ESDP: MOD PARLIAMENTARY SCRUTINY GUIDELINES
Letter from the Chairman to Rt Hon Des
Browne MP, Secretary of State for Defence, Ministry of Defence
Thank you for your letter dated 28 September
2006[57]
and the enclosed new scrutiny guidelines which Sub-Committee C
considered at its meeting on 12 October.
We welcome the new guidelines which, broadly
speaking, are clear and concise and place the right emphasis on
the need for MoD officials to carefully take into account the
need for, and importance of, parliamentary scrutiny of EU developments
and legislation in the area of defence. There are, however, a
few points within the guidelines which we consider require further
clarification.
In paragraph 19 of the guidelines it is stated
that `In the event of an override, [a letter to the Chairman]
should explain why (for reasons of policy and/or time pressure)
an override was necessary'. As is noted in the guidelines, overrides
are only applicable to legislative documents and should therefore
be extremely rare in the context of the MoD. We do however recognise
that overrides due to time pressures are occasionally understandable,
particularly during parliamentary recesses (though even these
can almost always be avoided in the House of Lords if sufficient
advance warning is provided to the Committee).
However, it is not clear why there might be
an override "for reasons of policy". Under the Scrutiny
Reserve Resolution you may choose to lift the scrutiny reserve
following a disagreement over the policy contained within a document
held under scrutiny by either the Lords or the Commons scrutiny
Committees: this is termed an override for `special reasons'.
Such reasons would, as you stress in the guidelines, have to be
fully and immediately explained to the Committees by letter. We
agree that this could constitute an override "for reasons
of policy". However, we consider this to be wider than the
term "special reasons" and ask that the guidelines be
clarified.
Paragraph 19 of the guidelines also states that
covering letters to the Chairmen of the Committees should be attached
to every explanatory memorandum "explaining what the EM is
about and how its fits with UK policy". Whilst we appreciate
that sending a covering letter demonstrates a welcome approach
towards transparency and openness, such letters are not strictly
necessary, except in the case of an override. The explanatory
memorandum itself should fully state what the attached document
seeks to achieve and what the UK policy on the proposal is.
In paragraph 18 of the guidelines it is stated
that `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'. With respect to legislative
documents Ministers may, under the Scrutiny Reserve Resolution,
give agreement in Council to a proposal which is `trivial or is
substantially the same as a proposal on which scrutiny has been
completed'. The guidelines are therefore substantively correct,
but we would like to stress that it is for us to decide whether
our time is being wasted. We have not yet encountered any such
problem with documents deposited by the MoD and ask that officials
recognise that we are interested to learn of any new developments,
even minor ones. In appropriate cases it may be sensible to alert
the Committees to new developments and updates by letter rather
than with a full explanatory memorandum. In cases of doubt our
clerks are always available to advise on such matters.
Paragraph 18 also states that `Some non-legislative
documents may be deposited with the Committees for information
purposes, after Council agreement'. Firstly, it should be made
clearer that this provision only applies to those documents which
do not fall within the scrutiny reserve resolution and that the
`may' in this sentence refers to deposit following a Council and
not to the need to deposit a document per se. Secondly, it should
be stressed that deposit following Council agreement should only
take place where it is not possible to deposit a document prior
to a Council due to its unavailability. All documents, whether
legislative or not, should be deposited at the earliest opportunity
allowing sufficient time for scrutiny prior to their consideration
in Council. Written Ministerial Statements, and/or letters as
appropriate, following Councils should be used to alert the Committees
to any developments which took place during a Council.
I thank you and your officials once again for
the time you have taken to prepare these helpful guidelines. Our
officials are always happy to assist as you move towards the implementation
of the guidelines and would, should you so wish, be more than
willing to arrange a scrutiny seminar to talk through the new
arrangements with your department.
25 October 2006
Letter from Rt Hon Des Browne MP to the
Chairman
You will recall your letter of 25 October 2006
commenting on the MoD ESDP Parliamentary Scrutiny Guidelines I
sent on 25 September 2006. I also received comments on these guidelines
from Michael Connarty in his letter of 25 October 2006. You will
recall that in my letter dated 1 November[58]
I agreed MoD would revise these guidelines in light of the Committee's
comments, and provide you with a copy of the new edition.
I was pleased to inform you that these guideines
have now been revised. A copy of the new MoD ESDP Parliamentary
Scrutiny Guidelines for Desk Officers is enclosed (not printed).
I hope that these guidelines will further demonstrate our
commitment to improving the transparency of CFSP related business.
In addition, I have asked my officials to consider
your offer of assistance in the form of a scrutiny seminar involving
your officials and the MoD. They will follow this up with the
Committee Clerk in due course.
16 March 2007
57 Remaining Government Responses Session 2004-05:
Government Responses Session 2005-06, 37th Report of Session 2006-07,
HL Paper 182, pp 61-69. Back
58
Refer to European Defence Agency-Steering Board Meeting, November
2006. Back
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