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Parliamentary scrutiny procedures applicable to Third Pillar instruments

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05 March 1997

Statewatch evidence to the House of Lords Sub-Committee F - "Enquiry into Parliamentary scrutiny procedures applicable to Third Pillar instruments"

Statewatch evidence to the House of Lords Sub-Committee F - "Enquiry into Parliamentary scrutiny procedures applicable to Third Pillar instruments"

1. What are the main practical problems being experienced in relation to the Third Pillar?

As regards access to documents being considered by the Council of Justice and Home Affairs Ministers (JHA Council) there are a number of aspects to be considered:

a) access by national parliaments

b) access by citizens (including researchers, academics, lawyers, journalists and others)

c) whether access is granted before measures are adopted or after to each of the above two categories

Although your inquiry is concerned with parliamentary scrutiny there is a wider question of ensuring an open, democratic debate on measures being considered by the JHA Council.

"Third pillar" measures, which are concerned with peoples' rights (whether EU citizens or those seeking to enter the EU such as refugees and asylum-seekers), should be open to the same standards as a Parliamentary Bill. Namely, that proposals should be available to everyone in sufficient time prior to their adoption to enable a democratic debate to take place involving the media, voluntary groups, lawyers, academics and parliamentarians.

2. To what extent are Third Pillar documents available for consideration, and on what terms?

Perhaps the most important is the availability of documents by all citizens. We have applied to the Council in Brussels under the Decision of December 1993 over the past two years and have had a varied experience.

In November we lodged six complaints of maladministration against the Council of Ministers over access to documents with the European Ombudsman. They were declared "admissible" on 16 January and this process is underway. A copy of these complaints have been given to your Committee.

3. What criteria should apply in determining whether or not a Third Pillar document should be deposited in Parliament for scrutiny?

All documents should be deposited in parliament. It is for the relevant Committees, like yours, to consider which to scrutinise not for the Home Secretary to decide what to send over for scrutiny.

Moreover, this should include not just the final report sent to the Council of Justice and Home Affairs Ministers but all the background reports to it - from the K4 Committee, the Steering Groups and the Working Parties.

4. What improvements could be made to the UK Parliamentary scrutiny procedures currently in existence?

see question 7.

5. At what stage in the legislative process under the Third Pillar should documents be deposited?

National parliaments should have at least one month to consider reports before they are adopted in the JHA Council.

In practice this would mean documents being deposited in parliaments at the same time as they are sent out for the meetings of the K4 Committee.

6. Should a Parliamentary scrutiny reserve apply to documents deposited under the Third Pillar?

The present scrutiny procedure laid down by the Home Office is clearly unsatisfactory. It was drawn up before the Council of Justice and Home Affairs Ministers, the K4 Committee and its Steering Groups and Working Parties began work in earnest.

At the Council meetings in Brussels and Luxembourg Ministers defend their secret decision-making process by arguing that measures are scrutinised at national level. For this to be meaningful scrutiny must mean the power to:

1) to introduce a clearance procedure for each report;

2) to be able to put forward amendments. This process could, of course, embrace a specific inquiry by the Committee and/or a debate in the House.

7. Has the Select Committee's practice of forwarding documents to interested parties for comment proved useful? Would those receiving such documents have been aware of them if the Select Committee had not done so?

The Select Committee's practice of forwarding documents to interested parties like ourselves is certainly very useful.

We are aware of most of the documents sent out by the Select Committee but receipt of them ensures other background documents can be sent in (eg: the draft Convention on Extradition).

8. What would be the implications for scrutiny if asylum and immigration were transferred from the Third Pillar into a separate Pillar/Title?

If asylum and immigration were taken out of the "third pillar" and transferred to the "first pillar" then the normal Community procedures would prevail with the Commission producing drafts and the European Parliament having the opportunity to intervene.

If this area were simply transferred to a new Title but remained intergovernmental then little would change.

9. What arrangements exist for Third Pillar scrutiny in other national Parliaments and the European Parliament?

EP: There was an suggestion before the last European Parliament elections that the Civil Liberties and Internal Affairs Committee should set itself the task of monitoring the Agendas of the JHA Councils, but this was not pursued after.

National parliaments: it is important to distinguish between parliaments which are informed of the proposed measures prior to adoption and those which are not; between parliaments who are broadly informed of the decisions to be taken but are not given copies of the actual texts; between parliaments where Ministers appear before a Committee to answer questions; between parliaments which have meaningful powers of scrutiny and the many who do not.

The only delegation to regularly invoke a parliamentary scrutiny reserve is the Netherlands.

10. Should there be a minimum period for Parliamentary scrutiny before adoption of Third Pillar documents in the Council? Should the Third Pillar be brought within the scope of the proposed protocol on the role of national Parliaments being considered in the IGC?

see question 3.

The answer is Yes and Yes.

The minimum period should be one month with the proviso that the measure has been sent to the K4 Committee.

