House of Commons European Scrutiny Committee
Report of the Committee on Session 2015–16
Fifth Report of Session 2016–17
HC 177
House of Commons European Scrutiny Committee
Report of the Committee on Session 2015–16
Fifth Report of Session 2016–17
Report, together with formal minutes relating to the report
Ordered by the House of Commons to be printed 8 June 2016
HC 177 Published on 16 June 2016 by authority of the House of Commons The European Scrutiny Committee The European Scrutiny Committee is appointed under Standing Order No. 143 to examine European Union documents.
Current membership Sir William Cash MP (Conservative, Stone) (Chair) Geraint Davies MP (Labour Co-op, Swansea West) Richard Drax MP (Conservative, South Dorset) Peter Grant MP (Scottish National Party, Glenrothes) Rt Hon Damian Green MP (Conservative, Ashford) Kate Hoey MP (Labour, Vauxhall) Kelvin Hopkins MP (Labour, Luton North) Calum Kerr MP (Scottish National Party, Berwickshire, Roxburgh and Selkirk) Stephen Kinnock MP (Labour, Aberavon) Craig Mackinlay MP (Conservative, South Thanet) Mr Jacob Rees-Mogg MP (Conservative, North East Somerset) Alec Shelbrooke MP (Conservative, Elmet and Rothwell) Graham Stringer MP (Labour, Blackley and Broughton) Kelly Tolhurst MP (Conservative, Rochester and Strood) Mr Andrew Turner MP (Conservative, Isle of Wight) Heather Wheeler MP (Conservative, South Derbyshire)
Powers The Committee’s powers are set out in House of Commons Standing Order No 143. The scrutiny reserve resolution, passed by the House, provides that Ministers should not give agreement to EU proposals which have not been cleared by the European Scrutiny Committee, or on which, when they have been recommended by the Committee for debate, the House has not yet agreed a resolution. The scrutiny reserve resolution is printed with the House’s Standing Orders, which are available at www.parliament.uk.
Publication Committee reports are published on the Committee’s website at www. parliament.uk/escom by Order of the House.
Committee staff The staff of the Committee are Eve Samson (Clerk), Terry Byrne (Clerk Adviser), Alistair Dillon (Clerk Advisor), Leigh Gibson (Clerk Adviser), David Griffiths (Clerk Adviser), Peter Harborne (Clerk Adviser), Sibel Tanner (Clerk Adviser), Arnold Ridout (Legal Adviser) (Counsel for European Legislation), Joanne Dee (Assistant Legal Adviser) (Assistant Counsel for European Legislation), Amelia Aspden (Second Clerk), Julie Evans (Senior Committee Assistant), Jane Bliss (Committee Assistant), Robert Dinsdale (Committee Assistant), Beatrice Woods (Committee Assistant), Ravi Abhayratne (Office Support Assistant), and Paula Saunderson (Office Support Assistant)
Contacts All correspondence should be addressed to the Clerk of the European Scrutiny Committee, House of Commons, London, SW1A 0AA. The telephone number for general enquiries is 020 7219 3292; the Committee’s email address is [email protected]
Report of the Committee on Session 2015–16 1
Contents
Summary 3
1 Introduction 5
2 Significant themes over the session 7 EU renegotiation and broadcasting 7 Migration and free movement of peoples 9 Internal security and counter-terrorism 10 Trade 11 Data Protection proposal 11 Foreign and Security policy 12 Ports 13 Economic and constitutional issues 13
3 EU Institutional developments 14 The operation of EU institutions 14 The role of national Parliaments 14 EP Proposal on the reform of EU electoral law 14 Transparency of law making: Submission to the EU Ombudsman’s inquiry on Trilogues 16 Decision making in Council 16
4 Scrutiny overrides 18
5 Legal Issues 20 The UK Opt-in 20 Engagement of the Opt-in 20 Scrutiny of the opt-in 20 External competence 22 EU Restrictive Measures and competence 24
6 Scrutiny in other Committees and in the House 26 Work with select committees 26 Scrutiny of the Commission Work Programme 2016 27 Debate scheduling 28 2 Report of the Committee on Session 2015–16
7 Conclusion 34
Conclusions 35
Appendix: House of Commons Reasoned Opinions and Political Dialogue Opinions 37 House of Commons Reasoned Opinions (RO): Legislative State of Play 37 House of Commons Political Dialogue Opinions: Legislative State of Play 39 National Parliament list of Abbreviations 39
Formal minutes 41
List of Reports from the Committee during the current Session 42 Report of the Committee on Session 2015–16 3
Summary In his approach to the EU renegotiation, the Prime Minister said:
“It is national parliaments, which are, and will remain, the true source of real democratic legitimacy and accountability in the EU.”1
The European Scrutiny Committee is part of the way in which the House of Commons ensures that legitimacy and accountability.
In its 2013 report on Reform of the Scrutiny System in the House of Commons, the then European Scrutiny Committee proposed to report on its work each session. This is the second of those reports.
In it, we give an account of key themes in the Committee scrutiny work over the last year, and also look at matters which are of continuing interest.
Unsurprisingly, our work has been dominated by the EU’s agenda on migration, and by the renegotiation of the U.K.’s relationship with the European Union. We were particularly concerned to ensure that broadcasters had considered the impartiality of their reporting of the referendum, and we noted that Ofcom and the BBC in particular recognised the importance of this issue.
In addition to these pieces of work, we looked at the way in which the European institutions function, in our work on elections to the European Parliament, our response to the European Ombudsman’s investigation into trilogues, and our own Inquiry into the transparency of Council decision-making.
Further topics of importance were internal security and counterterrorism, trade, data protection, ports, foreign and security policy and economic and constitutional issues, including the so-called “Five Presidents” Report. We expect these topics to continue to be important in the coming year.
This report also sets out our work on legal issues. These can appear abstruse and hard to explain, but we consider it is essential that there is legal clarity about the basis for EU law, and government policy. We continue to have particular concerns about the clarity as to when the UK opt-in is engaged. Without such clarity the situation can arise where it is unclear whether or not legislation applies automatically to the United Kingdom or whether it has the right to choose to stay out or opt in. We subject these decisions to particular scrutiny, to ensure the Government achieves legal clarity and complies with its own undertakings as to parliamentary scrutiny.
We also remain concerned that the Government has been dilatory in scheduling debates on European Union documents, both in European Committee and on the floor of the House.
The “scrutiny reserve” prohibits the Government from voting for a proposal for EU legislation or equivalent decisions unless we have cleared it from scrutiny. There are provisions allowing this reserve to be overridden when matters are urgent, or proposals
1 Speech, 23 January 23. 4 Report of the Committee on Session 2015–16
are confidential, routine or trivial. We are pleased to report that for most of the year the Government was scrupulous in attempting to avoid scrutiny overrides, and in updating us as quickly as possible when such overrides were avoidable.
There is one exception to this: in February the Committee decided, exceptionally, to release the Council’s legal opinion on the renegotiation package, although it was subject to a privacy marking known as limité, since we considered it was crucial to transparency of the process. Since then, the Foreign and Commonwealth Office has supplied limité documents to the equivalent committee in the House of Lords, but has withheld them from us, and this has led to several scrutiny overrides. The decision to provide documents to the House of Lords demonstrates that there is no bar to sharing the documents per se; we have raised this repeatedly in reports on successive documents, expressing our concern that the FCO had apparently decided to frustrate the elected Chamber. The Foreign Secretary has now indicated a willingness to reach fresh agreement on the handling of limité documents, and on taking forward wider reform of the scrutiny system. We look forward to a more constructive engagement on these matters than has been possible until now. We will consult our colleagues in the Lords on matters which may have implications for their work.
During the course of the year we have made sustained efforts to inform our colleagues on other select committees about European Union business, and we are pleased to report that 12 committees have now appointed reporters from among their members. We supply these reporters with tailored briefing on proposals within the Committee’s remit. Report of the Committee on Session 2015–16 5
1 Introduction 1. In his approach to the EU renegotiation, the Prime Minister said:
“It is national parliaments, which are, and will remain, the true source of real democratic legitimacy and accountability in the EU.”2
The European Scrutiny Committee is part of the way in which the House of Commons ensures that legitimacy and accountability. It is established under House of Commons Standing Orders to examine European Union documents and to report its opinion on their legal and political importance, and to refer documents for debate by the House if it considers it appropriate. Under the “scrutiny reserve”, the Government should not agree to a proposal in the Council or European Council which is still either being scrutinised by the Committee, or has been recommended by the Committee for a debate, and is waiting for that debate to take place. This vital work is supported by our scrutiny of broader policy documents, which can foreshadow future legislation or analyse how existing EU law is working.
2. The process for agreeing EU legislation and the scrutiny of such legislation may be complex and technical, but it matters because EU law impacts on everyone in the United Kingdom. Most EU legislation has to be approved both by the European Parliament and by the Governments of the individual Member States, meeting together in the Council (meetings of Ministers on particular subject areas)
3. The Committee’s role is to highlight matters which are of legal and political importance, and to ask for further information when it considers that the Government has not given sufficient information for Members to assess proposals properly. It is not required to consider the merits of any particular proposal. In practice, as our predecessor Committee said:
The concept of political importance can and does blur in practice into wider discussions of the advantages and disadvantages of, or the principles behind, a particular proposal.3
Although the Committee contains Members with a range of opinions on the forthcoming referendum, there is rarely disagreement over our regular scrutiny work, either in the assessment of a document’s importance or in the questions we put to Ministers. All Members understand that the Committee’s work is a vital part of the way in which the House of Commons scrutinises proposals for EU legislation, and contributes to the democratic legitimacy of the laws which govern us.
4. The Committee undertook a major inquiry into Reforming the European Scrutiny System in the House of Commons in the last Parliament4. As it then pointed out, the scrutiny reserve and the Committee’s own Standing Order have not been updated to take account of significant changes in the treaties governing the European Union. In that Report the Committee made a number of proposals for reform, most of which would require the cooperation of the Government and the agreement of the House as a whole.
2 Speech, 23 January 2013. 3 Twenty-fourth Report of Session 2013–14, Reforming the European Scrutiny System in the House of Commons, HC 109 para 44. 4 Ibid 6 Report of the Committee on Session 2015–16
5. One of the proposals in that Report was that the Committee should provide a report on its work each year. This is within the Committee’s sole power to deliver. The type of scrutiny we undertake is frequently technical, and it is always focussed on particular documents. We intend to use these annual reports to identify recurring issues and to explain technical matters in more depth than we can in in our weekly reports.
