CHAPTER 3: SUMMARY OF CONCLUSIONS
PRINCIPLES UNDERLYING SCRUTINY OF
CODECIDED PROPOSALS
105. Whilst it is important that our scrutiny
procedures enable us to give our views promptly on the Commission's
Proposal, we do not accept that our scrutiny of codecided legislation
should be limited to commenting at this stage alone. The fact
that we clear an initial proposal from scrutiny does not mean
that we should not scrutinise it again if changes with policy
implications occur during codecision. The Government must provide
us with sufficient information on changes and proposed changes
to proposals to allow us to comment before UK Ministers agree
to them. (paragraph 44)
106. Whilst we recognise that the reduction in
the number of readings to which a proposal is subjected speeds
up the process of lawmaking, diminishing the number of versions
which are made available and debated in public and which are deposited
by the Government for parliamentary scrutiny can and does have
an impact on the ability of national parliaments to scrutinise
changes made to proposals during negotiations. (paragraph 49)
107. We do not see a case for a general slowing
of the pace of negotiations on codecided legislation. In the exceptional
cases where legislation is adopted too quickly to allow us to
scrutinise it effectively, it is open to us to make this case
to the Government. Where this happens we would expect them
to refuse to lift their scrutiny reserve until national parliamentary
scrutiny is complete. (paragraph 53)
108. However, where the majority of discussions
take place in informal trilogues, we see the tendency to hold
a series of trilogues on a single proposal in quick succession
as creating difficulties for national parliaments and others seeking
to follow negotiations. This appears to us to be a consequence
of the rotating six-month Presidency system. In this respect the
introduction of the Permanent President of the European Council
by the Lisbon Treaty will have no effect as the European Council
does not legislate and the rotating Presidency will continue to
set the agenda with regard to the majority of codecided legislation.
We urge the Government to ensure that an arrangement similar to
the cooling off period provided for by the Parliament's Code of
Conduct is applied to lessen the difficulties often faced by those
seeking to follow the negotiations on legislative proposals at
the end of a Presidency. (paragraph 54)
109. We consider that informal trilogues, whilst
helpful to expeditious agreement of legislation, make effective
scrutiny of codecided legislation by national parliaments very
difficult. There are two reasons for this:
(a) Their informal and confidential nature
is not transparent: as a result it is difficult for us to follow
the course of negotiations and comment usefully to the Government;
and
(b) The Council is represented only by the Presidency
which tends to hold its cards close to its chest: as a result
it may be difficult for all governments other than the Presidency
to follow the course of negotiations and to represent the views
of their national parliament at the appropriate point. (paragraph
60)
110. The increased use of informal trilogues
to the point that they are now the primary form of negotiation
between the European Parliament and the Council has magnified
the difficulties we face. As a result it is important that the
system under which the Government keeps us updated on negotiations
is effective and operated uniformly and rigorously by all Departments.
The Government must ensure that this happens without the delays
that have sometimes occurred in the past. (paragraph 61)
111. Should the Lisbon Treaty come into force,
these difficulties will be magnified by the expansion of codecision
into new areas: notably agriculture, fisheries and justice and
home affairs. Departments that will gain responsibility for negotiating
codecided legislation must devise and put in place effective systems
for ensuring Parliament is fully kept up to date. This must be
done in good time to ensure that they are ready to do so properly
as soon as and when the Lisbon Treaty comes into force. (paragraph
62)
THE EXISTING SCRUTINY SYSTEM
112. We consider that the existing requirement
for an update before each reading is useful for those proposals
which are agreed after the full cycle of three readings. This
requirement should continue for all proposals. (paragraph 74)
113. However, where we have cleared a proposal
from scrutiny, the provision of a ministerial letter would not
have the effect of re-imposing the scrutiny reserve. Only a newly
deposited document or Supplementary Explanatory Memorandum has
this effect[29]. Hence,
at paragraph 3.4.1, the Guidance requires that Departments consult
us, on a case-by-case basis, as to whether a supplementary explanatory
memorandum is required or whether a minister letter is sufficient.
The effect of this is to allow us to re-impose the scrutiny reserve
where we judge changes made to a proposal to be sufficiently important.
