5 Public and International Procurement
| Committee's assessment
| Politically important |
| Committee's decision | Cleared from scrutiny
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| Document details | (a) Commission Staff Working Document on the Annual Public Procurement Implementation Review 2013
Draft Council Decisions establishing the position to be taken by the European Union within the Committee on Government Procurement on:
(b) the withdrawal of the Union objections to the delisting of three entities from Japan's Annex 3 to Appendix I to the Agreement on Government Procurement; (c) the accession to the Agreement on Government Procurement of Montenegro; (d) the accession to the Agreement on Government Procurement of New Zealand
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| Legal base | (a) —; (b)-(d) Article 207(4) and 218(9) TFEU;—; QMV
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| Department | Cabinet Office
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| Document numbers | (a) (36292), 12642/14, SWD(14) 262; (b) (36316), 12859/14, COM(14) 539; (c) (36337), 13257/14 + ADD 1, COM(14) 573; (d) (36342),13281/14 + ADD 1, COM(14) 574
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Summary and Committee's conclusions
5.1 The Commission produces a Public Procurement Implementation
Review in an effort to share information and best practice on
the application of public procurement rules. We reported this
second review (document (a)), based on 2011 data on 3 December
2014. We noted that the position outlined in this factual Commission
document, including that of the UK, did not represent a significant
change to the previous Review. Nor did the document raise significant
policy, financial or legal issues. We therefore only reported
the document to highlight the unacceptable delay of eight weeks
in the submission of the Explanatory Memorandum.
5.2 The Agreement on Government Procurement (GPA)
is an international agreement under the WTO whose signatories
agree to mutually open up their public and "utilities"
procurement markets. Whilst the main text of the GPA (covering
the procedural rules) is common to all parties, the coverage (by
market sector and procuring bodies) is unique for each signatory,
and is agreed through a series of bilateral agreements between
GPA parties. The latest, revised text of the GPA entered into
force in April 2014. There are currently 42 countries under the
GPA, including the 28 EU Member States. The Commission negotiates
on behalf of the EU as a whole. All the EU Member States have
substantially the same coverage with respect to each of the other
GPA parties and meet their obligations through compliance with
the EU procurement directives.
5.3 The purpose of document (b) is to adopt an EU
position on the intention of the Japanese Government to withdraw
from its coverage under the GPA three railway companies formerly
majority-owned by the Japanese Government. Documents (c) and (d)
concern the adoption of an EU position on the accession to the
GPA of Montenegro and New Zealand respectively.
5.4 When we last reported on documents (b)-(d) we
concluded that there were no material legal, financial or policy
implications arising from any of them, but that we again wished
to highlight our concerns over the handling of scrutiny. Delays
ranging between five and seven weeks in the submission of Explanatory
Memoranda by the Government had resulted in scrutiny overrides
on all three documents. All were adopted prior to the deposit
of the Explanatory Memoranda.
5.5 We also noted the full and frank apology of the
Minister for the Cabinet Office and Paymaster General (Mr Francis
Maude) for all of these scrutiny lapses, his commitment to ensuring
that there would be no recurrences, the internal action taken
already and the eventual receipt of comprehensive Explanatory
Memoranda. Nevertheless we considered those lapses to be aggravated
by the supposed role of Cabinet Office in setting standards across
Government for parliamentary scrutiny of EU documents. Overall,
however, we considered it premature to request the Minister to
give oral evidence to us and instead we requested an update by
the end of January on the internal review being undertaken by
the Cabinet Office of its EU scrutiny business.
5.6 Albeit nine days late and after prompting by
our officials, we have now received the Minister's update and
report it in this chapter. We also reproduce at the Annex to this
chapter the Written Ministerial Statement which was made to the
House on 6 January 2015 and enclosed with the Minister's letter.
5.7 We thank the Minister for his letter. Although
this arrived inauspiciously late (nine days after the end of January
deadline) we note the Minister's apology for this. We also recognise
that a conscientious attempt has been made to review ongoing scrutiny
of EU documents for which Cabinet Office is responsible.
5.8 If, after further review, we identify any
issues that we need to pursue with the Minister on the other EU
documents which are referred to in his letter, we will raise these
during the course of their ongoing scrutiny.