6. This is the second of those reports. In addition to drawing attention to matters of current concern, or important work over the course of the session, we expect to include regular reviews of the following matters:
• Institutional developments of particular interest to Parliament;
• the Government’s approach to the scrutiny reserve;
• the EU and the Government’s approach to legal matters;
• the scheduling of debates. Report of the Committee on Session 2015–16 7
2 Significant themes over the session 7. While elsewhere in this Report we highlight recurring issues, some work strands have been particularly significant, because of their potential effects on the United Kingdom, the EU as a whole and on individual citizens. In many cases, particular documents or themes will recur, and we expect that many of the proposals described in this snapshot of our work will form part of next year’s activities as well.
EU renegotiation and broadcasting
8. We explored the terms of UK membership of the European Union in two separate reports, and do not comment in detail here. The first was the result of a freestanding inquiry conducted during the negotiations, the second was done as part of our normal scrutiny of documents deposited with the House. Nonetheless, broadcast media coverage of EU matters, one strand of our continuing work, is relevant, and was not covered in those reports.
9. The Committee in the previous Parliament was concerned about the broadcast media’s coverage of EU issues, since broadcast news is one of the major sources for information about the EU. It was particularly, but not solely, interested in the BBC’s coverage, given the BBC’s status as the publicly funded national broadcaster.
10. As successive reports set out, the Committee was particularly concerned at the resistance of the then Chairman of the BBC Trust, Lord Patten of Barnes, to appearing before this Committee. This matter was finally resolved in the last Parliament, when the incoming Chairman, Rona Fairhead, appeared. In the last session we again took evidence from Lord Hall, the Director General and Editor in Chief of the BBC, James Harding, the Director of News and Current Affairs, and David Jordan, the Director of Editorial Policy and Standards, in October 2015 and from Rona Fairhead, the Chairman of the BBC Trust, and Richard Ayre, a fellow trustee. We very much welcome the changed attitude toward giving evidence to the Committee; in those sessions we were able to discuss the balance between the BBC’s proper editorial independence and the role of Committees in scrutinising and discussing how it exercises that independence.
11. We are glad to note that in light of our Reports calling for increased impartiality of the BBC’s coverage of EU matters, the DCMS White Paper, A BBC for the future: a broadcaster of distinction, proposes a new public purpose,5 as proposed by the Committee: “Providing impartial news and information to help people understand and engage with the world around them”.6
12. In our evidence sessions, we were particularly concerned to explore how impartiality would apply to the coverage of the referendum. When Ms Fairhead appeared before us, the BBC had published draft guidelines for consultation. We were also told that there would be mandatory training both for reporters and complaint handlers.7 Our witnesses made it clear that since the referendum was on a binary issue, the BBC’s obligation was to produce broad balance for the arguments.8 As Rona Fairhead said:
5 Ibid p.31. 6 Cm 9242. 7 See EU Scrutiny follow-up inquiry, Oral Evidence Wednesday 2 December 2015, HC 540 Qq70–73. 8 Q95. 8 Report of the Committee on Session 2015–16
“In a referendum, people are being asked to vote one way or the other. If the Government decides to hold that referendum, it is important that both sides have broadly balanced coverage by the BBC in terms of their arguments.”9
13. We had received evidence from Newswatch on monitoring of the BBC by itself and others, and on the way in which complaints were dealt with.10 A referendum campaign covers a single issue over a limited time period. Complaints need to be dealt with swiftly, so that, if necessary, corrective action can be taken while the campaign continues. James Harding told us that he would have meetings with the official campaigns, and maintain a hotline for them, as well as seeking other points of view.11 Richard Ayre, told us that, if necessary, complaints could be expedited, and that a complaint relating to the mayoral elections was handled within a day.12
14. As well as asking the BBC about its approach to coverage of the referendum, we put similar questions to Sky News, ITN and Ofcom. Ofcom told us that it had published guidance on sections five and six of its Code, which set out impartiality requirements and specific rules for elections and referendum in connection with the Scottish referendum. It intended to remind all broadcasters of the great care needed when broadcasting referendum related material. Ofcom would also make it clear that breaches of the code arising from such programming would be regarded as potentially serious and Ofcom would consider regulatory action, including the imposition of a statutory sanction. Ofcom would also hold compliance workshops to provide practical guidance.
15. On complaints Ofcom told us:
“We recognise the importance [ … ] of ensuring that any complaints which raise substantive concerns about impartiality of broadcast coverage during the referendum period are dealt with effectively and as quickly as possible. We will establish a dedicated subcommittee of the Ofcom board to deal specifically with complaints about coverage during the referendum period. This committee will act quickly to consider and adjudicate on complaints. We will ensure that complaints are determined as efficiently and as timely as possible so that if redress is required, it can be provided for within the referendum period. We will also have procedures in place so that, in the event that the circumstances of a potential breach require investigation to be concluded within 24 hours in order for any remedy to be effective, we could do so.”13
The responses from Sky and ITN were less full, but recognised the issue.
16. We welcome Rona Fairhead’s agreement that impartiality should be central to the BBC’s mission, and note the BBC’s commitment to training and swift complaints handling. We also welcome Ofcom’s active approach to reminding broadcasters of their obligations, and ensuring that complaints are handled swiftly. Other broadcasters are also aware of the importance of impartial referendum coverage. We have no doubt that there will be disputes about whether or not coverage is impartial, but the BBC and Ofcom have at least taken steps to address the issue.
9 Q97. 10 Newswatch (EUSOOO1) 11 See EU Scrutiny follow up inquiry, Oral Evidence Tuesday 20 October 2015, HC 540, Q5. 12 Q85. 13 Letter from OFCOM dated 19 February 2016. Report of the Committee on Session 2015–16 9
Migration and free movement of peoples
17. The EU’s agenda in 2015 and the early months of 2016 was dominated by the need to respond to the migration and refugee crisis in the Mediterranean and the Aegean, and so this has been a key focus of our work. In June 2015, the UN Refugee Agency (UNHCR) reported that 59.5 million individuals were at that point forcibly displaced as a result of war, conflict and persecution—the highest level ever recorded—and that the war in Syria was the single largest driver of displacement.14 TheEuropean Agenda on Migration, published by the Commission in May 2015, proposed a series of actions to address the immediate humanitarian crisis as well as a range of longer-term measures to lay the foundations for a “fair, robust and realistic” EU migration policy in the areas of border management, asylum, legal and illegal migration. Since then, the EU has agreed laws providing for the relocation from Greece and Italy of up to 160,000 individuals in clear need of international protection which are based on a combination of voluntary commitments and mandatory quotas. EU relocation measures are intended to relieve the pressure on the asylum systems of frontline Member States who would otherwise be responsible, under the EU Dublin Regulation,15 for handling the vast majority of incoming asylum seekers, but the measures have proved to be politically divisive. The Government has not opted into them. The Government’s opt-in decisions, as well as the broader policy issues arising from the European Agenda on Migration, were debated on the floor of the House last December.16
18. The European Commission has also sought to encourage Member States to provide safe and legal routes to the EU by proposing voluntary targets for the resettlement of refugees from conflict regions. It has adopted two non-binding Recommendations: the first, in June 2015, providing for the resettlement of 20,000 refugees over a two-year period; the second, in January 2016, inviting Member States to participate in a voluntary humanitarian admission scheme with Turkey providing for the “safe and dignified passage” to the EU of up to 80,000 displaced Syrians in Turkey each year in return for a sustainable reduction in irregular border crossings from Turkey to Greece. The Commission has also sought to strengthen the EU’s external borders through changes to the Schengen Borders Code—the rule book applied by countries participating in the Schengen free movement area—and the development of Frontex (the EU’s External Borders Agency) into a fully- fledged European Border and Coast Guard Agency. The EU Action Plan on Return sets out a series of actions to increase the rate of return of illegal migrants and strengthen cooperation with countries of origin and transit.
19. These initiatives have so far failed to stem the flow of refugees and migrants to the EU. More than a million made the perilous sea crossing, the Mediterranean or the Aegean in 2015. By early April 2016, a further 172,000 had reached EU shores with the loss of more than 700 lives in the first three months of 2016.17 Unrelenting pressures at the EU’s external borders have created tensions within the Schengen free movement area and with neighbouring countries forming part of the Western Balkans route from Greece to central and northern Europe. The President of the European Council, Donald Tusk, has described the migration and refugee crisis as “an existential challenge for the EU” and warned of
14 See UNHCR’s press release on its Global Trends Report for 2014. 15 See paragraph 20 below. 16 Hansard, 14 December 2015. 17 See the International Organisation for Migration’s Mediterranean Update on migration flows in Europe. 10 Report of the Committee on Session 2015–16
“grave consequences such as the collapse of Schengen”.18 Despite the magnitude of the challenge, the Government has not so far scheduled the debate on the functioning of the Schengen area which we recommended in January. In April, we decided that the debate should also encompass a Commission Communication setting out a “roadmap” to achieve a fully functioning Schengen free movement area (without internal border controls) by the end of 2016. We considered that the prospects for achieving this objective would be greatly affected by a new deal with Turkey to take back all irregular migrants crossing the Aegean to the Greek islands in return for a commitment by the EU to resettle one Syrian from Turkey for every Syrian returned to Turkey from the Greek islands.19 Returns to Turkey began in early April amid much controversy, with the UN’s Refugee Agency, the Red Cross and various non-governmental organisations (notably Amnesty International and Médécins Sans Frontières) voicing their concerns about access to asylum procedures on the Greek islands, the inadequacy of reception conditions, the use of closed facilities to house asylum seekers, and Turkey’s ability to safeguard and protect those returned under the deal. We will continue to monitor implementation of the EU-Turkey agreement and have asked the Government to provide a reasoned assessment of its compliance with international and EU laws concerning international protection.
20. Also in April, the Commission published a Communication on reform of EU asylum laws, including the so-called “Dublin rules” which determine the Member State responsible for examining an asylum claim and which currently place a heavy burden on frontline Member States, such as Greece and Italy. The Communication presents a variety of reform options which are intended to establish “a humane and efficient European migration and asylum policy based on a fair sharing of responsibilities”.20 Consideration of the options presented, and any legislative initiatives to implement them, will form an important part of our scrutiny activities in the forthcoming Parliamentary session.
Internal security and counter-terrorism
21. In May 2015, the Commission published its European Agenda on Security setting out a shared agenda for Member States, national law enforcement and judicial authorities, and EU institutions and agencies to work together to tackle common threats to security, with a particular focus on organised crime, terrorism and cybercrime. The Commission has already brought forward a number of proposals to implement the European Agenda on Security. They include:
• stronger EU laws to counter the threat presented by foreign terrorist fighters and to improve support and assistance for victims of terrorism—the Government’s decision not to opt into the proposed Directive was debated in European Committee B on 7 March;
• a revision of the EU’s internal market rules on the acquisition, possession and movement within the EU of firearms for civilian use; and
18 See the Report by European Council President Donald Tusk to the European Parliament on 19 January on the outcome of the December 2015 European Council. 19 Details of the agreement are set out in the EU-Turkey Statement issued by EU and Turkish leaders on 18 March 2016. See also the Commission’s fact sheet on the EU-Turkey deal. 20 See the Commission Communication, Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe. Report of the Committee on Session 2015–16 11
• changes to the European Criminal Records Information System (ECRIS) to make it easier for Member States to exchange information on the previous convictions of third country national offenders in the EU. The Government informed us on 16 May that it had decided to opt in but has not yet issued a Written Ministerial Statement informing the House of its decision.
