Annex: UK Government Response to the European
Commission's Green Paper: The European Transparency Initiative
1. MINIMUM STANDARDS FOR CONSULTATION:
The Current Situation
The UK Government believes that the minimum standards
for consultation set out in the Communication of December 2002
on "General principles and minimum standards for consultation
of interested parties" have played a useful role. In the
majority of circumstances the Commission's services have complied
with the standards; new approaches have been pioneered; and the
Your Voice website has rendered access to Commission consultations
much easier for national and regional administrations, industry,
non-governmental organisations and EU citizens alike.
Over the last two years the Commission has made considerable
efforts to hear and respond to the views of relevant stakeholders.
We have received feedback from stakeholders in the financial services
sector that the Commission has recently developed and administered
consultations very well, seeking views effectively both from regulators
and from businesses. The CARS21 exercise is also innovative, good
practice, having brought together European Commissioners, Ministers
from the Member States and senior industry representatives in
order to consider improvements to the regulatory environment in
the automotive sector. More recently, further groups have been
established on the CARS21 model in relation to Competitiveness,
Energy and the Environment, Pharmaceuticals and Mechanical Engineering.
We welcome the increased use of roadmaps for each
item in the Commission's annual Work Programme. These represent
a potentially powerful way to inform stakeholders of key policy
issues, the options for addressing these issues and the activities
to take these forward, including timings for consultations, allowing
stakeholders to engage early. High quality and widely and easily
available roadmaps for all entries in the Work Programme will
contribute considerably to EU transparency.
Suggested Reforms
The independent Better Regulation Commission in the
UK will also be submitting a response, building on their September
2005 report "Get Connected, Effective Engagement in the EU".
We understand this report makes recommendations designed to improve
the effectiveness of consultation in the EU. These include suggestions
on training, duration of consultations and feedback. The report
is available at:
http://www.brc.gov.uk/downloads/pdf/getconnected.pdf
Regarding formal consultations, the UK Government
agrees with the European Commission's statement in the Better
Lawmaking Report 2005 that there is room for improvement in terms
of the feedback that the Commission gives to respondents as to
how their views have, or indeed have not and why not, affected
the final regulatory proposal. Other areas where improvements
are required, include awareness of the minimum standards among
Commission officials, scope of applicability, the duration of
consultation exercises, timing and frequency of consultation,
and efforts to engage with a wide and diverse range of stakeholders,
in particular Europe's small and medium-sized enterprises (SMEs).
The UK Government believes that it would be useful
if the European Commission included legislative regions directly
and routinely in its consultations. This would add to transparency
and inclusiveness since, in at least eight Member States, legislative
regions hold (or share) the main competence for "domestic"
issues like environment, education, health, training, transport,
energy, agriculture etc. This means not relying exclusively on
Member States and recognised regional associations. It would be
fairly straightforward for the Commission to maintain a database
of legislative contacts.
There is some evidence (for example in the review
of IPPC) that the Commission does not always observe its minimum
standards for consultations. Questionnaires for internal meetings,
policy-making seminars or conferences are sometimes sent to government
departments and/or non-governmental organisations, businesses
or trade bodies with very short deadlines. These rapid evidence-gathering
techniques can provide useful indicative data, but should not
be used for the marshalling of evidence to underpin important
documents such as integrated impact assessments.
The UK Government has found it useful to require
Government departments to publish their annual analyses of compliance
with the Code of Practice on Consultations in their annual expenditure
reports, thereby encouraging compliance among Government departments.
The UK Government welcomes the Commission's Better Lawmaking Reports
but believes that a more thorough analysis of compliance would
prove useful and that the European Commission could undertake
a similar, annual exercise, making the results publicly available.
It should be emphasised that the minimum standards
are indeed only minimum standards. Policymakers need to
be encouraged, wherever possible, to go beyond the minimum standards,
since wider and deeper consultation may lead to improved outcomes.
- Clarifying scope of applicability of minimum
standards
Lack of awareness may sometimes contribute to failures
to abide by the existing minimum standards, it may also be the
case that the very applicability of the minimum standards to smaller,
less formal exercises, such as are mentioned above, is in doubt.
Although large, set-piece consultations are unambiguously covered
by the Commission's existing minimum standards, the UK Government
believes that appropriate and proportionate minimum standards
or good-practice guidance should be developed and apply to more
informal consultation exercises too.
We are concerned that the Minimum Standards for Consultation
only applies to proposals for which an impact assessment is required.
There are examples of significant proposals where it was judged
that no impact assessment was necessary, however a full consultation
process would have resulted in more effective EU law.
This limitation has led to problems on Rome I, a
Proposed Regulation on the Law Applicable to Contractual Obligations.
The Commission decided not to do an impact assessment although
one was clearly needed, thereby putting the proposal into the
category not covered by the minimum standards. The Commission
did consult but not comprehensively (one particularly weighty
and complex article was not subject to any consultation). Although
the application of the minimum standards would not have had a
direct bearing on the need for an impact assessment, it was considered
likely that they would have resulted in a more thorough consultation.