Again, this requirement should continue for all proposals. (paragraph
75)
114. Nonetheless, where proposals are agreed
at early stages this approach is not sufficient because we are
not always given the opportunity to scrutinise changes proposed
and agreed in informal trilogues. (paragraph 76)
115. The Cabinet Office's Scrutiny Guidance to
Departments is not currently available to the public; Matthew
Rycroft's exposition of the changes made to it with regard to
codecision is, to our knowledge, the most substantial instance
of the Guidance being made public. We consider that the case for
publishing the Guidance is strong and consequently ask the Government
to put the Scrutiny Guidance in the public domain. (paragraph
71)
ADDING TO THIS SYSTEM TO ENSURE
EFFECTIVE SCRUTINY NEGOTIATIONS AT FIRST AND SECOND READING
116. We recognise that there is a genuine difficulty
in determining whether a change in a proposal is sufficient to
warrant an update to us. There would be little merit in receiving
every iteration of a proposal. In this respect we agree with the
general approach taken by Caroline Flint that we should
always be updated where a change has "policy implications".
We consider that this language should be used in the Cabinet Office
Guidance in place of references to "significant" or
"substantial" changes or progress. (paragraph 80)
117. We consider that, where the UK Representation
has alerted a Department to a change, that should be a cue to
the Department to update the Committee immediately. (paragraph
81)
118. We can see no justification for a Department
withholding or delaying information on changes with policy implications.
We urge Ministers to recognise the importance of every Department
working hard to keep Parliament fully informed of the progress
of negotiations on EU legislation and to impress this on their
officials. In this respect we commend the initiative taken by
the previous Minister for Europe in writing to senior staff in
the Foreign and Commonwealth Office in May 2009 reminding them
of the obligations of the scrutiny reserve. (paragraph 84)
119. Additionally the Cabinet Office should be
more proactive in monitoring and enforcing the application of
the Guidance by Departments. (paragraph 85)
120. For our part, we note the opportunities
taken by the House of Commons European Scrutiny Committee in questioning
Ministers over the scrutiny performance of their Departments.
We and our sub-committees will be more active in arranging
witness sessions to seek oral explanations from Ministers where
their Department has provided us with insufficient or untimely
information. In future we will not hesitate to name and shame
those Departments consistently providing insufficient or untimely
information. (paragraph 86)
121. For those proposals which we are holding
under scrutiny only, we consider that we should be provided with
a short update on negotiations after a discussion is held in COREPER
on a proposal. (paragraph 92)
122. In addition we consider that where we are
holding a proposal under scrutiny we should always be notified
in advance of a decision taken by COREPER to send a letter from
the Presidency to the Parliament indicting Council's agreement
to amendments to be proposed by the Parliament. This should enable
us to give our views in good time. (paragraph 93)
123. Presidency compromise texts which aim to
restart stalled negotiations on a proposal or which introduce
changes with policy implications should be made available to the
Committee regardless of whether we are holding the proposal under
scrutiny or not. (paragraph 94)
TWO SAFEGUARDS
124. An arrangement, similar to that operated
between the French Permanent Representation and the staff from
the French Parliament, to allow our EU Liaison Officer to view
and forward Council documents related to codecision negotiations
would be beneficial. This would in no way prejudice the
requirements in the Scrutiny Guidance for the Government to provide
information directly to the Committee as the obligation on the
Government to provide this information is an important part of
being accountable to Parliament. However it would be a useful
safeguard in ensuring that we are able to conduct our inquiries
on the basis of prompt access to the right documents. (paragraph
88)
125. There should also be an obligation on Departments
to provide a full update on the progress of negotiations or a
supplementary explanatory memorandum to us as and when we request
one. Again, this would not compromise the important principle
that the Government is responsible for providing documents to
Parliament without request. (paragraph 90)
LIMITE DOCUMENTS
126. In line with the practice in many other
Member States and the evidence from the Council's Legal Service
we consider that there is nothing in the Council's Rules of Procedure
to prevent provision of LIMITE documents to the Committee. In
future we expect the Government to provide relevant documents
to the Committee even if they are marked LIMITE. (paragraph 99)
ADDRESSING OUR VIEWS TO MEPS AND
OTHER NATIONAL PARLIAMENTS
127. For some time our practice has been to make
our reports available to MEPs; we note the interest that has been
expressed in our work. In future we will seek to make the
results of our scrutiny on codecided proposals available to MEPs
involved in negotiations. We will keep other national parliaments
updated through the IPEX database. (paragraph 104)
29 Para 1.16 and 4.7 of the Scrutiny Guidance Back
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