Trade
22. New EU trade deals would have significant impacts on UK businesses and consumers. The Committee is continuing to hold the Government to account for its position within the Council on EU trade negotiations, including the EU-US free trade agreement (Transatlantic Trade and Investment Partnership (TTIP)). We held a one-off evidence session on TTIP with Lord Maude in October 2015 and are continuing to monitor the negotiations closely, including on areas such as investor-state dispute settlement and standards, as well as pressing for more transparency, both with Parliament and external stakeholders.
Data Protection proposal
23. The Data Protection package, consisting of the General Data Protection Regulation21 and the Police and Criminal Justice Directive22 was politically agreed in December 2015.23 The package will overhaul the existing EU 1995 Data Protection rules in order to keep pace with technological developments and to strengthen online privacy rights across the EU. Scrutiny by ourselves and the preceding Committee was conducted over a period of almost four years. We have kept relevant select committees informed throughout this process and both this and the previous Committees were assisted greatly by the provision of an opinion24 on the initial proposals by the previous Justice Committee.
24. We cleared both proposals from scrutiny on 3 February25, as we considered that the Government had largely achieved its negotiating aims in the political agreement reached in December. That clearance decision was facilitated by the provision in January by the Government of detailed analyses of the positions of the Commission, Council and EP in trilogues and the UK’s view on each proposal (see our section in this Report on our transparency inquiry).
25. We will be continuing to scrutinise the EU implementation of the EU-US Privacy Shield (a second Safe Harbour Decision on transfer to the US of EU citizens’ data for commercial purposes, replacing the first which was invalidated by the Court of Justice of
21 (33649 ) 5853/12: Proposal for a regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation). 22 (33646), 5833/12: Proposal for a directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data, in both trilogues and COREPER. 23 in both trilogues and COREPER. 24 Third Report from the Justice Committee of Session 2012–13, The Justice Committee’s opinion on the European Union Data Protection framework proposals. 25 Twenty-second Report, (2015–16), HC 342-xxi, chapter 3, (3 February 2016). 12 Report of the Committee on Session 2015–16
the EU(CJEU)), and the EU-US Umbrella Agreement on the transfer of EU citizens’ data to the US for law enforcement cooperation. One focus of our future scrutiny will be on how those agreements comply with EU fundamental rights.
Foreign and Security policy
26. The EU’s Common Security and Defence Policy (CSDP) and European Security and Defence Policy (ESDP) continue to operate under consensus. Activity has grown enormously over the last fifteen years. Successive governments have reiterated their commitment to enhanced parliamentary scrutiny. But this is uniquely difficult, since so much of the necessary legislation is last-minute—the result, successive governments maintain, of the “fast-moving nature of CSDP”. “Upstream scrutiny”—enabling the House to examine policy proposals before they reach the legislative stage—is, therefore, crucial. But that is hampered by the fact that many of the relevant documents are not captured by the Scrutiny Reserve Resolution. Effective “upstream scrutiny” accordingly depends upon the extent to which the government of the day lives up in practice to its rhetorical commitments.
27. Major issues about the EU’s involvement in defence, security and the “security- development” nexus are clearly in play at the moment, and are linked to other work, such as the EU’s agenda on migration. Key documents on the EU’s work in this area are :
• the EU High Representative for Foreign Affairs and Security’s new European Global Strategy, upon which the June 2016 European Council will take major decisions;
• later this year, an EU Defence Action Plan, designed to reinforce the internal market, support competitiveness and encourage investment in innovation for Europe’s defence sector; and
• new proposals around the so-called “security-development” nexus (including a possible new financial instrument), under the rubric of Capacity Building for Security and Development (CBSD); and
• a new EU-wide Strategic Framework for Security Sector Reform.
28. Issues of competence and duplication with NATO are bound to arise. The picture is of a widening EU ambition, and Government ministers continually having to urge caution, press for better cooperation with NATO and generally seek to “rein in” EU policy makers. The House must be enabled to play its proper role in the prior scrutiny of such matters.
29. We have therefore continued to press a reluctant Minister for Europe to confirm that both the new European Global Strategy and the European Defence Action Plan would be deposited for scrutiny, in good time, before they are adopted by the Council in Conclusions or otherwise. In answer to his arguments to the contrary, we have pointed out that how a document is adopted—via a Council Decision, or Council Conclusions, or otherwise—is immaterial to the question of whether it should be subject to deposit. We have reminded the Minister that the Committee is committed to transparent scrutiny and pointed out that many Ministers in other departments, readily not only share limité or Report of the Committee on Session 2015–16 13
restreint,26 documents in confidence but provide full written insights in their Explanatory Memoranda without compromising either the privacy marking or the Government’s position. We look forward to scrutinising these documents in due course.
Ports
30. In May 2013 the Commission proposed a Port Services Regulation, aimed at improving the efficiency, competitiveness and financial transparency of EU ports, but with potentially harmful implications for the UK ports sector. We have considered this matter several times, each time strongly reiterating a recommendation that the proposal be debated on the floor of the House, a debate which has yet to take place.
Economic and constitutional issues
31. In July 2015 we considered the so-called Five Presidents’ Report, which set out a programme, primarily focussed on the eurozone, to enhance Economic and Monetary Union (EMU). It had four key pillars of further EMU reform: development of Economic Union; Financial Union; Fiscal Union; and democratic accountability, legitimacy, with institutional strengthening. The objective is to have from 2025 a properly functioning EMU that other EU countries would want to join. In November 2015 we considered Five Presidents’ Report related documents, about creation of eurozone National Competitiveness Boards (with other Member States being encouraged to set them up)and a European Fiscal Board and the possibility of external representation of the eurozone in international fora, in particular the IMF. We have recommended all of these documents for a debate on the floor of the House, which has not yet taken place.
32. In October 2015 we considered documents concerning an action plan for building a Capital Markets Union aimed at improving market-based financing of the EU economy. The reforms, to be pursued over the following four years, are a combination of legislative and non-legislative actions across a range of policy areas related to EU capital markets. They are focused on making it easier for all businesses, including SMEs, to access funding, and creating more investment opportunities for savers and investors. The documents were cleared from scrutiny after a debate in European Committee in December 2015.
33. The measures the EU takes to foster the economic health of its Members are also significant. The European Semester is an annual cycle of Council of Ministers and European Council meetings to peer-review the economic and fiscal policies of the Member States and of the eurozone. As has been become customary since its inception in 2010, we scrutinised the flow of documents for the 2016 European Semester and recommended the first tranche for debate in European Committee, a debate which is still outstanding.
34. The way in which the EU handles its finances may be technical, but is extremely significant. We have scrutinised the development and negotiation of the EU’s Budget for the following year. We have also scrutinised the 2014 edition of the Commission’s annual “Fight against Fraud” report and the European Court of Auditors’ report on its audits of the 2014 EU Budget and the budget of the European Development Fund. As is usual, the Commission’s draft budget and the documents from the auditors were the subject of debates in European Committee.
26 The EU privacy markings frequently placed on relevant documents. 14 Report of the Committee on Session 2015–16
3 EU Institutional developments
The operation of EU institutions
35. Over the last session, there have been a number of proposals or inquiries which were concerned with the way in which the European Union works. Though technical, some of these issues go to the heart of the democratic legitimacy and accountability of the European Union, and of the relationship between the Union institutions and Member states. In this section we look at:
• Developments in the role of national Parliaments;
• The European Parliament proposals on Electoral Reform;
• The Ombudsman’s inquiry into trilogues; and
• Our own inquiry into the transparency of Council decision making.
The role of national Parliaments
36. The United Kingdom renegotiation emphasised the importance of national Parliaments in European Union Decision making, and proposed a new Red Card, by which national Parliaments could express concerns about whether a proposal conformed with the principle of subsidiarity to the Council, as opposed to the Commission, as is generally the case at present.
37. This would be in addition to current mechanisms by which National Parliaments can make objections to the Commission, which must reconsider if thresholds are reached; the so called “yellow card” and “orange card”. We have appended a table showing the use of reasoned opinions by the UK and other Parliaments since the procedure was introduced in the Lisbon Treaty in 2009. This table includes instances where the Committee has engaged in political dialogue with EU institutions, rather than issuing a formal opinion.
38. In addition to these formal mechanisms, some Chambers have proposed a “Green Card” whereby changes to EU law (new law, amendments to existing law or repeal) are proposed by, and support gathered within, national parliaments. It would be for the Commission to initiate legislative action. The Committee has observed this development with interest. In our view, it is for the House as a whole to decide whether or not to make or support “Green Card” proposals; we will be exploring this further over the coming Session.
EP Proposal on the reform of EU electoral law
39. In late 2015 the European Parliament put forward proposals to reform electoral law, including proposals for:
• common deadlines for establishing lists of candidates and electoral registers;
• making members of regional parliaments and legislative assemblies ineligible for election as MEPs; Report of the Committee on Session 2015–16 15
• gender equality of candidates;
• electronic and postal voting;
• some mandatory 3-5% thresholds for winning seats;
• voting by EU mobile citizens (even when outside the EU) and their data; and
• incorporating the “Spitzenkandidaten”27 process to elect the Commission President and making provision for detailed implementing rules.
This draft was accompanied by a Resolution, which included more aspirational goals such as a common minimum voting age of 16 and a common voting day, which were not part of the legislative proposal.
40. Both the House of Commons and the House of Lords agreed to send Reasoned Opinions to the EU institutions on the proposal, setting out the Houses’ respective views that the proposal did not accord with the principle of subsidiarity, namely, that action should be taken by the EU only to the extent that the objective cannot be achieved by action at Member state level. Our view was that the proposals dealt with issues which were properly the preserve of national parliaments. Other Reasoned Opinions were issued by the two unicameral parliaments of Luxembourg and Sweden and by the two chambers of the Dutch parliament. This equated to only eight of the 19 votes required to reach the Yellow Card threshold set by the Subsidiarity Protocol.28 Had the threshold been reached, the EP would have been obliged to review its proposal.
