Select Committee on European Union Thirty-Seventh Report


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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