Select Committee on European Union Nineteenth Report


CHAPTER 4: Scrutiny of Non-Legislative Documents

The use of non-legislative documents in CFSP

83.  Over 80 per cent of all documents deposited by the FCO and the MoD in CFSP are legislative documents. Ironically this is much higher than the percentage of legislative documents deposited by those Government departments which deal with EC law (such as DEFRA). This is primarily due to the fact that under Pillar I the Commission frequently publishes green and white papers which begin the legislative process, whereas under Pillar II, as noted in the previous Chapter, the Commission is less directly involved and, therefore, the documents that may be deposited are draft legislative texts. So the supposedly non-legislative field of foreign policy is characterised by the scrutiny of mainly legislative instruments.

84.  However, many important CFSP policy developments fall outside the legislative framework. In December 2003 the European Council agreed, for the first time, an EU Security Strategy to provide an over-all strategic framework for the EU's foreign policy.[45] Also in December 2003 the EU agreed a strategy to prevent the proliferation of Weapons of Mass Destruction.[46] In December 2005 the European Council agreed a comprehensive EU strategy for Africa.[47] None of these strategies fall within the definition of the Scrutiny Reserve Resolution (i.e. they are not common strategies). Nonetheless the Government has deposited all of them for scrutiny. It is quite clear that such strategies represent significant developments in the EU's foreign policy and the decision to deposit these strategies was thus very welcome.

85.  This Chapter explains why it is important for national parliaments to examine non-legislative proposals and examines what can be done by the Government to keep us better informed of non-legislative documents and major new policy initiatives.

Applicability of the Scrutiny Reserve Resolution to non-legislative documents

86.  The fact that so much of the CFSP is taken forward by politically significant rather than legally binding decisions has led to a variety of scrutiny practices across the national parliaments of the EU. Some parliaments only scrutinise legally binding decisions, while others, such as the parliaments of Denmark, Latvia, Slovakia, Slovenia and Sweden, scrutinise all items for discussion on a Council agenda.[48]

87.  In the United Kingdom the categories of document which the Government must deposit are defined by the terms of reference for the scrutiny committees of both Houses. The House of Lords Select Committee is appointed "to consider European Union documents and other matters relating to the European Union." The full definition of "documents" is set out in Box 6.

BOX 6

European Union Select Committee: Terms of Reference

The expression "European Union documents" shall include the following documents:


(i) any proposal under the Community Treaties for legislation by the Council or the Council acting jointly with the European Parliament;


(ii) any document which is published for submission to the European Council, the Council or the European Central Bank;

(iii) any proposal for a common strategy, a joint action or a common position under Title V (provisions on a common foreign and security policy) of the Treaty on European Union which is prepared for submission to the Council;


(iv) any proposal for a common position, framework decision, decision or a convention under Title VI (provisions on police and judicial co-operation in criminal matters) of the Treaty on European Union which is prepared for submission to the Council;

(v) any document (not falling within (ii), (iii) or (iv) above) which is published by one Union institution for or with a view to submission to another Union institution and which does not relate exclusively to consideration of any proposal for legislation;

(vi) any other document relating to European Union matters deposited in the House by a Minister of the Crown.


88.  Under the Scrutiny Reserve Resolution the Government must not give agreement in Council to any proposal for a common strategy, joint action or common position which is still subject to Parliamentary scrutiny.[49] This neither mandates nor precludes the deposit in Parliament of non-legislative documents. It does, however, mean that non-legislative documents can be agreed in Council prior to the completion of scrutiny without this constituting an override.

89.  Nonetheless, as Box 6 demonstrates, the Government does deposit non-legislative material. Certain categories are particularly relevant to CFSP. Under categories (ii) and (v) the Government will deposit Commission reports and communications and other documents which are published for consideration by the Council. For example, the EU Strategy for Africa, noted above, began with a draft proposal contained in a Commission communication.

