4 The importance of the scrutiny reserve |
135. The main focus of the existing system is,
and will continue to be, on the UK Government and individual Ministers.
This has been established by Parliament in the form of the scrutiny
reserve, which comes from separate resolutions of each House.
As circumstances have changed, and the transfer of significant
competences and functions has increased under successive Treaties,
so the importance of the reserve has increased. However, as with
the definition of depositable documents, the House of Commons
version of the reserve is now out of date, having been agreed
in November 1998.
136. The reserve resolution states that Ministers
should not give agreement to a proposal until it has cleared scrutiny,
either by an ESC decision or having been the subject of a resolution
of the House following a debate either in European Committee or
on the floor of the House. There are limited exemptions in the
resolution, but Sir Jon Cunliffe told the Committee that "Overriding
scrutiny is a big thing in the system. Ministers do not like
doing it, if only because they have to appear before your Committee
and explain why."
137. Dr Katrin Auel explained the advantages
and disadvantages of the reserve, emphasising in particular that
the Committee's diligence in pursuing lapses was important, but
putting it into context of its effect on decision-makers in Brussels.
Interestingly, she referred in particular to Coreper, and the
Mertens and the Antici Groups, the significance of which we noted
earlier in this Report:
We need to distinguish between an impact on the negotiations
and agreements at European level and an impact on the behaviour
of the Government in the capital towards its Parliament [...]
We have looked at other Member States that have similar scrutiny
reserve systems that have often used the UK system as a blueprint,
but we find that that is fairly ineffective because MPs do not
follow up. I think that, at home, it is quite effective as it
is a constant reminder of parliamentary responsibility for the
scrutiny system and of the need to keep Parliament involved and
to give Parliament time to scrutinise documents before agreeing
to something in Brussels. That brings me to the second aspect.
We have also conducted interviews with the General Secretariat
and with people working for Coreper, for the Mertens and the Antici
Group. Sadly, the truth is that the scrutiny reserve does not
matter much. If the Government wants to agree to a measure at
the European level, it will do so either by informally indicating
that it will, and just waiting for the scrutiny reserve to be
lifted, or by breaching the scrutiny reserve.
138. The "second aspect" of Dr Auel's
comments caused us deep concern. It is clear that the work of
Coreper has profound impacts for democratic accountability, which
is one of the reasons why we think that the Head of UKRep should
be subject to a pre-appointment hearing.
139. We continue to monitor closely the reserve
as it affects individual documents, and general trends through
the override statistics provided to us by the Cabinet Office.
The total numbers of overrides since the 2010 General Election
are shown in the chart below:
140. There has been a rise over time, with particularly
high numbers of overrides in the second half of 2011 and the first
half of 2012. Efforts have continued within Government to address
this. Some of the issues associated with CFSP and CSDP were covered
in the previous section of this Report.
141. We challenged the analysis of the statistics
for the first half of 2012 provided by Ivan Rogers, then Head
of European and Global Issues Secretariat at the Cabinet Office,
which stated that "a number of [the FCO instruments] needed
to be adopted at times where the committee was not sitting during
the recess periods in the first half of the year. This was common
also to a number of other overrides by other departments."
Recesses were also cited as a factor in the FCO memorandum (which
also linked overrides to the increasing number of EMs)
and by the Minister for Europe.
142. The response to our challenge on the January
to June 2012 statistics from Mr Rogers, conceded that "I
would agree that we should not overstate the impact that Parliament's
sitting patterns has on the scrutiny process, while recognising
this will continue to be a factor on some occasions." As
well as fast-moving CFSP/CSDP proposals, he told us, other overrides
during that period broadly fell into categories of: limité
documents/late availability of texts; speed of decision making
in Brussels; political decision to support negotiated texts; and
143. We conclude that the reserve
must remain the centre of gravity of the House of Commons scrutiny
system. We therefore propose two major changes to reflect
the reality of EU decision-making highlighted throughout this
Report: first, that an override shall be regarded as having occurred
when the Government abstains on a vote on a document held under
scrutiny, not just when it votes in favour; and, second, that
agreement or acquiescence by Government in reaching a consensus
in Coreper on a document held under scrutiny, when the Government
does not intend to object to the matter being raised as an A point
in Council, should also trigger an override.
144. The general scrutiny reserve
resolution does not cover a Government decision that the UK will
participate in an EU justice and home affairs measure, where the
UK has discretion over its participation under the EU Treaties.
Such discretion exists either under the Title V opt-in or Schengen
opt-out arrangements. Under the EU Treaties, a UK decision to
participate in such an EU law is irreversible, and by their nature
these laws typically concern sensitive matters. When Baroness
Ashton, for the previous Government, made a statement on 9 June
2008 on improving Parliamentary scrutiny of these opt-in decisions,
she said that these Government undertakings on better scrutiny
should be reflected in an amended or new scrutiny reserve resolution.
We therefore propose at the end of this Chapter an opt-in scrutiny
reserve resolution to cover decisions taken in Whitehall to opt
into or out of Title V or Schengen measures.
145. Since our exchange of
letters with the Cabinet Office the information we have received
on scrutiny overrides has improved and we look forward to continued
engagement with the Government with the aim of eliminating unnecessary
overrides. To this end we will continue to scrutinise the override
statistics closely. As a further measure to increase transparency
we will from now on be placing the correspondence on overrides
on a special section of our website.
146. We will also continue
to hold oral evidence sessions with Ministers in cases where there
are serious breaches of the reserve (as took place in July 2013
with the then Minister for Public Health, Anna Soubry MP; in July
2012 with Crispin Blunt MP, then Parliamentary Under-Secretary
at the Ministry of Justice; in February 2012 with Baroness Wilcox,
then Parliamentary Under-Secretary at the Department for Business,
Innovation and Skills; and in December 2011 with Chris Grayling
MP, then Minister for Employment at the Department for Work and
Pensions). For particularly serious breaches of the reserve, or
repeated serious breaches, we will in future issue a Report censuring
the Minister concerned, and if necessary recommend that this be
debated on the floor of the House.
