3 The role of the European Scrutiny
Committee: stages of scrutiny |
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
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.
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.
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
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.
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.
55. We heard criticism that the current system
was "too slow, bureaucratic and rigid"; 
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
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.
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."
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".
Other witnesses made the same point, for example the Liberal Democrat
PPC on International Affairs.
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. 
59. The figures published in the House of Commons
Commission Annual Reports show a significant variation over time,
rather than a general upward trendindeed, 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".
Documents deposited for scrutiny 2001-2013
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.
Other documents are subject to a non-deposit agreement.
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".
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.
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
show that 19 out of 40 Parliaments/Chambers receive more than
500 EU documents annually.
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.
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,
coordinated instructions for the German representative
on the Committee of Permanent Representatives.
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".
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" 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."
The Minister for Europe linked this to the concept of 'upstream'
engagement, 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 Governmentas it
required Ministers and their officials to think through the issues
more carefully in advance of Council meetings.
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 Committeesomething
which our predecessor Committee saw as a priority back in 2002.
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
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",
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.
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.
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.
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%.
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
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.
From the perspective of the Council, the Minister for Europe
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.
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'
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.
Sir Jon Cunliffe told us that towards the end of a Council Presidency
the legislative timetable tended to get "squeezed",
 adding that
the UK could influence the speed of trilogue negotiations, butat
the end of the dayno Member State could determine the timetable.
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."
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. 
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. 
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 UKthe 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:
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)."
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).
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 pointit is our version of an A pointwhich
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 issuethe budgetcan go to the Health
Council or Education Council, etc., and Ministers there will not
discuss it; it will just go through.
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.
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.
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."
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.
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
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."
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
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.
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
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 forwe 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
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.
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.
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
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 LIMIT&EACUTE; 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
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. 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.
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.
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
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."
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.
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."
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'".
98. Gisela Stuart MP described the process as
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.' 
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.
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.
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."
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".
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
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
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
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.
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."
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."
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.
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.
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
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
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. 
117. The following are examples of non-legislative
acts within the TFEU which should, for obvious reasons, be submitted
- 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
- Article 95(3): Council provisions on non-discrimination
in relation to transport charges and conditions for carriage of
- 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
- 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
- Article 329: Council to authorise "enhanced
cooperation" between Member States (where fewer than 28 arrange
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,
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.
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.
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.
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."
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
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.
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.
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
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
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.
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". 
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
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.
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
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
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."
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. 
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
See paras 78 and 110. Back
Explanatory Memoranda are available at http://europeanmemoranda.cabinetoffice.gov.uk/ Back
Ev w21, para 12 [Liberal Democrat Parliamentary Party Committee
on International Affairs] Back
Q 312 Back
Q 66, for statistics on this point see footnote 23. Back
Q 511 Back
Ev w9, para 35 Back
Ev w21, para 12 Back
Ev w9, para 34 Back
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
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
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
Q 35 Back
Q 36 Back
COSAC, Seventeenth Bi-annual Report, Developments in EU Procedures
and Practices Relevant to Parliamentary Scrutiny, April 2012,
available at www.cosac.eu Back
Graph 1 of the bi-annual Report. Back
Q 129 Back
Q 118 Back
Q 414. For an explanation of trilogue, see paras 72-78. Back
Q 122 Back
Q 2 Back
Qq 281 and 288 Back
Thirtieth Report of Session 2001-02, European Scrutiny in the
Commons, HC 152-xxx, para 86 Back
Q 495 Back
Q 496 Back
Q 445 Back
Source: National Parliament Office Back
Q 581 Back
Q 403 Back
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
Q 483 Back
A general approach is an informal preliminary position whereas
a common position is the Council's formal negotiating stance. Back
See letter from the then Minister to the Committee, 15 April 2013,
available in the 'Ministerial correspondence' section of the Committee
Q 394 Back
Q 411 Back
Ev w10, para 2 [Dr Ariella Huff; Dr Julie Smith] Back
Sixth Report of Session 2009-10, The Work of the Committee
in 2008-09, HC 267, para 21 Back
Parliamentary Scrutiny of European Union Documents: guidance
for Departments, Cabinet Office, para 3.5.3, available at
Source: National Parliament Office Back
www.europa.eu, Glossary Back
See Chapter 4 Back
Q 388 Back
See paras 271-277 Back
Council of the European Union, 11336/11, Handling of documents
internal to the Council Back
As above, para 5 Back
As above, paras 14-16 Back
As above, para 17 Back
As before, para 18 Back
Parliamentary Scrutiny of European Union Documents: guidance
for Departments, Cabinet Office, para 2.3.1, available at
First Report of Session 2013-14, HC 83-i, Chapter 17 Back
Q 505 Back
HC Deb, 27 October 2010, col 318 Back
Ev w40 Back
Q 498. The quotation reference in the following paragraph is to
Q 129. Back
Case C-280/11P Back
See para 69 Back
Q 582 Back
European Scrutiny Committee, Thirtieth Report of Session 2001-02,
European Scrutiny in the Commons, HC 152-xxx, para 61 Back
Parliamentary Scrutiny of European Union Documents: guidance
for Departments, Cabinet Office, Annex N, available at http://europeanmemoranda.cabinetoffice.gov.uk/ Back
Q 431 Back
Agreeing to disagree: the voting records of EU Member States
in the Council since 2009, VoteWatch Europe Annual Report,
July 2012, p 10 Back
Q 266 Back
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
Ev w27, para 12 [Environment, Food and Rural Affairs Committee] Back
Liaison Committee, Second Report of Session 2012-13, Select
committee effectiveness, resources and powers, HC 697, Table
Transposition Guidance: how to implement European Directives
effectively, April 2013, para 1.3 Back
Q 520 Back
Q 521 Back
Ev w40. The quotation references in para 110 are to Q 401 and
Q 402. Back
Sixth Report of Session 2009-10, HC 267, para 15 Back
Article 26(1) TEU Back
Article 28(1) and (2) TEU Back
Article 28 TEU Back
Article 24(1) TEU, repeated in Article 31(1) TEU Back
Q 27 Back
Q 25 Back
Q 25 Back
Q 26 Back
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
Ev w10, para 6 [Dr Ariella Huff], Q 137 Back
Q 137 Back
Q 409 Back
Ev w 8, para 29. The quotation reference in para 130 is to Q 137. Back
Q 519 Back