90.  It is category (vi) of the Committee's terms of reference which is potentially the most useful, but also the most problematic. This category provides for the Committee to examine documents which the Government deposits in the exercise of its own discretion. It is important as it enables us to consider non-legislative documents. It is problematic because it is not subject to any further definition. It is necessarily a broad provision, but one which we attempt here to expand upon in the field of CFSP.

Scrutiny beyond the Reserve Resolution: current practice

91.  In response to our 2002 Scrutiny Review the Government specifically recognised that "it is right that scrutiny should extend beyond the examination of specific proposals for EU legislation, to include a consideration of policy development within the EU at an early stage."[50]

92.  Accordingly, the Government now deposits a number of CFSP and ESDP documents which are not legislative proposals. (Q 12) In the period July 2004 to December 2005, 18 such non-legislative documents were considered in the Chairman's sift.[51] In Box 7 we have divided the non-legislative documents into those originating from the Commission and those that have been drafted by the Council (Presidency or Secretary-General/High Representative).

BOX 7

Non-legislative documents considered July 2004-December 2005

Commission:


  • Communications on various thematic or geographical issues(8)

  • Legislative work programme (1)

  • Green papers (1)
  • Commission staff working papers and reports (3)


Council:


  • ESDP Presidency Reports (3)

  • Draft operational programme of the Presidencies (1)

  • Russia—Four Common Spaces: an agreement between the EU and Russia, prepared by the Council Secretariat (1)

93.  The considerable majority of non-legislative documents that the Government currently deposits for scrutiny come from the Commission. Of the 18 non-legislative documents deposited in the past 18 months, only 6 have originated in the Council. With the exception of the ESDP Presidency Reports and the Presidencies' draft operational programme, there does not appear to be any obvious rationale for the choice of documents deposited.

94.  Sub-Committee C also considers Commission reports, communications and recommendations on external relations issues falling outside CFSP. In particular, we receive large numbers of documents relating to enlargement and the European Neighbourhood Policy for both of which the Commission has specific competence.[52] We are content with the Government's record of deposit in these two policy areas and restrict our comments in this report to CFSP and ESDP.

95.  Commission communications and green papers relevant to CFSP often deal with thematic or geographical issues on which there is shared competence. In our experience the Government's explanatory memoranda tend to summarise the Commission's proposals but provide little analysis of what CFSP action is being considered by the Council.

96.  A recent example of such a Commission Communication related to Commission proposals for EU-Palestinian cooperation beyond the Israeli disengagement from Gaza in September 2005.[53] The Communication set out a number of proposals in relation to Commission programmes as well as suggestions for Member State actions to enhance the role of the EU in the peace process. In view of the central importance of the Middle East Peace Process, we would have welcomed a much fuller analysis in the explanatory memorandum of the Government's view on the Member States' role.[54]

97.  It is necessary for our scrutiny of Commission documents for the Government to give a broad view and explain their position on the overall issue and, where it is a Member State competence, what course it seeks the Council to follow.

98.  This happened in respect of the November 2004 Commission Green Paper on Defence Procurement. The MoD not only provided an explanatory memorandum on the Green Paper but attached a non-paper on the Government's alternative proposals. On the basis of these documents the Sub-Committee took evidence from the Minister which was published as part of a Report on the European Defence Agency.[55] The process allowed the Committee to make a contribution to this developing policy at an early stage.

Scrutiny beyond the Reserve Resolution: recommendations for further improvement

THE IMPORTANCE OF NON-LEGISLATIVE DOCUMENTS

99.  There are three major reasons why it is important that the Government deposit non-legislative documents for scrutiny: the need for upstream scrutiny; the importance of broad frameworks; and the launching of major new initiatives without any implementing legislative measures.

100.  As was noted in the previous Chapter, upstream scrutiny of CFSP is a serious challenge. The examination of non-legislative documents enables the Sub-Committee to analyse policy developments at an earlier stage than is possible when considering legislative proposals which are likely to be decided within a short time-frame.

