Select Committee on European Communities Sixth Report



  44.    Under the Government's existing undertaking the Government is required only to provide the first full text of a Third Pillar proposal which meets the relevant criteria for deposit in Parliament. No provision is made for the deposit of supplementary Explanatory Notes where a proposal is altered during the course of negotiations. This contrasts with the Government's obligations under the Community Pillar where Supplementary Explanatory Memoranda are provided on a regular basis as proposals proceed through the different stages of the Community's legislative process. The lack of a formal requirement to provide further information has serious implications for Parliamentary scrutiny of the Third Pillar. During negotiations Third Pillar proposals may be altered radically.

  45.    In evidence the Home Office indicated that it interpreted the Government's undertaking as requiring Departments to deposit, in the case of proposals which would, if agreed, require later primary legislation in the United Kingdom, substantial changes which subsequently occur in the negotiation of the final text. The Home Office commented, however, that it would not be practicable to provide the Committee with all drafts of a deposited proposal. It stated that, where the Government was aware that a particular deposited proposal was likely to be submitted for adoption at a Council meeting on the basis of a substantially modified text which did not reflect the Government's objectives as set out in its original Explanatory Note, it would do its best to ensure that the modified text was made available to the Committee in good time before the Council so as to enable it to comment on the revised text (p 11).

  46.    Both Justice and Statewatch drew attention to the serious shortcomings of the present arrangements by reference to the draft text of the Europol Convention (pp 21-2, 36). Statewatch suggested that where a measure went through many drafts the Committee should be supplied with copies of all the drafts, after the "first full text", which were received by either UKREP or the Home Office (p 36). Professor Birkinshaw supported the view that Supplementary Explanatory Notes should be provided to Parliament on Third Pillar proposals unless there were compelling grounds for not doing so which were fully explained to the Committee (p 94). The Law Society of Scotland took the view that the Government should be required to provide Supplementary Explanatory Notes on proposals which have been scrutinised by the Committee where changes have been made to the proposals (p 105).

The practice in other Member States' Parliaments

  47.    In Germany the Federal Government is obliged to inform the Bundestag's European Affairs Committee and the Home Affairs Committee or the Law Committee of significant changes to Third Pillar proposals. However, the Bundestag commented that the Federal Government occasionally failed to inform the relevant Committees of significant changes in policy but would provide further information immediately upon request (p 82).


  48.    Parliamentary scrutiny of Third Pillar documents should not be limited to consideration of the first version of a proposal. Because of the flexibility involved in the drafting of Third Pillar instruments documents may radically change shape during the course of negotiations. This was clearly illustrated during the course of the enquiry conducted by Sub-Committee E (Law and Institutions) on the draft Europol Convention[21]. The Sub-Committee began its enquiry on the basis of a draft text submitted by the Home Office. During the course of the enquiry the Sub-Committee received a later text of the proposal which was radically different particularly in relation to the roles of the Court of Justice and the European Parliament under the Convention[22]. We believe that where a document is the subject of an enquiry by the Committee or one of its Sub-Committees the Government must ensure that the Committee is kept informed of significant developments on the proposal at the earliest possible opportunity.

  49.    We note with concern that the Home Office referred only to the provision of further information on substantive changes to Third Pillar proposals which would require primary legislation in the United Kingdom. We consider this to be too limited in scope. We believe that the Government should provide Supplementary Explanatory Notes outlining substantive changes to any Third Pillar proposal which has been deposited in Parliament irrespective of whether it would require, if adopted, primary legislation in the United Kingdom or not. The Committee would interpret "substantive change" as including (i) a change in the legal content or nature (i.e. joint action to resolution or vice versa) of a proposal; (ii) a change in the role assigned to any of the European Union Institutions under the proposal; and (iii) a change which might have consequences for the rights and freedoms of the individual or undertakings. The above list is illustrative rather than definitive. There must be a bias in favour of providing further information to Parliament. Where officials are in doubt as to whether changes to a Third Pillar proposal would warrant the provision of a Supplementary Explanatory Note the Committee Secretariat could be consulted, on an informal basis, for their views. The Government should err on the side of furnishing material rather than withholding it from Parliament.

  50.    We recognise that the Government may have concerns about making available later versions of the text of Third Pillar proposals because of the risk of revealing the negotiating positions of other Member States which may be recorded on the draft texts. We believe, however, that this can be easily rectified by blanking out the reservations recorded on the text before depositing it in Parliament.

