Select Committee on European Union Nineteenth Report


CHAPTER 2: Scrutiny of CFSP

Our working methods

9.  The following paragraphs provide a brief outline of the working methods of the Committee and, in particular, the sub-committee charged with examining EU foreign affairs. A comprehensive examination of the way in which the Committee scrutinise EU legislation is set out in our Report "Review of Scrutiny of European Legislation" (Scrutiny Review) from session 2002-03 and the Government's response to that Report.[3]

THE SCRUTINY RESERVE RESOLUTION

10.  The scrutiny work of the Committee is underpinned by a Resolution of the House (the Scrutiny Reserve Resolution) agreed on 6 December 1999[4] according to which the Government undertakes not to agree to any legislative proposal in the Council of Ministers before parliamentary scrutiny is complete, unless there are "special reasons" for so doing. This mirrors a Resolution in the House of Commons.[5]

11.  As recognised by the Scrutiny Review, the Resolution does not give the Committee power either to mandate ministers, or to force their hands.[6] The Scrutiny Reserve does provide two important guarantees: transparency in the Government's handling of EU policy; and time for the Committee to consider proposals and to make our views known.

12.  The Government can override the Reserve by agreeing to the adoption of a proposal in Council before it has been cleared from scrutiny. We take such breaches of scrutiny very seriously and receive twice yearly data from the Government listing overrides by department which we analyse and publish in our Annual Report.[7] We expect the Government to keep such overrides to a minimum and to provide an explanation whenever they occur.

THE WORK OF SUB-COMMITTEE C

13.  The European Union Committee (the Select Committee) conducts much of its substantive work through seven sub-committees.[8] Each sub-committee usually meets once a week. Membership comprises one or more members of the Select Committee as well as other co-opted members of the House. Members may also on occasion be co-opted to a sub-committee for the purposes of a particular inquiry.

14.  In session 1998-1999 the Select Committee allocated two principal areas of EU activity to the newly formed Sub-Committee C:

  • Common Foreign and Security Policy, including the European Security and Defence Policy; and
  • External Relations (some of the external responsibilities of the European Communities).

In session 2001-02 the Select Committee reallocated responsibility for the scrutiny of EU development policy to Sub-Committee C. The current remit of Sub-Committee C is accordingly foreign affairs, defence and development policy.[9]

THE SIFT PROCESS

15.  The Select Committee receives about 1100 documents a year for scrutiny. The categories of document which the Committee will consider are defined in the Committee's Terms of Reference (see Box 6). The documents are deposited in Parliament by the Government. In every case, the Government Minister responsible for the area of policy concerned must submit to Parliament an explanatory memorandum which is expected within two weeks of the document's deposit. This memorandum contains:

16.  The Chairman carries out a sift of documents each week whilst the House is sitting (normally on Monday afternoons). Sifts are also carried out from time to time during parliamentary recesses.

17.  The Chairman sifts documents into three categories:

  • those requiring no further examination and cleared from scrutiny;
  • those requiring further examination by a specified sub-committee or sub-committees or, occasionally, by the Select Committee; and
  • those cleared from scrutiny, but which are nevertheless drawn to the attention of the relevant sub-committee or the Select Committee for information only.

18.  A more detailed description of the sift process, along with an indication of the criteria which the Chairman has in mind in making his decisions, is set out in our Annual Report 2003.[10]

19.  The sub-committees consider those documents sifted to them by the Chairman of the Select Committee. Initial consideration of a document normally takes place on the base of a scrutiny note prepared by Committee staff. At this stage, a sub-committee may:

  • decide that the document does not require further examination and clear it from scrutiny;
  • decide to hold the document under scrutiny and to conduct a full-scale inquiry into the issues raised; or
  • take some action short of a full inquiry: perhaps writing to the Minister responsible for the document seeking clarification or expressing particular concerns; or conducting a brief inquiry with limited evidence, perhaps to follow up earlier work.

20.  Documents sifted for information normally do not require any further action by the sub-committee, though they may be taken into consideration as background material for an inquiry.

Scrutiny of CFSP: a special case

21.  One of the recommendations of our Scrutiny Review Report was that the Cabinet Office should keep a central record of overrides arising from each Government department.[11] This has enabled us to monitor more carefully potential areas of weakness in the practices of particular departments.

