B. CASES WHERE EFFECTIVE SCRUTINY HAS NOT BEEN POSSIBLE
29. DRAFT SECOND PROTOCOL TO THE CONVENTION ON THE PROTECTION
OF THE FINANCIAL INTERESTS OF THE EUROPEAN COMMUNITIES (7622/97)
Letter from Joyce Quin MP, Minister of State, Home
Office, to Lord Tordoff, Chairman of the Committee
I enclose for the information of your Committee an Explanatory
Note covering a draft (second) Protocol to the Convention on the
Protection of the Financial Interests of the European Communities
[not printed].
The draft Protocol has only recently emerged in a form which
is likely to be reasonably close to the final version. Although
it requires some further, relatively minor, amendments, I do not
envisage that it is likely in its final form to present any difficulty
for the United Kingdom. As the Explanatory Note indicates, it
is on the agenda for next week's Justice and Home Affairs Committee,
but while political agreement may be reached I do not expect it
to be signed then.
22 May 1997
Letter from Joyce Quin MP, Minister of State, Home
Office, to Lord Tordoff, Chairman of the Committee
I wrote to you on 22 May with a copy of the draft Second
Protocol to the EU Convention on the Protection of the Financial
Interests of the European Communities (the Fraud Convention),
and an Explanatory Note.
All outstanding points of substance on the text were resolved
at the Justice and Home Affairs Council on 26-27 May and the text
was sent to the jurists/linguists to be finalised. I thought you
would wish to know that we have just heard that that is now likely
to be completed in time for the text to be submitted to the COREPER
on Thursday 12 June, when it is expected to be signed by Ambassadors.
I attach a copy of the text as it emerged from the Justice Council
last month.
9 June 1997
Letter from Lord Tordoff, Chairman of the Committee
to Joyce Quin MP, Minister of State, Home Office
Thank you for your letters dated 22 May and 9 June in relation
to the above matter. I note that all outstanding points of substance
on this proposal were resolved at the Justice and Home Affairs
Council held on 26-27 May (five days after the proposal was deposited
for scrutiny) and that the Protocol is likely to be formally adopted
by COREPER on 12 June.
As you may know, the Select Committee has consistently paid
attention to the need to ensure that an effective body of legislation
exists to protect the Community's finances and has on several
occasions made specific recommendations in this area (for example
see Fraud and Mismanagement in the Community's Finances,
6th Report, Session 1993-94 and Financial Control and Fraud
in the Community, 12th Report Session 1993-94). In addition,
both Sub-Committee A and E carefully scrutinised the terms of
the Convention on the Protection of the Financial Interests of
the Community and expressed their views to the Government on its
provisions (See Correspondence with Ministers, 6th Report,
Session 1994-95, p 24 and Correspondence with Ministers,
15th Report, Session 1994-95, pp 14-15).
Although this proposal has effectively been agreed by the
Council I think that it is sufficiently important to warrant drawing
it to the attention of both Sub-Committees A and E for information.
On a more general point, I note in your letter of 22 May
that you say that The draft protocol has only recently emerged
in a form which is likely to be reasonably close to the final
version." However, the minutes of the Justice and Home Affairs
Council held as long ago as 4 April 1996 recorded that the Council
had before it a report on the progress of the discussions on the
draft Second Protocol to the Convention on the protection of the
European Communities' financial interests. The report highlights
the significant progress already made on the preparation of this
draft." I would draw your attention to the terms of the undertaking
to the Select Committee following its Report on House of Lords
Scrutiny of the Inter-governmental Pillars of the European Union
(28th Report, Session 1992-93). The undertaking refers to the
provision of the first full text of any convention or proposal
which would, if agreed, require later primary legislation in the
United Kingdom." I think you will agree that the first full
text" does not mean that Government Departments should wait
until a proposal has been all but finalised before depositing
a document in Parliament. As soon as a document has been produced
in a form which has been submitted to the working groups or the
K4 Committee for discussion it should be deposited in Parliament.
