6. Whilst, as the Committee notes, failures in the operation of the scrutiny reserve
occur in only a tiny proportion of cases, the Government agrees that it is important for confidence
in the system as a whole that even occasional failures are avoided. As the report notes (paragraph
135), procedures for checking scrutiny reserves were tightened early in 1996 to ensure that a
reserve will only be lifted on the basis of a written communication from the Foreign Office to
UKRep. A further review of the procedure has now been undertaken, as a result of which the
procedure is being further streamlined, in order to minimise the risk of accidental lifting of a
reserve and to reduce delays in communication on scrutiny reserves.
Ministers' explanations of agreement before scrutiny has been cleared (paragraphs 138-142)
7. The Government notes the Committee's concern that in some cases there is a delay
in notifying the Committee after a Council where an item which has not cleared scrutiny has been
adopted or political agreement has been reached on it. The Government agrees with the Committee that
in such cases, the Committee should normally be notified in writing by the Minister concerned no
later than two working days after the Council, and in no case later than the Committee's next
scrutiny meeting. Guidance to Departments on this aspect will be strengthened (see paragraph 16
below).
Part V: Debates
Backlog of documents awaiting debate (paragraphs 187-189)
8. The Government shares the Committee's concern to avoid the build-up of a backlog
of items awaiting debate, which could then lead to scheduling difficulties. As the Lord President
of the Council noted in his evidence to the Committee, he has introduced better planning
arrangements for organisation of Standing Committee debates, which have already helped reduce the
number of outstanding items. However, even with improved planning, there will be occasions,
particularly in the second half of the year, when opportunities for holding debates are considerably
reduced (for example, by timing of Parliamentary recesses, the break between Sessions, the procedure
for reappointing Standing Committees). As a result, scheduling difficulties may still arise.
9. The Government notes the Committee's suggestion that the Committee might be sent,
every two months, a note on the state of play on items referred to European Standing Committee.
The Government agrees that such an arrangement, building on the existing system whereby Departments
keep the Committees informed of progress on items, could help keep the members regularly informed
and enhance the Government's own co-ordination arrangements. It is considering how this could best
be put into effect.
Documentation for European Standing Committees (paragraphs 190-195)
10. The Government notes the Committee's comments about the provision of documentation
for European Standing Committees, and the importance in particular of ensuring that the Committee
is informed where additional papers become available late in the day. It will seek to emphasise
this point more clearly in revised guidance to Departments (see paragraph 16 below).
The form of motions (paragraphs 196-197)
11. The Government shares the Committee's view on the desirability of Government
motions in a European Standing Committee indicating the Government's general position on the
proposals in question. As the Government has previously indicated, this is subject to the caveat
that it should not be at the expense of oversimplifying the United Kingdom's attitude to a
document.[5]
Subsequent motions in the House (paragraphs 198-200)
12. The Government notes the Committee's endorsement of the recommendation of the
Procedure Committee in its 1991 review of the operation of the European Standing Committees, that
the conclusions of the Standing Committee should form the starting point for the House's decision
at the final stage of the scrutiny process. The Government remains of the view, which it gave in
response to the earlier Procedure Committee report, that the Motion on the Floor should stand in
the name of the Government, in a form with which it can agree, bearing in mind that a Standing
Committee member who successfully moves an amendment or amendments in Committee retains the option
to retable the amendment or amendments when the motion appears on the Floor of the House.[6]
Part VI: Scrutiny Problems
External problems (paragraphs 219-233)
13. The Government shares the Committee's concerns about the availability and
transmission of documents from Community institutions. As the report acknowledges, the Foreign and
Commonwealth Office has taken steps to try to secure improvements. These initiatives are described
fully in the Foreign and Commonwealth Secretary's response to the Committee's report on the Role
of National Parliaments in the European Union.[7] The Government
hopes that these initiatives will help reduce the delays in receipt of official texts. The
Government has also, as the report notes, put forward in the IGC the idea of a four week minimum
period between the official text of a document being available in national capitals and a decision
being taken on that document in the Council of Ministers. This point too is covered in more detail
in the Foreign and Commonwealth Secretary's response to the Committee's report on the Role of
National Parliaments in the European Union.