41. Our objections to the measure were:
• The organisation of EP elections was primarily a national competence based on established national electoral rules and procedures;
• Changes risked further decreases in turnout;
• The EP failed to substantiate in the draft legislative act how the proposal complied with the subsidiarity principle;
• Many aspects of the proposals risked interfering with the coherence of national rules - for example, in the UK, frustrating the ability to combine EP elections with local elections;
• Some aspects of the proposal encroached on sensitive areas of political practice and policy on which views diverge at national level (most notably, ensuring gender equality of candidates) and which are better managed at national level because of their complexity (for example, the ineligibility for election of members of regional parliaments or legislative assemblies);
27 The proposed process by which each European Parliament party chooses a candidate for the presidency of the European Commission and the European Council chooses from this field. It is not part of the process for choosing the Commission president laid down in the TEU. 28 Once the yellow card threshold is reached the Commission is obliged to reconsider its proposal for legislation and make a reasoned justification for maintaining it, amending it or withdrawing it. 16 Report of the Committee on Session 2015–16
• The proposals interfered with the autonomy of political parties - requirements concerning the visibility of logos, campaign materials, candidate lists (particularly in relation to gender equality) - in which there is no role for national Governments, let alone the EU; and
• Certain requirements interfered with freedom of speech and association (exit polls, visibility of logos on ballot papers and campaign materials).
It remains to be seen whether there is progress on this proposal, but we note that each Member State has a veto, so it would only make progress if every Member State agreed.
Transparency of law making: Submission to the EU Ombudsman’s inquiry on Trilogues
42. On 26 May 2015, the European Ombudsman, Emily O’Reilly, announced that she had opened an investigation into the transparency of trilogues, i.e., the negotiations between the European Parliament, the Council and the Commission on draft EU laws. The tendency to reach agreement through such negotiations has grown as the number of policy areas subject to joint agreement by the European Parliament and Council has increased. There have been persistent complaints about the transparency of this process.
43. On 9 March, the Committee agreed to send a submission to the Ombudsman’s inquiry based on formal views expressed by the previous and current Committee about aspects of the trilogue process.29 This was published on the ESC website. 30
44. We indicated that we had significant concerns about the degree to which national Parliaments and EU citizens could scrutinise the process by which laws were made. As part of that submission, the Committee informed the Ombudsman that it would be conducting an inquiry into a related transparency matter—decision-making in the Council.
Decision making in Council
45. We held a brief preliminary inquiry into the transparency of decision-making in the Council and its preparatory bodies.31 We concluded that although there were commitments to transparency, more could be done to improve information about the negotiation on the legislative acts prepared by working groups and agreed by Council. We identified the following issues:
• Applying transparency requirements consistently at each stage of the decision making process, and across different Council configurations;
• Mechanisms to give timely information on Member State positions throughout the process;
• A clearer distinction between Council’s role as an executive body, and its role in agreeing legislation.
29 including the previous Scrutiny Inquiry Reform Report, our chapters in weekly Reports on the Better Regulation package, examples derived from individual dossiers we have handled (see our Report) and the proposed Directive on shareholders’ rights and corporate governance. 30 http://www.parliament.uk/business/committees/committees-a-z/commons-select/european-scrutiny-committee/ news-parliament-20151/european-ombudsman-trilogues/ 31 Second Report of Session 2016–17, Transparency of decision-making in the Council of the European Union, HC 128 Report of the Committee on Session 2015–16 17
46. We urged the Government to ensure the application of transparency requirements to every ordinary legislative act. After the referendum, if appropriate, we intend to review our own procedures to see what more we could do to promote such transparency. 18 Report of the Committee on Session 2015–16
4 Scrutiny overrides 47. Scrutiny overrides occur when Ministers give agreement to a proposal without a scrutiny waiver or before the document has been cleared from scrutiny in both Houses. (A waiver allows the Government to agree to particular proposals at a particular meeting without the matter being cleared from scrutiny.)
48. The Cabinet Office publishes statistics on scrutiny overrides every six months. The most recent statistics, covering the period July-December 2015, demonstrate that the Government overrode the House of Commons scrutiny reserve on 53 occasions over that period. This represents 12% of the total 434 deposited documents.
Table 1: House of Commons Overrides July-December 2015
Department Number Foreign and Commonwealth Office 44 HM Treasury 7 Culture, Media and Sport 1 Food Standards Agency 1 Total 53
Source: Answer by Baroness Anelay of St John (15 February 2016) to House of Lords Written Question by Lord Boswell of Aynho (1 February 2016)
49. Scrutiny overrides are triggered by a variety of factors. The most common reason is the speed of response required to fast moving international situations. In other instances, Parliamentary Recesses or unexpectedly swift progress in negotiations can render the completion of the scrutiny process or the granting of a scrutiny waiver impossible.
50. It is incumbent on the Government to explain, preferably before the event, the reasons for each override, and why it was important for the Government to agree to a particular proposal. If there is an inadequate or delayed explanation for overriding scrutiny, the Committee may invite the Minister to explain in writing or in person the reasons justifying the override.
51. For example, a Council agreement (General Approach) on the proposed Police and Criminal Justice Data Protection Directive was reached while Parliament was in Recess for the party conferences. Rapid, last-minute progress meant that the Department for Culture, Media and Sport (DCMS) was unable to request a scrutiny waiver. While we were initially “deeply dissatisfied” not only at being deprived of meaningful scrutiny of the Government’s position on this General Approach but also by previous Ministry of Justice overrides on the General Data Protection Regulation, the detailed explanation from the DCMS Minister (Baroness Neville- Rolfe) was exemplary.32
52. Although overriding the scrutiny reserve is undesirable we recognise it cannot always be avoided. We expect the Government to make every effort to communicate with Parliament in a timely manner in order to avoid overrides. We also expect comprehensive explanations whenever an override occurs. That said, over the most part of session 2015–16, we have had no quarrel with the Government in its handling of significant overrides. They were adequately explained and could not, in our view,
32 See Seventh Report, (2015–16), HC 342-vii chapter 5, (28 October 2015). Report of the Committee on Session 2015–16 19
have been avoided. We urge the Government to remain vigilant to keep the Committee informed about the progress of business, particularly to instances where a negotiation could accelerate over a period when Parliament is in recess. When appropriate, Departments should approach us to ask for a scrutiny waiver.
53. There is one exception to this generally satisfactory picture: in February the Committee decided, exceptionally, to release the Council’s legal opinion on the renegotiation package, although it was subject to a privacy marking known as limité, since we considered it was crucial to transparency of the process. Since then, the Foreign and Commonwealth Office has supplied limité documents to the equivalent committee in the House of Lords, but has withheld them from us, and this has led to several scrutiny overrides. The decision to provide documents to the House of Lords demonstrates that there is no bar to sharing the documents per se: it was a direct response to the Committee’s earlier decision, taken in exceptional circumstances. The Foreign Secretary has now proposed a new formal agreement on the handling of such documents: we look forward to considering these proposals and trust that the disagreement can be resolved shortly. We regret that the FCO has indicated it withhold limité papers until the formal agreement is reached, since this makes clear it is currently the Department’s policy to flout the scrutiny reserve, which rests on a resolution not of this Committee, but of the House as a whole.” 20 Report of the Committee on Session 2015–16
5 Legal Issues 54. The Committee is required to report documents to the House if they are of legal importance, not simply if they are of political importance. This strand of our work can appear abstruse and hard to explain, but we consider it is essential that there is legal clarity about the basis for EU law, and government policy. This Chapter sets out some recurring legal issues and explains why we scrutinise them so closely.
The UK Opt-in
55. Each piece of EU legislation must cite the legal base on which it is made; i.e., the legal authority for the EU to adopt a particular measure. Protocol 21 to the Treaties provides that EU proposals presented to the Council “pursuant to Title V of Part Three TFEU” (concerning the area of freedom, security and justice),33 or such measures when adopted, do not apply to the UK unless it has opted in. In some cases, this may appear to be a dry and technical issue; but if there is no clarity about when the opt-in applies, and whether it has been applied correctly, the danger is that the UK will find itself bound by measures it considers should not apply to it. We therefore subject these decisions to particular scrutiny, and require the Government to comply with its own undertakings to Parliament to facilitate scrutiny of the opt-in.
Engagement of the Opt-in
56. For some years the Government has taken the position that the UK opt-in applies if a proposal or measure has some Title V content (however small) even if the proposal or measure does not have a legal base found in Title V. This Committee, its predecessor and the EU institutions disagree. (The issue is more fully aired in the Report of the House of Lords EU Select Committee: The UK’s opt-in Protocol: implications of the Government’s approach.34 )
57. The Committee has frequently raised its concerns about the Government’s approach in documents submitted this year. In the event that the UK purports to opt in to such measures lacking a Title V legal base the dispute lacks practical significance as there is universal agreement that the measure applies to the UK, albeit that the legal text does not make clear that the UK opt-in is engaged and has been exercised. The Committee is, however, particularly concerned when the UK claims that a measure lacking a Title V legal base does not apply to it and there is nothing in the legal text to indicate that this is the case.
Scrutiny of the opt-in
58. Our scrutiny of the opt-in is affected by undertakings from the Government contained in:
• A statement on JHA opt-ins by the Rt Hon the Baroness Ashton of Upholland, then leader of the House of Lords, on 9 June 2008;
33 Formerly Justice and Home Affairs; Title V covers immigration of third country nationals, judicial cooperation in civil and criminal matters and police cooperation. 34 Ninth Report of Session 2014–15, HL Paper 136. This sets out the case law of the Court of Justice supporting the proposition that the UK opt-in only applies to proposals and measures having a Title V legal base. Report of the Committee on Session 2015–16 21
• A statement by the then and current Minister for Europe (Mr David Lidington) on EU Business Enhancing (Parliamentary Scrutiny) of 20 January 2011; and a
• Code of Practice on Scrutiny of Opt-in and Schengen Opt-out Decisions in Justice and Home Affairs Matters. 35
59. These indicate in particular the intention of the Government to provide its Explanatory Memorandum (EM) on a proposal attracting the UK opt-in or Schengen opt-out “as swiftly as possible” and “no later than ten working days after publication of the proposal”; and that such EMs would, to the extent possible, give an indication of the Government views as to whether or not it would opt-in and—where it is in a position to do so—the factors affecting the opt-in decision.
60. The House is then given eight weeks from publication to provide the Government with its view on the opt-in decision.
61. In addition to the possibility of recommending a debate in European Committee, the 2011 statement envisages that the Government would be willing, where there is particularly strong parliamentary interest, to set aside time for debate in the House on the basis of a motion on the Government’s recommended approach on the opt-in (“Lidington debates”).