101.  Furthermore, a large number of documents presently examined by the Sub-Committee are implementing instruments, i.e. decisions and regulations, which flow from a previously agreed policy. By way of illustration, in the period July 2004 to December 2005, 120 legislative documents in the field of CFSP deposited for scrutiny by the FCO and MoD were considered in the Chairman's sift. Out of these, 53 were Council decisions,[56] and a further 6 Council regulations.[57] Once the basic policy has been agreed, these implementing measures are rarely controversial.

102.  Perhaps most important is the fact that a number of initiatives simply never result in legislation at all. This is the case with the three strategies on Security, Non-Proliferation and Africa mentioned above. The Government will deposit such documents under categories (ii) or (v) since they are generally published by either the Commission or the Council as public documents.

103.  More problematic are those Council decisions which are neither published nor decisions of such magnitude that it is quite obvious that the Government need deposit them for scrutiny. The best example of such a decision is the Battlegroups initiative under which Member States provide personnel and equipment capable of undertaking rapid response operations. An EU factsheet describes the initiative as "a key element of the EU's military capabilities development and of the 2010 Headline Goal."[58] Despite originating within the MoD, we were not alerted to the existence of the proposals until we had specifically requested further information following their being agreed in Council.

BOX 8

Battlegroups

Members were initially alerted to the Battlegroups initiative through newspaper reports and the June and December 2004 ESDP Presidency Reports.


The Chairman of Sub-Committee C, Lord Bowness, asked the Government, during the debate on the EU Security Strategy, why there had been no formal notification of this initiative. The Minister, Lord Triesman promised to respond by letter. [59]


In his letter Lord Triesman informed the Chairman that the June 2004 Council decision to set up Battlegroups had not been submitted for scrutiny as there had been "no formal EU decision (i.e. Common Position, Joint Action or Council Decision)." The Minister went on to say: "However, the June 2004 European Council endorsed the initiative through Conclusions language and Defence Ministers made national pledges towards the Battlegroups targets at the Defence Ministers informal General Affairs and External Relations Council in November 2004."


In February 2005, at our request, the Government produced a paper outlining the policy and United Kingdom commitments. In her oral evidence Sarah Beaver, Director General, International Security Policy on behalf of the MoD, regretted the decision not to inform Parliament of the Battlegroups initiative. (Q 24)


104.  The Battlegroups example illustrates the difficulty of restricting the scrutiny of CFSP to legislative instruments. It is quite clear, as the Minister for Europe acknowledged in his evidence to us, that there are Council decisions which, whilst not legally binding, "have a very significant effect in international affairs."(Q 12)

105.  It is the Council that formulates CFSP. In order for the Committee to properly scrutinise the Government's handling of CFSP it is necessary for the Government to start systematically depositing a number of non-legislative Council documents.

106.  We acknowledge that the Government is already depositing a number of useful non-legislative documents. However we believe that the Council takes politically significant decisions on non-legislative proposals that are not currently subject to scrutiny by Parliament. We therefore welcome Mr Douglas Alexander's acknowledgment that there is "further scope for a greater degree of transparency" in the Government's handling of the scrutiny of CFSP. (Q 12)

107.  We conclude that the failure of the MoD to inform the Committee of the Battlegroups initiative was a serious mistake. We urge the Government to provide an assurance that major initiatives such as this will in future be deposited for scrutiny.

108.  In the paragraphs that follow we invite the Government to agree our suggestions for further categories of non-legislative CFSP documents to be deposited for scrutiny in Parliament.

NON-LEGISLATIVE DOCUMENTS TO BE DEPOSITED

109.  It is not possible to provide a definition which would necessarily cover all major non-legislative documents without also covering many routine and trivial documents. The discretion inherent in category (vi) documents should accordingly be retained.

110.  It is the responsibility of each Government department to ascertain what proposals for possible new reviews, strategies or other initiatives falling under Pillar II of the Treaties should be deposited. We expect the Government to act in a transparent manner in the exercise of that discretion.

