19th REPORT: REVIEW OF SCRUTINY: COMMON
FOREIGN AND SECURITY POLICY
Letter from Rt Hon Douglas Alexander MP,
Minister for Europe, Foreign and Commonwealth Office to the Chairman
In his letter of 30 January to the Foreign Secretary,
Lord Bowness sent a copy of the Select Committee's Report on the
Review of CFSP Scrutiny. The Foreign Secretary joins me in welcoming
the report. I attach a memorandum with our full response to your
conclusions.
The Secretary of State for Defence and I look
forward to even closer engagement with you on CFSP scrutiny issues.
30 March 2007
Foreign and Commonwealth Office and Ministry
of Defence's Joint Government Response
1. The Government welcomes the review of
Common Foreign and Security Policy (CFSP) scrutiny of 30 January
2006 and values the close dialogue between the Committee and the
Foreign and Commonwealth Office and the Ministry of Defence in
this area. This memorandum sets out the Government's response
to the Committee's conclusions, which are set out in italics.
Unless otherwise stated, references are to paragraphs in the Committee's
report (HL Paper 100).
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. (para 27)
2. The Government thanks the Committee for
its recognition of the improved working practices that have reduced
the number of overrides and led to a wider dialogue with Parliament
on CFSP issues. As the examples in the Committee's report demonstrate,
the culture of scrutiny is now established fully in both departments.
We acknowledge that there is scope for even greater transparency,
as the report highlights, and we will continue to assist Parliament
with its scrutiny function to the fullest extent. However it is
reassuring that steps taken to improve the accountability of CFSP
decision-making have had a positive impact.
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. (para 31)
3. The introduction of a scrutiny co-ordinator
at the FCO and MoD has played a key part in reducing the number
of overrides and has improved the communication with Parliament
on CFSP matters. The Government assures the Committee that this
post will continue at both the FCO and MoD, particularly given
the large number of departmental teams involved in the process.
We urge the MoD to develop more specific
scrutiny guidelines to those working on EU proposals. (para 32)
4. The Government will ensure MoD's scrutiny
guidelines are developed further, specifically drawing on established
guidelines within the FCO and Cabinet Office.
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 the Sub-Committee members in
the scrutiny process. (para 37)
5. The Government acknowledges that the
fast pace of CFSP decision-making makes full dialogue difficult
on many proposals. and we are pleased that the Committee appreciates
the readiness of desk officers to give detailed explanations of
policy documents when required. The Government is anxious to prevent
misinterpretations of CFSP decision-making and remains content
for officials, where available, to be consulted to give technical
help and informal advice as necessary.
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. (para 43)
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.
(para 44)
6. The Government also welcomes the effective
engagement between the Committee's staff and officials within
both FCO and MoD. We aim to continue the practice of sending advance
notice of EMs where appropriate, along current lines. However,
the Government fully acknowledges the importance of depositing
a signed explanatory memorandum on time to provide the definitive
statement of the Government's view.
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. (para 46)
7. The Government appreciates the readiness
of the Committee to meet on alternative dates to ensure that scrutiny
can be achieved in time for the tight deadlines often imposed
by CFSP decisions. We shall continue to work with the Committee
staff to give advance notice of all documents judged to require
scrutiny.
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. (para 49)
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. (para 50)
8. The Government recognises the need to
explain fully the circumstances when scrutiny at short notice
is required. The effective liaison between officials and the Committee
staff has been key in ensuring that this happens to a sufficient
level. We aim to maintain this successful dialogue.
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. (para 55)
9. The Government acknowledges the importance
of submitting as many documents as possible before dissolution
of Parliament, and will endeavour to do so where security restrictions
allow.
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. (para 57)
10. The Government has a close working relationship
with the Council Secretariat and is content that the Secretariat
already forwards most drafts as early as could reasonably be expected.
Should the number of incidents increase where documents emerge
at a very late stage however, we would be happy to take this up
with the Secretariat.
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. (para 59)
11. It is. in most cases, feasible to produce
an explanatory memorandum prior to the Council Secretariat circulating
a document, and the Government now does this regularly on CFSP
issues. Before the Euro-Mediterranean Partnership initiative,
only final texts from the Council Secretariat were submitted for
scrutiny. This helped to prevent excessive bureaucracy by ensuring
that the Committee saw the definitive versions of each document.
The Euro-Mediterranean Partnership incident was the result of
an administrative oversight in the Council Secretariat and not
a typical occurrence. The Cabinet Office has since introduced
a monthly check of new Commission documents published; this early
version of the text is now submitted to the Committee for scrutiny
if the document has not already been circulated by the Secretariat.
12. A recent example of this new working
practice concerned the Commission's Communication to the Council
and the European Parliament on the results of the consultation
launched by the Green Paper on Defence Procurement and on the
future Commission initiatives (COM (05)626). The Government deposited
the document for scrutiny on 18 January 2006, following publication
by the Commission on 6 December 2005. However the final text had
still not emerged from the Secretariat in early March 2006.