- Duration of Consultation Exercises
The UK Government was pleased when the proposed minimum
length of consultations, following discussions in 2002, rose from
six to eight weeks in the adopted Communication. In the "UK
Government Response to the Commission's Package of Communications
on Better Regulation, July 2002" it was proposed that the
minimum standard for Commission consultations should be 16 weeks
as "such a period is justified given the longer consultation
chain at EU level than at national level, where for example the
UK Government has a minimum of 12 weeks in its Code of Practice".
Feedback received from our stakeholders suggests
that it takes longer to become aware of relevant EU-wide consultations
than of national consultations, such that interested parties regularly
learn of EU consultations only when it is too late to respond
or to submit complete, considered responses. If the Commission
feels that it cannot raise the minimum requirement from eight
weeks, its internal guidance could be strengthened to emphasise
that this is only the minimum standard and that, in many
cases, a longer period should be set. The Commission could also
set itself an aim for a certain percentage of consultations to
last longer than eight weeks. Alternatively or as part of a general
strategy to make consultations more effective, it might consider
ways of priming stakeholders in advance of formal consultation,
or of mixing informal, participatory consultation techniques with
formal consultation. The key point is to avoid a situation in
which unreasonable pressures are placed on stakeholders, and to
put the onus firmly on policy-makers within the Commission to
allow for the collection of the full range of views necessary
to devise effective policy and law — in line with the principles
of better regulation.
- When and how often to consult
The question of when and how often to consult during
the policy development process is of paramount importance to the
credibility of an effective consultation strategy.
The UK Government has received feedback from stakeholders
in the financial services sector stating that, while EU-level
consultation often takes place at the start of the policy-development
process when the big questions are under scrutiny (general objectives
of EU policy and possible options for meeting them), interaction
between policymakers and those potentially affected by proposals
tends to diminish as the critical details are elaborated. When,
for example, the modalities of implementing proposed policies
are considered, stakeholders feel that their views should be sought
as the feasibility of a policy proposal will, more often than
not, depend on a clear view of the practicalities of implementation.
It is not sufficient, in the case of proposed directives for example,
to assume that implementation issues can be left exclusively to
the Member States.
Conversely, feedback from stakeholders in the transport
sector shows that, on occasions, their views are only sought once
significant decisions have been taken and consultants hired to
perform specific tasks. Work on the identification of "European
critical land transport infrastructure" has, for example,
suffered owing to late consultation of stakeholders. Research
and Development work in the same sector would, according to stakeholders,
also benefit from earlier consultation so that the Commission
and its contractors are more aware of work already taking place
in other forums such as the European Civil Aviation Conference.
The UK Government, therefore, believes that the Commission
should consider clarifying the timing and frequency of consultations
during the development of a proposal. The Commission should allow
its thinking to be informed by early consultation, but it should
also provide for the practical implementation of policy proposals
to be thoroughly tested at the appropriate time. The guidance
should recognise that a single consultation may not be enough
to ensure an optimum regulatory or non-regulatory outcome. However,
subsequent consultations on a proposal may not need to abide by
the same minimum standards as earlier consultations.
- Hearing a diverse range of views and, in particular,
engaging with SMEs
It is important that the views of all sectors of
society and of the economy are assimilated during the policy-making
process. However, public administrations risk only hearing the
views of the most vocal, thus neglecting the views of minority
groups or those without the infrastructure in place to respond
to formal consultations.
Of particular importance here are small and medium-sized
enterprises (SMEs). Small businesses represent a key driver for
Europe's economy and it is widely acknowledged that regulations
have a disproportionate impact on them. The Presidency Conclusions
from the Spring European Council in 2006, therefore, emphasised
the importance of taking a "think small first" approach
to all European legislation.
The UK Government acknowledges that consultation
with SMEs poses real challenges at all levels — European,
national and sub-national. However, there is a particular need
for better dialogue at the EU-level about how to render consultation
with SMEs effective. The UK Government believes that the Commission
should try to build on the work carried out in developing the
report "Consultation with Stakeholders in the Shaping of
National and Regional Policies Affecting Small Business"
to establish an easy-to-use compendium of good practice (drawing
both on its own experience and on that of national administrations).
Such a compendium would supplement the minimum standards, forming
part of the Commission's internal guidance on consultations and
would also prove very useful to Member State administrations.
The Commission might also consider reinvigorating the European
Business Test Panel as a way of reaching small businesses, working
with Member States to promote SME membership of the Panel, and
promoting use of the Panel across the Commission services.
The intention must be to ensure that the potential
impact on all sectors of society and the economy are clearly identified
from the outset, with appropriate measures, such
as exemptions or longer transition periods for SMEs,
being developed to counteract any unintended
consequences and alleviate disproportionate burdens.
