Reforming the European Scrutiny System in the House of Commons - European Scrutiny Committee Contents


3  The role of the European Scrutiny Committee: stages of scrutiny

Introduction

47.  Our current sift for legal and political importance is facilitated by the support we receive from our staff, which is the largest support team for a Select Committee of the House of Commons and includes in particular four experienced Clerk Advisers and two Legal Advisers.

48.  The scale of the task is considerable and begins in each case with a document's deposit in Parliament (simultaneously for both the House of Commons and the House of Lords). While the House of Lords Standing Orders have been updated since the Lisbon Treaty our Standing Order No. 143 has not. Under this Standing Order the Government is obliged to deposit:

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 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 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; and

vi.  any other document relating to European Union matters deposited in the House by a Minister of the Crown.[53]

49.  Documents must be deposited by the Government within two days of the document being circulated by the Council secretariat; an Explanatory Memorandum, which sets out the Government's view on the proposal, follows and must be received no later than ten working days after the deposit of the document. Supplementary Explanatory Memoranda may be produced in certain circumstances, for example if proposals change substantively during negotiations.[54]

Committee consideration of documents

50.  As a Committee we consider at least a summary of all of the 1,000 documents or so deposited each year. We decide:

  • whether the document is legally and/or politically important (in which case it will be the subject of a chapter of our weekly Report);
  • whether it should be cleared or held under scrutiny, with further information requested of the Government;
  • whether it should be recommended for debate, either in European Committee (directly referred by the ESC) or on the floor of the House (if the Government so agrees); or
  • whether its relative unimportance means it can be cleared without a substantive Report.

51.  The principal strengths of the current sift are its breadth, speed and the Committee's direct involvement in the process. It means that we have, as elected Members, the opportunity to identify quickly measures which should be examined more closely, in order to inform both the House and the wider electorate.

EXPLANATORY MEMORANDA

52.  One of the other key strengths is the provision, and public availability, of the Government's Explanatory Memoranda (EMs). EMs have the potential to be excellent summaries of the proposals and the Government's position on them. Many fulfil this potential, and there is work ongoing across Government, led by the Cabinet Office and the FCO, to provide better guidance to staff in individual Departments.[55]

53.  EMs are usually written by civil servants leading in a particular policy area who may not have experience of producing them, and we are grateful for the work that is done both to produce EMs to an exacting timetable and to develop and share best practice. Despite these efforts some EMs fall short of the standards required and fail properly to describe what the proposal is about, analyse the legal implications or set out the Government's policy position clearly. Problems are also caused by EMs arriving late or being incomplete.

54.  Explanatory Memoranda are the Government's evidence to Parliament, and are signed off in each case by a Minister. We expect Ministers in all Departments to ensure that staff are supported and trained to produce high-quality EMs, and also to maintain strict systems of quality control and oversight, including by Departmental lawyers.

THE SIFT

55.  We heard criticism that the current system was "too slow, bureaucratic and rigid"; [56] one former Member of the Committee, Richard Bacon MP, told us that the sift "did feel like a process that was there for its own sake, and I was not clear what it was influencing on the outside."[57]

56.  It is indeed true that the volume of documents is a challenge both for our own working practices and for the Government, given that each depositable document also requires an EM. James Brokenshire, Minister for Crime and Security at the Home Office, remarked that less than half of the deposited documents were the subject of a Report chapter.[58] The Minister for Europe told us that "An awful lot of paper flows backwards and forwards. It imposes a huge workload on the Committee, and the Committee deals with it diligently."[59]

57.   The FCO suggested in its written evidence that "Government and the two Scrutiny Committees might look at what scope there is to streamline existing processes to reduce the burdens whilst still meeting its objectives of better scrutiny, accountability and transparency".[60] Other witnesses made the same point, for example the Liberal Democrat PPC on International Affairs.[61]

58.  The FCO memorandum also stated that the number of "documents that the Committees scrutinise has increased over the past couple of years":

The FCO, for example, deposited 133 Explanatory Memoranda (EMs) in 2010, and 167 in 2011, an increase of 25% ... Across Government, records show that in 2010, 980 EMs were submitted and in 2011 there were 1,128 representing a 15% increase in volume across all departments. [62]

59.  The figures published in the House of Commons Commission Annual Reports show a significant variation over time, rather than a general upward trend—indeed, the Government's response to this Committee's 2002 report on the scrutiny system suggested that at that time the Government deposited "around 1,300 documents a year in the House".[63]

Documents deposited for scrutiny 2001-2013 (financial years)



60.  There are already a series of classes of documents which the Government and Parliament have agreed to be subject to a shorter EM, and which are routinely cleared.[64] Other documents are subject to a non-deposit agreement.[65] We remain open to suggestions about how the existing system could be streamlined. When we questioned the Minister for Europe on this point he proposed that there should be some kind of "triage system" for EMs, "where the Government and Parliament could agree to distinguish between matters that were important and those that were not".[66] He also agreed that it was "very important" to have clear, simple rules that everybody could understand, given the number of staff across the civil service who have to make decisions on deposit and prepare Explanatory Memoranda.[67]

61.  We would be willing to consider further refinements to the deposit system and requests for particular classes of document to be subject routinely to non-deposit or a shorter EM, but in our view a subjective, document-by-document, real-time triage system would not be appropriate, particularly given the bicameral nature of deposit. We ask each Government Department to set out in the response to this Report specific categories of documents which it seeks to be either subject to non-deposit, or shorter EMs, so that we (and the House of Lords European Union Committee) can consider best how to balance the need to avoid strictly unnecessary work with our desire to maintain the rigour and the breadth of the scrutiny system.

The scope of document deposit

62.  We noted in the previous section that around 1,000 documents are deposited in the UK Parliament each year. Responses to a recent questionnaire by COSAC[68] show that 19 out of 40 Parliaments/Chambers receive more than 500 EU documents annually.[69] We were told that the scope of deposit in the UK is quite limited. Dr Katrin Auel, for example, stated that the:

UK Parliament is among a few [national parliaments] who do not have regular access to limité/restricted; some Parliaments even have access to confidential documents. I think by now there are a number of Parliaments who have greater access to documents than the UK Parliament does. This is also true when it comes to COREPER and Council working group documents that I have learned the UK Houses of Parliament are not automatically sent but which most other Parliaments will receive automatically. [70]

63.  This, we think, is a significant comparison, borne out by informal discussions we have had at COSAC, and one which we take forward in later recommendations.