5.9 Our staff are also happy to assist at the
scrutiny workshop which is planned and look forward to liaising
with the Minister's parliamentary office in due course.
5.10 We now clear all the current documents (a)-(d)
from scrutiny.
Full details of
the documents: (a) Commission Staff Working
Document on the Annual Public Procurement Implementation Review
2013: (36292), 12642/14, SWD(14) 262; (b) Draft Council Decision
establishing the position to be taken by the European Union within
the Committee on Government Procurement on the withdrawal of the
Union objections to the delisting of three entities from Japan's
Annex 3 to Appendix I to the Agreement on Government Procurement:
(36316), 12859/14, COM(14) 539; (c) Draft Council Decision establishing
the position to be taken by the European Union within the Committee
on Government Procurement on the accession to the Agreement on
Government Procurement of Montenegro: 36337, 13257/14 + ADD 1,
COM(14) 573; (d) Draft Council Decision establishing the position
to be taken by the European Union within the Committee on Government
Procurement on the accession to the Agreement on Government Procurement
of New Zealand: (36342), 13281/14 + ADD 1, COM(14) 574.
Background and previous scrutiny
5.11 The background to and an account of the current
documents, together with the Government's view, are set out more
fully in our Report of 3 December 2014.[16]
Minister's letter of 9 February 2015
5.12 The Minister says:
"Thank you for the Committee's 24th report,
14-15 from 3 December regarding these documents submitted for
scrutiny. I apologise for not replying by the end of January as
requested, but this letter relates to a number of policy teams
across the Cabinet Office and I wanted to be sure it was as up
to date as possible.
"You will have seen that I wrote to Lord
Boswell on 5 January about similar scrutiny handling concerns
expressed by his Committee. I very much regret the serious failures
of process in each of these cases as described in my earlier letter
to you of 24 November 2014.
"I understand the points you emphasised
in your report about the conditions attached to the House of Commons
Scrutiny Reserve Resolution and how the Government should explain
clearly if it believes there are special circumstances for agreeing
to proposals before scrutiny had been completed. Clearly we did
not meet the conditions in this particular instance. I have asked
my officials to ensure that the scrutiny process is properly understood
across all the relevant Cabinet Office policy teams through a
workshop and strengthened internal guidance. The Cabinet Office
parliamentary clerk will be in touch with your office shortly
with an invitation to support a scrutiny workshop which will be
held for Cabinet Office policy teams and representatives from
each of the Ministerial offices.
"I hope this will improve understanding
of the scrutiny process across the department and will ensure
that the expectations of the Cabinet Office Ministerial team are
properly understood.
"I attach a copy of the Written Ministerial
Statement tabled in my name about these overrides.
"You also asked in your report that I ensure
all Cabinet Office outstanding scrutiny business is reviewed and
updates provided where appropriate.
"Your Committee awaits updates on 7 issues
under scrutiny and these span digital, civil society and statistics
issues. Updates on each are provided below.
"Document 17344/12 (Committee Reference
34512): Proposal for a Directive of the European Parliament and
of the Council on the accessibility of public sector bodies' websites.
"In your 35th report, 13-14 from 13 March
2013 the Committee asked to be kept informed of 'relevant developments
with either this proposed Directive or the EAA (European Accessibility
Act)'.
"Progress on the proposal effectively stalled
with successive Presidencies prioritising other work whilst waiting
for a way forward that removed the impasse created by the need
for a delegated act. That impasse was broken when, in late 2013,
the European Telecommunications Standards Institute published
a new standard (ETSI EN 301 549) on 'accessibility requirements
suitable for public procurement of ICT products and services in
Europe'.
"Publication of the new standard led to
the Commission reviewing the proposal — making a number
of amendments to address concerns from Member States and delays
in making progress on the Directive. However, further progress
on the Directive was delayed by the formation of the new Commission.
The incoming Latvian Presidency has indicated that it would like
to see progress on this matter — but they also want to see
progress on a number of other Telecommunications Council matters.
Officials are liaising with UKREP to clarify the Latvian ambitions
for this Council and how the proposal will be taken forward at
working party level and we will provide a more substantive update
when plans are clearer. I am sorry we had not provided you with
an earlier interim update.
"No further progress has been made on the
proposals for the European Accessibility Act.