14. The Government notes (paragraphs 229-233) the Committee's decision to operate in
the future on the presumption that it will not clear a document for which it does not have an
official text, and will expect Ministers to impose a scrutiny reserve until an official text has
been deposited in the House and the Committee has been able to consider it. The Government notes
that the Committee will continue to consider unnumbered Explanatory Memoranda, with or without
working documents, and that it will consider clearing documents, on a case by case basis, where
United Kingdom interests might be damaged by imposing a reserve. The Government appreciates the
Committee's concern which has led to this decision. Whilst in the majority of cases, the Committee
does have an official text available to it, or at least a working text in final form, the Government
agrees that it would not be unreasonable to withhold scrutiny in most cases where an official text
is not available. However, it considers that there will inevitably be occasions where special
problems arise, particularly in the areas of agriculture and fisheries, and also in economic and
budgetary matters (where some documents deposited by the Government for scrutiny do not appear in
official form), or where maintaining a reserve in the absence of an official text could damage
United Kingdom interests. It therefore welcomes the Committee's readiness to take cases on their
merits, on the basis of Ministerial explanation, and to give exceptional clearance. The Government
notes that it remains open to a Minister, in accordance with the 1990 Resolution of the House, to
give agreement to a proposal still subject to scrutiny if he or she decides that for special reasons
agreement should be given, explaining the reasons at the first opportunity after reaching his or
her decision. The Government attaches importance to the necessary flexibility which the Resolution
provides in this respect and which it will continue to exercise where circumstances and United
Kingdom interests dictate.
Internal problems (paragraphs 234-244)
15. The Government takes very seriously the failings which the report identifies in
the operation of the scrutiny system by Government Departments. It agrees with the Committee that
these are a cause for concern. It welcomes the Committee's recognition that some Departments are
alert and skilled in EC business; its aim is to ensure that this standard is more consistently
achieved by all Departments involved in EC business.
16. The Lord President of the Council has drawn the failings identified in the report
to the attention of all his colleagues in Departments which are involved in European business, in
order that they can take stock of the procedures in place in their Departments and consider how they
can be tightened. The Cabinet Office is examining with Departments at official level what
improvements might be made to procedures across Whitehall, as well as within Departments. This will
include reviewing the guidance issued to Departments to reinforce key points and make it clearer
where appropriate. The Cabinet Office is also looking with Departments at the scope for regular
training seminars on the scrutiny process. The Government hopes that these and other measures will
help eliminate the problems identified in the report.
Part VII: Other improvements
Information before meetings of the Council (paragraphs 261-263)
17. The Government is pleased that the Committee finds the monthly forecast of Council
business a useful document. It notes the Committee's suggestion that the forecast should appear,
say, a week before the month to which it relates. There is of course a balance to be struck here:
the earlier that the forecast appears, the more gaps it is likely to have. However, the Government
believes that in future it should usually be possible to ensure that forecasts appear a few days
before the months they cover.
18. The Government notes the Committee's further suggestion that the forecast might
appear as a rolling programme covering the Presidency semester. The Government recognises that it
would be useful to the Committee to have some longer term dates, for example of European Council
meetings. It therefore proposes henceforth to circulate each month, with the Council business
forecast, a rolling six-month calendar of major EU events.
Information after meetings of the Council (paragraphs 264-266)
19. The Government notes the Committee's concern that reports to the House on Councils
in the form of a Written Answer are not always made promptly, and its suggestion that such reports
should be made no later than two sitting days after a Council has ended. The Government agrees that
such reports should always be made promptly. It considers that whilst Ministers should aim wherever
possible to make such reports within two sitting days of the Council, for practical reasons this
will not always be possible. It therefore considers that such reports should always be made within
one week of the Council, and will take steps to ensure that this standard is met in future.
OCTOBER 1996
2.The Scrutiny of European Business HC 51-xxvii
(1995-96). Back
3.Government Reply, paragraph 2. Back
4.HC 36-vi (1996-97). Back
5. Government response to the Fourth Report from the House of
Commons Select Committee on Procedure, Session 1988-89 (Cm 1081, May 1990), p.6. Back
6. Government response to the First Report from the House of
Commons Select Committee on Procedure, Session 1991-92 (Government memorandum,
March 1992), paragraph x. Back
7. Government response to the Twenty-Sixth Report from the
House of Commons Select Committee on European Legislation, Session 1995-96 (Cm 3440, October
1996). Back