64.  The Bundestag, for example, has recently reformed and strengthened its already comprehensive access to documents, so that it now receives, as well as documents from the European institutions:

documents and information on the Federal Government's initiatives, opinions, contributions to consultations, draft programmes and explanations for institutions of the European Union, for informal ministerial meetings, for euro summits and for the Eurogroup and comparable institutions that meet on the basis of international agreements and other arrangements which complement or are otherwise particularly closely related to the law of the European Union,

relevant initiatives, opinions, contributions to consultations and explanations from governments of Member States of the European Union,

relevant initiatives, opinions, contributions to consultations and explanations from the Bundesrat and the Lnder, and

coordinated instructions for the German representative on the Committee of Permanent Representatives.[71]

65.  In this Chapter we first set out the different stages of the EU legislative process, and the level of scrutiny which applies, before concluding with some more general comments, conclusions and recommendations.

The early stages of policy formulation

66.  The potential disadvantages of relying on documents as the trigger for scrutiny were pointed out to us by several witnesses. We were advised that scrutiny at source, at the earliest stages of policy development, is key, and we have been aware of this ourselves for some time. Dr Julie Smith observed "Why are [there] so many of them [lobbyists] in Brussels? Because they want to shape the agenda".[72] Sir Jon Cunliffe, then the UK's Permanent Representative to the EU, agreed that "everyone knows, much of Europe is about influencing early on in the process rather than at the trilogue stage"[73] and Dr Auel told us "You will find that the most powerful parliaments in terms of those that are considered to be the most influential have now shifted the scrutiny to a very early stage."[74] The Minister for Europe linked this to the concept of 'upstream' engagement,[75] and referred to it in particular in the context of the work of Departmental Select Committees, which we consider later in this Report. Chris Bryant MP pointed out that early engagement by Parliament was also an effective way of influencing the Government—as it required Ministers and their officials to think through the issues more carefully in advance of Council meetings.[76]

67.  Early discussions within the institutions may then lead to the publication of Green Papers and White Papers by the Commission, which are deposited and therefore come to us for scrutiny. We have over recent years referred more of these documents for debate in European Committee, or drawn them to the attention of the relevant Departmental Select Committee—something which our predecessor Committee saw as a priority back in 2002.[77] Analysing them is sometimes a challenge as the terms in which they are written can be general and broad, but we are referring them more often because they represent an important stage of the policy process.

Non-papers

68.  Non-papers are discussion documents drafted by an EU institution or a Member State and are often used as a negotiating tool. The Minister for Europe told us that such papers are "just a way of floating ideas on a non-attributable basis. I suppose it is the nearest thing to applying off-the-record or Chatham House rules",[78] adding:

It is a way of starting a discussion and putting forward policy ideas without suggesting that you are completely bound to those but signalling that you are open-minded to constructive criticism and contrary ideas. It is starting a debate; in Westminster terms it is a pre-Green Paper stage ... As to non-papers, precisely because they are informal, they are not depositable and caught by the scrutiny resolution. While we would not refer to a non-paper in a letter to the Committee, we might make reference to ideas that might be included in it, but I think an oral briefing would be the best way forward.[79]

69.  Professor Simon Hix of the LSE told us that in his view non-papers were:

the equivalent of something going on in a Senate Committee in the US, where Senators on the Committee would be drafting their own opinions independently on a piece of legislation that is going through the House. I think of a non-paper as a statement of the position of the British Government in the middle of a legislative process, of the following type, and I have read some of these things: 'These are the key issues we care about in this document. These are the things we would reasonably consider are possibilities within this area or within that area.' I can understand why they would not want us to see it, because some of these things are highly sensitive, but being highly sensitive is not a good enough reason.[80]

70.  We note the Minister's comments about non-papers and the offer of oral briefings. The number of documents on which we report (often more than twenty a week) means that oral briefings on individual items are rarely feasible. We therefore ask the Government to give us an undertaking that it will use Ministerial correspondence as a way of keeping us informed of the gist of non-papers. We also ask that whenever a non-paper is produced on a document which we have under scrutiny, that there be a presumption that the Government will at the very least provide a summary of its contents in the form of a letter. This could either be in a form which is publishable or made available to us on a confidential basis. We will keep the provision of such information, and the use which we can make of it, under review.

Scrutiny and legislative development

71.  The codecision procedure was introduced by the Maastricht Treaty in 1993, and the scope of its application was extended by both the Amsterdam Treaty in 1999 and the Nice Treaty in 2003. The Amsterdam Treaty also formalised the ability of the institutions to conclude the procedure at any reading stage, a process which has come to be known as 'fast track' legislation or a 'first reading deal'. With the Lisbon Treaty which entered into force on 1 December 2009, the renamed ordinary legislative procedure became the main decision-making procedure of the EU, with an expansion of its scope to almost all areas of legislation with only a few limited, albeit important, exceptions. Overall, these Treaties have greatly increased the scope of the functions and competences of the EU, as well as the areas in which the ordinary legislative procedure applies. A flowchart showing the formal stages of the process is shown on the next page.[81]

The ordinary legislative procedure


72.  We think considerable emphasis should be placed on the statistic above that from 2009 to the present 81% of legislation was agreed at the first reading stage. For comparison, the first reading figure for 1999-2004 was just 33%, rising to 72% for 2004-09. Professor Damian Chalmers of the LSE gave the current figure as 79.5%.[82]

73.  The establishment of the ordinary legislative procedure as the norm of EU decision-making presents serious challenges for all national scrutiny systems, given that the vast majority of legislation is agreed to at the first reading stage. The unpredictable nature of first reading deals and trilogue negotiations can render scrutiny at national level difficult, if not impossible.

74.  Concerns have been expressed about the impact of these closed negotiations from all sides: Sir Jon Cunliffe observed that "the [European] Parliament at President level has tried to constrain the first reading process ... there is a feeling that the Parliament as a whole is unaware of what is happening."[83] The Parliament recently amended its Rules of Procedure to provide for the plenary to approve negotiating mandates prior to trilogues taking place, and also set out how the trilogue process should be conducted from the European Parliament side.[84] From the perspective of the Council, the Minister for Europe observed that:

Where we have noticed a change, even in the three and a bit years I have been doing this job, is that the Commission has become ever more willing to lean towards the Parliament and adjust its own proposals and approach to negotiations to try to make sure it gets the agreement of the Parliament. In my view, that has been done at the expense of the views of national governments represented in the Council. There has been an institutional shift. [85]

75.  Proposals may change significantly as a result of compromise agreements negotiated with the European Parliament after the relevant EP Committee has scrutinised the Council's 'common position' or 'general approach'[86] and significant new provisions may emerge at a late stage during trilogue negotiations which have never been subject to scrutiny, for example the European Parliament amendments on bankers' bonuses which arose as part of the EU CRD IV negotiations.[87] Sir Jon Cunliffe told us that towards the end of a Council Presidency the legislative timetable tended to get "squeezed", [88] adding that the UK could influence the speed of trilogue negotiations, but—at the end of the day—no Member State could determine the timetable.[89]