"Document 11580/14 (Committee Reference
36197): Proposal for a Decision of the European Parliament and
of the Council establishing a programme on interoperability solutions
for European public administrations, businesses and citizens (ISA2)
Interoperability as a means for modernising the public sector.
"Following your 13th report, 14-15 from
15 October 2014, my officials, working with UKREP, are still trying
to obtain definitive responses from the Commission to some of
the questions raised.
"The Committee noted that there are no plans
to evaluate the outcomes of the existing ISA programme but the
Commission wishes to push on with ISA2. They take the view that
the need for an EU interoperability programme, its policy objectives,
and the benefits of the programme have been previously agreed.
They believe that since ISA2 is a continuation of an existing
programme, it does not require a full impact assessment. They
have agreed to share more information from the mid-term interim
evaluation of the existing ISA programme. We continue to push
the Commission together with other Member States to properly justify
the proposals for ISA2 before further discussions of the detail
of the proposal.
"The Committee noted that timing for introducing
ISA2 (beyond its expected start and finish dates) and where responsibility
for ISA2 sits within the EU Council structure were both unclear.
We now have confirmation that the Telecommunications Council will
take this programme forward and the Latvian Presidency have made
this a priority matter.
"The Committee noted the need to ensure
that ISA2 addresses issues and concerns raised about the first
ISA programme. Many of the issues identified by the Committee
relate to the lack of a full evaluation of the existing ISA programme
and an impact assessment for ISA2. The UK is one of a number of
Member States to raise these concerns and we are looking to work
with other like-minded Member States to ensure they fully addressed.
A full update will be provided when progress on these issues has
been made.
"The Committee noted that the Government's
EM refers to 'adopting an agile iterative approach with an emphasis
on reuse and adaptation' and wondered if this wording was ambiguous.
Agile is an iterative approach to software development and project
management, which the Cabinet Office (in particular the Government
Digital Service) has effectively used in developing digital services.
It is an approach that many believe can help with rapid development
of interoperability solutions. Agile provides a methodology to
develop and deliver solutions quickly, these can then be used,
re-used or adapted as required. If ISA2 adopted an agile approach,
it should see more solutions appearing quicker than has been the
case in the current ISA programme.
"Document 6580/12 (Committee Reference
33687): Proposal for a Council Regulation on the Statute for
a European Foundation
"The Committee shared the Government's reservations
about this proposal, and asked to be kept informed of progress
of negotiations in their 33rd Report, 13-14 from 29 January 2014,
following Nick Hurd's update in January 2014. Little negotiating
progress was made in 2014 and on 16 December 2014 the European
Commission announced the withdrawal of this measure from the EU
legislative agenda, on the grounds that there was no realistic
prospect of securing unanimity. I hope this will allow the Committee
to formally close their scrutiny on this proposal.
"Document 11177/13 (Committee Reference
35070): Proposal for a regulation of the European Parliament
and of the Council on the provision and quality of statistics
for the macroeconomic imbalances procedure; and linked document:
14224/13 (Committee Reference 35415): Opinion of the European
Central Bank of 10 October 2013 on the proposed Regulation
"The Government's aims are to secure either
a substantial re-draft of the proposed Regulation or its removal
altogether, as it is a disproportionate response to the policy
need, it would not be able to meet its objectives, and it proposes
to create a sanctions regime not foreseen by the Treaty. The Committee
supports this position and is awaiting a formal update on negotiations,
particularly once the findings of the CMFB Task Force are understood
and with news of any further significant developments.
"The proposal is still under discussion
at Council Working Party level and there has been no substantive
progress at the Committee stage in the European Parliament. The
proposal has not yet been adapted in any way. The Committee on
Monetary, Finance and Balance of Payments Committee (CMFB), has
proposed alternative less burdensome non-regulatory approaches
for achieving the aims of the Commission's proposal. Related to
this, late in 2015, the Economic and Finance Committee's Sub-Committee
on Statistics called for stakeholders to evaluate whether the
Commission's proposal is the best means of achieving the objectives.
It is, however, still not clear how the Presidency and the Commission
will respond to these developments and news is now awaited from
the Latvian Presidency. We will provide a further update when
we see further developments.
"Document 13517/13 (Committee Reference
35303): Proposal for a Regulation of the Council and EP amending
Regulation (EC) No 471/2009 on Community statistics relating to
external trade with non-member countries as regards conferring
of delegated and implementing powers upon the Commission for the
adoption of certain measures.
