Not cleared from scrutiny; further information requested
(a) Proposed Interinstitutional Agreement on a Mandatory Transparency Register; (b) Proposed Council Decision on the regulation of interactions between officials of the General Secretariat of the Council and interest representatives.
(a)Article 295 TFEU and Article 106(a) EURATOM;—(b) Article 240 TFEU;—; simple majority
Exiting the European Union
(a) (38141), 12882/16 + ADD 1, COM(16) 627; (b) (39459), 15336/17,—
4.1Document (a) is a proposal for an Interinstitutional Agreement (IIA). It aims to require lobbyists (“interest representatives“) to register before lobbying all of the main EU institutions. The current register is only voluntary and does not extend to interactions with the Council. A full account of the proposal and the Government’s views of the proposal are set out in our first Report chapter of 16 November 2016.
4.2Document (b) is a proposed Council Decision which sets out the condition of prior registration to the Commission’s proposal for an institutional transparency register for interest representatives wishing to interact with the Council.
4.3The draft Decision sets out that the Council’s position that prior registration of interest representatives to the transparency register should apply to the Council in the following areas: meetings with the Secretary-General and Director Generals of the General Secretariat; participation in thematic briefings (meetings organised by the Council Secretariat to update third parties on progress of various initiatives); participation by interest representatives acting as speakers in public events organised by the General Secretariat; and, lastly, access to Council premises.
4.4A previous draft of the Inter-Institutional Agreement (IIA) had made meetings between interest representatives and the Ambassador of the current or forthcoming Presidency of the Council of the EU, as well as their deputies in the Committee of Permanent Representatives (COREPER), conditional upon registration. This has not been carried forward into the Council Decision, and the Council has amended the IIA so that Member States are merely encouraged to make interactions with their Permanent Representatives and Deputy Permanent Representatives conditional upon registration.
4.5The Government reports, in correspondence we have already considered and in a letter of 5 February from the Minister of State for Exiting the European Union (Lord Callanan), that both the Council and EP have agreed their own positions on the IIA and that preparations are being made for tripartite negotiations on the IIA. In addition, that the Council has proposed to narrow how pre-registration of lobbyists would apply to Council and COREPER activities. As a result, the newly proposed Council Decision (document (b)) has also been deposited for scrutiny by the Government at our request and we now report the Government’s views on that document too.
4.6We thank the Minister for his helpful response and note his apologies for any scrutiny lapses. We look forward to the Minister updating us in due course and ask that when he does, he should bear in mind the previous concerns we have expressed, namely:
i)the scope of impact of the register on the Council and COREPER; and
ii)the operation of the register during a transition/implementation period and after Brexit.
4.7We retain both documents under scrutiny pending the Minister’s further updates.
(a) Proposal for an Interinstitutional Agreement on a Mandatory Transparency Register: (38141), 12882/16 + ADD 1, COM (16) 627; (b) Proposed Council Decision on the regulation of interactions between officials of the General Secretariat of the Council and interest representatives: (39459), ,—.
4.8When the previous Committee first reported on this document in November 2016, it asked the Government:
4.9Subsequent Ministerial letters have been considered by us by way of correspondence. We summarise that correspondence here before turning to the current letter from the Minister of 5 February.
4.10The Minister at the time (Mr David Jones) wrote in response in December 2016. He thought it likely that the register could come into force at some point during the Brexit negotiations, but would keep us updated on this issue. He noted our comments about the impact of the register on the transparency of the negotiations.
4.11The current Minister of State for Exiting the European Union (Lord Callanan) wrote to us over a year later, apologising for the delay in updating us.
4.12He added that:
4.13He added that the EP’s negotiating mandate, adopted in June, was based on three principles:
4.14The Minister further indicated that the UK agreed with the EP’s principles.
4.15He then updated us on progress on the proposal at Council and COREPER level. He said that following working group discussions and a November update to the Council during the Estonian Presidency, COREPER approved a mandate for informal trilogue discussions on 6 December.
4.16Finally, he explained that he had enclosed a copy of the mandate which was marked “limité” and so shared in confidence. He expects the proposal to be voted on in the General Affairs Council “in the New Year”.
4.17When we responded to the Minister we noted the Minister’s apology for the delay in updating us.
4.18However, we find other aspects of the Government’s scrutiny handling of this document to be unsatisfactory:
4.19The formal deposit of the proposed Council Decision annexed to the proposed IIA text was subsequently requested.