76.  The memorandum from Dr Ariella Huff and Dr Julie Smith stated that "parliamentary scrutiny in the UK (as in many other Member States) has not kept up with these changes."[90] We have been aware of this problem for a number of years, and have taken steps to resolve it. In our Report on the 2008-09 Session, published in January 2010, we commented that we were:

particularly concerned about the use of 'informal trilogues', a forum for confidential and binding negotiations, as part of the first reading agreement process. Informal trilogues consist of a representative of the relevant European Parliament committee (usually the rapporteur), the Commission, and the Presidency. No other Member State is present, so it is difficult for governments to follow the course of trilogue negotiations and to feed in their views, but it is well nigh impossible for national parliaments to do so at any appropriate point. Once a compromise text has been agreed in an informal trilogue, the chair of COREPER writes to the chair of the European Parliament committee informing them of the agreed compromise. Neither the Council nor the European Parliament may change a text agreed in an informal trilogue. In practice, we ourselves are not told of trilogue changes until too late - once the negotiation is concluded. [91]

77.  The current Cabinet Office scrutiny guidance for Government Departments states, with regard to trilogue, that:

If there is a prospect of a First Reading deal, Departments must make this clear in the original EM, or if this becomes clear as negotiations develop, including in informal trilogue negotiations, as soon as this becomes a clear possibility. The committees should be informed by way of a Ministerial letter which should provide the Committees with a copy of the trilogue text under the arrangements for handling limité documents set out in section 2. The same principles apply to Second reading deals. [92]

78.  Since we identified this problem in 2010 there have been good examples of Government Departments keeping us updated throughout the course of negotiations, including the provision of limité texts, and summaries which can be placed in the public domain. We have been highly critical of Departments when this has not happened. The fundamental problems remain and this challenge, faced by scrutiny committees across the EU, was one of the reasons we launched our inquiry in 2012. We make further suggestions as to how to improve scrutiny of this process later in this Chapter.

UKRep, Coreper and decision-making in the Council

79.  We refer in the previous section to the forming of a common position or general approach in the Council. The decision-making process within the Council operates at a series of levels and closely involves— for the UK—the UK Permanent Representation to the EU (known as UKRep). Immediately below the Council meetings of Ministers sits the Committee of Permanent Representatives (known as Coreper), which is established by Article 16(7) of the Treaty on European Union. Article 240 of the Treaty on the Functioning of the European Union lays out its main tasks and responsibilities, stating that Coreper is "responsible for preparing the work of the Council and for carrying out the tasks assigned to it by the latter."

80.  Coreper consists of ambassadorial-level representatives from the Member State governments and is chaired by the Member State which holds the Council Presidency. Coreper works in two configurations: Coreper I, consisting of the Deputy Permanent Representatives, which deals largely with social, environmental and internal market matters; and Coreper II, consisting of the Permanent Representatives, which deals with external relations, economic and financial matters, and justice and home affairs. The UK Permanent Representative to the EU, Ivan Rogers, sits on Coreper II. The Deputy Permanent Representative, currently Shan Morgan, sits on Coreper I. Further groups of senior civil servants from Member State governments plan the business of Coreper I and Coreper II: the Mertens Group (for Coreper I) and the Antici Group (for Coreper II). In addition, detailed, often line-by-line consideration of each legislative file takes place at working group level. Council working groups usually consist of specialist national civil servants who deal largely with the technical points of a dossier and identify the more contentious issues to be decided upon at a higher level. The layers of the decision-making process are set out in the chart overleaf:[93]


81.  Coreper is described by the EU's official website as occupying "a pivotal position in the Community decision-making system, in which it is both a forum for dialogue (among the Permanent Representatives and between them and their respective national capitals) and a means of political control (guidance and supervision of the work of the expert groups)."[94] The influence and power which it exercises on legislation is demonstrated by the fact that the agendas for Council meetings reflect the progress made in Coreper, consisting of A items, which are normally approved without discussion following agreement within Coreper, and B items, for discussion, which is of significance given that the scrutiny reserve resolution only currently applies to "Ministers" (and therefore not to Coreper).[95] Sir Jon Cunliffe, at the time head of UKRep, explained:

If something looks as if it has agreement in a working group ... they can take a vote in the Committee and decide there is a qualified majority. ... That will then be proposed on the Coreper agenda as an I point—it is our version of an A point—which says, 'This proposal has been agreed and can go forward.' If it goes through Coreper as an I point, it will then go to a Council as an A point. It can go to any Council. The Council is indivisible, so an economic issue—the budget—can go to the Health Council or Education Council, etc., and Ministers there will not discuss it; it will just go through.[96]

82.  It is clear, therefore, that much of the decision-making takes place before Council meetings and below Council level, which is why the post of UK Permanent Representative to the EU is so important and why we argued in letters to the Prime Minister and the Foreign Secretary in August and October 2013 that it should be subject to a pre-appointment hearing.[97] We call on the Government to publish details of the day-to-day working arrangements of UKRep and Coreper, the precise way in which, and when, UKRep is given Ministerial instructions on specific matters, and an assessment (with examples) of the discretion given to UKRep officials to come to agreements relating to particular proposals.

Limité documents

83.  Limité is a description given to certain documents by the EU institutions. Significantly, new versions of proposals as they proceed through trilogue negotiations often have this marking. Guidance available on the Council's website describes limité documents as those "whose distribution is internal to the Council, its members, the Commission [and] certain EU institutions." It "is a distribution marking, and not a classification level."[98]

84.  The Council guidance on the handling of such documents states that:

Documents marked 'LIMITE' are deemed covered by the obligation of professional secrecy in accordance with Article 339 of the Treaty on the Functioning of the European Union (TFEU) and Article 6(1) of the Council's rules of procedure.[99]

85.  According to this guidance, which dates from June 2011, such papers may be distributed to:

any official of a national administration of a Member State, the European Council, the Council, the European Commission and the EEAS. 'LIMITE' documents may also be distributed to nationals of a Member State who are duly authorised to access such documents by virtue of their functions. Certain 'LIMITE' documents may be released to acceding States and to other EU institutions and bodies depending on the "subject code" on the front page of the document. Private contractors may be granted privileged access to 'LIMITE' documents in accordance with the relevant contractual obligations.[100]

86.  However, "'LIMITE' documents may not be distributed to any other entity or person, the media or the general public without prior authorisation (preferably written) by a relevant official."[101] Interestingly there is a special provision relating to the European Parliament, as follows:

Exceptionally, hard copies of 'LIMITE' documents may be made available to the chairpersons of relevant European Parliament committees, upon written request to the General Secretariat of the Council (GSC) and following agreement by duly authorised Council officials, on the understanding that the European Parliament will handle them in a manner that is consistent with this policy and will not make such documents or parts of them public without prior authorisation.[102]

