Codecision and national parliamentary scrutiny - European Union Committee Contents



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)


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)


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)


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)


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)


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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