  51.    We are aware that negotiations on Third Pillar matters may lead to many versions of a text being produced before it reaches a form where it is ready to be presented to the Council for adoption. While we would not expect the Government to supply all subsequent versions of a Third Pillar text that had been deposited in Parliament, at the very least we would expect to see the draft text of a Third Pillar proposal which was due to go to the Council for adoption.


  52.    In its 1993 Report the Committee favoured the application of a formal scrutiny reserve to Third Pillar proposals. The Government rejected the idea on the grounds that decisions under the Third Pillar might have to be taken quickly and that the Government did not believe that outstanding scrutiny requirements should prevent the United Kingdom's agreement. Where legislation was needed to give force to an agreement in domestic law, Parliament would be able to consider the issue in full during the necessary legislative process and a formal scrutiny reserve would not widen Parliament's scope for action.

  53.    The Commons Committee in its report, The Scrutiny of European Business, criticised the Government's approach. The Government's argument that Parliament would have an opportunity to consider an issue where legislation was needed to give force to an agreement in domestic law was dismissed as a non sequitur. The report pointed out that by agreeing to a proposal which must be implemented by domestic legislation the Government would have already committed itself to securing that legislation and thus for all practical purposes the main elements of any such legislation would already have been decided. The report argued that the terms of the scrutiny reserve under the Community Pillar would meet the Government's concerns because as regards confidentiality, the 1990 Scrutiny Reserve Resolution contained an explicit saving for matters which the responsible Minister regarded as confidential[23] and as regards the need for quick decision the Resolution provided that a Minister may give agreement to a proposal still under scrutiny "if he decides that for special reasons agreement should be given"[24], although he must give an explanation thereafter. The report argued that if the reasons for confidentiality or speed were genuine, the extension of the 1990 Resolution to inter-governmental business need cause the Government no difficulty. The Commons Committee noted that on at least two occasions the then Home Secretary had imposed a Parliamentary scrutiny reserve in the Council despite denying its application to the Third Pillar[25]. The Commons Committee recommended that the 1990 Scrutiny Reserve Resolution should be amended to apply to joint positions, joint actions or conventions under Title VI of the Treaty on European Union.

  54.    In evidence the Home Office repeated the arguments it had employed in responding to the Committee's 1993 Report (QQ 17-18, 20), and stated that the key to effective Parliamentary scrutiny was the early transmission of documents before positions were set in concrete rather than whether or not Parliament had some form of scrutiny reserve (Q 22). The Home Office sought to draw a distinction between Community legislation and Third Pillar instruments, arguing that because Community legislative acts were binding on the United Kingdom, whether directly or through domestic legislation, there needed to be an input from Parliament before decisions were taken, whereas Third Pillar instruments were not and so if they required a legislative change then Parliament would have the "opportunity to consider that and to debate it and, in the last resort, to decide not to implement it". (QQ 17, 20, 32-4). It was suggested that the absence of a scrutiny reserve need not necessarily rule out holding something up if it was of importance and the Home Office were aware that the Committee wanted to comment on it. There could be a partial scrutiny reserve in such circumstances (Q 47).

  55.    Mr Hill of UKREP recognised that there was a distinction between Community legislation and Third Pillar instruments but commented that, although Third Pillar instruments were a product of international law, they were by and large binding legal commitments which would result, in a lot of cases, in legislative action or would require legislative action in the Member States. That was true not just of conventions but also of joint actions (Q 208).

  56.    Other witnesses strongly supported the imposition of a formal scrutiny reserve on Third Pillar matters. Justice regarded the Government's stance as unrealistic and argued that it was illogical not to extend to the Third Pillar the scrutiny reserve applicable to Community legislation (p 21). Liberty believed that the Third Pillar legislative process had to be democratically accountable and that a scrutiny reserve was an essential mechanism for ensuring that this was the case (p 107). Professor Birkinshaw argued that the importance of Third Pillar proposals for civil rights and liberties demanded that a scrutiny reserve should apply (pp 92-4). The General Council of the Bar commented that "Third Pillar documents have a bearing upon the manner in which governments discharge their public responsibilities in relation to the citizen ... and are therefore matters appropriate for parliamentary consideration before public commitments, even of a political and moral character, are made (p 100).

  57.    The Home Secretary indicated that, in view of the Labour Government's manifesto commitments to greater openness and transparency, he was willing to consider the question of the application of a formal Parliamentary scrutiny reserve for Third Pillar matters but said that he needed more time to consider the possible implications that this might have (QQ 293, 298).