22.  From January 2003 to June 2004 the FCO was responsible for 31 overrides out of a total of 77 for all Government departments.[12] The second largest number (15) came from the Department for Environment Food and Rural Affairs (DEFRA) which deposits far more documents for scrutiny. The large number of overrides from the FCO has for some time been a matter of concern. In our Annual Report 2004 we concluded that there was a clear problem in the area of CFSP, although the situation had been improving.[13]

Improved procedures for the scrutiny of CFSP

23.  Over the last eighteen months we have been working with the Government to improve the scrutiny of CFSP through the increased flow of information and commitment of resources on both sides. This has resulted in a greatly reduced number of scrutiny overrides and an overall increase in the effectiveness of Parliamentary scrutiny.[14]

24.  We explain the changes that have been made by the FCO and suggest further improvements. We do this not least in the hope that this may encourage the MoD to institute similar changes.

25.  We divide our list of changes and recommendations into three categories: those that concern the Government, those that affect the Committee's own working methods and those that are directed to the Council of Ministers.

CHANGES IN THE WORKING METHODS OF THE GOVERNMENT

26.  The Minister for Europe, Mr Douglas Alexander, credited the drop in scrutiny overrides from the FCO to a change of culture within the department. Scrutiny is now "part of the understanding, part of the culture within the Office: … [it] is not an add-on or something which can be set aside, but rather a central part of the process of democratic scrutiny that one would expect within a parliamentary democracy. I think that culture change is now fairly deeply embedded within the Office." (Q 2)

27.  We welcome the increased commitment to the scrutiny process shown by the FCO over the previous two years and hope that the culture of scrutiny which has been created will continue in future and be fully adopted by the MoD.

1) Commitment of resources to the scrutiny of CFSP

28.  The FCO has had a dedicated scrutiny officer for CFSP since June 2003.[15] The scrutiny officer provides a single point of contact for our staff and is able to advise on forthcoming items on the agendas of the General Affairs and External Relations Councils. He is also able to ensure that desk officers within the FCO recognise the importance of explanatory memoranda and the need to deposit documents to allow sufficient time for scrutiny.

29.  The Minister maintains that this dedication of resources has made a "material contribution" to the FCO having been able to drive down the number of overrides. (Q 2)

30.  The MoD deposits far fewer documents for scrutiny than the FCO, and therefore may not have the need for a full-time scrutiny officer. However, there is now a dedicated officer who is able to provide a single point of contact for our officials. FCO and MOD officials have held discussions as to how this role might best be utilised.

31.  We urge both the FCO and MOD to continue to have a dedicated person who exercises oversight of the scrutiny process of all proposals going to Council, and acts as a single point of contact for Committee staff.

2) Effective scrutiny guidance

32.  The Minister explained that "effective scrutiny guidance" is now being provided for the desk officers working on CFSP. (Q 2) Following this example, we urge the MoD to develop more specific scrutiny guidelines to those working on EU proposals.

3) Informal contacts

33.  The Minister acknowledged that one of the contributory factors to driving down the number of scrutiny overrides has been "effective engagement" between Government officials and our Committee staff. (Q 3) In particular, we appreciate the willingness of desk officers to explain and discuss the detailed policy of documents with our staff. This ensures that any areas of uncertainty or ambiguity can be resolved prior to an examination of the document by the Sub-Committee, and helps to avoid any misunderstandings about the meaning of the document or the Government's view.

34.  Our objective is to provide the Government with our input on documents in advance of the Council meetings. We may choose to do so through correspondence. Where time permits, we may also request oral evidence from Ministers in advance of the Council meeting.

35.  In this context we recall our conclusion in our Scrutiny Review Report which stated that: "Where a proposal is moving quickly through the legislative cycle we will more regularly ask government officials to be made available at short notice to assist the Committee in matters of explanation and elucidation."[16]

36.  We also recall the Government's response: "The Government is happy for the Committee to invite officials to be made available to provide technical help and informal advice on the meaning and purpose of proposals."[17]

37.  In view of the short time often available to engage in an exchange of views and the wide-ranging subject matters of many proposals, we expect Government officials to readily continue to be available to assist Sub-Committee C in the scrutiny process when appropriate.

38.  Such assistance was provided recently by the MoD for a Sub-Committee meeting on 15 November 2005 (see Box 1). We were grateful for the advice given and express our hope that we can continue to engage with MoD and FCO officials in a similar manner in the future.