4.20The Minister now responds, thanking us for our letter of 17 January. As he is responding to our criticism of the handling of the scrutiny of these documents, we reproduce the rest of the letter in full:
“I would like to reassure you that we remain committed to keeping Parliament updated on ongoing EU business. I apologise that the limité marking on the Coreper negotiating mandate had not been removed due to an administrative oversight.
“As the Committee is aware, on 6 December 2017, Coreper agreed to the draft Council Decision on proposals for a mandatory transparency register. This draft Decision sets out where the Council has agreed to apply the condition of prior registration for interest representatives wishing to interact with the Council. I will be laying an EM in Parliament on the draft Decision shortly. The Council has decided that interest representatives will be required to sign up to the transparency register should they wish to, interact with the Secretary-General and Director Generals of the General Secretariat of the Council; participate in thematic briefings organised by the General Secretariat of the Council; participate, as speakers, in public events organised by the General Secretariat of the Council; and have access to Council premises. Article 7 of the draft Council Decision sets out that interest representatives’ access to Council documents will continue to be regulated by Regulation (EC) No 1049/2001.
“The Council’s amendments to Article 5 of the proposed Inter-Institutional Agreement explains that it is for each of the institutions to set out which actions it deems conditional upon prior registration to the transparency register. A Code of Conduct which outlines the rules and principles to which registrants must comply is attached to the draft Decision as an annex. The Bulgarian Presidency held an informal meeting on 29th January with the European Parliament and the Commission to agree a way forward for tripartite discussions. We will update your Committee again once tripartite discussions progress.
“In response to your questions about the implementation period, you are correct that once the UK becomes a third country, the UK will not participate or vote in the Council. However, separate from the time LIMITÉ implementation period and the UK’s decision to leave the EU, UK business that wish to interact with the EU institutions will continue to be subject to the terms of the transparency register. As set out in Article 4 of the Commission proposals, public authorities of Member States (including their permanent representations) are not required to register prior to interactions with the Council—nor are the public authorities of third countries (including their diplomatic missions and embassies).
“On the Commission proposals more broadly, the register’s purpose is to make the work of the EU more transparent to the people it serves—this is something which the Government supports and, in working group discussions, no Member State has raised a serious objection to the proposed IIA. As set out in Article 5 of the proposed IIA, as amended by the Council, it is for each of the three institutions to inform the Secretariat to the Register which activities it wants to make conditional on prior registration. The proposal also explains that it is for each institution to lay down a Code of Conduct to which registrants must comply.
“The Council has also amended the IIA so that it invites Member States holding the Presidency of the Council, to make certain interactions, with their Permanent and Deputy Permanent Representatives and interest representatives conditional upon prior registration of such representatives in the register (Article 13(1)). Given the UK will not hold the Presidency before our exit from the EU, this Article will not apply to the UK. Annexes I, II and III to the proposal set out the; classification of registrants; information to be provided by registrants and finally; investigative proceedings, respectively”.
4.21In an Explanatory Memorandum dated 6 February 2018, the Minister of State at the Department for Exiting the European Union (Lord Callanan) comments on the policy implications of the proposed Council Decision as follows:
“In practice, the draft Decision means that UK interest representatives will, in order to engage with the Council in those circumstances set out in articles 3–6 of the draft Decision, be obliged to meet the condition of prior registration to the transparency register.
“While the draft Decision requires prior registration for a less extensive range of interactions with the Council than the original IIA proposed, the Government is of the view that the revised proposal still constitutes meaningful Council participation. The Council, by removing the application to Permanent and Deputy Permanent Representatives, does not strictly, limit the application of the register itself, rather it prevents the register from applying to Member States without their express opt-in.
“As we set out in our EM of 25 October 2016 on the original Commission proposal, the Government is also conscious that the register should not impose unnecessary restrictions on the everyday conduct of business or result in excessive regulatory burdens for businesses.
“While it is unclear when precisely the Inter-Institutional Agreement will come into force, the UK’s exit from the EU and the Government’s proposed implementation period will not affect the requirement for UK organisations’ to comply with the terms of the IIA. The classification of registrants is set out in Annex I to the Commission’s proposals and largely, covers lobbyists”.
4.22On the progress of the proposal, the Minister says that in advance of tripartite discussions, there was an informal meeting on 29th January between the Presidency, the EP and Commission to agree how best to take this proposal forward.
32 Natural or legal persons engaging interacting with the Council, Commission or Parliament with the intention of influencing the development of policy or legislation, or the decision-making processes within the relevant institution
33 Eighteenth Report, HC 71–xvi (2016–17), , (16 November 2016)
34 Now a Member of this Committee
23 February 2018