87.  We have already noted that some other EU affairs committees receive limité documents as a matter of course. Following an exchange of letters between the Scrutiny Committees of both Houses and the Government in 2010, the Government agreed to share limité documents with us on our request, or on its initiative.[103] Given their claimed status it is said that they cannot be deposited as this would make them public. We therefore cannot report on them unless the Government provides, as it can, an EM or Ministerial letter containing an "unclassified" summary or until after the event. Another option is for the document to be "declassified" by the Council secretariat, but there have been unnecessary delays in doing this, for example relating to the European Defence Agency Annual Report.[104]

88.  While we can currently ask to see limité documents, receive others on the initiative of the Government, and potentially have informal access to such papers, one problem we encounter is that we do not know what to ask for—we do not formally receive, as a Committee, a list of limité documents from which to choose; as the Minister for Europe noted "we are getting almost into Rumsfeld territory of unknown unknowns".[105]

89.  We note that limité is a distribution marking, not a security classification. We will seek to respect the confidentiality which it implies, while also respecting our obligations to Parliament, as was seen when an Urgent Question was granted to the Committee Chairman in October 2010 relating to a document setting out the conclusions of the task force on strengthening economic governance.[106]

90.  We explored limité status with the Minister, who set out in a later letter to us that in his view there are "good security reasons" for the classification.[107] He stated:

It is for the Committee to decide what to recommend to the House, but the Committee could propose amendments to the Standing Order to enable the scrutiny of certain documents to happen without the content being made public. The Committee could consider making reports on documents without making public administrative limité content that the Government had shared with the Committee to help it come to a more informed opinion on a particular negotiation. In effect, a sanitised report would be going into the public domain. Those would be ways of addressing this. It is for the Committee to decide whether that goes too far away from the principle of transparency, to which you rightly accord importance.[108]

91.  We were told that the UK Parliament is "among a few" national parliaments that do not have regular access to limité documents. We can ask to see such documents, and are supplied with them on an ad hoc basis, but we cannot ask to see documents if we do not know they exist. The current situation therefore leaves control of Parliament's access to these important legislative papers firmly in the grip of the Government. In our view this is wrong. We therefore recommend that the Government sends both Houses a weekly list of the limité documents which have been issued. We also recommend that the Government alerts the Committees whenever a limité document is produced on a document which is still under scrutiny, including a short summary of the limité text. Deposit is — and in our view should remain — a process which is inextricably linked with publication. It is now time to formalise separate mechanisms by which limité documents can be supplied to Parliament, which will assist our scrutiny of deposited documents. We will review how these mechanisms work once introduced, and in particular whether it should be possible in some way to hold limité documents under scrutiny. This links to arguments about the existence of this classification, which we cover below.

THE FUTURE OF LIMITÉ STATUS

92.  A recent judgment of the Court of Justice undermines the purported unassailability of the limité classification. Often, as in the case before the Court, the classification (and redaction) is used to mask the identity of Member States so as to avoid disclosure of their negotiating position. The case of Council of the European Union v Access Info Europe[109] concerned a request for the disclosure of a note prepared for a Council working group by the secretariat which outlined suggested changes to a legislative proposal to be discussed within that group. The note was disclosed but only with the redaction of the identities of the Member States who had tabled the changes.

93.  The Court of Justice upheld, on appeal, the decision of the EU General Court that the note should have been provided without that redaction, so affirming the reasoning advanced by the General Court. This extended to the need to ensure "the widest possible right of access" to documents of the institutions "connected with the democratic nature of those institutions" and that therefore "exceptions to disclosure must be interpreted and applied strictly". This is particularly so "where the Council is acting in its legislative capacity".

94.  We note that this corresponds with the view of Professor Simon Hix for more transparency and disclosure in relation to non-papers where connected to the Council's legislative function.[110] It also corresponds with the view of Professor Chalmers, also of the LSE, who attached considerable importance to this case and its consequences on national parliamentary scrutiny of first reading deals:

The biggest challenge I would say with the trilogue, which the Court of Justice might rectify any day of course, is that my understanding is that, because these are documents limité, this chamber does not have a right to them. They are treated at the moment as not being subject to access or freedom of information laws. It certainly cannot publish or see explanatory memoranda on them. This is a challenge, because the Commission proposal may be a little bit away from the trilogue draft, or the position that everyone knows is going to be staked out in the meetings.

In the access info case, the General Court in 2011 said this was completely illegal. It said, in principle, the positions of all the member states in negotiations had to be disclosed. There was this idea that you could hold those. The Council appealed. The Advocate General in May upheld the position of the General Court, and we will see what the Court of Justice says any day. If it follows the Advocate General and the General Court, you will be able to have an unfettered right, as I understand it, to what takes place in the trilogue and will be able to publish it for citizens to see, which I think would be a marvellous thing.[111]

95.  We note that the UK Government intervened in the General Court proceedings to support the request for unredacted disclosure, and we urge the Government to press the EU institutions to cease using the limité classification, particularly to protect Member States' negotiating stances. We also ask the Government for its opinion on the implications of this case for the limité classification.

Council meetings

96.  At the final decision-making stages the Danish and Finnish models involve the relevant Committee giving the Minister some form of mandate immediately before a Council meeting. Our predecessor Committee's Report in 2002 noted that while useful changes were made in 1998 in the provision of written material "systematic pre- and post-Council scrutiny has remained an aspiration".[112] Since 2005 the ESC's system of Council scrutiny has developed but remains essentially a paper exercise. The current practice is for Government Departments to lay a written Ministerial statement in both Houses shortly before each Council meeting "setting out why the items are on the agenda and the Government's general position on the items" and another written statement afterwards with a "detailed" post-Council Report "setting out what happened at the meeting and what role the UK played."[113] These agendas and statements are circulated to the Committee which considers them each week as a separate agenda item. During recesses, Ministerial letters to the Chairs of the Commons and Lords Committees take the place of written Ministerial statements.