We underline the great importance of the
Government keeping us informed of potential ESDP missions at an
early stage, including in those cases in which the Council chooses
not to act. Given the speed at which eventual joint actions on
ESDP missions are adopted, early warning is crucial for scrutiny.
We urge the Government to make these letters as detailed as possible.
It is at this stage, when the Council is vet to make a final decision,
that we can most usefully make a contribution. (para 73)
The Government 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 documents,
the Government should outline the main proposals along with a
statement of the Government's position. (para 80)
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. (para 82)
13. We acknowledge that there have been
instances in the past where the Committee has had less than sufficient
time to examine proposals in detail. However the Government has
since formed a much closer working relationship with the Committee
staff in both Houses, and is now more familiar with the wishes
and requirements of the Committee, The recommendations in this
report help to make these even clearer. The Government also recognises
that it is in its own interest to give detailed notice of new
initiatives, so that documents pass scrutiny in good time for
Council adoption. We shall endeavour to give advance notice where
possible, but at the same time we intend not to trouble the Committee
unnecessarily with proposals in their infancy whose principal
objectives are still being formed.
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.
(para 97)
14. Recent correspondence with the Committee
has outlined the importance of stating the Government's policy
on a particular issue, as well as explanation of the issue itself.
We acknowledge that this is essential for proper scrutiny.
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. (para 105)
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
acknowledgement that there is "further scope for a greater
degree of transparency" in the Government's handling of the
scrutiny of CFSP. (Q 12) (para 106)
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.
(para 107)
15. The Government has worked hard to deposit
an increasing number of documents in pursuit of transparency in
CFSP decision-making, and we are pleased that the Committee finds
useful those non-legislative proposals that are now routinely
submitted. This report will help us further to identify additional
types of document that would add value to and increase openness
in the scrutiny process.
16. The Government very much regrets the
fact that information on the Battlegroups initiative was not deposited
for scrutiny. This was an oversight which it will endeavour to
ensure will not be repeated. It will continue to be the Government's
policy that major initiatives such as this are deposited for scrutiny.
It is the responsibility of each Government
department to ascertain what proposals for possible new reviews
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. (para 110)
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. (para 114)
In addition, we expect the Government to
deposit for scrutiny any new initiative which is likely to appear
in the next ESDP Presidency Report. (para 115)
17. The Government welcomes this clarification
of which documents the Committee would like to scrutinise. On
occasion it has proved difficult to judge the CFSP items that
would be of most interest the Committee, away from the official
guidelines agreed with Parliament. We shall continue to liaise
with the Committee staff on the deposit of all documents, including
those that will inevitably fall between the categories described
in this report.
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.
(para 117)
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. (para 118)
18. It is clear from this report that advance
deposit of all documents earmarked for the Committee is advantageous
and provides for a more thorough process of scrutiny. The Government
agrees that it would be sensible for a similar process to apply
to non-legislative documents as for their legislative counterparts.
and will endeavour to explain fully its position in relation to
such proposals.
We do not believe that it would be practical
either for the Sub-Committee or 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,
(para 123)
19. The Government agrees that it would
be difficult to submit for scrutiny all items for discussion at
Council, but understands the Committee's wish to ask for information
on some issues that have not fallen under scrutiny requirements.
We stand ready to respond to requests for information on documents
that have not been submitted for scrutiny, and hope that the pre-Council
information and Written Ministerial Statements provided regularly
to Committee staff will help the Committee to identify those issues
it would like to pursue.
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.
(para 126)
20. The Government welcomes the Committee's
positive reaction to the evidence sessions given by the Minister
for Europe with a view to providing greater transparency to CFSP.
We aim to continue this practice twice a year as the Committee
suggests.
The MoD should provide separate ministerial
statements on defence matters prior to and following each defence
GAERC in May and November. (para 130)
21. The Government does not agree that the
MoD should provide a separate written ministerial statement. Each
Council is a single meeting, at which the Government seeks to
achieve its aims through all its Ministers representing the UK.
For example at the GAERC on 21 November 2005, there were firstly
discussions on Bosnia with the Council meeting as Defence Ministers.
The conclusions from this were forwarded to Foreign Ministers,
who met at the same Council. Following further discussions the
Council, with Foreign Ministers present, came to agreement. The
Government had a unified approach throughout. It is logical to
report this to Parliament in a single written ministerial statement,
which sets out the Government's view of the Council proceedings.
This approach is consistent with the provision of pre-Council
scrutiny material, which the FCO makes available to the Committees
at official level after co-ordination with the MoD.