147. The fact that the scrutiny reserve has lain
unamended for so long is unfortunate and undermines its credibility.
We propose a new version overleaf, based on the version which
this Committee published in 2010.
DRAFT EUROPEAN SCRUTINY RESERVE
(1) Subject to paragraph (6) below, no Minister of the Crown should give agreement in the Council or in the European Council in relation to any document subject to the scrutiny of the European Scrutiny Committee in accordance with its Standing Order, while the document remains subject to scrutiny.
(2) A document remains subject to scrutiny if
(a) it is awaiting consideration by the House (that is, it is a document which has been recommended by the European Scrutiny Committee for consideration pursuant to Standing Order No. 119 (European Committees) but in respect of which the House has not come to a Resolution); or
(b) in any case, the Committee has not indicated that it has completed its scrutiny.
(3) In this Resolution, agreement in relation to a document means agreement however described and whether or not a formal vote is taken, and includes in particular
(a) political agreement;
(b) agreement to a general approach;
(c) agreement establishing the position of the Council at any stage in the legislative procedure; and
(d) agreement to Council and to European Council conclusions
(4) Agreement also includes agreement by an UKRep representative in Coreper when the Government does not intend to object to the matter being raised as an A point in Council.
[current version: In this Resolution, any reference to agreement to a proposal includes
(a) agreement to a programme, plan or recommendation for European Community legislation;
(b) political agreement;
(c) in the case of a proposal on which the Council acts in accordance with the procedure referred to in Article 251 of the Treaty of Rome (co-decision), agreement to a common position, to an act in the form of a common position incorporating amendments proposed by the European Parliament and to a joint text; and
(d) in the case of a proposal on which the Council acts in accordance with the procedure referred to in Article 252 of the Treaty of Rome (co-operation), agreement to a common position.]
(5) Abstention shall be treated as giving agreement.
(6) The Minister concerned may, however, give agreement in relation to a document which remains subject to scrutiny
(a) if the European Scrutiny Committee has indicated that agreement need not be withheld pending completion of scrutiny; or
(b) if the Minister decides that exceptionally and for special reasons agreement should be given; but they must explain their reasons in writing
(i) in every such case, to the European Scrutiny Committee at the first opportunity after reaching their decision; and
(ii) in the case of a proposal awaiting consideration by the House, to the House at the first opportunity after reaching their decision.
[current version: The Minister concerned may, however, give agreement
(a) to a proposal which is still subject to scrutiny if he considers that it is confidential, routine or trivial or is substantially the same as a proposal on which scrutiny has been completed;
(b) to a proposal which is awaiting consideration by the House if the European Scrutiny Committee has indicated that agreement need not be withheld pending consideration.
(4)The Minister concerned may also give agreement to a proposal which is still subject to scrutiny or awaiting consideration by the House if he decides that for special reasons agreement should be given; but he should explain his reasons
(a) in every such case, to the European Scrutiny Committee at the first opportunity after reaching his decision; and
(b) in the case of a proposal awaiting consideration by the House, to the House at the first opportunity after giving agreement.
(5) In relation to any proposal which requires adoption by unanimity, abstention shall, for the purposes of paragraph (1), be treated as giving agreement.]
DRAFT RESOLUTION ON TITLE V OPT-IN AND SCHENGEN
1) This Resolution applies in relation to a notification to the President of the Council of the European Union or to the Council and the Commission of the wish of the United Kingdom to take part in the adoption and application of a proposed measure or acceptance of an adopted measure following from a proposal or initiative presented to the Council pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union; and in relation to a notification to the Council, pursuant to Article 5(2) of Protocol (No. 19) on Schengen, of the wish of the United Kingdom not to take part in a proposal or initiative building upon elements of the Schengen acquis in which the UK already participates.
2) No Minister of the Crown may authorise such notification until eight weeks have elapsed since the date on which the last language version of the proposal or initiative was published, nor if it is awaiting consideration by the House (that is, it is a document which has been recommended by the European Scrutiny Committee for consideration pursuant to Standing Order No. 119 (European Committees) but in respect of which the House has not come to a Resolution).
3) Where, after the adoption of a measure by the Council pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union, a Minister of the Crown wishes to accept that measure, he shall inform the European Scrutiny Committee by letter. The Minister concerned may not authorise such notification to the Council and Commission until eight weeks have elapsed since the date on which the letter was sent to the Committee, nor if the measure is awaiting consideration by the House (that is, it is a document which has been recommended by the European Scrutiny Committee for consideration pursuant to Standing Order No. 119 (European Committees) but in respect of which the House has not come to a Resolution).
4) The Minister concerned may, however, authorise notification sooner than provided for in paragraphs (2) and (3)
if the European Scrutiny Committee has indicated that notification need not be withheld pending completion of scrutiny; or
if the Minister considers that for special reasons notification should be given; but he must explain his reasons
(i) in every such case, to the European Scrutiny Committee at the first opportunity after deciding to give notification; and
(ii) in the case of a proposal awaiting consideration by the House, to the House at the first opportunity after authorising notification.
141 Q 392 Back
Q 120 Back
See para 277 Back
Letter to the Chairman of the Committee, 22 October 2012 Back
Ev w7, paras 16 and 17; Ev w9, para 34 Back
Q 24 Back
Letter to the Chairman of the Committee, 5 February 2013. The
reference in para 144 to Baroness Ashton's statement is to HL
Deb, 9 June 2008, cols 373-377. Back