111.  We do, however, make the following suggestions which may assist the FCO and MoD in coming to a decision on a particular document. Firstly there are certain specific categories of document which we will, from time to time, directly request. Box 9 relates a particular example which has proved extremely useful. It is not normally possible for us to request specific documents, however, because we will not know they exist unless the Government informs us. Newspaper reports and Council conclusions appear too late for effective scrutiny (as was evidenced by the Battlegroups initiative).

BOX 9

European Defence Agency Steering Board Papers

The European Defence Agency (EDA) was established in July 2004. In our Report on the Agency in March 2005, we recommended that the Government be open in its dealings with the EDA, and submit a number of yearly documents related to the EDA for scrutiny.[60] We have been encouraged by the MoD's acceptance that this is an area where the MoD should take the lead, and indeed the Department's ready co-operation on submitting for scrutiny Steering Board and Council documents. (Q 21)


Since the publication of that Report and the Government's response there have been two Steering Board meetings in June and November 2005. Prior to the second meeting we were alerted to the fact that it was likely that a voluntary code of conduct on defence procurement would be agreed, though at that stage negotiations were still continuing.


Despite the short timescale,[61] our request to review the Steering Board papers, some of which are of a routine nature, ensured that we were alerted to this important new initiative.


112.  Secondly the Government should deposit a non-legislative document for scrutiny where the proposal politically commits the Council, and hence the Member States, to a particular and significant course of action.

113.  As Box 10 demonstrates, significant developments are recorded as a multitude of different document types, including reports, guidelines, recommendations, frameworks or simply agreements.

114.  The words used to describe the Council's intent in relation to a document or development is, however, important. Items which the Council notes, discusses, underlines, welcomes or stresses (and other similar terms which do not denote agreement to follow a specific course of action) we would not expect the Government to deposit for scrutiny. Items which the Council agrees, endorses, or approves we expect the Government to deposit for scrutiny.

115.  In addition, we expect the Government to deposit for scrutiny any new initiative which is likely to appear in the next ESDP Presidency Report.

116.  To illustrate the above recommendations, Box 10 lists a number of examples of the types of documents which we wish to see deposited.

BOX 10

Examples of the type of non-legislative document which we recommend should be deposited

1) Reports


  • Report on the Implementation of the EU's Common Strategy on the Mediterranean region adopted in June 2000. Approved at 2 November 2004 GAERC with a view to its adoption by the European Council on 4-5 November 2004.

  • Report on European Security and Defence (ESDP) and Space. Approved at 22-23 GAERC November 2004.

  • Report on integrating the fight against terrorism into EU external relations policy. Endorsed at the 13 December 2004 GAERC.
  • Report considering the practical implementation of EU-OSCE cooperation in conflict prevention, crisis management and post-conflict rehabilitation. Approved at the 13 December 2004 GAERC.

  • Report on EU activities in the framework of prevention, including implementation of the EU programme for the prevention of violent conflicts. Approved at the 13 June 2005 GAERC, with a view to its adoption by the European Council on 16-17 June 2005.

2) Recommendations, guidelines, conceptual frameworks


  • A series of guidelines aimed at improving the EU export control system for goods that may be used either for civilian or military purposes. Endorsed at the 13 December 2004 GAERC.

  • Detailed proposals for the implementation of the Presidency's document entitled "European Defence: NATO/EU consultation, planning and operations." Approved at 13 December 2004 GAERC.

  • Recommendations on the accelerated decision-making and planning process for EU rapid-response operations. Approved at the 23 May 2005 GAERC.

3) New initiatives


  • New policy of engagement with Libya, 5 concrete actions. Agreed at the 11 October 2004 GAERC.

  • Comprehensive package of EU assistance to Iraq. Agreed at 2 November 2004 GAERC.

  • A course of actions in relation to Belarus. Decided at the 22-23 November 2004 Council.

  • Action Plan aimed at supporting peace and security in Africa. Approved at the 22-23 November 2004.

  • Priorities for EU involvement with Afghanistan. Agreed at the 13 December 2004 GAERC.

