House of Lords - European Union - Thirty-Second Report

Select Committee on European Union Thirty-Second Report

CHAPTER 3: Procedural Matters

56. During the past year the Committee has looked at a number of procedural matters in relation to its work.

57. One of the key issues to emerge from our inquiry on the impact of the Lisbon Treaty was parliamentary scrutiny of opt-in decisions. Currently, proposals for legislation on visas, asylum and immigration (in the first pillar, under Title IV of the TEC) are adopted by qualified majority voting (QMV). However, the legislation only applies to the UK if the Government notifies the Council that it intends to opt in to the legislation within 3 months of the proposal being made, or following the adoption of the legislation. Third pillar matters, on police and judicial cooperation (under Title VI of the TEU) generally need unanimity. The Treaty of Lisbon would merge the two pillars. This would mean that nearly all legislation in both areas would be subject to QMV and would apply to the UK only if the Government opted in.

58. Parliamentary scrutiny of opt-in decisions therefore assumed greater significance during the course of our inquiry and during the passage of the European Union (Amendment) Act 2008. This resulted in an undertaking by the Government that if, during the first 8 weeks of the 3 month period, we published a report on the proposed opt-in recommending a debate, time would be made for one; that the debate would be on an amendable motion, allowing for a vote; and that the Government, although not bound by the views expressed, would take note of them. The Government's undertaking can be found at Appendix 4.

59. Once it became clear, following the referendum in Ireland, that the Treaty of Lisbon would not come into force as expected, the Chairman wrote to Baroness Ashton of Upholland, the then Leader of the House, asking if the Government's undertakings would apply to the current opt-in arrangements in the first pillar. Baroness Ashton replied stating that "We do not believe … that it is appropriate to decouple these opt-in specific scrutiny arrangements from the Lisbon Treaty, and introduce them for the existing Treaties in the absence of clarity as to whether or not Lisbon will enter force."

SCRUTINY OVERRIDES

60. An override occurs when the Government give agreement in the European Council or Council of Ministers to any EU proposal which is still held under scrutiny. The full text of the Scrutiny Reserve Resolution as agreed by the House of Lords on 6 December 1999 can be found at Appendix 2.

61. Tables 3 and 4 below list scrutiny overrides which occurred between July and December 2007 and between January and June 2008. Between July and December 2007 there were 16 overrides which is less than during the same period in the previous year when there were 24 overrides. Between January and June 2008 there were 8 overrides which is similar to the same period in the previous year when there were 9 Overrides.

TABLE 3

Lords scrutiny overrides July-December 2007

Dept	Subject matter	Cause of override
DEFRA	Stockholm Convention on Persistent Organic Pollutants	Late deposit of document
DEFRA	Common rules for direct support schemes under the Common Agricultural Policy	Late deposit of document. During recess.
DCMS	Agreement between the EC and the Swiss Confederation in the audiovisual field	Late deposit of document. During recess.
FCO	Further measures in support of the effective implementation of the mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY)	Late deposit of document. During recess.
FCO	Agreement between the EU and New Zealand on the participation of New Zealand in the EU Police Mission in Afghanistan	Late deposit of document. During recess.
HMT	Amending Budget No. 7 to the general budget for 2007	Late deposit of document
DfID	Arrangements for goods, originating in certain states within the African, Caribbean and Pacific Group of States, provided for in Economic Partnership Agreements	Late deposit of document
BERR	The accession of the Republic of Cape Verde to the World Trade Organisation	Late deposit of document
DEFRA	Introduction of electronic identification for sheep and goats	Late deposit of document
HO	A uniform format for residence permits for third-country nationals	Late deposit of document. The Government agreed to a general approach.
MoJ	Protection of personal data processed in the framework of police and judicial cooperation in criminal matters	The Government agreed to a general approach while retained under scrutiny.
HO	Stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime	The Government agreed to a general approach while retained under scrutiny.
HO	Improvement of cooperation between the special intervention units of EU Member States in crisis situations	Late deposit of EM
Health	Products containing genetically modified maize 59122	The Government supported the proposal while under scrutiny
Health	Products containing genetically modified maize 1507	The Government supported the proposal while under scrutiny
Health	Products containing genetically modified maize Nk603	The Government supported the proposal while under scrutiny

TABLE 4

Lords scrutiny overrides January-June 2008

Dept	Subject matter	Cause of override
FCO	EU military operation in the Republic of Chad and in the Central African Republic	EM deposited after agreement
FCO	Agreement between the EU and the Republic of Cameroon on the status of the EU-led forces in transit within the territory of the Republic of Cameroon	EM deposited after agreement
FCO	Agreement between the EU and the Republic of Chad on the status of EU led forces in the Republic of Chad	EM deposited after agreement
BERR	Community position within the General Council of the World Trade Organization on the accession of the Republic of Ukraine to the World Trade Organization	Late deposit of document and EM deposited after agreement
DfID	Position to be adopted on behalf of the Community within the Food Aid Committee as regards the extension of the Food Aid Convention 1999	Late deposit of document
FCO	Restrictive measures against Iran (Common Position 2008/479/CFSP)	EM deposited after agreement
FCO	Restrictive measures against Iran (Article 7(2) of Regulation (EC) no.423/2007)	EM deposited after agreement
BERR	Council Decision on establishing the EC position within the Ministerial Council of the Energy Community	EM deposited after agreement

62. While wishing to emphasise that we take all overrides very seriously, we welcome the Government's commitment to working closely with us and this is reflected in the relatively small number of overrides.

GENERAL APPROACH

63. In our Annual Report 2007 we said that "if a Minister agrees to a General Approach in Council, before scrutiny has been completed, a scrutiny override is committed."[4] We, therefore welcome the Minister for Europe's letter to the Chairman dated 1 July 2008 confirming that the Government, with immediate effect, will interpret the Scrutiny Reserve Resolution "to include the stage of 'general approach' for the purposes of defining an agreement under the terms of the resolution."

FUNDAMENTAL RIGHTS ANALYSIS

64. Sub-Committee F was also successful in ensuring that a fundamental rights analysis is included in EMs in cases where the Government indicate that they do not propose to opt-in.

SUBSIDIARITY

65. The subsidiarity principle is regularly considered as part of the routine scrutiny process. For example, Sub-Committee E identified subsidiarity concerns in relation to a Communication on the role of Eurojust and the European Judicial Network in the fight against organised crime and terrorism in the EU.

66. In addition to routine scrutiny we participated in two subsidiarity checks conducted by COSAC. Sub-Committee E participated in the COSAC subsidiarity check on a Framework Decision combating terrorism and did not find any breach of the subsidiarity principle.

67. Sub-Committee G participated in the COSAC subsidiarity check on a proposal for equal treatment legislation. The Sub-Committee consulted the devolved institutions. A response from the Welsh Assembly was received within the 8 week deadline and included in our response. We did not find any breach of the subsidiarity principle but noted that the Welsh Assembly considered that the justification was insufficiently detailed. Due to parliamentary recesses neither the Scottish Parliament nor the Northern Ireland Assembly was able to consider the proposal within the 8 week deadline.

4 Annual Report 2007, 36^th Report (2006-07), HL181 Back