Only if this interpretation is adopted by the Government can Parliamentary
scrutiny committees have an opportunity to exercise their functions
properly.
Sub-Committee F is currently engaged in a detailed enquiry
into the operation of the procedures for scrutiny of Third Pillar
proposals, which is timely given the continuing difficulties being
experienced in relation to the late deposit of Third Pillar documents.
Without prejudice to the conclusions of Sub-Committee F's enquiry,
I would ask you to impress upon your officials the need to ensure
that Third Pillar documents are deposited in Parliament at the
earliest possible date. I should also be obliged if you would
provide the Select Committee with an explanation for the delay
in forwarding the draft Second Protocol to the Convention on the
Protection of the Financial Interests of the European Communities
for scrutiny.
18 June 1997
Letter from Joyce Quin MP, Minister of State, Home
Office, to Lord Tordoff, Chairman of the Committee
Thank you for your letter of 18 June.
Having always in the past urged better and more timely scrutiny
of Third Pillar issues, I was somewhat surprised to be at the
receiving end of your strictures about the Draft Second Protocol!
While I had no responsibility for any scrutiny decisions regarding
this Protocol before May 1997. I have looked into the history
of this and am advised that there was no breach of the undertaking
to which you refer. The Second Protocol, as agreed, will not require
primary legislation in the United Kingdom; secondly, although
it is true that various draft Articles had been under discussion
for a considerable time, the first full text" of the Protocol
did not emerge until mid April. Until then, discussion had been
based on partial texts and a series of draft articles.
I am of course at one with you in wishing to see effective
scrutiny of all texts of substance, whether or not they are likely
to require primary or subordinate legislation in the United Kingdom.
The difficult lies in drawing the balance between submitting all
documents which have reached a certain stage in their evolution,
with the risk that they may not subsequently make progress, and
delaying submission until proposals can no longer be changed.
I understand that practice up to now has been that where a document
falls outside the terms of the undertaking to which you refer,
it has been sent to you by my predecessors when it reached a form
which seemed to offer a basis for agreement. If the Presidency
then decides to pull out all the stops for political agreement
at the particular Council, by-passing the Working Group as happened
in the case of the Second Protocol, that clearly can create problems
for the timing of Parliamentary scrutiny (and we had understood
that it was not likely to be the wish of your Committee that we
should seek to postpone political agreement on instruments which
were under active discussion during the General Election period.)
There is obviously a problem where strict application of
the agreed criteria means that a document is deposited shortly
before a proposal has been all but finalised. As I say, the balance
is difficult. The problem with your suggestion (that as soon as
a document has been produced in a form which has been submitted
to the Working Groups or the K4 Committee for discussion, it should
be deposited in Parliament) is that it would create a considerable
increase in the workload without any necessary clear benefit,
and possibly with serious drawbacks. There would be a very marked
increased not only in the work for Government Departments but
also for the Scrutiny Committees themselves. Nor am I sure that
it would be always helpful to the Committees. It is not necessarily
the case that documents submitted to Working Groups, for example,
are in a complete (or even sometimes an intelligible) form. That
said, it can be difficult to judge when a text is in a form sufficiently
firm to deposit it for scrutiny.
As you say, Sub-committee F is currently engaged in a detailed
enquiry into the operation of the scrutiny procedures and the
Home Secretary is due to appear before it on Wednesday. It seems
best to await the outcome of that and the Sub-Committee's final
report. Meanwhile, I can certainly give you an assurance that
officials are fully conscious of the need for documents to be
deposited in Parliament at the earliest possible opportunity,
consistent with the current criteria, or whatever new criteria
may be agreed.
15 July 1997
Letter from Lord Tordoff, Chairman of the Committee,
to Joyce Quin MP, Minister of State, Home Office
Thank you for your letter of 15 July and for your explanation
of what happened in relation to the above document.
I have passed your letter to Sub-Committee F (Social Affairs,
Education and Home Affairs). What you say will be helpful to the
Sub-Committee in preparing its report on parliamentary scrutiny
on Third Pillar proposals.
July 1997
|