2. A VOLUNTARY REGISTRATION SYSTEM:
The UK Government broadly supports the idea of a
voluntary registration system for lobbyists. However, the UK is
wary that any tendency for greater formality does not go too far.
The proposal appears to only take into account the professional
lobbying groups and not the one-off small organisations with perhaps
a one-off interest. Publication of objectives and financial situations
may result in an unnecessary regulatory burden for these groups.
The Commission should look at the possibility of a two-tier system
to ensure these groups can actively participate in EU decision
making.
The move to a compulsory register (having penalties
for non-compliance does not mean that it is "voluntary")
could have the effect of limiting comment by anyone with a legitimate
interest.
In relation to Fisheries Policy it should be noted
that the EU has recently institutionalised stakeholder consultation
in the Common Fisheries Policy through the establishment of Regional
Advisory Councils (RACs). These stakeholder led bodies can present
perspectives and policy advice from various maritime regions of
the EU, such as the North Sea. Due to the relatively transparent
systems built into fisheries governance, a structured framework
of rules for EU lobbyists could add an unnecessary extra level
of regulation, particularly as the RACs already have fairly strict
rules of procedure as set out in the RACs regulation (Council
Decision 2004/585/EC).
3. A COMMON CODE OF CONDUCT:
The UK Government supports the proposal for a common
code of conduct. Having the same code of conduct for lobbyists
when they lobby the Commission and the European Parliament will
eliminate any potential for confusion. The UK Government considers
that the Code should be written in partnership with the Commission,
Parliament and lobbyists.
4 A SYSTEM OF MONITORING AND SANCTIONS:
The UK Government believes that before any "voluntary"
system with a monitoring and sanctions system is made mandatory,
the review must identify serious issues that can only be resolved
by a compulsory system. There is a danger that a mandatory system
may mean that organisations with a legitimate interest are excluded
from taking part in the decision making process.
5. COMPULSORY DISCLOSURE OF BENEFICIARIES OF EU FUNDING
UNDER SHARED MANAGEMENT:
The UK Government welcomes the proposal for disclosure
of beneficiaries of EU funding under shared management. It is
important that EU citizens are aware who receives their tax money.
However, the proposal must be in line with Member States existing
freedom of information requirements. The implications of such
a system under the "Access to documents" legislation
will also need to be considered.
- Common Agricultural Policy
The UK strongly supports the disclosure of payments
under the Common Agricultural Policy. The UK already releases
information regarding CAP payments and is committed to disclosing
Single Payment Scheme details in due course.
There is, however, a balance that needs to be struck
between disclosing enough detail to satisfy the public demand
for information and the need to ensure that recipients are not
commercially damaged. The UK Government suggests that Member States
are required to disclose an aggregate figure for named groups
of recipients, but not breaking down into its constituent elements,
which might reveal sensitive details about farm business operations.
In order to increase the transparency of rural development funding,
distinguishing between Pillar 1 and Pillar 2 payments should be
considered.
Any legal obligation for disclosure must be administratively
simple for paying agencies, and should not result in added burdens
to farmers.
The UK's Department for Communities and Local Government
(DCLG) is the Managing Authority for the European Regional Development
Fund (ERDF) programmes in England 2000-2006.
EU regulations governing Structural Funds (which
includes the ERDF) already requires beneficiaries to publish the
receipt of any funds. DCLG (through the network of Government
Offices) holds information about the beneficiaries which is releasable
under Freedom of Information legislation, subject to any commercially
confidential items. Information about projects supported is generally
available through the ERDF website (www.erdf.dclg.gov.uk).
Therefore, subject to any proviso about release of
commercially confidential information, the UK does not have any
objection in principle to the proposal in relation to structural
funds.
Another significant EU funding scheme is the Financial
Instrument for Fisheries Guidance (FIFG) funds, which will be
replaced by the European Fisheries Fund (EFF). The UK favours
the disclosure of beneficiaries of funding under the FIFG and
the EFF provided that the system is not overly onerous and is
sufficiently flexible to allow exceptions where it would be against
the public interest. For example information on recipients of
decommissioning grants in 2003-4 has not been made publicly available
in Scotland because of the commercial and political sensitivities.
- Funding for International Organisations
In relation to the funding of international organisations
the UK believes that publicly disclosing the beneficiaries of
EU funding will help to ensure that EC funds are used for specific
projects rather than for general activities.
6. REVIEW OF THE "ACCESS TO DOCUMENTS"
LEGISLATION:
During the recent negotiations to apply the Aarhus
Convention to Community institutions and bodies, there was considerable
debate about the extent of consistency between Aarhus and this
Regulation. The outcome is a reasonably sensible compromise that
largely avoids creating dual regimes for access to environmental
and non-environmental information. But this should be revisited
in any review, with a view to respecting the principles of maximum
clarity and transparency for the public.
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