39.  "Short notice" in the context of CFSP may be a matter of days. If an explanatory memorandum is not deposited until a Monday and is to be discussed by the Sub-Committee at its Thursday meeting prior to a Council the following week, as may happen, officials will need to be made available at very short notice indeed.

BOX 1

MoD assistance on the voluntary code of conduct on defence procurement

Officials volunteered to come and provide an advance briefing to Committee staff on the voluntary code of conduct for defence procurement which was being prepared by the European Defence Agency within a very quick timescale.[18] This briefing was essential to enable the Sub-Committee to agree to hold an additional meeting on a day which would provide the optimum timescale for consideration of the documents and correspondence with Ministers on any points which we wished to raise with the Government.


Officials also agreed to brief members at the Sub-Committee meeting which proved very helpful for a full and better understanding of the documents.


We accepted the MoD's explanation, well in advance of the November GAERC, that due to the EDA's own timetable there would be little time for scrutiny. The EDA itself should be encouraged to produce papers more in advance of its Steering Board meetings to take into account parliamentary scrutiny.


4) Unsigned explanatory memoranda

40.  Beyond the "culture change" in the FCO, the most important change in practice has been the Government's recognition that forwarding unsigned explanatory memoranda to our staff can provide additional time for preparation of scrutiny.

41.  As stated in our Scrutiny Review, all explanatory memoranda must be signed by the relevant Government Minister as they provide the definitive statement of the Government's view: in effect they constitute the Government's evidence to Parliament.[19] Given that it can frequently take some days for a ministerial signature to be obtained, we have agreed a system with the FCO whereby the documents themselves, along with unsigned, i.e. draft, explanatory memoranda are sent to Committee staff some time in advance of the signed memoranda (usually one to three working days) in order that our staff have sufficient time to draft scrutiny notes for the Sub-Committee. Upon receipt of the signed explanatory memorandum, it may then be quickly circulated to the Sub-Committee along with the document and final briefing, thus providing increased time for scrutiny. We have found this practice invaluable.

42.  Given the small number of documents deposited by the MoD, there is less history of advance provision of explanatory memoranda. However, the MoD has recently provided advance information on important new developments which the Sub-Committee was then able to examine more effectively.

43.  We reiterate the importance of receiving a signed explanatory memorandum for the final version to be considered by the Sub-Committee. In order to be considered in the Chairman's sift, signed memoranda must be deposited by midday each Thursday during Parliamentary sittings.

44.  The "effective engagement" (Q 2) between our staff and officials within both the FCO and MoD has been an important development which has enabled the fast and effective handling of scrutiny. We fully welcome the advance provision of explanatory memoranda and briefings on forthcoming documents.

CHANGES IN THE WORKING METHODS OF THE COMMITTEE

1) The holding of additional meetings

45.  Sub-Committee C normally meets every Thursday morning whilst the House is sitting. Very occasionally this does not provide sufficient time for scrutiny, especially of ESDP missions. The Sub-Committee is prepared to meet on alternative dates for the purpose of scrutiny. For example, the Sub-Committee met on Wednesday 17 November 2004 before the House was prorogued in order to examine the proposed launching of the EU Military Mission in Bosnia and Herzegovina[20] along with two other documents. More recently, the Sub-Committee met on Tuesday 15 November 2005, as well as meeting on the Thursday of that week, in order to discuss the papers for the forthcoming European Defence Agency steering board (including the proposed voluntary code of conduct for defence procurement).[21] We were able to hold these meetings due to prior notification that documents would be deposited shortly before being agreed in Council.

46.  For it to be practicable to organise extra meetings which a majority of Members are able to attend, the Government must give as much notice as possible, either informally or in writing, of documents which will require scrutiny.