97.  Scrutiny of Council meetings, and consideration of the UK Government's approach, is critically important. Information about the positions which national governments have adopted in Council is publicly available both through the information provided to Parliament and also through the VoteWatch website.[114] However, this is still a particularly opaque decision-making process; Simon Hix, LSE Professor and Director of VoteWatch told us "overwhelmingly decisions are still made by consensus in the shadow of QMV."[115] Research conducted by VoteWatch concluded that "actual contest through formal voting only constitutes the tip of the iceberg: on average, governments voice concerns about a policy proposal 1.2 times per legislative act adopted by the Council [...] In reality policy proposals may therefore be more contested than would appear, despite being reported as 'unanimously agreed'".[116]

98.  Gisela Stuart MP described the process as follows:

The way it essentially works is that you sit there as a Minister, an issue comes up, you talk to UKREP, and they do the headcount. This is why I am saying mandating Ministers is a bad idea. They add up the votes, and if it looks as if we will not win the vote, we do not force a vote. The voting system in Brussels tends to be more an exercise in affirmation, rather than an exercise in testing the strength. This is why, whenever I hear arguments by some of our former Commissioners when they say, 'Of course we always get our way. Look, we have never lost a vote.' I say, 'That is because we have some really good diplomats, who never allow us to be seen to be losing a vote. We usually cave in before it comes to a vote.' [117]

99.  We conclude that the current process of Council decision-making and the role of Coreper and UKRep greatly obscures the position of individual Member States, and it is clear that Governments fall back on consensus if they know they are likely to be outvoted. This raises serious questions, given that some of the issues being decided would be the subject of an Act of Parliament if taken through domestic legislation.

100.  Turning to consideration of Council meetings in Committee, we see this as a final check as our scrutiny of proposals will have already been completed in the vast majority of cases (the CFSP being a particular exception). We therefore conclude that our current approach is appropriate. However, we believe that there is scope in some cases for Departmental Select Committees to become more involved at this point if there are matters of detailed policy remaining to be negotiated (including possibly holding a pre-Council hearing), and will work with the Liaison Committee to develop suitable mechanisms and guidance to improve practice in this area. Scrutiny of European Council meetings is dealt with later in the Report in the section on the floor of the House.

Transposition

101.  A substantial amount of EU law is in the form of Directives which set out rules and objectives for Member States to apply at a national level. This process is known as transposition, and in the UK it is usually carried out by making statutory instruments under powers granted in the European Communities Act 1972. The European Scrutiny Committee does not examine the implementation of EU law, and some expressed concerns that this was not systematically examined elsewhere in the House.[118] However, in our view it is at the time when an EU instrument is being negotiated that Parliamentary committees have the greatest scope to influence the outcome, for at that stage policy choices are open even if the UK may come to find itself outvoted.

102.  The Environment, Food and Rural Affairs Committee's submission suggested that "there would be merit in introducing amendable motions, akin to those in European committees, in delegated legislation committees. Members would thereby have an opportunity to express a view on the desirability of the instrument, or highlight concerns about gold plating, without being fatal to the Government's legislation progressing through the House."[119] We recommend a variation of this suggestion in our section on European Committees, which comes later in this Report. We leave the wider issue of transposition to the Procedure Committee and also to Departmental Select Committees, which we note have as one of their new core tasks "to assist the House in its consideration of bills and statutory instruments".[120]

103.  We also note the significant contribution of our colleagues on the Joint Committee on Statutory Instruments (JCSI) in highlighting transposition issues on individual implementing SIs.

104.  Recent Government guidance on transposition sets out the following Guiding Principles for Departments:

The Principles state that, when transposing EU law, the Government will:

a) ensure that (save in exceptional circumstances) the UK does not go beyond the minimum requirements of the measure which is being transposed;

b) wherever possible, seek to implement EU policy and legal obligations through the use of alternatives to regulation;

c) endeavour to ensure that UK businesses are not put at a competitive disadvantage compared with their European counterparts;

d) always use copy-out for transposition where it is available, except where doing so would adversely affect UK interests e.g. by putting UK businesses at a competitive disadvantage compared with their European counterparts or going beyond the minimum requirements of the measure that is being transposed. If departments do not use copy-out, they will need to explain to the Reducing Regulation Committee (RRC) the reasons for their choice;

e) ensure the necessary implementing measures come into force on (rather than before) the transposition deadline specified in a Directive, unless there are compelling reasons for earlier implementation; and

f) include a statutory duty for ministerial review every five years.[121]

105.  Currently, SIs which involve transposition are laid with an annex to their explanatory memorandum which sets out the approach the Government has taken, including the compliance with these guidelines. The Minister for Europe observed that this was a complex area: "Sometimes they [government departments] might bring forward an SI that includes an element that is about implementing EU obligations but also an element that reflects something the Government want to do in any case."[122]

106.  We asked the Minister whether there was scope to introduce some kind of clear indication of which SIs involved transposition (such as an 'E' as part of the document number). He replied that the "point about there having been previously some sort of flag in the process is an interesting one. I have no idea when or why that was discontinued."[123] In a follow-up letter the Minister added that:

I agreed to look into flagging Statutory Instruments that ultimately have legal bases in the Treaties. The Joint Committee on Statutory Instruments (JCSI) has confirmed that whilst Members have always been informed when a Statutory Instrument stems from the European Communities Act 1972, this has never been made public in reports. The JCSI does therefore continue to flag Statutory Instruments that emanate from EU legislation to Members, but it is not published in the reports.[124]

Conclusion

107.  We propose changes to Standing Order No. 143 at the end of this chapter, building on a set of proposed Standing Orders and a scrutiny reserve resolution originally published in 2010 by our predecessor Committee. Overall, we conclude that we should retain our sifting role as it currently stands.

108.  We agree with the points made by our witnesses about the importance of seeking to influence the early gestative stages of the EU policy process, and note that this is a point at which the role of Departmental Select Committees can be highly significant. This is one of the reasons why we recommend enhanced scrutiny of the Commission Work Programme later in this Report, including the contemporaneous setting of priorities by Departmental Select Committees.

109.  For our part, we will continue to scrutinise Commission Green and White Papers, recommending them for debate/Opinion as appropriate. We will aim to recommend documents for debate at an earlier stage of the legislative process, if possible before the Council adopts a common position or general approach. For this to work we will need as much notice as possible, which must be facilitated both by the UK Government and the Council. We look to the latter in particular to fulfil the commitment made under Article 4 of Protocol (No. 1) to the EU Treaties, which states that an "eight-week period shall elapse between a draft legislative act being made available ... and the date on which it is placed on a provisional agenda for the Council for its adoption or for adoption of a position under a legislative procedure". We urge the Government to ensure that any information it receives about the timing of Council consideration is passed on to us as quickly as possible, and that debates on such documents take place in a timely fashion. We note that it may be necessary to act at speed, for example if we have reported on the Council's approach just before the trilogues begin. Our consideration of the contents of non-papers will inform this.

110.  In view of Sir Jon Cunliffe's statements that the Government "should aim to ensure that the Committee is updated on what we think will happen in the trilogue process" and "We will try to find ways to share information" we recommend that if there are substantive changes during trilogue negotiations the Government should provide Supplementary Explanatory Memoranda on documents which have cleared scrutiny (or deposit the new version of the document, with a new Explanatory Memorandum) automatically, rather than on request (thereby re-imposing the scrutiny reserve). The same should apply if there are material changes during negotiations within the Council, for example in the run up to a general approach or common position.