The MoD should provide a Minister to give
oral evidence to the Sub-Committee following each defence GAERC
in May and November. (para 132)
22. The Government welcomes the opportunity
for MoD to give oral evidence to Sub-Committee C following each
GAERC at which Defence Ministers attend. Where possible it will
provide a MoD Minister to appear at these evidence sessions. In
the event that a Minister is not available. a MoD official will
take on this duty to ensure that the Committee can fully scrutinise
these Council meetings.
Letter from the Chairman to Rt Hon Douglas
Alexander MP and Rt John Reid MP, Secretary of State for Defence,
Ministry of Defence
Thank you for your response to our Report which
was considered by Sub-Committee C at its meeting on 27 April and
by the European Union Committee at its meeting on 2 May.
We would once again wish to reiterate that the
improvements made by both the FCO and the MoD over the past two
years in assisting in the scrutiny of CFSP and ESDP are most welcome.
Although the scrutiny of CFSP remains challenging due to the often
urgent nature of the subject, a joint recognition of these difficulties
has enabled both yourselves and the Committee to work together
in addressing them. It is important that the improvements which
have taken place continue.
One of these difficulties is the need to scrutinise
urgent items during recesses. We accept that overrides in such
cases may be unavoidable, and note that advance warnings of possible
overrides during the recent Easter recess were provided. We appreciate
these letters but stress that they are no replacement for full
explanatory memoranda and texts of documents which should be deposited
for scrutiny as soon as possible, even when Parliamentary scrutiny
has already been overridden.
We also draw attention to specific comments
within the response.
In paragraph 4 of the response you state that
you will ensure that the MoD's scrutiny guidelines are developed
further, specifically drawing on established guidelines within
the FCO and Cabinet Office. Parliament should be informed when
these new guidelines have been developed, and what specific improvements
have taken place.
In paragraph 12 of the response you cite as
an example of the early deposit of documents the Commission's
Green Paper on Defence Procurement which was deposited on 18 January
2006. The explanatory memorandum, however, was not signed by the
Secretary of State until 28 February and, due to an administrative
mix-up, was not received until 9 March. Although the early deposit
of documents is of assistance to Committee staff, it is not possible
to carry out scrutiny until an explanatory memorandum has been
received. This particular instance was not one of any urgency,
but we regard the delay in receipt of the explanatory memorandum
in this case as unacceptable.
Furthermore, your response in paragraphs 11
and 12 does not answer the question posed in the Report as to
why an explanatory memorandum is sometimes not produced until
after an official text has been received from the Council Secretariat.
A recent example of this was the proposed Common Decision to establish
an EU Planning Team in Kosovo (on which an explanatory memorandum
was received on 19 April even though the Decision had been agreed
by Council on 10 April). The Cabinet Office's monthly check of
new Commission documents to which you refer in paragraph 11 should
be followed up with early action to produce an explanatory memorandum
where action is to be taken on a Commission document within a
short time-frame.
You state in paragraph 15 that you hope to further
identify additional types of non-legislative document which may
be suitable for Parliamentary scrutiny. We shall continue to monitor
this assurance and ask that requests for deposit of particular
documents which come to our attention be taken seriously.
We note that you do not agree that separate
written ministerial statements should be produced from each department
following the GAERCs. There is some validity to the argument that
you wish to produce a unified response therefore the FCO should
take the lead on producing these statements. However, we remain
unconvinced that the MoD makes a sufficient contribution to this
process and ask for reassurance that the MoD takes the lead in
producing those aspects of the statement which relate to defence
issues, following appropriate consultation with the FCO.
Finally we once again stress that it would be
preferable for a Minister to provide oral evidence following each
defence GAERC rather than an official. Despite limitations on
ministerial time we believe that this should be possible and are
prepared to be flexible in organising such evidence sessions in
order to assist in arranging a suitable time.
3 May 2006
Letter from Rt Hon Des Browne MP, Secretary
of State, Ministry of Defence and Rt Hon Geoff Hoon MP, Minister
for Europe, Foreign and Commonwealth Office to the Chairman
Thank you for your letter of 3 May to Rt Hon
John Reid MP and Rt Hon Douglas Alexander MP, addressing specific
parts of the Government's response to the Committee's Review of
Scrutiny.
We are pleased that the steps we have taken
over the past two years have been helpful in assisting your Committee,
and the Commons EU Committee, in the scrutiny of CFSP and ESDP.
On our part, we very much value the flexibile and co-operative
approach shown by Committees and the Clerks on these important
issues.
As you requested, MOD will inform Parliament
when it has further developed its scrutiny guidelines. It is envisaged
that these guidelines will be in place by the summer and MOD will
write to you with a copy of them as soon as they are in place.
The administrative mix up that you referred
to, which resulted in the delayed receipt of the Explanatory Memorandum
on the Commission's Green paper, was extremely regrettable. Even
though, as you note, there was no urgency in receiving this Memorandum,
I can assure you that the Government is committed to ensuring
that signed Memoranda are deposited in a timely fashion. Procedures
have now been put in place to ensure that this situation should
not occur again.