2) Use of the written procedure

47.  It is preferable that sub-committees meet in order to discuss documents which have been deposited for scrutiny. However this is not always possible, especially during Parliamentary recesses. In these situations we are able to scrutinise documents by written procedure. This simply means that documents and explanatory memoranda are circulated to members as usual, with members being asked to provide any comments in writing. The Sub-Committee Chairman is given authority to clear a document unless any member objects by a certain time. This is an efficient way of ensuring Parliamentary oversight during recesses and was used most recently by Sub-Committee C during the last week of September 2005 to examine three documents prior to the 3 October General Affairs and External Relations Council (GAERC).[22]

3) Consideration of documents prior to the sift

48.  In certain instances—for example, when a document is deposited at very short notice, or during a parliamentary recess—it may be necessary for the Sub-Committee to consider documents prior to the Chairman's sift taking place. In these instances the Sub-Committee may consider documents which have not yet been sifted to it. The Sub-Committee cannot on its own initiative clear documents prior to the sift as there may be a need for other sub-committees to examine a particular document. The Sub-Committee may, however, recommend that a document be cleared at the following sift by the Select Committee Chairman. The Chairman may also write to the Minister to raise concerns noted by the Sub-Committee prior to the sift.

49.  We will only examine documents at very short notice where there is a real urgency (that is, a real need for a document to be deposited just days prior to its probable agreement by Council). In these cases we expect the Government to explain fully the urgency of the situation and to provide as detailed an explanatory memorandum as soon as possible, particularly with regard to the Government position, in order to enable effective scrutiny.

50.  Although documents may be informally considered prior to the weekly sift, it is essential that the Government ensure that documents are deposited in sufficient time to allow the Chairman to consider whether they should be sifted for examination to the Sub-Committee.

4) Sifts during recesses

51.  It is neither possible, nor necessary, for there to be a weekly sift during recesses (especially the long summer recess). However, the Chairman has always held planned sifts during recesses in order that the sub-committees can continue to examine documents. During the summer recess of 2005 sifts were held on 8 September and 4 October.

52.  Through careful management of the sift process during the summer recess in particular, and through use of the written procedure, there should be little need for overrides to take place merely because the House is not sitting. Although it may not be possible to deal with all urgent items during the summer, careful planning, together with Government officials, should ensure that effective scrutiny of most documents continues to take place.

5) Prorogation

53.  The Select Committee is a sessional committee. This means that it, and its sub-committees, continue to operate over prorogation until reappointed in the next session of Parliament.[23] Following prorogation and the beginning of a new session, there will be a rotation of members of each sub-committee and some members may leave and be replaced. The Sub-Committee may nevertheless continue to meet immediately following prorogation with its members from the previous session so that scrutiny work should not be unnecessarily affected. This is particularly important given that prorogation usually takes place at the beginning of November when a large number of documents will normally be deposited for the November GAERC.

6) Dissolution

54.  The Select Committee ceases to exist upon a dissolution of Parliament.[24] It is not possible for the Committee to scrutinise, nor to clear, any documents during the period of dissolution. This results in a number of overrides which we accept as largely inevitable. However, it is important that contacts between our staff and government departments continue over this period in order that documents may be properly and quickly scrutinised once the Committee is reappointed.

55.  We urge the Government, when a dissolution is imminent, to deposit as many documents as possible prior to dissolution in order that scrutiny may take place before the Committee ceases to exist.

CHANGES IN THE WORKING METHODS OF THE COUNCIL

56.  While there is genuine urgency with regard to some CFSP documents, there are others where this is not the case. One category which stands out is extensions of joint actions, common positions and council decisions where the current instrument is about to expire. The date on which an instrument needs to be renewed is, by definition, known well in advance. When such renewals are submitted for scrutiny at the very last minute we are usually informed by the Government that the reason is late submission by the Council Secretariat. This may be due to prolonged discussions concerning the renewal of such instruments but we wish to be involved in the decision-making process at as early a stage as possible.

57.  Where the timing of a proposed extension is entirely predictable we urge the Government to give notice of the impending decision as early as possible to enable Parliamentary scrutiny to take place. We suggest that the Government in turn encourage the Council Secretariat to forward drafts to Member States at an early date.

58.  The Council Secretariat may also be responsible for delays in scrutiny by holding up documents forwarded by the Commission. A recent example of this was a Commission Communication on the 10th Anniversary of the Euro-Med Partnership.[25] The Commission published this document on 12 April 2005 and sent it to the Council Secretariat on 18 April. However, it was not until 27 October that the Council Secretariat circulated the document thus triggering a request from the Cabinet Office for the FCO to produce an explanatory memorandum. Committee staff and members were able to see the published Communication, but the Sub-Committee were unable to scrutinise it formally without the deposit of an explanatory memorandum setting out the Government's position. Scrutiny only took place one week prior to the Summit which approved the five-year work programme set out in the Communication. There was no opportunity for any correspondence with or evidence from the Government on this important Summit.