111.  We recommend that all Statutory Instruments involving transposition of EU legislation should have a subsidiary "(E)" serial number (in a similar form to the existing subsidiary systems for commencement orders (C), the legal series relating to fees or procedures in Courts in England or Wales (L), or the Scottish, Northern Ireland and National Assembly for Wales series ((S), (NI) and (W) respectively)). They would therefore appear in the form S.I. 1998, No. 2357 (E. 12)).

112.  We also recommend that all explanatory memoranda accompanying SIs contain a new section entitled Does this statutory instrument implement or supplement an EU obligation? Although it may be clear from the policy context whether an SI is implementing an EU obligation, we conclude that an unequivocal statement of this nature would be helpful for Members of Parliament and members of the public alike.

113.  Under the European Communities Act, the Government is free to make statutory instruments implementing most EU legislation through the negative resolution procedure, which requires no debate on, or positive approval of, the instrument in Parliament. The negative resolution procedure provides the House with minimal scrutiny of the transposition of EU legislation. A possibility that could be considered further is to oblige certain statutory instruments implementing an EU obligation to be approved through the affirmative resolution procedure, which requires a debate and resolution of approval in both Houses. To be effective, this would require a change to the Standing Orders of the JCSI and an amendment of the European Communities Act to define which transposing legislation would require affirmative resolution.

114.  As regards pre- and post-Council scrutiny, we comment below on the potential for pre-Council Committee hearings on CFSP; we reflect further on it in our section on the floor of the House.

Non-legislative acts: challenges for document definition following the Treaty of Lisbon

115.  As well as the challenges to scrutiny caused by the emergence of the ordinary legislative procedure as the default procedure for the enactment of EU law, further challenges have arisen as a consequence of the Treaty of Lisbon.

LEGISLATIVE AND NON-LEGISLATIVE ACTS

116.  The Treaty of Lisbon introduced the concept of draft legislative acts as defined in Article 289(3) TFEU, according to which "legal acts adopted by legislative procedure shall constitute legislative acts". However, many binding EU acts are adopted by non-legislative procedure. Furthermore, where the legal base is silent on the legislative procedure to be used, the document is deemed non-legislative. Non-legislative acts include all CFSP Decisions (see the next section of this Report), Commission delegated and implementing legislation and Commission Communications, but also other legal acts. Our predecessor Committee noted this issue in its Report on the Work of the Committee in 2008-09, concluding:

EU activity will be divided into legislative acts, which are defined, and non-legislative acts, which are not. It is the second category which poses the problems for scrutiny. Many binding "Union acts", issuing particularly from the Council or European Council will fall under the second category. It is for this reason that we have requested that the revised Standing Order refers to 'non-legislative acts' as well as 'legislative acts'. Indeed, were it not to make this reference, we would be in a position where our scrutiny mandate under the Lisbon Treaty would be narrower than it is today. [125]

117.  The following are examples of non-legislative acts within the TFEU which should, for obvious reasons, be submitted for scrutiny:

  • Article 74: Council to adopt measures to ensure administrative cooperation between Member States' authorities under Title V (Freedom, Security and Justice).
  • Article 78(3): Council taking provisional measures where one or more Member States are confronted with an emergency situation in the form of a sudden influx of third country nationals.
  • Article 81(3)(2nd paragraph): Council Decision that aspects of family law with cross-border implications may be subject to the ordinary legislative procedure.
  • Article 82(2)(d): Council Decision on "other" specific acts of criminal procedure to fall under competence of the EU.
  • Article 95(3): Council provisions on non-discrimination in relation to transport charges and conditions for carriage of goods.
  • Article 103(1): Council Regulations and Directives in the field of competition policy.
  • Article 109: Council Regulations in the field of state aid policy.
  • Article 125(2): Council to define "overdraft facility/credit facility" with ECB or central banks of Member States and "privileged access" by EU institutions.
  • Article 129(4): Council Decisions on operation of the ECB and ESCB.
  • Article 148(2): Council guidelines on Member State employment policies.
  • Article 150: Council to establish an Employment Committee to promote coordination of employment policies between Member States.
  • Article 160: Council to establish a Social Protection Committee to promote coordination of social protection policies between Member States.
  • Article 218: Council Decisions to sign or conclude international agreements
  • Article 329: Council to authorise "enhanced cooperation" between Member States (where fewer than 28 arrange to cooperate).

118.  In the absence of agreement with the Government to change our Standing Order as requested, we have relied on informal agreement with the Government about depositing non-legislative acts. This is not a satisfactory state of affairs, and so we propose amending Standing Order No. 143 to cover both legislative and non-legislative acts. Classes of non-legislative acts that are routine or trivial will be excluded from deposit by agreement with the Government.

COMMON FOREIGN AND SECURITY POLICY AND COMMON DEFENCE AND SECURITY POLICY PROPOSALS

119.  Before the Lisbon Treaty, the Common Foreign and Security Policy (CFSP) was implemented by three types of measure: common strategies, joint actions and common positions, all of which were listed as depositable EU documents in Standing Order No. 143. Now the landscape has changed. The Decision is the only measure which can implement the CFSP: the European Council defines the general guidelines for the CFSP by adopting Decisions,[126] the Council implements it on the basis of these general guidelines by adopting further Decisions. Where Council Decisions are used for operational action, Member States are "committed" to them in the conduct of their activity.[127] Council Decisions must also be adopted for policies which "define the approach of the EU to a particular matter of a geographical or thematic nature", in which case Member States "must ensure" that their national policies conform to the Decisions adopted by the Council.[128]

120.  These obligations are, however, politically binding rather than legally enforceable — as with the CFSP before the Lisbon Treaty, the Commission or other Member States cannot bring infringement proceedings against a Member State for non-implementation of a CFSP Decision, and the Court of Justice can only review them to the extent they infringe upon other areas of EU (rather than CFSP) external action. In addition, the TEU makes plain that legislative acts are excluded from the CFSP.[129]

121.  We conclude, for the reasons we have given, that Standing Order No. 143 needs to be amended to list European Council and Council Decisions under the CFSP as depositable documents.