You are right to note that the text for a proposed
Council Decision to establish an EU Planning Team was deposited
on 19 April, after agreement by the Council. As Douglas Alexander
explained in his letter of 6 April, the final text of the decision
was not available in time for the Committee to scrutinise before
the beginning of the Easter recess. Given that the Committee would
not re-convene until the week beginning 24 April, the FCO felt
that it would be preferable to wait for the definitive text so
that it could be deposited with the Explanatory Memorandum. As
it happened, the definitive text issued by the Council Secretariat
was not available until early May, which prompted the FCO to issue
the Explanatory Memorandum with a draft text, and without an official
Council document number, on 19 April in time for the Committee's
first meeting after the recess. You will be aware that an addendum
followed on 3 May once the official text had been received.
This will hopefully explain why Explanatory
Memoranda have been submitted previously after "official"
texts are received. In fact, the texts upon which decisions are
agreed are often not the "official" versions (that is,
the definitive and final documents issued by the Council Secretariat)
but near-final versions sufficiently agreed for Council action.
The Secretariat issues the definitive texts in their final form
in slower time, sometimes weeks after their adoption at Council.
We understand now that you would prefer to receive Explanatory
Memoranda as soon as possible in all circumstances, including
during absences of the Committee. We shall endeavour to do this
from now on.
On the issue of the post GAERC written ministerial
statement, we can assure you that it has been the practice and
will continue to be the practice for MOD to have primary responsibility
for those elements of the statement which relate to defence issues.
Furthermore, we note the Committee's preference
for a Minister, rather than an official, to provide oral evidence
following the GAERC and your offer to be flexible in organising
suitable times for the evidence sessions is very much appreciated.
We undertake to consider Ministerial attendance on a case by case
basis, in light of other commitments. However, you may be aware
that, due to other Ministerial engagements, senior officials from
MOD will give evidence to the Committee on June 15 regarding the
outcome of the GAERC on 15 May.
13 June 2006
Letter from Des Browne MP to the Chairman
You will recall your letter of 3 May to John
Reid and Douglas Alexander on the Government response to the Lords
Report on Scrutiny of CFSP. In the joint MoD and FCO response,
MoD agreed to inform Parliament when it had further developed
its scrutiny guidelines.
I am pleased to inform you that these guidelines
are now in place. A copy of the MoD ESDP Parliamentary Scrutiny
Guidelines for Desk Officers is enclosed. I hope that these guidelines
further demonstrate our commitment to improving the transparency
of CFSP related business.
28 September 2006
Annex A
ESDP Parliamentary Scrutiny Guidelines
for MoD Desk Officers
1. The requirement for Parliament to scrutinise
aspects of the European Union's Common Foreign and Security Policy
(CFSP) matters, including European Security and Defence Policy
(ESDP), has increased recently as this aspect of the EU has developed,
MoD involvement in parliamentary scrutiny of CFSP/ESDP has particularly
increased following the establishment of the European Defence
Agency (EDA). This is reflected in regular Ministerial Correspondence,
official level evidence sessions and a number of House of Lords
Reports. Therefore it is important that staff within the MoD are
clear on their responsibilities in enabling Parliamentary Scrutiny
of ESDP.
PARLIAMENTARY SCRUTINY
2. Parliamentary Scrutiny is the process
by which Parliament is given the opportunity to examine and express
views on proposals for European Union legislation and any other
documents held to fall within the terms of reference of the Scrutiny
Committees of both Houses of Parliament. These 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 faIling 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.
3. The MoD has specifically committed to
the Scrutiny Committees that it will put forward for scrutiny
the following EDA documents:
(i) The EDA's report to the Council on its
activities during the previous and current year, to be submitted
in May of each year (Article 4.2a of Council Joint Action 2004/551/CFSP
of 12 July 2004, hereafter "the Joint Action").
(ii) The EDA's report to the Council in November
each year on the Agency's activities during the current year and
information on the draft elements for the Agency's work programme
and budgets for the following year (Article 4.2b of the Joint
Action).
(iii) The Council guidelines issued annually
to the EDA in relation to its work programme for the following
year (Article 4.3 of the Joint Action).
(iv) The financial framework issued every
three years by the Council to the EDA (Article 4.4 of the Joint
Action).
(v) Any renewal or amendment to the Joint
Action establishing the EDA (Article 27 states that the Council
may review the Joint Action every three years).
4. As part of our commitment to improving
transparency, we also write to the Scrutiny Committees before
and after EDA Ministerial Steering Boards, outlining the agenda,
topics of discussion and outcome of the meetings. DPIO leads on
work related to scrutiny of the EDA, consulting as necessary with
other areas of the Department.
5. The House of Lords 19th Report of Session
2005-06, entitled "Review of Scrutiny: Common Foreign and
Security Policy" has also made suggestions as to the types
of non-legislative documents that they wish to be deposited for
scrutiny. Box 10 of the Report[16]
sets out some examples, and is reproduced at Annex A. However,
it should be noted that the FCO would have responsibIlity for
enabling scrutiny of the examples given.
