74. In our Scrutiny Review we reached the conclusion
that we should aim to work at the earliest possible stage in the
policy-making cycle: so-called upstream scrutiny.
The Government strongly supported this view, stating in its response:
"As we have repeatedly stressed, scrutiny by the Committee
is most effective, and influential, the earlier it takes place.
Reliance on definitive texts, which by their nature are
only produced late in the decision making process, reduces the
practical influence of the Committee and the impact of its work."
75. Performing upstream scrutiny of CFSP poses
particular problems, not only because of the limited time which
may be available, but because of the way in which proposals are
initiated. In most cases there is little opportunity for the Sub-Committee
to examine an early proposal which is intended to form the basis
for a new legislative instrument since the Commission is not involved.
Drafts at working group level are necessarily restricted due to
the political sensitivities involved in the negotiations between
Member States. This means, however, that the "draft"
proposal which the Sub-Committee examines is normally already
agreed as the final version. The function of scrutiny is thus
reduced to agreement or otherwise with the overall policy with
details no longer negotiable.
76. Even where the Commission has been involved
in the early stages of a proposal, usually when there is a development
aid as well as a foreign policy aspect to the proposal, we are
often left uninformed of any discussions which take place between
the Commission proposal and the adoption of the final policy by
Council. The EU Strategy for Africa
(Box 4) demonstrates that the Government is willing to discuss
proposals with the Sub-Committee, but that it is difficult to
have any substantive input into proposals before they are decided
upon by Council.
Scrutiny of the EU Strategy for Africa
The June 2005 European Council invited the Council
to draw up a long-term global strategy towards Africa, in the
light of the UN Summit outcomes, with a view to the European Council
in December 2005.
The United Kingdom Presidency also listed Africa
as one of its priorities and stated its commitment to the Strategy
We were thus aware that a Strategy would be forthcoming
at an early stage in its development.
The Commission published its draft Strategy on 12
October 2005. The Government deposited its explanatory memorandum
on 20 October and Sub-Committee C considered the document at its
meeting on 27 October.
The Sub-Committee agreed to hold the document under
scrutiny and to request that Ministers give oral evidence on the
proposed Strategy. We were informed by officials within the FCO
that the final Strategy, whilst it would take into account the
Commission document, would differ from it significantly. It was
therefore agreed that the evidence session should be held in late
November in order that the Sub-Committee might have as much information
at its disposal as possible, but sufficiently early for views
to be made known to the Government prior to the adoption of the
final Strategy by the European Council.
We were provided with two papers which had been prepared
for the working groups by the United Kingdom Presidency and Javier
Solana respectively which outlined a number of proposed priorities
for the Strategy. We were able to take these into account in formulating
questions for the Secretary of State for International Development,
Hilary Benn, and the Parliamentary Under-Secretary of State for
the FCO, Lord Triesman, when they came to give evidence on 29
November. We were extremely grateful for this information.
However, the final Strategy, which bore little resemblance
to the original Commission proposal, was not made available until
after its adoption by the European Council on 15 December. Thus,
despite the help given to the Sub-Committee by both Ministers
and officials within the FCO and the Department for International
Development (DfID), we were not practically able to scrutinise
the Strategy prior to a decision being made.
77. We recognise that it is not possible for
national parliaments to be involved at every stage of the decision-making
process, and that political sensitivities prevent the Government
alerting us to differences of opinion that exist between the Member
States. However, we ask that the Government aid the Sub-Committee's
work in the following ways.
78. As with letters alerting us to putative ESDP
missions, we wish to be kept informed of potential new initiatives
at an early stage. The Conference of Community and European Affairs
Committees of Parliaments of the European Union (COSAC), at its
recent meeting in London in October 2005, noted that upstream
scrutiny of CFSP is difficult and pointed out that "governments
of Member States can assist national parliaments by alerting scrutiny
committees to policy reviews being undertaken by Council working
79. We strongly support this recommendation and
highlight in Box 5 a recent example where early warning would
have been very helpful to assist upstream scrutiny. Since the
Council is a largely closed institution, we can only be alerted
to policy reviews by the Government.
Scrutiny of the EU Code of Conduct on
In May 1998 the EU adopted a Code of Conduct on Arms
Exports. The Code is a politically binding instrument that seeks
to create "high common standards" for all EU members
to use when making arms export decisions and to increase transparency
among EU states on arms exports.
In October 2003 Council working groups started a
review of the EU Code.
The Minister for Europe wrote to alert the Committee
to the forthcoming Code of Conduct on 24 June 2005 and we received
memorandum on the revised Code on 4 July 2005, only
two weeks before the substantially revised Code was agreed in
Council on 18 July.
On such a wide-ranging and important issue the Sub-Committee
may have chosen to conduct an inquiry if alerted to the review
at a much earlier stage.
80. The Government should alert the Committee
to potential new initiatives and reviews of existing legislation
and policies at as early a stage in the process as possible. Where
draft proposals cannot be provided due to the restricted nature
of the documents, the Government should outline the main proposals
along with a statement of the Government's position.
81. During the United Kingdom Presidency the
Government has been understandably reluctant to set out its position
on proposals where negotiations are still continuing. Now that
the Presidency has passed to Austria, we expect to receive a full
statement of the Government's position on each draft legislative
instrument, whether in agreement or disagreement. Although this
may not be possible during the course of negotiations, there is
no reason why it should not be possible once a text has been agreed.
The process of scrutiny is not only important for the purpose
of Parliamentary input into proposals, but for ensuring that the
process by which they are agreed is as transparent as possible.
Thus a full analysis of the advantages and disadvantages of a
particular proposal serves a useful function even where effective
agreement has already been reached.
82. Where advance notification of proposals
or draft instruments cannot be given the Government should provide
a full indication of the reasons for this in either its explanatory
memorandum on the deposited document or by letter. This should
include, where necessary, an explanation of the main points of
disagreement on a particular proposal.