62. Over the course of the session we continued to experience instances where EMs were not deposited within the timespan set by the Government itself and where the opt-in issues were not properly addressed. For example, an Explanatory Memorandum concerning the EU-Turkey Readmission Agreement was submitted more than two weeks after the 10-day deadline set out in the Government’s own Code of Practice, reducing the time available for the Committee to scrutinise the Government’s opt-in decision.36 We have also had to request a Supplementary Explanatory Memorandum on a proposal to expand the European Criminal Records Information System (ECRIS) as the Government’s original Explanatory Memorandum failed to set out the factors which the Government would take into account in reaching an opt-in decision.
63. We understand that when documents first come before us for scrutiny the Government may well not have reached a view on whether or not the opt-in should be exercised but even in those cases, likely to be the majority, it can provide information about the factors affecting the decision. We shall continue to expect EMs on proposals engaging the UK opt-in to be deposited within the deadline and shall require them to set out the factors affecting the opt-in decision, even if no decision has been made.
64. Two proposed Council Decisions establishing a temporary relocation mechanism for individuals in clear need of protection were recommended for Lidington opt-in debates (see paragraph 17). The UK’s decision not to opt in was debated on the floor of the House in December (together with other opt-in documents), several months after the expiry of the deadline for opting in and after the Decisions had been adopted (in September). A
35 Protocol 19 gives the UK an opt-out of proposals for measures building on the Schengen acquis in which it would otherwise take part. 36 Twenty-seventh Report (2015–16), HC 342-xxvi, chapter 4, (23 March 2016). 22 Report of the Committee on Session 2015–16
proposed Directive updating EU laws on combating terrorism was debated in European Committee in March, despite the Committee requesting that the debate should take place on the floor of the House.37
65. Each year the Government provides an Annual Report to Parliament on the application of the JHA opt-in and Schengen opt-out. The 2015 Report is awaited, although the Minister for Immigration (James Brokenshire) and the Minister for Human Rights (Dominic Raab) provided a six monthly update in September 2015. Of the opt-in decisions recorded in that letter two were in respect of proposals lacking a Title V legal base; i.e. proposals which on our analysis would automatically bind the United Kingdom.38
66. The Decision of the Heads of State or Government, meeting within the European Council, concerning a New Settlement for the United Kingdom with the European Union seeks to address this issue, in part by encouraging the Council hive off Title V content of a proposal into a separate proposal which would then have a Title V legal basis. This will not however come into effect (if at all) until the next session as the operation of that Decision is dependent on the referendum result. If and when it does, we will monitor how successful the Government is in hiving off Title V content into separate proposals.
External competence
67. The right to act on certain matters—”competence”—has in some cases been given to the EU alone (EU exclusive competence); in some cases it rests with Member States alone (Member State exclusive competence) , and in others, both have competence to act (shared competence). The extent of EU and Member State competence can be contested, and it is not always clear where competence falls. This issue arises with particular frequency in international agreements. Where the EU has competence it can enter into international agreements with third countries. That causes no difficulty if the subject matter of the agreement clearly falls within its exclusive competence.39 However identifying EU exclusive competence can be controversial.
68. Difficulties also arise when the subject matter of the agreement covers matters which are shared competence i.e. matters for which either the EU or the Member States can act,40 and if the agreement is mixed i.e. entered into by both the EU and its Member States because each are exercising competence in respect of some parts of the international agreement.
69. The Government has a stated policy that, in general, Member States should exercise shared competence in respect of agreements with third countries, leaving the EU to act only where it has exclusive competence.41
37 http://www.publications.parliament.uk/pa/cm201516/cmgeneral/euro/160307/b/160307s01.htm. 38 Proposal for a Council Decision on the conclusion and signing of the Stabilisation Agreement with Kosovo, First Report HC 342-I (2015–16), chapter 27, (21 July 2015) Fourth Report HC 342-iv (2015–16), chapter 21, (14 October 2015); and the proposal for a Council Decision on the signing and provisional application of the Strategic Partnership Agreement with Canada First Report HC 342-I (2015–16), chapter 25, (21 July 2015), Third Report HC 342-iii (2015–16), chapter 20, (9 September 2015). 39 The areas of exclusive competence are defined in Article 3 TFEU. 40 Transport is an example of an area of shared competence. Member States can act as long as the EU has not. 41 For an acknowledgement of this policy see our scrutiny of the Strategic Partnership Agreement the Canada, Third Report (2015–16), HC 342-iii chapter 20, (9 September). Where the EU has exclusive competence the Member states are precluded from acting. Report of the Committee on Session 2015–16 23
70. The Committee supports this policy. It also favours transparency as to the extent to which the EU or the Member States have competence and the extent to which they are respectively exercising shared competence. Otherwise there is a risk of competence creep in the form of the Commission (or another EU institution) arguing that the legal instruments in fact provide for greater EU competence, or a greater exercise of competence, by the EU than is warranted.
71. Ideally the Committee would like to see a declaration of competence attached to the international agreement as this would make the position as to the exercise of competence clear to the third country counterparty. However this rarely happens. It also would like to see careful delineation of competence, and the exercise of it, in the internal EU decisions enabling the EU to sign and conclude (ratify) the international agreement.
72. To this end the Committee, like its predecessor, has been consistently asking Ministers to provide the Government’s analysis in relation to the respective competence of the EU and the Member States applicable to international agreements that come before it for scrutiny. It has also sought transparency in the legal texts. However, in the majority of cases the Government neither seeks the requisite transparency in the legal texts nor provides the analysis of competence requested. This “pragmatic” approach gives rise to the risk of competence creep outlined in the previous paragraph and precludes any assessment of that risk.42 Indeed the Government has more recently been justifying its failure to provide its competence analysis on the grounds, not just that this is difficult, but that “it could be used by those who take a different view of competence”43 or because “we often disagree with the EU institutions on the nature of competence within and international agreement”.44 Very recently the Government has introduced a new reason for not following its own policy: “We examined provisions [of the relevant Economic Partnership Agreements] that at first glance may seem not to fall within the exclusive competence of the EU. The text of the EPAs relating to these issues is mostly of a high level nature, contains no requirements for the Commission to act, and therefore has no direct implications on UK competence.”45 However, whilst apparently downplaying of the importance of following its own policy, the Government continues to refuse to share its competence analysis.
73. The Government’s unwillingness to provide an analysis of the division of competences between the UK and the EU because “it could be used by those who take a different view of competence” illustrates why we are concerned about competence creep. The fact that the Government is prepared to compromise its own policy and withhold information from Parliament demonstrates that it perceives a significant risk of competence creep. Furthermore the withholding of the analysis inhibits Parliament assessing the scale of the risk in any particular case.
42 For an acknowledgement of the “pragmatic” approach see our scrutiny of the Stabilisation and Association Agreement with Bosnia and Herzogovina, First Report HC 342-I (2015–16), chapter 1, 21 July 2015. 43 Our scrutiny of the EU-Mongolia Partnership and Co-operation Agreement, Twenty-first Report HC 342-xx,chapter 11, (27 January 2016). 44 Our scrutiny of an agreement with Korea on satellite navigation Twenty-seventh Report HC 342 xxvi, chapter 2, (3 February) and HC 342 [number] (2015–16), chapter [x], 23 March 2016. 45 Proposals relating to Economic partnership Agreements with East African Community Partner States and the southern African Development Community: thirty-second Report HC 342-xxxi (2015–16), chapter 6, (4 May 2016). 24 Report of the Committee on Session 2015–16
74. We have, however, identified three examples where the Government has taken active steps to negotiate provisions which clarify the extent and exercise of competence.46 We commend these examples and urge the Government to follow them more rigorously in future.
75. We have also been considering provisional application of international agreements with particular attention. In recent years there has been a tendency for mixed international agreements to have a facility to be provisionally applied over a wide spectrum of their contents including matters of exclusive EU competence, matters of shared competence and matters of Member State only competence.47 In some cases the trigger for provisional application is in the hands of the EU. We are concerned to ensure that the EU acts to initiate provisional application only in respect of matters for which it has competence and preferably only where it has exclusive competence. The Minister for Europe indicated that the Government will continue to rigorously oppose the provisional application of Articles of an international agreement which are properly within the competence of the Member States and will continue to press for clarity through joint declarations in those areas of provisional application where there is a risk of ambiguity about the division of competence between the EU and its Member States.”48 We will continue to monitor this aspect of international agreements carefully.
EU Restrictive Measures and competence
76. The EU has competence to impose restrictive measures (sanctions) on individuals or organisations. These normally take the legal form of a Council Decision adopted by unanimity under its Common Foreign and Security Policy (Article 29 TEU) and a further directly applicable Regulation putting this into effect for matters falling within other Union competences (such as the common commercial policy or free movement of capital) using the specific legal basis of Article 215 TFEU. These legal instruments can be, and are, frequently amended and also make provision for further EU subordinate legislation. The end result is often that a complex matrix of legislation needs to be untangled to trace the legal basis for specific restrictive measures.
77. EU restrictive measures are a significant proportion of EU documentation falling under the responsibility of the FCO.49 There are often overrides of scrutiny simply because putting details of prospective sanctions into the public domain before the individual or organisation is aware of the possibility gives rise to a risk of asset flight. In the vast majority of cases these overrides are accepted as reasonable and understandable.
78. The handling of restrictive measures becomes particularly sensitive if it coincides with a legal challenge by the target. Litigants could seek to draw the Committee’s scrutiny into the court proceedings.
