Appendix: relevant correspondence
Letter to the Home Secretary and
the Secretary of State for Justice from the Chairs of the three
Committees dated 22 January 2014
The Government's Responses to the Reports of
the European Scrutiny, Home Affairs and Justice Select Committees
on the UK's 2014 block opt-out decision
We write to you and to the Secretary of State for
Justice to thank you for responding promptly to the Reports produced
by the European Scrutiny, Home Affairs and Justice Select Committees
on the Government's 2014 block opt-out decision. It is apparent
that none of our Reports, or the Report produced by the EU Committee
in the House of Lords, has caused the Government to re-consider
its position, as set out in Command Paper 8671, or to offer an
early debate and vote to help inform the Government's negotiating
position.
Whilst each of our Committees will wish to consider
separately how to take forward matters arising from your response,
we feel compelled to respond immediately to two issues of common
concern: the role of Parliament in scrutinising the Government's
approach to the 2014 block opt-out decision, and the need for
an early debate and vote on the measures the Government proposes
to rejoin.
The role of Parliament
As you will be aware, our Committees are of the common
view that the Government has not lived up to its professed commitment
to engage constructively with Parliament on its approach to the
2014 block opt-out decision. To give you a flavour of our views,
the European Scrutiny Committee stated:
"We consider the slow and unpredictable drip-feed
of information to Parliament to be inimical to effective scrutiny."[3]
The Home Affairs Committee observed:
"To date we have been disappointed with the
extent and timeliness of the Government's involvement of Parliament
in scrutinising the 2014 opt-out and proposed opt-in. We hope
that it will engage more constructively with Parliament for the
remainder of this process."[4]
The Justice Committee noted that:
"repeated attempts by Select Committees to obtain
the information necessary for them to undertake effective scrutiny
have been stonewalled"
and suggested that Parliament had been treated in
a "cavalier fashion".[5]
We might have had reason to expect that, if all Committees
with a direct interest and involvement in scrutinising the Government's
2014 block opt-out decision were of a similar mind, this would
be a source of considerable concern for the Government. Yet your
response to the Report of the European Scrutiny Committee (reproduced,
in part, in your response to the Home Affairs Committee Report)
merely refers to "a perceived lack of engagement by
the Government with Parliament" which you then seek to refute
in a detailed (but incomplete and partial) chronology of the ways
in which you have engaged with Parliament.
Your "full chronology" excludes any reference
to our correspondence with you, dating back to January 2012, which
provides the broader context for the concerns we have repeatedly
raised about the paucity of information being made available to
Parliament. In particular, you ignore our letter of 22 November
2012 which stated in the clearest possible terms that effective
Parliamentary scrutiny of the 2014 block opt-out decision could
not begin until the Government had produced extensive Explanatory
Memoranda on all of the measures subject to the block opt-out.
You can have been under no mis-apprehension that the provision
of this vital information was considered to be an essential pre-requisite
for effective and informed scrutiny by our Committees to take
place.
Our letter also made clear that our Committees do
not have the resources at the disposal of Government to undertake
a detailed assessment of all of the 130-odd measures subject to
the block opt-out. Your suggestion that we could have begun our
scrutiny of these measures in December 2011 therefore strikes
us as disingenuous.
We refute your contention that the vote in the House
of Commons on 15 July 2013 demonstrated "Parliament's support
for the Government's approach and satisfaction with the information
provided". As you will recall, the Motion agreed to by
the House was amended at our behest because of our dissatisfaction
with the Government's delay in producing the information we had
repeatedly requested, and to enable our Committees properly to
consider the Explanatory Memoranda belatedly provided in Command
Paper 8671.
We do not think it would be productive to prolong
our correspondence on this matter, but consider it important to
place our views firmly on the record, as you have done in your
responses to our Reports. We would add that it is primarily for
us, as Chairs of the most affected Parliamentary Committees, to
assess whether Government has engaged effectively and pro-actively
with Parliament on this matter. Our collective view is that it
has not.
The second vote
All of our Reports underlined the need for an early
second debate and vote to provide a Parliamentary mandate for
negotiations on the measures which the UK should seek to rejoin.
