Scrutiny Reform follow-up and Legacy Report - European Scrutiny Contents

Annex: papers deposit

This note sets out the current Committee's views in detail on the future of document deposit, in response to the Government's proposals set out in the response to the Scrutiny Reform Report, to be considered in due course by the new European Scrutiny Committee in the 2015-2020 Parliament.

Explanatory Memoranda (EMs)

Currently a short form of EM is used for one narrow and defined category of document (anti-dumping measures). The Government proposes new multiple Explanatory Memoranda (EM) templates:

a)  Full EM;

b)  "Shorter adapted EM … for example on documents other than proposals for legal instruments"; and

c)  "Short-Form unsigned EM … for issues that raise limited policy implications for the UK".71F[72]

The EM is the Minister's evidence to Parliament, and the Minister can be held directly accountable for it. Anything which dilutes this risks letting Ministers off the hook when there are scrutiny lapses. Instead of multiple forms of EM clearer guidance should be given to Departments that they should not feel obliged to make lengthy submissions under each heading if there is little to say, and also that they can say "not applicable" if this is the case.

This whole process could be made easier if the Government's existing central scrutiny guidance, which is itself long and extremely unwieldy (160 pages, including 18 Annexes), was updated and edited.

The Government proposes a Short EM for Schengen measures from which the UK is excluded. 72F[73] Instead, the current template should be retained for the reasons previously set out.

General principles

Notwithstanding the recommendations for additional non-deposit set out below, we recommend that:

·  any document, of whatever type, in respect of which the Government asserts a Title V opt-in must be deposited;

·  if the Government identifies any legal or political significance in a non-deposit category, then that particular document should be deposited; and

·  that if the measure relates in any way to Schengen measures, then it should be deposited.

Specific categories of document: deposit or non-deposit

We recommend that the non-deposit of 15 categories of document as proposed by the Government (this includes some categories which are currently subject to non-deposit) should be ACCEPTED, but that the Government's proposals for 15 new non-deposit categories should be REJECTED. Further work is needed on three other categories to clarify the Government's definitions.

We also note that the Government took a number of ad hoc arrangements and presented them as a permanent pre-existing agreement to non-deposit. These are indicated in the list below, along with the recommended approach.

Categories of document proposed for non-deposit by the Government which we recommend should be accepted for future non-deposit

ND1 Anti-dumping proposals

Agree to exclude from systematic deposit but the Government must alert Committee Clerks to potential sensitive measures in advance and check whether such measures should be deposited. Quarterly list to be provided to the Committees. Around 45 a year.

ND2 Court of Auditors' reports on the EU Executive Agencies

Agree non-deposit except where accounts have been qualified indicating a problem (in which case deposit). Around 45 a year.

ND3 Extending or amending proposals on economic measures (tax breaks etc) for the EU local island economies

Non-deposit for documents relating to individual non-UK Island economies acceptable unless the Government identifies something of legal or political significance, but blanket measures, such as those to clamp down on abusive tax regimes, should remain depositable.

ND4 Routine amendments to customs tariff duties/tariff quotas

As above, not to be deposited unless the Government identifies something of legal or political significance. Around 15 a year.

ND5 Proposals on mobilisation of the European Globalisation Adjustment Fund

Accept non-deposit except in cases where significant macro-economic issues arise, or where the measure either involves the UK or pertains to UK interests.

ND6 EU Positions on Rules of Procedure for various Councils and Committees, including those established under Association Agreements

Continue existing practice of non-deposit.

ND7 Draft Council Decisions relating to decisions already taken in Association Councils or Committees

Continue existing practice of non-deposit.

ND8 Proposals to extend sanctions decisions (without making substantive changes) in pursuit of UN Security Council Regulations

Agree to continue non-deposit but the Government must consult the Committees if there is any doubt about whether or not the change is "substantive".

ND9 VAT derogation requests relating to other Member States

Non-deposit. Requests for derogations refused by the Commission (which are then reported to the Council) not depositable and no need to consult if a document only concerns another Member State. Otherwise, for draft Council Decisions about approvals for other Member States. consultation with Clerks if there is any doubt on their legal and political significance.