  • Civilian Headline Goal 2008. Agreed at 13 December 2004 GAERC.

  • EU Strategy to combat the illicit accumulation and trafficking of small arms and light weapons (SALW). Endorsed at the 7-8 November 2005 GAERC with a view to its adoption by the European Council in December.

117.  The 1999 Scrutiny Reserve Resolution defines the categories of documents which the two Houses may hold under scrutiny. We do not propose any change to the Scrutiny Reserve Resolution. It will continue to be the case that there will be no possibility of an override on a non-legislative document.

118.  We do, however, recommend that the scrutiny process be the same for non-legislative as for legislative documents. The Government should make every effort to deposit a non-legislative document as much in advance of the Council meeting at which it is to be considered as possible. We also maintain that non-legislative documents should be accompanied by comprehensive explanatory memoranda rather than by covering letter.

119.  The Chairman of the House of Commons European Scrutiny Committee, Mr Jimmy Hood MP, has been consulted and agrees with these recommendations.[62] It is important that the Government continue to follow the same practice for both Houses in relation to both the documents chosen for deposit and to other information provided, for example by Ministerial letter.

Documents that need no longer be deposited for scrutiny

120.  We welcome Mr Douglas Alexander's suggestion that we should look at whether there are further CFSP documents that could be added to the list of non-depositable documents.[63] (Q 6)

121.  We propose that the following no longer need be deposited for scrutiny:

  • Status of forces agreements based on the model status of forces agreement previously cleared by the Committee.[64] Any agreement which significantly departs from this model should continue to be deposited, as should any amendment to the model agreement itself.
  • Status of mission agreements based on the model status of mission agreement previously cleared by the Committee.[65] Any agreement which significantly departs from this model should continue to be deposited, as should any amendment to the model agreement itself.
  • Article 24 framework and participation agreements based on the model framework and participation agreement previously cleared by the Committee.[66] Any agreement which significantly departs from this model should continue to be deposited, as should any amendment to the model agreement itself.
  • Additional protocols to agreements with third countries to take into account the accession of new Member States.

We will invite the Commons European Scrutiny Committee formally to agree with this proposal. If it does, and if time allows, Committee staff will monitor non-deposit of these documents as they do with other similar categories.

Reporting on Councils

122.  Although not restricted to non-legislative documents, ministerial reports on Council meetings, both in advance of the meetings and following their conclusion, are extremely valuable in ensuring that we are kept fully informed of developments in CFSP.

123.  The Government submit for publication in Hansard written ministerial statements giving a broad overview of the agenda for forthcoming Councils and Council Conclusions. We do not believe that it would be practical either for the Sub-Committee or for the Government for there to be prior scrutiny of all items for discussion on the Council agenda. It is important nevertheless that we are able to request from the Government, usually by correspondence, further information on items which appear to be of a substantial nature, but relating to which there have been no formal documents submitted for scrutiny.

124.  We have established an informal agreement with the Government that the Minister for Europe will attend a meeting of the Sub-Committee to provide oral evidence on current developments in foreign policy on a regular basis. In practice it has not been possible to arrange these meetings as regularly as we had originally envisaged (four times a year). The last published evidence session held was held on 11 November 2004.[67] The next evidence session took place on 26 January 2006 and particularly focused on developments which occurred during the United Kingdom Presidency of the EU.[68]

125.  We consider these sessions to be invaluable, though we consider that sessions held twice a year following the June and December European Councils should suffice. In his evidence on this inquiry the current Minister for Europe assured us that he would be happy to give oral evidence twice a year. (Q 15)

126.  We seek an assurance from the Government that the Minister for Europe will continue to provide oral evidence on current developments in European foreign policy twice a year.

127.  A motivating factor for this Report was the experience of Sub-Committee C that Defence Ministers who negotiate in Council on behalf of the United Kingdom have not been subject to sufficient parliamentary scrutiny. Internal agreement between the FCO and MoD means that the FCO takes the lead on the majority of defence issues, including ESDP missions (both civilian and military) and ESDP Presidency Reports.