The reasons for this were made plain in the Report of the European
Scrutiny Committee:
"We think that there is an evident contradiction
in the Government's position on the purpose and timing of the
second vote. Under the EU Treaties, the UK has an unconditional
right to exercise the block opt-out. The first vote, on 15 July,
secured the House's endorsement of the decision in principle to
exercise the block opt-out. The House did not, however, endorse
the Government's proposal to rejoin the 35 measures listed in
Command Paper 8671. The purpose of the second vote, therefore,
is to enable Parliament, informed by this Report and the Reports
of the Home Affairs and Justice Committees, to determine which
measures, if any, the Government should seek to rejoin. As the
process of rejoining individual measures is conditional on obtaining
the agreement of the Commission and Council, we consider that
an early debate (before the Government embarks on formal negotiations)
would considerably strengthen the Government's negotiating hand
whilst also ensuring full transparency and accountability to Parliament.
We can see no reason why the Government, having failed to secure
a mandate from the House for the measures it wishes to rejoin
in July, should shy away from obtaining one now."[6]
In your response to the Justice Committee Report,
you explain that the number and complexity of the measures covered
by the 2014 block opt-out decision meant that reaching a common
approach across Government took longer than anticipated. You add:
"Following this, we then have had to agree that
approach or vary it with Parliament, before going on to negotiate
it with our European partners."[7]
We do not see how this statement is consistent with
the approach you appear to advocate of delaying the debate and
vote until the negotiation process has been completed. This gives
Parliament no opportunity to "agree" or "vary"
the list of measures you propose to rejoinbefore the Government
embarks on negotiations with the Commission and Council. We have
been clear from the outset that our Reports are intended to assist
the House in reaching its own view on the measures the UK should
seek to rejoin.
The Justice Committee Report made a clear recommendation
for an early debate in which:
"the Reports of the three Committees and a Government
response to them can be considered, and in which the House can
express a view on the addition or subtraction of measures from
the Government's list of 35."[8]
The Home Affairs Committee Report similarly made
clear that:
"The House should have an opportunity, at the
conclusion of the debate, to come to a decision on every amendment
which is selected."[9]
We therefore reiterate our call for an early debate
and vote, in Government time, on a substantive amendable Motion.
We can see no legitimate obstacle, domestically or at EU level,
to prevent such a course of action, not least because we understand
that the Commission has so far been unwilling to embark on negotiations
on the 30 non-Schengen measures which the Government wishes to
rejoin.
We ask you to confirm that the Government will make
time available for a debate and vote as soon as possible. We look
forward to hearing from you by the end of January, so that we
can consider other options should you decide to reject our request.
Reply from the Home Secretary
and the Secretary of State for Justice to the Chairs of the three
Committees dated 31 January 2014
The Government's Responses to the Reports of
the European Scrutiny, Home Affairs and Justice Select Committees
on the UK's 2014 block opt-out decision
Thank you for your letters of 22 January concerning
the 2014 decision. We would like to again express our thanks for
the reports your Committees produced and for the work they have
done on the 2014 decision to date. The Government remains, as
it always has, committed to allowing for proper scrutiny of this
important matter. We note, and regret, your collective view that
Government engagement with Parliament has not been satisfactory.
The Government considered carefully the reports produced
by each Committee and provided detailed responses within the usual
time frames. They were, and continue to be, helpful in informing
our position for the necessary discussions and negotiations with
our European partners. This action is consistent with the commitment
made in the motion that was debated on 15 July, namely that we
would not begin formal negotiations until all relevant Committees
had reported on this matter.
The Government will hold a second vote on the final
list of measures we will formally apply to rejoin. This commitment
was reiterated in our responses to each Committee's report. We
believe that, in order for the vote to be as informed as possible,
the correct approach to this process is to hold the second vote
once we have reached 'in principle' agreement with the EU institutions
and the other Member States. We are sure you will understand that
at this stage it is not possible to give an indication when this
will be as it depends not only on the Government, but also the
Commission, Council and individual Member States. However, we
will ensure that Parliament is updated on the progress of negotiations
as appropriate. As we have set out in our responses to each of
your reports, we will also produce an Impact Assessment on the
final list of measures that we will apply to rejoin and will produce
this in good time ahead of the vote.
We look forward to engaging further with you on this
important matter.
3 HC (2013-14) 683,para 102 Back
4 HC
(2013-14) 615, para 87 Back
5 HC
(2013-14) 605, para 12 Back
6 HC
(2013-14) 683, para 568 Back
7
Government Response to para 12 of the Justice Committee Report,
HC (2013-14) 972 Back
8 HC
(2013-14) 605, para 68 Back
9 HC
(2013-14) 615, para 76 Back
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