122.  However, despite the clear guidance to the contrary in the Treaty, the Government is a strong advocate of Council Conclusions, in place of Decisions, as a method of implementing the CFSP. This has clear implications for the scope of CFSP policies which are deposited for scrutiny. The Minister for Europe told us that "there is a clear Government policy that we do not deposit where it stems from Council Conclusions."[130] He also drew the distinction between non-legislative decisions, "with a lower case 'd'" and "formal Decisions, with a capital 'D', by the Council, which are caught by the Scrutiny Reserve resolution,"[131] stating that:

quite a lot of decisions, with a lower case 'd', by the EU about CFSP and CSDP are non-legislative, and they are embodied in working documents and action plans ... I acknowledge that this is a problem, and it is not one that is capable either of being answered by simply saying 'Well, in that case, we need to make sure everything significant on CFSP and CSDP is authorised by a formal EU decision', because decisions are supposed to be for something that has legislative impact.[132]

123.  He argued that further uncertainty arose from the fact that the "treaties do not define strategies and action plans. Those terms can be and are used both for the grand overviews and for quite routine working documents.[133] Figures produced by the FCO show that between September 2012 and July 2013 the Government deposited 19 action plans and 15 strategies: it is not clear how many further plans/strategies were produced but not deposited.

124.  European Neighbourhood Policy Action Plans are a case in point. Despite there being a clear legal base for them in Article 29 TEU ("[t]he Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature"), the Government asserts they should be adopted by Council Conclusions, with little support from other Member States it seems, because they are political commitments.[134]

125.  The Government also continues to resist the Committee's position with respect to a new CFSP "instrument", namely "The Framework". The case in point is Burma. Subsequent to the recent major political changes, a 'comprehensive framework' was adopted at the 22 July 2013 Foreign Affairs Council via Council Conclusions. The Committee has argued that this should have been scrutinised beforehand. The Minister's response is that this is not depositable because it is not legislative; being but "an outline of EU policy towards Burma, debated among Member States". The Committee's view is the opposite: that it is precisely because this will determine everything else that follows, and has been "debated among Member States", that it should also be scrutinised beforehand by the House before adoption. As with Action Plans, Article 29 does not make any distinction: anything that "define[s] the approach of the Union to a particular matter of a geographical or thematic nature" shall be adopted by decision.

126.  For comparison, the most recent provisions adopted by the German Bundestag state:

In the realm of the Common Foreign and Security Policy and the Common Security and Defence Policy, the Federal Government shall provide comprehensive, continuous notification as early as possible. The notification shall, as a rule, be made in writing. It shall comprise the forwarding of a summary of the legislative acts that are due to be the subject of discussion, an appraisal of them and a prognosis of the future course of discussions. Section 4(4) shall apply, mutatis mutandis, to meetings of the European Council and the Council featuring decisions and conclusions in the realm of the Common Foreign and Security Policy and the Common Security and Defence Policy.

(2) In addition, the Federal Government shall forward to the Bundestag, on request, documents of fundamental importance in accordance with the provisions of section 6(1) of this Act. Section 6(2) of this Act shall apply, mutatis mutandis.

(3) The Federal Government shall also provide continuous and early oral notification of all relevant developments in the realm of the Common Foreign and Security Policy and the Common Security and Defence Policy.

(4) The Federal Government shall notify the competent committees of the Bundestag orally about the meetings of the Political and Security Committee.[135]

127.  Dr Ariella Huff pointed out that this was an area where a system based on documents encountered problems because those "documents come in a variety of guises, in many cases non-typical guises". [136] She also noted that "There is an ad hoc nature to this scrutiny that makes it very difficult to do because you are not looking at legislation".[137] Sir Jon Cunliffe stressed to us that in his view some of the administrative problems were "getting a little bit better", due in part to a "bedding down" of a new area of scrutiny. [138]

128.  We do not recognise the distinction the Minister makes between "decisions" and "Decisions", and note the Minister appeared to be unaware that all CFSP Decisions are non-legislative. We take the view that action plans, strategies and frameworks form an important part of the CFSP process and should be depositable; we have accordingly added them to the new version of our Standing Order, which is set out at the end of this chapter, to cover situations where they are adopted by Council Conclusions.

129.  We conclude that there is a real problem with current scrutiny of CFSP. First, there are a high number of 'systemic' overrides on measures relating to sanctions and asset-freezing which risk devaluing the scrutiny reserve. Second, the Standing Order is woefully out of date and in the absence of an agreed definition of 'depositable document' in this area we have had a series of ongoing disputes with the Government about particular categories of papers. It is important to address this because these are high profile and significant measures.

130.  Dr Huff suggested that Ministers giving evidence to the ESC or other Committees before Council meetings was "absolutely critical in making sure that Parliament has its voice heard in these sorts of discussions". We recommend that not only should our Standing Orders be updated but also that we, the Foreign Affairs Committee and the Defence Committee should liaise to develop a more coherent system of CFSP and Common Security and Defence Policy (CSDP) scrutiny, including a pre-Foreign Affairs Council hearing, in order both to reduce unnecessary overrides and make the scrutiny process in this area more effective. In order to facilitate this we ask the Government to supply the three Committees with relevant limité draft Foreign Affairs Council Conclusions.

Delegated and implementing acts

131.  A further issue has arisen as a result of the increase in the volume and significance of EU delegated legislation following the Treaty of Lisbon. The FCO memorandum notes that the current arrangement is essentially subjective, as technically all such proposals are depositable, "but in practice most ... concern minor technical issues ... [therefore] they are only deposited if the content of the decision is considered sufficiently legally or politically important to need reporting. This decision is taken in consultation with the clerks of the Committees."[139]

132.  The Minister for Europe told us that there are around 1,700 items of implementing and delegated legislation a year, and added that:

Some Departments have tried to pick out those implementing and delegated Acts that the Government believe are politically sensitive or important, and flag them up to the Committees. Sometimes the Government have deposited politically significant proposals. It is not done systematically. [140]

133.  Given the sheer number of documents in this category it is clear that depositing all delegated and implementing acts would swamp the scrutiny system. The existing ad hoc arrangements work reasonably well, but given the weaknesses identified by the Government we ask it to propose a coherent cross-Departmental approach for determining which implementing and delegated acts will be subject to deposit for the consideration of both this Committee and the European Union Committee in the House of Lords.

PROPOSED NEW DEFINITION OF EUROPEAN DOCUMENT FOR STANDING ORDER NO. 143
The expression 'European Union document' in this order and in Standing Order No. 16 (Proceedings under an Act or on European Union documents), No. 89 (Procedure in general committees) and No. 119 (European Committees) includes—

i.  a document published by the Commission;

ii.  a document, or a class of documents, published by any other European Union institution, body or office-holder that the European Scrutiny Committee requests to be deposited;

iii.  a document submitted by an institution of the European Union to another Union institution;

iv.  a draft legislative act or a draft non-legislative act, or a substantially revised version of such a draft;

v.  Decisions relating to the Common Foreign and Security Policy and the Common Defence and Security Policy, and associated general guidelines, frameworks, action plans and strategies (if they are to be adopted by Council Conclusions);

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

The Committee may waive the requirement to deposit an EU document, or classes of EU documents, by agreement with the Select Committee on the European Union of the House of Lords.