128.  Defence Ministers attend the GAERC twice a year in May and November when they take decisions on defence-related matters. However, it is the Minister for Europe who provides both the pre- and post-GAERC written statements and who is responsible for any correspondence with the Committee concerning the Council.

129.  This is insufficient when it comes to holding Defence Ministers accountable for the decisions they take in Council. The MoD maintained in their evidence that a direct relationship with the Committee would be a duplication of effort. (Q 36) We do not accept this view. On the contrary, we believe that time would be saved were the Minister to write to us directly.

130.  The MoD should provide separate written ministerial statements on defence matters prior to and following each defence GAERC in May and November.

131.  In her oral evidence on behalf of the MoD, Sarah Beaver stated that the MoD were happy, in principle, to provide oral evidence on ESDP once per year. The Minister for Defence Procurement, Lord Drayson, came to give evidence on current developments in European defence on 19 January 2006. We appreciated the Minister's evidence and hope that he found the session as useful as the members of Sub-Committee C did.

132.  The MoD should provide a Minister to give oral evidence to the Sub-Committee following each defence GAERC in May and November.


45   A Secure Europe in a Better World: European Security Strategy adopted by the European Council on 12 December 2003; European Union Committee, 31st Report (2003-04): EU Security Strategy (HL 180). Back

46   10352/03: Basic Principles for an EU Strategy against Proliferation of Weapons of Mass Destruction adopted by the European Council on 12 December 2003; European Union Committee, 13th Report (2004-05): Preventing Proliferation of Weapons of Mass Destruction: The EU Contribution (HL 96). Back

47   15961/05: The EU and Africa: Towards a Strategic Partnership, adopted by the European Council on 15-16 December 2005. Back

48   For a full and up-to-date account of EU national parliaments' scrutiny of CFSP see COSAC Fourth Bi-annual Report: Developments in European Union Procedures and Practices relevant to Parliamentary Scrutiny, October 2005. Back

49   Appendix 5, para 1.  Back

50   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 160. Back

51   See Appendix 6 for a full list of all documents considered in the Chairman's sift in the fields of CFSP and ESDP from July 2004-December 2005.  Back

52   Olli Rehn is currently Commissioner for Enlargement; Benita Ferrera-Waldner is currently Commissioner for External Relations.  Back

53   Communication from the Commission to the Council and the European Parliament: EU-Palestinian co-operation beyond disengagement-towards a two-state solution, COM (2005) 458 final. Back

54   Explanatory memorandum submitted by the Foreign and Commonwealth Office on 25 October 2005. Back

55   European Union Committee, 9th report (2004-05): European Defence Agency (HL 76).  Back

56   For example, Council Decision implementing Council Joint Action 2005/556/CFSP appointing a Special Representative of the European Union for Sudan. Back

57   For example, Council Regulation imposing certain restrictive measures in respect of Uzbekistan.  Back

58   http://europa.eu.int/comm/external_relations/us/bush/battlegroups.pdf. Back

59   HL Deb 20 Jan 2005 col 991. Back

60   European Union Committee, 9th report (2004-05): European Defence Agency (HL 76), para 22. Back

61   Noted in Box 1. Back

62   Written evidence p 1.  Back

63   This is a list of categories of document which we have agreed with the Commons European Scrutiny Committee need no longer be deposited. European Union Committee, 1st Report (2002-03): Review of Scrutiny of European Legislation (HL 15), para 167. Back

64   Model agreement on status of forces for EU military crisis management operations.  Back

65   Model agreement on the status of the European Union civilian ESDP mission in a Host State.  Back

66   The legal and financial parameters relating to participation of third states in ESDP operations is agreed between the EU and the third state under Article 24 TEU.  Back

67   European Union Committee, 2nd Report (2004-05): Current Developments in European Foreign Policy
(HL 44). 
Back

68   A report of the evidence is expected in February 2006. Back


 
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