RESPONSIBILITY FOR
PARLIAMENTARY SCRUTINY
6. The Cabinet Office is in overall charge
of managing scrutiny procedures. It deposits documents with Parliament
and instructs other Government Departments to submit Explanatory
Memoranda setting out the policy, financial and legal implications
of each document.
7. However, there is a special procedure
for Common Foreign and Security Policy (CFSP) documents. The FCO
has overall responsibility for CFSP and this includes European
Security and Defence Policy (ESDP). The FCO has particular responsibility
for the civilian aspects of ESDP. Furthermore, the FCO submits
Explanatory Memorandums on all ESDP operations, civilian and military.
This is because of their overall responsibility for ensuring Parliamentary
scrutiny of CFSP decisions and also to include expertise from
the relevant geographical departments in the Explanatory Memorandums
to ensure the Committee get a holistic overview of the EU's policy.
MOD should be consulted on the production of any Explanatory Memorandum
in which it has an interest.
8. The MoD leads on military ESDP areas
such as capability development and defence institutional aspects,
such as the EDA. We are expected to deposit and draft the accompanying
Explanatory Memorandum for documents on these. The MoD may occasionally
have responsibility for Commission work on the European Defence
and Equipment Market, though in many instances the DTI will take
the lead for this.
PARLIAMENTARY SCRUTINY
COMMITTEES
9. Parliament has two specialist European
Union Select Committees that consider EU documents: the Select
Committee on the European Union in the House of Lords and the
European Scrutiny Committee in the House of Commons. Any scrutiny
submissions from MOD to the specialist scrutiny committees should
also be sent to the House of Commons Defence Committee.
SCRUTINY OF
LEGISLATIVE DOCUMENTS
10. There is a distinction between legislative
and non-legislative documents for scrutiny. Legislative documents
include proposals for Common Positions, Joint Actions and Common
Strategies, and must be submitted for scrutiny. The FCO is responsible
for the majority of CFSP legislative documents.
11. The Government is committed to the principle
of effective scrutiny of European legislation, and has given Parliament
an undertaking that Ministers will not agree to any legislative
proposals in the Council of Ministers—except in certain
circumstances eg where the national interest would be damaged
by delaying agreement—until scrutiny by the Committees has
been completed. This commitment is laid out in the Scrutiny Reserve
Resolutions of the House of Commons[17]
and the House of Lords.[18]
12. Once the Committees have completed consideration
of a legislative document they will either decide to clear it
from parliamentary scrutiny so that the Government can agree it
at Council, or ask further questions on the document.
13. If the Scrutiny Committees have not
cleared legislative documents from scrutiny before meetings of
the Council, the UK will have to enter a parliamentary scrutiny
reserve (via UKRep Brussels) on the document in question while
we take parliament's views into consideration. The other course
of action is to over-ride the Scrutiny Reserve Resolutions. Ministers
are committed to avoiding either of these outcomes wherever possible:
a reserve holds up policy-making and an over-ride may lead the
Scrutiny Committee to call on a Minister to account in person
for the reasoning behind an over-ride, if the Committee believes
it to have been unjustified.
SCRUTINY OF
NON-LEGISLATIVE
DOCUMENTS
14. Non-legislative documents may include
those on new initiatives, such as the Battlegroups Initiative,
or EDA papers as described at paragraph 3 above. The deposit of
non-legislative documents for scrutiny is neither mandated nor
precluded. It is for Government departments to ascertain what
non-legislative proposals should be submitted to enable the Committees
to properly scrutinise CSFP. Non-legislative documents can be
agreed in Council prior to completion of scrutiny without this
constituting an over-ride. Documents for which the MoD is responsible
will predominantly be non-legislative, such as the EDA documents
listed above.
15. We should aim to alert the Committees
to potential new initiatives and reviews of existing legislation
and policies at an early stage in the process. By providing advance
notice of important new developments and enabling upstream scrutiny,
the Committees can conduct their scrutiny more effectively. This
will often require the submission of non-legislative documents
for scrutiny.
16. Once the Committees have completed consideration
of a non-legislative document they will again either decide to
clear it from parliamentary scrutiny or ask further questions
on the document. Non-legislative documents may be agreed at Council
before being cleared from scrutiny without this constituting an
over-ride. There is no requirement to maintain a parliamentary
scrutiny reserve on non-legislative documents.
ACTIONS FOR
DESK OFFICERS
17. First, we must identify issues which
might need scrutiny. The desk officer who leads on any given subject
also leads on its scrutiny. DPIO will offer advice and assistance
when requested, but it does not initiate the scrutiny procedure.
The earlier an issue is identified the better. Lead departments
should consult with DPIO and UKRep and come to an early agreed
view.