"The Committee acknowledges the Government's
general support for the proposal, but also our intention to secure
improvements in the text in order to properly circumscribe the
Commission's use of delegated acts. Update letters were sent on
16 December 2014 and 6 January 2015 from Rob Wilson following
the rapid processing of the proposal by the Italian Presidency.
Rob Wilson undertook to write again when the Latvian Presidency
priorities were clearer.
"Document 16612/14 (Committee Reference
36570): Proposal for a Regulation of the EP and Council on harmonised
indices of consumer prices and repealing Regulation (EC) No 2494/95
"Your Committee's 29th report, 14-15 from
14 January 2015 acknowledged the Government's favourable view
of the thrust of this proposal but noted its concern about the
Delegated Act aspects of the draft Regulation.
"Since this is a new proposal no date has
yet been set for a first consideration at Council Working Party
level. We will provide a substantive update to the Committee when
there are developments to report.
"Document 9122/12 (Committee Reference
33844): Proposal for a Regulation of the European Parliament
and of the Council amending Regulation (EC) No. 223/2009 on European
Statistics
"This proposal was cleared following the
debate in European Committee in January 2014. However, following
Rob Wilson's updates of 16 December 2014 and 6 January 2015 about
unwelcome developments with the text which introduces provisions
for sanctions regimes in future statistical regulations which
the Government believes would be illegal and which the Government
could not support, the Committee in their 29th Report, 14-15 from
14 January 2015 asked for confirmation of whether the Government
intended to immediately challenge the new provision if adopted
at Council. A fuller reply to the Committee's concerns is being
prepared and we will write again.
"I hope you find these updates and further
assurances about internal improvements I have asked to be implemented,
helpful. Further letters will update both Scrutiny Committees
on outstanding business in due course."
Previous Committee Reports
(a) Twenty-fourth Report HC 219-xxiii (2014-15),
chapter 2 (3 December 2014); (b)-(d) Twenty-fourth Report HC 83-vi
(2014-15), chapter 3 (3 December 2014).
Annex: Written Ministerial Statement
of 6 January 2015[17]
"CABINET OFFICE
European Explanatory Memoranda
"The Minister for the Cabinet Office and
Paymaster General (Mr Francis Maude): The
Cabinet Office is responsible for the Government's participation
in European negotiations on EU procurement matters. It is with
regret that explanatory memoranda on 3 EU proposals submitted
for scrutiny by Parliament which were the responsibility of my
Department were submitted late, with the result that decisions
were taken on the proposals in the Council of Ministers before
the UK's parliamentary scrutiny process could be completed. The
proposals were:
"EU Council document 12859/14; COM(2014)539:
Proposal for a council decision establishing the position to
be taken by the European Union within the Committee on Government
procurement on the withdrawal of the Union objections to the delisting
of three entities from Japan's Annex 3 to Appendix I to the agreement
on Government procurement. The proposal was adopted in the Council
of Ministers on 29 October 2014.
"EU Council document 13257/14; COM(2014)573:
Proposal for a Council decision establishing the position to
be taken on behalf of the European Union within the Committee
on Government procurement on the accession of Montenegro to the
agreement on Government procurement. The proposal was adopted
by the Council of Ministers on 13 October.
EU Council document 13281/14; COM(2014)574: Proposal
for a Council Decision establishing the position to be taken on
behalf of the European Union within the Committee on Government
procurement on the accession of New Zealand to the agreement on
Government procurement. The proposal was adopted by the Council
of Ministers on 13 October.
"The Government were supportive of all three
proposals through negotiations in Brussels.
"The Cabinet Office has addressed the internal
procedural failings which led to these overrides to ensure that
similar failures do not happen again. These include giving an
official in the Cabinet Office Ministerial team responsibility
for managing EU scrutiny business on which the Cabinet Office
leads. A training workshop will also be held to ensure the scrutiny
process is properly understood across all Cabinet Office policy
units that deal with EU business and that the expectations of
Cabinet Office Ministers is also reinforced."
16 Twenty-fourth Report HC 219-xxiii (2014-15), chapters 2 and 3
(3 December 2014). Back
17
HC Deb, 6 January 2015, col. 5WS. Back
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