[The current definition, for comparison, is:

(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 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 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.]




53   The equivalent provision for the House of Lords EU Committee is "The expression 'European Union document' includes in particular:(a) a document submitted by an institution of the European Union to another institution and put by either into the public domain; (b) a draft legislative act or a proposal for amendment of such an act; and (c) a draft decision relating to the Common Foreign and Security Policy of the European Union under Title V of the Treaty on European Union". Back

54   See paras 78 and 110. Back

55   Explanatory Memoranda are available at http://europeanmemoranda.cabinetoffice.gov.uk/ Back

56   Ev w21, para 12 [Liberal Democrat Parliamentary Party Committee on International Affairs] Back

57   Q 312 Back

58   Q 66, for statistics on this point see footnote 23. Back

59   Q 511 Back

60   Ev w9, para 35 Back

61   Ev w21, para 12 Back

62   Ev w9, para 34 Back

63   Second Special Report of Session 2001-02, HC 1256, para 9. Successive House of Commons Commission Annual Reports are available on the www.parliament.uk website. Back

64   Anti-dumping cases; Extension of time or renewal of agreement; Follow-up to international agreement; Import arrangements with third countries; Staff matters; Tariff quotas; Transfer of appropriations; Consolidation; Derogations; Routine amendment to existing legislation; Routine Joint Action amendments to Joint Actions; CFSP Common Position. Back

65   Community positions on rules of procedure for various Councils and Committees, including those established under Association Agreements; Proposals to extend Common Positions imposing sanctions (without making substantive changes) in pursuance of UN Security Council resolutions; Proposals for making minor changes to lists of people organisations subject to restrictive provisions in existing measures; Draft Council decisions relating to decisions already made in Association Councils or Committees; Reappointment of members to EU organisations; Miscellaneous Post Lisbon Article 37; and External Auditors of EU Member States National Central Banks. Back

66   Q 35 Back

67   Q 36 Back

68   COSAC, Seventeenth Bi-annual Report, Developments in EU Procedures and Practices Relevant to Parliamentary Scrutiny, April 2012, available at www.cosac.eu Back

69   Graph 1 of the bi-annual Report. Back

70   Q 129 Back

71   http://www.bundestag.de/htdocs_e/bundestag/europe/ipex/EUZBBG_Juli_2013_EN.pdf Back

72   Q 118 Back

73   Q 414. For an explanation of trilogue, see paras 72-78. Back

74   Q 122 Back

75   Q 2 Back

76   Qq 281 and 288 Back

77   Thirtieth Report of Session 2001-02, European Scrutiny in the Commons, HC 152-xxx, para 86 Back

78   Q 495 Back

79   Q 496 Back

80   Q 445 Back

81   Source: National Parliament Office Back

82   Q 581 Back

83   Q 403 Back

84   Rule 70 can be found here:http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20130701+RULE-070+DOC+XML+V0//EN&language=EN&navigationBar=YES Back

85   Q 483 Back

86   A general approach is an informal preliminary position whereas a common position is the Council's formal negotiating stance. Back

87   See letter from the then Minister to the Committee, 15 April 2013, available in the 'Ministerial correspondence' section of the Committee website. Back

88   Q 394 Back

89   Q 411 Back

90   Ev w10, para 2 [Dr Ariella Huff; Dr Julie Smith] Back

91   Sixth Report of Session 2009-10, The Work of the Committee in 2008-09, HC 267, para 21 Back

92   Parliamentary Scrutiny of European Union Documents: guidance for Departments, Cabinet Office, para 3.5.3, available at http://europeanmemoranda.cabinetoffice.gov.uk/ Back

93   Source: National Parliament Office Back

94   www.europa.eu, Glossary Back

95   See Chapter 4 Back

96   Q 388 Back

97   See paras 271-277 Back

98   Council of the European Union, 11336/11, Handling of documents internal to the Council Back

99   As above, para 5 Back

100   As above, paras 14-16 Back

101   As above, para 17 Back

102   As before, para 18 Back

103   Parliamentary Scrutiny of European Union Documents: guidance for Departments, Cabinet Office, para 2.3.1, available at http://europeanmemoranda.cabinetoffice.gov.uk/ Back

104   First Report of Session 2013-14, HC 83-i, Chapter 17 Back

105   Q 505 Back

106   HC Deb, 27 October 2010, col 318 Back

107   Ev w40 Back

108   Q 498. The quotation reference in the following paragraph is to Q 129. Back

109   Case C-280/11P Back

110   See para 69 Back

111   Q 582 Back

112   European Scrutiny Committee, Thirtieth Report of Session 2001-02, European Scrutiny in the Commons, HC 152-xxx, para 61 Back

113   Parliamentary Scrutiny of European Union Documents: guidance for Departments, Cabinet Office, Annex N, available at http://europeanmemoranda.cabinetoffice.gov.uk/ Back

114   www.votewatch.eu Back

115   Q 431 Back

116   Agreeing to disagree: the voting records of EU Member States in the Council since 2009, VoteWatch Europe Annual Report, July 2012, p 10 Back

117   Q 266 Back

118   See Ev w3, para 10 [European Conservatives and Reformists Group, European Parliament]; Ev w4, para 5 [City Remembrancer of the City of London Corporation]. Back

119   Ev w27, para 12 [Environment, Food and Rural Affairs Committee] Back

120   Liaison Committee, Second Report of Session 2012-13, Select committee effectiveness, resources and powers, HC 697, Table 2 Back

121   Transposition Guidance: how to implement European Directives effectively, April 2013, para 1.3 Back

122   Q 520 Back

123   Q 521 Back

124   Ev w40. The quotation references in para 110 are to Q 401 and Q 402. Back

125   Sixth Report of Session 2009-10, HC 267, para 15 Back

126   Article 26(1) TEU Back

127   Article 28(1) and (2) TEU Back

128   Article 28 TEU Back

129   Article 24(1) TEU, repeated in Article 31(1) TEU Back

130   Q 27 Back

131   Q 25 Back

132   Q 25 Back

133   Q 26  Back

134   See, for example, our Reports on the Palestine, Morocco and Lebanon Action Plans: HC 83-vi (2013-14), chapter 12 (19 June 2013), HC 83-xiii (2013-14), chapter 13 (4 September 2013), and HC 83-xiii (2013-14), chapter 16 (4 September 2013) respectively. Back

135   http://www.bundestag.de/htdocs_e/bundestag/europe/ipex/EUZBBG_Juli_2013_EN.pdf Back

136   Ev w10, para 6 [Dr Ariella Huff], Q 137 Back

137   Q 137 Back

138   Q 409 Back

139   Ev w 8, para 29. The quotation reference in para 130 is to Q 137. Back

140   Q 519 Back


 
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Prepared 28 November 2013