18. There is a fine balance between discharging
our responsibilities on scrutiny and wasting the Committees' time,
Trivial amendments or updates will often not require scrutiny.
Some non-legislative documents may be deposited with the committees
for information purposes, after Council agreement. These would
not carry a scrutiny reserve. An example would be the EDA report
to the Council on its activities during the previous and current
year, to be submitted in May of each year. If it is still unclear
whether an item will need scrutiny, DPIO will discuss the matter
with the Cabinet Office, FCO and Committee clerks for further
guidance.
19. Once an issue has been identified and
it has been decided it should be submitted for scrutiny, the desk
officer should then:
— Work out a timetable for action together
with DPIO, DPIO-EU3 (9621 82594). DPIO can, if appropriate, alert
the Committee Clerks to the proposal and advise on timings of
Committee meetings available before the Council. If the proposal
is for legislation, it should be considered whether the timescales
for scrutiny are realistic, and the Presidency advised accordingly.
If it is likely that the Minister will have to decide whether
or not to over-ride scrutiny, the view of the relevant Private
Office should be sought (see below);
— Draft an Explanatory Memorandum,
(EM), explaining the measure under discussion and the Government's
likely reaction to it. This should cover the most recent text
available (UKRep Brussels or DPIO will be able to offer advice
if requested). If no text is yet available, the EM should inform
the Committees of the likely nature of the measure. NB—an
EM must be submitted within ten days of a document being deposited
before Parliament;
— Draft covering letters to the Chairmen
of the Scrutiny Committees explaining what the EM is about and
how it fits with UK policy. In the event of an over-ride, the
letter should explain why (for reasons of policy and/or time pressure)
an over-ride was necessary;
— After a final clearance with DPIO,
UKREP and other interested parties, EMs and letters should be
submitted for Ministerial approval and signature. The Minister
should be asked to sign the EM itself (on the final page) as well
as the covering letters. Once the EM and letters are signed by
the Minister, the Private Office will take ownership. They will
arrange for them to be deposited in Parliament, given to the Clerks
of the Committees and circulated around Whitehall via the Ministerial
Support Team and the Parliamentary Branch. For speed, an electronic
copy will also be sent to the Clerks to give them sufficient warning
of the issue at hand.
DRAFTING AN
EXPLANATORY MEMORANDUM
20. See the attached example at Annex C.
If the text of the measure is not yet in final form, the EM should
have the letters OTNYR ("Official Text Not Yet Received")
in the top right-hand corner. If there is a final text, the top
right hand corner of the EM should contain the number of the relevant
Council document. If the text is not a Council document, for example
an EDA Report to the Council, there will be no number. These should
have "UNNUMBERED" in the top right hand corner of the
EM.
THE REQUIREMENT
FOR URGENCY
21. Ministers have made a commitment not
to agree to EU legislative measures in Council until parliamentary
scrutiny has been completed successfully or unless there are exceptional
reasons for doing so (eg extreme urgency). Failure to complete
scrutiny holds up policy. So time is of the essence. But the Scrutiny
Committees only meet once a week, the Lords on Thursdays and the
Commons on Wednesdays: their deadline for taking papers is noon
on the preceding Thursday. So the opportunity to get documents
through the process is limited. The Scrutiny Committees must be
given as much time as possible to look at measures under discussion,
to ensure that they can take a view before a measure is ready
to be agreed in Council. Our objective is to give the Committees
sufficient time to allow at least two meetings at which to consider
a legislative document.
22. For deposited documents, the responsible
department is required to submit an accompanying EM within 10
working days of the document being deposited with Parliament.
INABILITY TO
COMPLETE AN
EXPLANATORY MEMORANDUM
FOR SCRUTINY
23. It may be the case that officials are
genuinely unable to complete an EM in time for scrutiny, eg if
an important measure needs to be rushed through Council, or during
Parliamentary Recess. In this sort of exceptional circumstance,
when scrutiny can only take place after adoption of the instrument,
letters from the Minister to the Chairman of each Committee should
be drafted, covering the EM, and explaining why scrutiny could
not be completed in the usual way. But this is an exceptional
circumstance: the Committees will complain to Ministers if they
consider that the parliamentary process is being abused. Before
such a decision is taken, the relevant Minister's office must
be consulted, submitting if necessary, that the Minister will
be content to over-ride and write to the Committees to explain
that decision. The Minister will be extremely reluctant to over-ride
too frequently.
24. During Parliamentary Recess, the House
of Lords may exceptionally scrutinise documents via the written
procedure. This involves documents and EMs being circulated to
members as usual, with members being asked to provide any comments
in writing. Documents should continue to be submitted for scrutiny
in the normal way (the Committee Staff will continue to sift through
documents) ie as soon as officials are aware of the item and a
text is available. But if it is evident that a recess over-ride
is unavoidable you should also seek agreement from the relevant
Private Office that the Minister is content to over-ride scrutiny.