46 International cooperation to combat match fixing, Twenty-first Report (2015–16), HC 342-xx,chapter 9,(27 January 2016); Illicit trade in tobacco products, Twentieth Report HC 342xix (2015–16), chapter 14, (20 January 2016); Carriage of hazardous and Noxious Substances by Sea Ninth Report (2015–16), HC 342-ix, chapter 16, (18 November 2015). 47 Previously provisional application of international agreements tended to be restricted to trade matters for which the EU has exclusive competence, and therefore unproblematic. 48 The EU and Bosnia and Herzegovina Stabilisation and Association Agreement, First Report (2015–16), HC 342-I chapter 1, 21 July 2015. The issue has more recently arisen in respect of the Economic Partnership Agreements with the East African Community Partner States and the South African Development Community, Twenty-fifth Report (9 March 2016), HC 342-xxiv, chapter 4 and chapter 5. 49 Over the session, some 30 Chapters dealt with restrictive measures. Report of the Committee on Session 2015–16 25
79. Unfortunately the EU has a poor record of defending its restrictive measures from challenge–often falling down on the grounds that the reasons given on the face of the legislation imposing them is inadequate or that the underlying evidence does not support those reasons. It has on occasions turned out to comprise newspaper reports and other similar material in the public domain.50
80. During the session the Committee has taken the following approach to scrutiny of EU restrictive measures: a) It examined whether the imposition of restrictive measures was politically sensitive because of the general context or the individual concerned for example, against a wide range of individuals and entities in Russia and Ukraine, following the annexation of Crimea and the ongoing crisis in eastern Ukraine; b) It has taken particular care where restrictive measures have been reimposed on an individual or organisation following a previous successful challenge before the Court of Justice. In such cases the Committee has sought reassurance as to the robustness of restrictive measures from further challenge on the ground that repeated losses before the courts in respect of the same target is particularly damaging to the credibility of the sanctions regime. In respect of restrictive measures reimposed on the Oil Industry Pension Fund Investment Company of Iran (OPIC) we asked for a reassurance of that the reimposition of restrictive measures was robust,51 but only received assurance that the reasons and evidence were “sufficient for the Council, in the event of challenge, to defend its relisting decision”.52 It has taken the same approach in respect of restrictive measures imposed re-imposed on Bank Saderat.53
81. The Committee has also sought reassurance of the robustness of the restrictive measures by asking for any evidence in the public domain which the Council relies upon. This has been consistently refused by the Minister for Europe (Mr David Lidington) on the grounds that such information cannot be disclosed without breaching the rule of professional secrecy found in the Council Rules of Procedure covering deliberations of the Council, designed to protect the identity of the proposing Member State. An example is the restrictive measures imposed on OPIC. We disagree. The Committee is asking for material in the public domain and not the actual deliberations of the Council nor the identity of the proposing Member State. Furthermore the Council Rules of Procedure do not, in our opinion override the overarching Regulation on access to EU documents and anticipate that the Council would have to disclose this limited information if requested.54
50 See, for example, the cases cited in para 13.4 of Thirtieth Report (2014–15), HC219-xxix, chapter 13, (21 January 2015). 51 Eighteenth Report (2015–16), HC 342-xvii, chapter 11, (13 January 2016). 52 Twenty-third Report (2015–16), HC 342-xxii chapter 17, (10 February 2016). 53 Thirty-third Report (2015–16), HC 342-xxxi, chapter 9, (11 May 2016). 54 Regulation 1049/2001 on access to EU documents; see also Article 10 and annex II of the Council Rules of Procedure. 26 Report of the Committee on Session 2015–16
6 Scrutiny in other Committees and in the House
Work with select committees
82. Our predecessor’s 2013 Report, Reforming the European Scrutiny System in the House of Commons, acknowledged that the autonomy and workload of select committees may limit the extent of their involvement in scrutiny of European matters, but concluded that the current scrutiny system was “unsustainable”, and that “without broader analysis conducted across the Departmental Select Committee system the scrutiny process is incomplete”.55
83. Over the last session we have worked to increase the depth and range of our engagement with select committees through a variety of methods. We have vigorously encouraged the appointment of EU Reporters56 on 12 select committees57 (up from two in the previous Parliament),58 and we are pleased to see Members of different parties and different views have taken on that role. Our committee staff provide regular written briefings to EU Reporters, containing both brief background on and our analysis of EU Documents which we have either formally drawn to the attention of, or identified as potentially relevant to, their committees. Reporters may then make more informed decisions as to which matters may merit wider consideration by their committees, and on possible EU dimensions to their inquiry work.
84. We have also drawn matters to Committees’ attention at an early stage, such as the Commission Inception Impact Assessment and public consultation on its new insolvency initiative, “Insolvency II”, launched this March. The Commission aims to ensure that viable businesses in distress can be rescued, that “honest but bankrupt” individuals can be given a second chance, and to address investor uncertainty, increase investment and access to capital in the EU and so promote entrepreneurship, jobs and growth. The Inception Impact Assessment shows a clear preference for legislation. Given the potential impact on UK insolvency law, practice and stakeholders of any future legislative proposal, ESC drew the pre-legislative documents and the consultation to the attention of the BIS Committee.
85. Our committee staff have also increased activity and communication through the select committee staff network of ‘Contact Points’, by: providing briefing on technical and legal aspects of diverse EU matters (particularly on the multiplicity of complex EU migration, security, and Single Market related proposals brought forward in 2015–16);
55 European Scrutiny Committee, Twenty-fourth Report of Session 2013–14, Reforming the European Scrutiny System in the House of Commons, HC 109-I, Chapter 6. 56 The background to the European Reporter mechanism is discussed in our Twenty-fourth Report of Session 2013–14, Chapter 6. In overview, the concept is that a Member of each select committee is appointed to keep a watching brief on developments in the EU, acting as a point of contact for our Committee to pass information to, to improve coordination across the scrutiny system. 57 The following select committees have appointed EU Reporters in the current Parliament: Energy and Climate Change (two European Reporters appointed), Environment, Food and Rural Affairs, Foreign Affairs, Health, Home Affairs, International Development, Justice, Northern Ireland Affairs, Public Administration and Constitutional Affairs Committee, Welsh Affairs, Women and Equalities (two European Reporters appointed), and Work and Pensions. 58 The Business, Innovation and Skills Committee and the Justice Committee appointed EU Reporters in the previous Parliament. Report of the Committee on Session 2015–16 27
suggesting potential witnesses for EU related inquiries; identifying relevant Commission roadmaps and consultation opportunities; briefing on EU documents debates; and dealing with regular ad-hoc enquiries on EU matters, from both Members and committee staff.
86. The National Parliament Office (NPO), based in Brussels (the main purpose of which is to act as “the eyes and ears” of the European Scrutiny Committee and other select committees of the two Houses), has also been highly active in 2015–16. At the beginning of the Parliament, it provided tailored briefing to each select committee on the priority measures and opportunities for influence at EU level, and the Office has hosted seven select committee delegations and supported Members attending a number of inter-parliamentary conferences, whether in Brussels or other EU capitals. The NPO has assisted committees with securing witnesses and been an important conduit for the dissemination of select committee reports to relevant contacts in Brussels, as well as providing invaluable briefing to our committee on the detail of proceedings in the EU Institutions.
Scrutiny of the Commission Work Programme 2016
87. Our December 2015 Report on the Commission Work Programme (CWP) 2016,59 implemented, for the first time, our predecessor’s recommendation in its 2013 Scrutiny Reform Report that in future our Committee should work collaboratively with other select committees to set out, in a single consolidated document, which of the CWP proposals merited particular scrutiny.60 That recommendation was prompted by our predecessor’s awareness of the need to increase coordination across select committees to improve the scrutiny process, and its recognition that the CWP offers an invaluable opportunity for select committees to comment on the Commission’s priorities in their respective areas.
88. The CWP 2016 was published on 27 October 2015.61 On 4 November, we wrote to 23 select committee chairs, copying the letter to EU Reporters, requesting their committees’ assessments both of the most important proposals, and any notable omissions in the CWP. Committees were also asked to consider if any of the proposals raised potential subsidiarity issues. Our Committee staff assisted and collaborated with their counterparts by signposting legally and politically important initiatives, measures which were identified for review under the European Commission’s rolling Regulatory Fitness and Performance Programme (known as REFIT), Priority Pending Proposals (that is, those that are earmarked to be fast tracked through the legislative process), and withdrawals and modifications to pending proposals.
89. The Committee received substantive responses from 14 select committees.62 Those committees’ assessments, together with our analysis of the CWP and the UK Government’s views of it, were set out in a consolidated table in our 15th Report of Session 2015–16, creating a blueprint for scrutiny in future years. On 16 December 2015, we made the following recommendation:
59 Fifteenth Report (2015–16), HC 342-xiv Chapter 2, (16 December). 60 Twenty-Fourth Report (2013–14), HC 109-I, Chapter 6, (28 November). 61 CWP 2016 is comprised of a Commission Communication: ‘No time for business as usual’ and Addenda 1-6. 62 Substantive responses were received from the following select committees: Business, Innovation and Skills, Culture, Media and Sport, Education, Energy and Climate Change, Environmental Audit, Foreign Affairs, Health, International Development, Justice, Science & Technology, Transport, Welsh Affairs, Women and Equalities, and Work and Pensions. 28 Report of the Committee on Session 2015–16
Given the 2016 CWP’s wide-ranging nature, the interest of Members across the House, and the opportunity it offers to scrutinise the Commission’s priorities and plans for the coming year at an appropriately early stage, we recommend it for debate on the floor of the House, to take place before the February recess.63
Debate scheduling
90. We note the Government has not yet scheduled the debate we recommended on the Commission Work Programme. We are disappointed that the House has not had the opportunity to consider this key statement of the Commission’s political direction nearly half way the year to which it applies.
91. Our predecessor’s Scrutiny Reform Report (November 2013) noted that there had been problems with the Government’s scheduling of debates, commenting on “long delays”.64 This worsened over the following 12 months, and our predecessor’s Scrutiny Reform Follow-up and Legacy Report (March 2015) concluded of the delay: “We have not yet received an adequate explanation, and we doubt one will be forthcoming. Such a scenario must never be allowed to happen again.”65
92. Over the course of the 2010–15 Parliament our predecessor commented regularly on the Government’s persistent delays in scheduling of EU Documents debates, both in European Committee and on the floor of the House. The situation continued to deteriorate in this Session, with worsening delays. For example, despite the heightened terrorist alert in many Member States following the attacks in Paris, Copenhagen and Brussels, it took the Government nine months to schedule a debate on the European Agenda on Security (we made our debate recommendation in July; the debate took place in April). Still more serious, there has been complete failure to schedule debates of the utmost importance, including Free Movement of EU Citizens, the Rule of Law in EU Member States, and the Functioning of the Schengen Area and strengthening of checks at the EU’s external borders.
93. For the first time, we publish detailed consolidated data on the length of the delays, to evidence the extent to which the Government is systematically denying Parliament the opportunity to consider and debate EU documents relating to matters that are fundamental both to the EU, and the UK’s membership of it.
94. There was no improvement in the number of debates scheduled in European Committee or on the floor of the House in 2015–16. Table 1 shows that the number of debates in European Committee in 2015–16, as in 2014–15, declined sharply from the preceding eight years. The number of floor debates scheduled remains low by previous standards.