59.  In their letter to us,[26] the Government provide an assurance that they will monitor the situation and ensure that the same early warning mechanism which they have developed for legislative material is transposed for non-legislative material. This is a helpful response. However, the Government should explain why it is not possible for an explanatory memorandum to be produced prior to the circulation of a document by the Council Secretariat. Though the Cabinet Office cannot be expected to keep track of the vast majority of documents which they have not yet received, it should be possible to take notice of significant new initiatives such as the Communication on the Euro-Mediterranean Partnership which was a published document being used to prepare for a major international summit.


3   European Union Committee, 1st Report (2002-03): Review of Scrutiny of European Legislation (HL 15); European Union Committee 20th Report (2002-03): Government Responses: Review of Scrutiny; Europol's role in fighting crime; and EU Russia Relations (HL 99). Back

4   Appendix 5.  Back

5   Standing Orders of the House of Commons-Public Business 2005(2), Appendix: Resolutions: Scrutiny of European Business. Back

6   European Union Committee, 1st Report (2002-03): Review of Scrutiny of European Legislation (HL 15), para 70. Back

7   European Union Committee, 44th Report (2002-03) Annual Report (HL 191); European Union Committee, 32nd Report (2003-04) Annual Report (HL 186). The Annual Report for 2005 will be published in February 2006, following the conclusion of the United Kingdom presidency of the EU. Back

8   A (Economic and Financial Affairs and International Trade), B (Internal Market), C (Foreign Affairs, Defence and Development Policy), D (Environment and Agriculture), E (Law and Institutions), F (Home Affairs), and G (Social Policy and Consumer Affairs). Back

9   See Appendix 7 for a comprehensive list of the Sub-Committee's reports to date. For information on the Sub-Committee's current inquiries and other activities, please see our web-site http://www.parliament.uk/parliamentary_committees/lords_s_comm_c.cfm Back

10   European Union Committee, 44th Report (2002-03) Annual Report (HL 191), Appendix 3. Back

11   European Union Committee, 1st Report (2002-03): Review of Scrutiny of European Legislation (HL 15), para 76; European Union Committee 20th Report (2002-03): Government Responses: Review of Scrutiny; Europol's role in fighting crime; and EU Russia Relations (HL 99), para 175. Back

12   European Union Committee, 32nd Report (2003-04) Annual Report (HL 186), Table 1. Back

13   European Union Committee, 32nd Report (2003-04) Annual Report (HL 186), para 112. Back

14   The latest figures are due to be published in the next Annual Report.  Back

15   He is also responsible for the external aspects of Pillar I. Back

16   European Union Committee, 1st Report (2002-03): Review of Scrutiny of European Legislation (HL 15), para 42. Back

17   European Union Committee 20th Report (2002-03): Government Responses: Review of Scrutiny; Europol's role in fighting crime; and EU Russia Relations (HL 99), para 177. Back

18   14172/05: Council of the European Union, 2691st Council Meeting, General Affairs and External Relations Council 21-22 November 2005.  Back

19   European Union Committee, 1st Report (2002-03): Review of Scrutiny of European Legislation (HL 15), para 49. Back

20   Council Decision 2004/805/CFSP of 25 November 2004 on the launching of the European Union military operation in Bosnia and Herzegovina.  Back

21   14172/05: Council of the European Union, 2691st Council Meeting, General Affairs and External Relations Council 21-22 November 2005. Back

22   Proposal for a Council Decision repealing Council Decision 2001/131/EC and concluding consultations between the EU and Haiti under Article 96 of the Cotonou Agreement; Council Decision concerning the conclusion of an exchange of letters between the European Union and Thailand, the Philippines, Singapore, Malaysia, and Brunei on their participation in the Aceh Monitoring Mission (AMM) in Aceh; Council Common Position extending Common Position 2004/694/CFSP on further measures in support of the effective implementation of the mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY). Back

23   The Standing Orders of the House of Lords Relating to Public Business (2005), para 65; Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (2005), para 9.31. Back

24   Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (2005), para 9.31. Back

25   13809/05 COM (2005) 139: Communication from the Commission to the Council and the European Parliament: Tenth Anniversary of the Euro-Mediterranean Partnership: A work programme to meet the challenges of the next five years.  Back

26   Extract reproduced in Appendix 4. Back


 
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