A short Ministerial letter should accompany your Explanatory Memorandum.
25. With the work that will be done to enable
upstream scrutiny, together with the low number of legislative
documents that MoD is responsible for, over-rides should occur
infrequently. However, in certain circumstances, timelines may
be outside MoD control.
SUPPLEMENTARY EXPLANATORY
MEMORANDUMS
26. If the final document differs significantly
from what has been covered in the EM, a Supplementary EM will
be required. DPIO can advise.
Supplementary EMs may also be needed when the
Committees have additional questions on the original EM. But take
time to consider whether the document has changed in substance,
or in terms of minor textual amendments or style only. A Supplementary
EM may not then be necessary. More often, updates will be provided
through Ministerial Correspondence.
ORAL EVIDENCE
SESSIONS
27. Scrutiny Committees may call for Ministers
and officials to give evidence on documents submitted for scrutiny
or following events like EDA Ministerial Steering Boards. Parliamentary
Branch will coordinate MOD witnesses for such sessions, notifying
the Committee Clerks. The desk officer with the subject lead is
responsible for providing briefing as required by those giving
evidence. Following oral evidence sessions, witnesses will normally
be invited to check the accuracy of the verbatim transcript: Parliamentary
Branch will coordinate the MOD response.
FURTHER ASSISTANCE
AND GUIDANCE
28. If you require any further assistance,
contact the DPIO EU Team (DPIO-EU3 on 9621 82594). But the key
thing to remember is that the sooner scrutiny issues the less
work there will be for you to do. Therefore, it will pay to be
vigilant.
Annex B
1. EXAMPLES OF
THE TYPE
OF NON-LEGISLATIVE
DOCUMENT WHICH
WE RECOMMEND
SHOULDBE DEPOSITED
— 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,
five 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.
Annex C
FURTHER SOURCES
OF INFORMATION
Cabinet Office Parliamentary Scrutiny Guidance:
http://www.cabinetoffice.gsi.gov.uk/euro/
House of Commons Defence Committee:
http://www.parliament.uk/parliamentary_committees/defence_committee.cfm
House of Commons European Scrutiny Committee:
http://www.parliament.uk/parliamentary_committees/european_scrutiny.cfm
House of Lords European Union Scrutiny Committee:
http://www.parliament.uk/parliamentary_committees/lords_eu_select
committe.cfm
House of Lords European Union Scrutiny Committee—Sub-Committee
C:
http://www.parliament.uk/parliamentary_committees/lords_s_comm_c.cfm
Annex D
Draft Explanatory Memorandum
DRAFT LETTER TO THE CHAIRMAN OF THE LORDS
AND COMMONS EUROPEAN SCRUTINY COMMITTEES
X May 2006
Dear [Chairman]
I enclose an Explanatory Memorandum, covering
the Head of the European Defence Agency's report to the Council
about the Agency's activities during the previous and current
years. The report was noted by the General Affairs and External
Relations Council on 15 May 2006.
Annex E
Explanatory Memorandum on European Defence
Agency Document
REPORT BY THE HEAD OF THE EUROPEAN DEFENCE
AGENCY TO THE COUNCIL
Submitted by the Ministry of Defence
X May 2006
SUBJECT MATTER
The Head of the European Defence Agency's (EDAs)
report to the Council describes the activities that the Agency
has been engaged during the previous and current year. The report
highlights the work being carried out in the four "flagships"
(European defence equipment market (EDEM). armoured fighting vehicles
(AFVs), command control and communication (C3) and unmanned air
vehicles UAVs). It also highlights the Hampton Court related activities
on capabilities (strategic lift and air-to-air refuelling) and
research and technology (targets on R&T) as well as ongoing
work on a long term vision for European Security and Defence Policy
capabilities.
SCRUTINY HISTORY
On 26 May 2004 the Ministry of Defence submitted
an Explanatory Memorandum on the draft joint action to create
the Agency. Since May 2005 the Secretary of State for defence
has written to the House of Lords European Union Committee and
House of Commons European Scrutiny Committee before and after
each EDA ministerial Steering Board to inform them of the issues
discussed. On 23 May 2005 the Government submitted its response
to the House of Lords report on the European Defence Agency and
on 26 April 2006 the Government submitted its response to the
House of Lords report Current Developments in European Defence
Policy.
MINISTERIAL RESPONSIBILITY
The Secretary of State for Defence has overall
responsibility for policy on defence capability and procurement.
The Secretaries of State for Foreign and Commonwealth Affairs,
Trade and Industry and the Chancellor of the Exchequer also have
an interest.
LEGAL AND
PROCEDURAL ISSUES
There are no legal or procedural issues arising
from this report.
SUBSIDIARITY
Work carried out by the European Defence Agency
is in support of Member States' efforts to improve their defence
capabilities and is carried out on an intergovernmental basis.