63 Fifteenth Report (2015–16), HC 342-xiv, Chapter 2, (16 December). 64 Twenty-Fourth Report (2013–14), HC 109-I, Chapter 5, (28 November). 65 Thirty-Eight Report (2014–15), HC 918, Scrutiny Reform follow-up and Legacy Report, Chapter 2, (18 March 2015). Report of the Committee on Session 2015–16 29
Table 2: Activity levels between financial year 2006–07 and 2015–16
Financial 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 year –07 –08 –09 –10 –11 –12 –13 –14 –15 –16 EU 1,045 1,044 941 915 1,031 1,138 971 1,234 907 768 Documents scrutinised Reported 484 472 443 416 458 643 489 645 421 425 as legally/ politically important Debates in 42 34 32 33 40 35 38 39 18 18 European Committee Debates on 6 3 5 1 6 10 12 12 3 3 the floor of the House
95. Our predecessors recommended in 2014 that “the Government should undertake to make time available in the House within four sitting weeks of a Committee recommendation for a floor debate (unless the Committee has for any reason waived this requirement or has recommended a more urgent timescale).”66 The Scrutiny Reform Report included an equivalent recommendation for debates in European Committee.67 In light of the worsening situation around the scheduling of debates, in March 2015 our predecessors argued “At the very least we expect a new Government to follow previous practice and ensure that all the outstanding debates are scheduled within a month of the debate recommendation being confirmed by the new Committee.”68
96. Table 2 below shows the delay (in sitting weeks) between EU Documents debates being recommended, and scheduled, for the financial year 2015–16. 11 debates remain unscheduled at the time of writing. Five of those are debate recommendations made in the previous Parliament and confirmed at our first meeting on 21 July 2015. Although we welcome the news it will be scheduled shortly, we note the Free Movement of EU Citizens debate has now been outstanding for 70 sitting weeks, or more than two calendar years.
66 Twenty-Fourth Report (2013–14), HC 109-I Scrutiny Reform Report, Chapter 5. 67 Twenty-Fourth Report (2013–14), HC 109-I Scrutiny Reform Report, Chapter 7. 68 Thirty-Eight Report (2014–15), HC 918 Scrutiny Reform follow-up and Legacy Report, Chapter 2, paragraph 30 (18 March 2015). 30 Report of the Committee on Session 2015–16
Table 3: EU Documents debate recommendations made or confirmed in financial year 2015–16
EU Documents debate Date of ESC Date debate Delay (sitting recommendation for scheduled weeks)* debate Free Movement of EU 22 January 2014 Not scheduled 74 Citizens (confirmed 21 July 2015)
Rule of Law in EU Member 7 May 2014 Not scheduled 64 States (confirmed 21 July 2015) Ports 2 July 2014 Not scheduled 56 (confirmed 21 July 2015) EU Merger Control 3 September 2014 3 November 2015 33
(confirmed 21 July 2015) EU Action Plan for the 3 September 2014 7 March 2016 46 Circular Economy (confirmed 21 July 2015) Defence Implementation 5 November 2014 10 November 29 Roadmap (confirmed 21 July 2015 2015) EU Charter of Fundamental 4 February 2015 Not scheduled 38 Rights (confirmed 21 July 2015) EU Strategy in Afghanistan 25 February 2015 25 April 2016 34
(confirmed 21 July 2015) Female Genital Mutilation 24 March 2015 15 December 2015 17
(confirmed 21 July 2015) Economic and Monetary 21 July 2015 Not scheduled 25 Union (the Five Presidents’ Report) European Agenda on Security 21 July 2015 19 April 2016 22
EU General Budgets for 2015 21 July 2015 14 September 1 and 2016 2015 Common System of VAT 21 July 2015 2 November 2015 5 (Vouchers) Poverty Eradication and 21 July 2015 4 November 2015 5 Sustainable Development Better Regulation 21 July 2015 8 February 2016 15 Report of the Committee on Session 2015–16 31
EU Documents debate Date of ESC Date debate Delay (sitting recommendation for scheduled weeks)* debate Floor of the House: 21 July 2015 14 December 2015 10 Relocation of migrants in need of international protection (opt-in debate) Floor of the House: European 21 July 2015 14 December 2015 10 Agenda on Migration Use of Genetically Modified 9 September 2015 17 November 2015 5 Food and Feed Energy Market Design 9 September 2015 23 November 6 2015 Common Foreign and 9 September 2015 1 February 2016 13 Security Policy Subsidiarity and 9 September 2015 7 December 2015 8 Proportionality Floor of the House: 9 September 2015 24 November 6 Restrictive measures against 2015 Iran EU Emissions Trading System: 16 September 2015 Not scheduled 23 2021–30 Action Plan on Human Rights 16 September 2015 25 January 2016 11 and Democracy Protection of the EU’s 16 September 2015 8 February 2016 13 Financial Interests Capital Markets Union 28 October 2015 3 December 2015 4 Assessment of Exhaust 25 November 2015 8 February 2016 7 Emissions Commission Work 16 December 2015 Not scheduled 14 Programme 2016 European Semester 2016 6 January 2016 Not scheduled 14 Combating Terrorism 6 January 2016 7 March 2016 7 Electoral Law (opt-in debate) 13 January 2016 2 February 2016 2 EU-Turkey cooperation on 27 January 2016 Not scheduled 11 migration and the impact on the Schengen free movement area Steel: Preserving sustainable 13 April 2016 Not scheduled 3 jobs and growth in Europe Value Added Taxation 27 April 2016 Not scheduled 1 Ukraine and Russia: EU 11 May 2016 Not scheduled 1 restrictive measures Reform of the Common 11 May 2016 Not scheduled 1 European Asylum System Average delay in scheduling EU Documents debates: 18 sitting weeks
*“Sitting weeks” includes only weeks when the House of Commons sat for at least 4 days.
97. Our predecessor’s legacy report details our questioning of a series of Ministers in 2014–2015 about the Government’s failure to schedule EU document debates, including 32 Report of the Committee on Session 2015–16
the Home Secretary,69 the Minister for Europe,70 the Foreign Secretary,71 and the Leader of the House,72 as well as the sustained pressure we exerted on the Leader of the House at Business Questions over the same period.73 We have continued to challenge the Government, questioning the Foreign Secretary74and the Leader of the House75 about the ongoing delays in scheduling debates. We are also calling the Financial Secretary to give us evidence as to the delay on the debate on Economic and Monetary Union (the Five Presidents’ Report).76
98. We have also been prepared to challenge the Government when matters we recommended for debate on the floor of the House were scheduled for Committee.77 Following successive recommendations for the Draft Regulation establishing a framework on the market access to port services and the financial transparency of ports to be debated on the floor of the House78 (and a previous European Committee meeting on 3 September 2014 which was adjourned without debate of the documents),79 on 5 January 2016 the Government again scheduled the debate in European Committee, to take place on 12 January.80 Members of the House, including several on this Committee, objected to the scheduling of the debate in Committee at Business Questions,81 and signed an amendment to the motion,82 as follows:
Line 7, at end insert ‘notes that it was the stated preference of the Government that proposals for regulation applicable to the UK in this area - in which earlier proposals have twice been rejected by the European Parliament - should not be taken forward; further notes that the UK port employers are not persuaded that the legislation is acceptable and that it is also opposed by all the relevant trade unions; urges the Government to insist upon the compromise amendment proposed by the UK Major Ports Group; and regrets that a matter of such
69 12 Jan 2015. 70 14 January 2015. 71 20 January 2015. 72 11 February 2015. 73 8 January 2015, 22 January 2015. 74 17 November 2015, Q99. 75 For example, letter from Sir William Cash MP to Rt Hon Chris Grayling MP requesting a debate on the relocation of migrants and other outstanding debates, dated 8 September 2015. 76 See our 30th Report of Session 2015–16, Chapter 1. 77 The ESC does not currently have the power to refer documents directly for debate on the floor of the House. When we believe a document warrants a floor debate, we have to wait for the Government to arrange it. Formally, the document stands referred to a European Committee. 78 ESC, Fifth Report of Session 2014–15,HC 219-v, Chapter 2; Tenth Report of Session 2014–15;HC 219-x; Twelfth Report of Session 2014–15, HC 219-xii, Chapter 2; 14th Report of Session 2014–15, HC 219-xiv; Sixteenth Report of Session 2015–16,HC 342-xv Chapter 3. 79 http://www.publications.parliament.uk/pa/cm201415/cmgeneral/euro/140903/140903s01.htm. 80 The Debate was, on the following motion:
Mr Robert Goodwill
That the Committee takes note of European Union Documents No. 10154/13 and Addenda 1 to 5, a draft Regulation establishing a framework on market access to port services and financial transparency of ports, and No. 13764/14, a draft Regulation establishing a framework on market access to port services and financial transparency of ports (First reading): General approach; and calls on the Government to continue negotiating and working with the European Parliament to resist provisions that risk harming the competitiveness of the UK port sector See European Business, 5 January 2016 81 Hansard 7 Jan 2016: Column 443. 82 Signatories to the amendment were Mr Bernard Jenkin, Mrs Louise Ellman, Sir William Cash, Peter Aldous, Kate Hoey, Craig Mackinlay, Mr Philip Hollobone and Royston Smith. Report of the Committee on Session 2015–16 33
importance affecting so many constituents and the ports industry as a whole has been scheduled for debate in European Committee, contrary to the European Scrutiny Committee’s repeated recommendation that the debate be held on the Floor of the House.’83
99. The Government withdrew the debate on 11 January, and asked the Committee to consider whether the rescheduled debate should be on the floor of the House or in Committee. The debate remains outstanding.
100. More than a year ago, our predecessor concluded that “The Government’s collective failure to schedule so many debates on EU documents over the past year is deplorable, and is a discourtesy to this Committee and to all Members of the House.” While there has been some recent progress in scheduling Committee debates, for most of the session the Government has failed to schedule debates on legally and politically important documents.
101. On average, it took the Government 18 sitting weeks, or four and a half calendar months, to schedule each EU Document debate that took place in 2015–16. We propose documents for debate both because they are intrinsically important and because they deal with issues of the moment. Lengthy delays prevent members of the House from debating matters when they are most current and putting their questions and views to Ministers before negotiating positions are fixed.
83 See European Business, 11 January 2016. 34 Report of the Committee on Session 2015–16
7 Conclusion 102. We return to the Prime Minister’s statement:
It is national parliaments, which are, and will remain, the true source of real democratic legitimacy and accountability in the EU.84
This Report sets out some ways in which the Government has acted in accordance with that aspiration, but overall, the Government could do a great deal more to make its own accountability to Parliament on EU matters a reality. We remain frustrated at the lack of progress in addressing our predecessor’s concerns about the scrutiny system. We note that the scrutiny reserve resolution predates the Lisbon Treaty, which was agreed in 2007 and entered into force in 2009. The tussle we have had over deposit of important documents relating to the EU’s foreign policy demonstrates why updating is urgently needed.
103. Moreover, as this report sets out, the Government has been ducking our recommendations for debates. The importance of our recommendations is that they provide Members with the opportunity for scrutiny; we cannot control how they are taken up. We note, however, that delays in scheduling will reduce the topicality, interest and influence of any debate.
104. We continue to be concerned with the Government’s approach to the legal framework for EU decision making. We appreciate that politics is the art of the possible, and that it is possible to act by consensus, without reference to the treaties. But the EU is a legal, treaty based organisation, and where EU action is formally agreed, the Government should be clear about the legal basis on which this is done, and provide the information this Committee needs to assess its actions and ensure that EU legislation is clear.