ND10 Routine adaptations relating to Croatian accession

Committee has previously agreed non-deposit, we recommend this practice should continue.

ND11 Framework participation agreements for third party personnel contributions to EU crisis management operations.

These are generally straightforward and do not require deposit.

ND12 Sanctions decisions: "non-substantive" changes

Continue current practice: presumption in favour of non-deposit provided Government continues to consult the Committees about whether or not the change is "substantive".

ND13 ECB recommendations to the Council on the external auditors of National Central Banks in the Eurozone

Continue existing practice of non-deposit.

ND14 Financial assistance commission reports: examples given in FCO paper are Management of the Guarantee Fund 2013, Borrowing and Lending Activities 2013, Guarantees covered by the General Budget 2013

Non-deposit acceptable because these duplicate parts of the Annual Report on Guarantees covered by the general budget, which should continue to be deposited.

ND15: Commission Decisions establishing the Commission's proposals to the Ministerial Council of the Energy Community

Continue existing practice of non-deposit.

Categories of document proposed for non-deposit by the Government which we propose should be rejected for future non deposit, and should therefore still be deposited

D1 Factual Commission reports where no issues arise

We recommend that these should continue to be deposited. For Committees to decide whether "significant issues arise" (50 to 100 a year).

D2. Court of Auditors' Special Reports

We recommend that these should continue to be deposited as they often shed useful light on related legislative documents (up to 15 a year).

D3 Proposals for Council Decisions to be adopted by the EU in EU/third country association committees, EEA joint committees and other international organisations and bodies

The latter in particular often give rise to legal issues and should be deposited (recent examples relate to the WTO and the International Organisation of Vine and Wine). We recommend maintaining non-deposit only of the types of changes in the existing Cabinet Office guidance.

D4. Financial proposals affecting the Eurozone in which the UK does not participate

We recommend that these should continue to be deposited (more than 20 documents a year)

D5. Financing documents affecting the Eurozone in which the UK does not participate

As before, these should continue to be deposited.

D6. Proposals to conclude aviation agreements with third countries

These can be potentially significant and should continue to be deposited (around 5 a year).

D7. Proposals for agreements with third countries on sharing classified information

We propose that these should continue to be deposited (around 5 a year).

D8 Technical / "minor" updates to Common Foreign and Security Policy decisions

The definition of "technical" is often a fine one, we recommend that these should continue to be deposited (around 5 a year).

D9 Annual decisions evaluating the EU capitals of culture

Having reviewed this, and the current non-deposit of proposals to designate capitals of culture, we recommend that both should now be deposited (under 5 a year).

D10. European Central Bank opinions on Commission proposals

These are often significant and highly relevant to other documents under scrutiny, and should continue to be deposited (five to 10 a year).

D11 Annual Budget Commission Reports

These should continue to be deposited.

D12 Gross National Income adjustment to Multiannual Financial Framework and macroeconomic imbalances procedure

Continue to deposit.

D13 Commission proposals for appointments/reappointments to EU organisations

The original Cabinet Office guidance only refers to "reappointments". "Appointments" should continue to be deposited.

D14 Commission Staff Working papers

Should continue to be subject to consultation with Committee Clerks, and not routinely non-deposited.

D15 Quarterly transfers of EU Budget appropriations

Should continue to be deposited because those transfers shed light on the EU's financial situation. 4 a year.

Categories of document to be further reviewed

R1: "Proposals impacting only on other Member States"

The FCO provides an imprecise definition of this category "we can see this proposal impacting on some Fisheries proposals where UK fishing interests are not impacted", and "some taxation related examples … would also … fall under this category". Further information is needed on which documents would be included.

R2: Certain documents under the Ordinary Legislative Procedure

Work to be done to update the existing arrangements on which documents are made available at different stages of this procedure, and to be handled on a case by case basis.

R3: Resolutions (unless they commit the EU to a course of action including new legislation, have potential implications for EU competence or would indicate a change in Government policy)

Further work to be done to settle which documents would fall in this category.

72   Scrutiny Reform Government Response, Annex A, p 41 Back

73   Scrutiny Reform Government Response, Annex A, p 43 Back

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Prepared 25 March 2015