POLICY IMPLICATIONS
There are no new policy implications that arise
from this report. The UK will continue to engage positively with
EDA to ensure that it is an effective tool in helping to improve
military capability in Europe.
Flagship Programmes
On the European Defence Equipment Market flagship
work is ongoing to implement the Code of Conduct on defence procurement.
The UK has confirmed that it will subscribe to the Code, which
came into force on 1 July 2006. The UK also continues to work
with the Agency on the other flagships (Unmanned Air Vehicle,
Command Control and Communications and Armoured Fighting Vehicles)
through the Integrated Development Teams, Project Teams and Capability
Technology Boards. As specific projects are identified and defined
within these groups MoD will decide on a case by case basis whether
there is merit in UK participation.
Strategic Lift and Air-to-Air Refuelling
The UK is encouraging Member States to use the
EDA as a facilitator to help find solutions to the current shortfalls
in Air-to-Air (AAR) refuelling and strategic lift within Europe.
On AAR the UK is already at an advanced stage with a national
solution to this requirement. However, other Member States have
formed an ad hoc group, under the umbrella of the Agency, to look
at PFI and other approaches to collective procurement of this
capability. On Strategic lift the UK is encouraging member states
to work together so that nations can acquire capability that would
be able to satisfy national requirements as well as their commitments
to international institutions such as the EU, NATO and UN. A framework
has been proposed, which aims to help nations work across institutions.
It also puts forward a series of options which Member States could
evaluate to understand which option could best suit their needs.
Research and Technology
Work to transfer the Western European Armaments
Organisation (WEAO) portfolio is progressing well and an Administrative
Arrangement between the Agency and Norway has been concluded.
However, I am disappointed that an Administrative Arrangement
with Turkey has not yet been concluded. The UK will continue to
press for this to happen as soon as possible.
Despite the slow emergence of new Category B
ad hoc projects I am confident that more will be forthcoming as
the Agency continues to develop and implement the required legal
instruments that underpin collaborative working. The UK and France
have already put forward such a Category B project on lightweight
radar systems. This project is being evaluated by other Member
States within the Capability Technology Boards in order to gauge
whether or not they too may wish to participate.
Work is still ongoing to develop the vehicle
for Joint investment in Defence R&T and separately an R&T
programme of work in the area of Force Protection. Final proposals
on both of these are expected by the end June. At this point the
UK and others can decide whether to participate in this work.
On the issue of defence R&T the UK has long
argued that Member States within Europe spend too little on this
important area. EDA figures bear this out, showing that on average
less than 1.5% of Member States' defence budgets are spent on
R&T. To help remedy this situation EDA have been exploring
whether targets should be set for increasing the average spend
on defence R&T. I have put forward a realistic but challenging
target to increase average spending on defence R&T to 1.75%
of defence budgets by 2010 and suggested that this target should
be disaggregated so that each Member State has a real impetus
to boost spending in this area. However, there is as yet no consensus
between Member States on this issue. The EDA will continue to
develop this work further with Member States before putting forward
further proposals.
Long Term Vision
Work on the long term vision will be an important
step to help agree the likely ESDP capabilities that will be required
in the 2020-30 timeframe. This will help to shape future work
programmes so that Member States may, where appropriate, begin
to work together to achieve shared objectives looking out beyond
the 2010 timeframe of the Headline Goal. I therefore look forward
to receiving the EDA's initial report to the Steering Board following
the integration of the three strands of work on the Long Term
Vision.
Financial Framework
Member States will in the second half of this
year begin to consider in earnest the medium term financial arrangements
for the Agency. I believe, as my predecessor has previously commented,
that the Agency should predominately be a catalyst for nations
co-operating together, addressing shortfalls, on the basis of
foresight and rigorous analysis. I do not believe the case has
yet been made for very large increases to the EDA's budget over
the next three years. However, I will discuss this issue further
with other Member States over the coming months with the aim of
finding a mutually satisfactory outcome by the time of the November
GAERC and Steering Board.
REGULATORY IMPACT
ASSESSMENT
None.
FINANCIAL IMPLICATIONS
The three year financial framework and the budget
for the Agency are due to be agreed by November 2006 General Affairs
and External Relations Council and EDA Steering Board.
TIMETABLE
The Council noted this report on 15 May. The
Head of the Agency will in November submit to the Council a report
on the Agency's activities in the current year and will provide
information on the draft elements for the Agency's work programme
and budgets for next year.
16 The Report can be found at http://www.publications.parliament.uk/pa/ld200506/ldselect/ldeucom/100/10002.htm Back
17
Standing Orders of the House of Commons-Public Business 2005(2),
Appendix: Resolutions: Scrutiny European Business Back
18
House of Lord Companion to the Standing Orders and Guide to
the Proceedings of the House (2005) Appendix M: Scrutiny Reserve
Resolution Relating To The Work Of The European Union Committee
(6 December 1999). Back
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