105. Despite our frustrations, there may be signs of change, beyond the Prime Minister’s general statement on the important of national Parliaments. In his letter of 2 June, the Foreign Secretary indicated he would like to make real progress on scrutiny reform. We share that ambition, and look forward to engaging constructively with the FCO and with the colleagues across the House to improve the scrutiny system. Where necessary, we will involve our colleagues in the House of Lords in this.
84 Speech, 23 January 23. Report of the Committee on Session 2015–16 35
Conclusions
EU renegotiation and broadcasting
1. We welcome Rona Fairhead’s agreement that impartiality should be central to the BBC’s mission, and note the BBC’s commitment to training and swift complaints handling. We also welcome Ofcom’s active approach to reminding broadcasters of their obligations, and ensuring that complaints are handled swiftly. Other broadcasters are also aware of the importance of impartial referendum coverage. We have no doubt that there will be disputes about whether or not coverage is impartial, but the BBC and Ofcom have at least taken steps to address the issue. (Paragraph 16)
Scrutiny overrides
2. Although overriding the scrutiny reserve is undesirable we recognise it cannot always be avoided. We expect the Government to make every effort to communicate with Parliament in a timely manner in order to avoid overrides. We also expect comprehensive explanations whenever an override occurs. That said, over the most part of session 2015–16, we have had no quarrel with the Government in its handling of significant overrides. They were adequately explained and could not, in our view, have been avoided. We urge the Government to remain vigilant to keep the Committee informed about the progress of business, particularly to instances where a negotiation could accelerate over a period when Parliament is in recess. When appropriate, Departments should approach us to ask for a scrutiny waiver. (Paragraph 52)
3. There is one exception to this generally satisfactory picture: in February the Committee decided, exceptionally, to release the Council’s legal opinion on the renegotiation package, although it was subject to a privacy marking known as limité, since we considered it was crucial to transparency of the process. Since then, the Foreign and Commonwealth Office has supplied limité documents to the equivalent committee in the House of Lords, but has withheld them from us, and this has led to several scrutiny overrides. The decision to provide documents to the House of Lords demonstrates that there is no bar to sharing the documents per se: it was a direct response to the Committee’s earlier decision, taken in exceptional circumstances. The Foreign Secretary has now proposed a new formal agreement on the handling of such documents: we look forward to considering these proposals and trust that the disagreement can be resolved shortly. We regret that the FCO has indicated it withhold limité papers until the formal agreement is reached, since this makes clear it is currently the Department’s policy to flout the scrutiny reserve, which rests on a resolution not of this Committee, but of the House as a whole.” (Paragraph 53)
Legal issues
4. The Government’s unwillingness to provide an analysis of the division of competences between the UK and the EU because “it could be used by those who take a different view of competence” illustrates why we are concerned about competence creep. The fact that the Government is prepared to compromise its own policy and withhold 36 Report of the Committee on Session 2015–16
information from Parliament demonstrates that it perceives a significant risk of competence creep. Furthermore the withholding of the analysis inhibits Parliament assessing the scale of the risk in any particular case. (Paragraph 73)
Scrutiny of the Commission Work Programme 2016
5. We note the Government has not yet scheduled the debate we recommended on the Commission Work Programme. We are disappointed that the House has not had the opportunity to consider this key statement of the Commission’s political direction nearly half way the year to which it applies. (Paragraph 90)
Debate scheduling
6. More than a year ago, our predecessor concluded that “The Government’s collective failure to schedule so many debates on EU documents over the past year is deplorable, and is a discourtesy to this Committee and to all Members of the House.” While there has been some recent progress in scheduling Committee debates, for most of the session the Government has failed to schedule debates on legally and politically important documents. (Paragraph 100)
7. On average, it took the Government 18 sitting weeks, or four and a half calendar months, to schedule each EU Document debate that took place in 2015–16. We propose documents for debate both because they are intrinsically important and because they deal with issues of the moment. Lengthy delays prevent members of the House from debating matters when they are most current and putting their questions and views to Ministers before negotiating positions are fixed. (Paragraph 101) Report of the Committee on Session 2015–16 37
Appendix: House of Commons Reasoned Opinions and Political Dialogue Opinions
House of Commons Reasoned Opinions (RO): Legislative State of Play
= Recently adopted or adoption expected imminently at time of publication = Yellow card issued by national parliaments
COM Proposal HoC RO (click Other RO Current state of play number for opinion text) (L = lower (click chamber, to view U = upper procedure chamber) file) (2010) 371 Investor 25/10/2010 SE Compensation Schemes (Directive, Proposal withdrawn QMV) (2011) 121 Common 11/05/2011 NL(L), SE, Negotiations ongoing at Consolidated PL(L), SK, time of publication Corporate Tax Base (CCCTB) (Directive, unanimity) (2011) 452 Prudential 09/11/2011 FR(U), SE Requirements for Credit Institutions Adopted 27th June 2013 (known as CRD 4) (Regulation, QMV) (2011) 635 Common European 23/11/2011 AT(U), Sales Law DE(L), (Regulation, QMV) BE(U) Negotiations ongoing at time of publication (2011) 896 Public Procurement 06/03/2012 SE Adopted 26th March (Directive, QMV) 2014
(2012) 130 Freedom of 22/05/2012 BE(L), DK, establishment and FI, FR(U), freedom to provide LV, LU, Proposal withdrawn services: right to MT, NL(L), take collective PL(L), PT, action (Monti SE II) (Regulation, unanimity) (2012) 617 Fund for European 18/12/2012 UK(U), Adopted 12th March aid to the DK, DE(L), 2014 most deprived SE (Regulation, QMV) 38 Report of the Committee on Session 2015–16
(2012) 614 Gender balance on 07/01/2013 UK(U), Negotiations ongoing at corporate boards NL(U+L), the time of publication (Directive, QMV) SE, DK, PL(U+L), CZ(L) (2013) 147 Reducing the cost 21/05/2013 RO(L), Adopted 23rd May 2014 of deploying high- NL(L), SE speed electronic communications networks (Regulation, QMV) (2013) 534 European Public 22/10/2013 UK(U), Negotiations ongoing at Prosecutor’s Office CZ(U), CY, the time of publication (EPPO) (Regulation, NL(U+L), unanimity) HU, IE(U+L), FR(U), RO(L), MT, SI(L), SE (2013) 619 New psychoactive 11/11/2013 UK(U) Negotiations ongoing at substances the time of publication (Regulation, QMV) (2013) 641 Indices used as 02/12/2013 No other Negotiations ongoing at benchmarks RO the time of publication in financial instruments and financial contracts (Regulation, QMV) (2013) 821 Presumption of 10/02/2014 No other Adopted 11th March innocence (Directive, RO 2016 QMV) (2013) 893 Animal cloning 12/02/2014 No other Negotiations ongoing at (Directive, RO the time of publication unanimity) (2014) 221 Undeclared work 09/06/2014 No other Adopted 11th March RO 2016 (Decision, QMV) 2015/0235 Reform of the 03/02/2016 UK(U), Negotiations ongoing at Electoral Law of the SE, LU, NL the time of publication (INL) European Union (EP (U+L) Resolution) Report of the Committee on Session 2015–16 39
House of Commons Political Dialogue Opinions: Legislative State of Play
COM number Proposal HoC Opinion Other RO Current state of (click for play (click to view opinion text) (L = lower procedure file) chamber, U = upper chamber) (2010) 379 Seasonal workers 13/10/2010 UK(U), Adopted 28th AT(U+L), March 2014 CZ(U+L), NL(U+L), PL (U) (2010) 368 Deposit 13/10/2010 DE(U+L), DK, Adopted 12th Guarantee SE June 2014 Schemes
(2011) 169 Taxation of 30/06/2011 BG, ES(U+L) energy products and electricity Proposal withdrawn (2012) 380 Roadworthiness 24/10/2012 CY, FR(U), SE, Adopted 29th NL(U+L) April 2014
(2014) 167 IORPs II 04/06/2014 NL(L) Negotiations ongoing at the time of publication
On occasions where the 8-week deadline to adopt a Reasoned Opinion could not be adhered to by the House of Commons, the European Scrutiny Committee has sent its Opinions to the European Commission in the framework of the ‘political dialogue’ process, whereby the Commission commits to providing a substantive response.
National Parliament list of Abbreviations
Austrian Bundesrat AT(U) Austrian Nationalrat AT(L)
Belgian Senate BE(U) Belgian Chamber of BE(L) Representatives Bulgarian National Assembly BG Croatian Parliament HR Cypriot House of CY Representatives Czech Senate CZ(U) Czech Chamber of Deputies CZ(L) Danish Folketinget DK Estonian Riigikogu EE Finnish Riksdag FI French Senate FR(U) French National Assembly FR(L) 40 Report of the Committee on Session 2015–16
German Bundesrat DE(U) German Bundestag DE(L) Greek Hellenic Parliament EL Hungarian National HU Assembly Irish Senate IE(U) Irish House of Representatives IE(L) Italian Senato della IT(U) Italian Camera dei Deputati IT(L) Repubblica Latvian Saeima LV Lithuanian Seimas LT Luxembourgish Chamber of LU Deputies Maltese House of MT Representatives Netherlands Eerste Kamer NL(U) Netherlands Tweede Kamer NL(L) Polish Senate PL(U) Polish Sejm PL(L) Portuguese Assembleia da PT Republica Romanian Senate RO(U) Romanian Chamber of Deputies RO(L) Slovakian National Council SK Slovenian National Council SI(U) Slovenian National Assembly SI(L) Spanish Senate ES(U) Spanish Congreso de los ES(L) Diputados Swedish Riksdagen SE UK House of Lords UK(U) UK House of Commons UK(L) Report of the Committee on Session 2015–16 41
Formal minutes
Wednesday 8 June 2016
Members present:
Sir William Cash, in the Chair
Richard Drax Craig Mackinlay Damian Green Kelly Tolhurst Kelvin Hopkins Mr Andrew Turner
Draft Report, proposed by the Chair, brought up and read.
Ordered, That the draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 105 read and agreed to.
Resolved, That the Report be the Fifth Report of the Committee to the House.
Ordered, That the Chair make the Report to the House.
[Adjourned till Wednesday 15 June at 1.45pm. 42 Report of the Committee on Session 2015–16
List of Reports from the Committee during the current Session All publications from the Committee are available on the publications page of the Committee’s website.
Session 2016–17
First Report Documents considered by the Committee on 19 HC 71-i May 2016 Second Report Transparency of EU Council decision-making HC 128 Third Report Documents considered by the Committee on 25 HC 71-ii May 2016 Fourth Report Documents considered by the Committee on 8 HC 71-iii June 2016