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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