The practice in other Member States' Parliaments

  58.    The position in other Member States varies. In France a Parliamentary scrutiny reserve applies to any Community instrument of a legislative character but does not apply to draft instruments under the Third Pillar (pp 80, 78). Neither Spain nor Italy imposes a Parliamentary scrutiny reserve (pp 13-14). In the Netherlands, under Article 3(1) of the law ratifying the Maastricht Treaty, before any Council decision can be made on Third Pillar matters, a draft order binding the Netherlands must be published and immediately submitted to Parliament. The assent of Parliament is required before Third Pillar decisions may be made. The Government is not allowed to agree to the adoption of the draft decision until fifteen days after the communication of the text to the Dutch Parliament. Within that period each Chamber of Parliament may decide that the government can only agree to the draft decision with explicit formal consent of both Chambers. Assent is, however, assumed if neither Chamber examines the texts within two weeks (p 13, 86-7, 110)[26]. In Austria, once the Minister has complied with his duty to inform the Nationalrat and Bundesrat, no Parliamentary scrutiny reserve applies (p 74). The Finnish Parliamentary system has a highly developed Parliamentary scrutiny reserve (pp 76-7). In Germany, under section 5 of the Law on Co-operation, before the Federal Government may agree to European Union law-making actions it must give the Bundestag the opportunity to formulate an opinion on them. The time allowed must give the Bundestag ample opportunity to discuss the proposals in question and the Federal Government must base its dealings on this opinion (p 83).


  59.    We regard the imposition of a formal Parliamentary scrutiny reserve in relation to Third Pillar proposals as essential if Parliament is to play an effective role in scrutinising the Third Pillar. Experience has shown that too often the Government has been all too willing to agree to proposals at Justice and Home Affairs Councils despite the fact that the documents are subject to consideration by the Committee.

  60.    The Government's argument that there has to be a distinction between Community legislation and Third Pillar instruments, whilst correct in the legal sense, has little validity in terms of the practical effects of Third Pillar instruments. If Parliament is to play an effective role in scrutinising Third Pillar instruments it must be allowed to have an input into the development of a text at the European level. With the exception of conventions, which are subject to national ratification procedures and may be rejected, the Government has committed itself to implementing the provisions of proposals once they have been adopted by the Council, so the introduction of domestic legislation does not, in practice, provide Parliament with an opportunity to have a significant input. The suggestion that Parliament could reject the proposed legislation and thus force the Government to renegotiate the matter in Brussels ignores the complex realities of negotiations in the Council.

  61.    We agree entirely with the views and recommendations made by the House of Commons Select Committee on European Legislation in paragraphs 93-8 of its report, The Scrutiny of European Business. We recommend that a formal Parliamentary scrutiny reserve should apply to all Third Pillar documents deposited in Parliament.

21   Europol, 10th Report, Session 1994-95 (HL Paper 51). Back

22   Another example concerned a proposed Joint Action on harmonising means of combating illegal immigration and illegal employment and improving the relevant means of control. When this proposal was originally deposited in Parliament Sub-Committee E expressed concern that it was drafted in legally binding terms. At a very late stage in the negotiations the proposal was changed from a legally binding instrument committing the United Kingdom Government to introduce sanctions for employers who employed illegal immigrants to a non-legally binding Recommendation. See Correspondence with Ministers, 15th Report, Session 1994-95 (HL Paper 83) pp 16-18. Back

23   Paragraph 3(a) of the 1990 Scrutiny Reserve Resolution of 24 October 1990 (CJ, 1989-90, p 646) states that the Minister concerned may give agreement "to a proposal which is still subject to scrutiny if he considers that it is confidential, routine or trivial or is substantially the same as a proposal on which scrutiny has been completed." Back

24   Paragraph 4 of the 1990 Scrutiny Reserve Resolution. Back

25   Draft corruption protocol to the Convention on the protection of the financial interests of the Community and draft joint action on racism and xenophobia. Back

26   The Meijers Committee commented that in practice the government is often unable to comply with the fourteen-day rule because no full draft of the decisions is available two weeks before the Council meeting or no Dutch translation is available. They commented that in their experience the Parliamentary scrutiny reservation made by a Dutch Minister in the Council, hardly ever resulted in a modification of the draft or the decision. Such reservations were in practice lifted before or at the subsequent Council meeting (pp 110-11). Back

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