11. To whom and on what terms are agendas for meetings of the K.4 Committee and the Justice and Home Affairs Council available? Should the Government be obliged to provide agendas or information on the matters likely to be discussed at such meetings within a minimum period (at least two weeks in advance) prior to the Council?

A distinction needs to be drawn between the majority of agenda items which are ready well in advance of JHA Council meetings and the final Agenda which may not be agreed by COREPER until a week before the meeting because of one or two outstanding areas of disagreement. "Provisional" agendas should be available up to two weeks before the meeting.

Here the assumption is made that if these Agendas are available to UKREP in Brussels then they can be made immediately available to this and other parliamentary Committees.

12. To what extent do the Governments of other Member States report to their Parliaments on what occurred at meetings of the Justice and Home Affairs Council?

We do not have a full picture of the situation. Some prepare reports, some just circulate the official press release.

13. Should certain proposals under the Third Pillar be excluded from Parliamentary scrutiny because of security and confidentiality considerations?

Having studied all the JHA Councils since 1992 I can reasonably say that very few reports need to be excluded on these grounds. Moreover, these grounds do not constitute a major reason for delay in depositing documents for scrutiny as was perhaps envisaged in 1993.

Reports on the terrorist "threat" are the only category which should be accepted carte blanche as being refused.

The confidentiality clause (4.2 of the Council Decision of 20.12.93) is the most open to abuse in granting access.

For example, we have just been refused access to a document on these grounds "for the time being".

One regular excuse for not granting access is that a report contains the views of member states and it only requires one member state to object for a report to be withheld.

Some governments, notably Sweden, give access to documents with the names of member states blanked out. The argument over whether citizens have a right to know the reservations of their governments is a wider issue affecting the whole of the EU business. Short of this being resolved in favour of openness it is clearly preferable, particularly in the field of justice and home affairs, for access to be given to reports with the names of the member states blanked out.

14. To what extent do Ministers appear before other Parliamentary Committees to provide briefings on matters under consideration in the Third Pillar?

Denmark, Sweden, Ireland, Germany

15. Under the current UK scrutiny arrangements the Government provide only the first full text of a proposal and are not obliged to provide further information on the subsequent negotiations on a proposal. Should the Government be required to provide supplementary explanatory notes on proposals which have been scrutinised by the Select Committee, where significant changes have been made to those proposals?

It is clear from the reports which have been deposited with the Committee that this "formula" of supplying the "first full text" of a measure combined with the Home Secretary discretion to decide what is to be scrutinised has led to a highly unsatisfactory situation.

The verbal evidence given to the Committee on 30 January by the Home Office amply demonstrates how this mechanism is not working.

The current process did not appear to give the Committee the information it needed during the drafting of the Europol Convention - there were in our view some seven substantive drafts.

Nor does it work if the "full first text" is held up over a minor reservation by one member state.

A possible proposal for the deposit of reports: a) copies of all reports to be considered by the JHA Council should be sent to the Committee when they are sent to the K4 Committee as should further copies of any revisions by the K4 Committee or COREPER; and b) where a measure goes through many drafts the Committee should be supplied with copies of all drafts, after the "first full text", which are received by the UKREP in Brussels or the Home Office in London.

Any change to the present process of scrutiny should seek to remove the Home Secretary's discretion and establish the Committee's right to receive full documentation.

Supplementary evidence

One of the key issues is to determine when parliament should have reports for scrutiny. The argument "as early as possible" will tend to get the response from government that the agendas are not agreed until the last minute and individual reports are often revised two or three days before meetings of the Justice and Home Affairs Council.

To cast some light on the stage, within the JHA structure, when reports are effectively agreed and should be made available to parliament for scrutiny and/or information the proceedings of the JHA Council of 28-29 November 1996 has been examined (with the reservation that the process may differ from meeting to meeting).

The first approach is to see if it is tenable to suggest that reports should be given to parliament when reports are sent to the K4 Committee (whether from the Presidency, a Steering Group or a Working Party).

A. Analysis of Main Agenda items and consideration by the K4 Committee

1. There were 11 Main Agenda items with 26 reports considered.

2. 16 of these reports were considered by the K4 Committee, and but 10 reports were not. Of the 10 reports not discussed by the K4 Committee, one was a proposal from Spain, two from the Presidency, one from the incoming Netherlands Presidency, and one came from the Commission.

Of the 16 reports discussed by the K4 Committee: 12 were considered on 4-5 November 1996 and 2 on 15 November 1996; two reports were sent by the Presidency to the K4 Committee on 22.10.96 and 23.10.96 respectively.

Observation

These figures suggest that the forwarding of reports to parliament for scrutiny/information when it has been decided to submit to them to the K4 Committee (whether by the Presidency, the General Secretariat, a Steering Group, Working Party, or Member State(s)) would prove productive.

B. Analysis of "A" points

The second avenue of inquiry was to look at the "A" point agenda:

1. There were 17 items involving 32 reports on the agenda.

2. Only 10 of the reports adopted were considered by the K4 Committee.

3. The practice has developed for "A" points to be agreed at COREPER Part Two prior to a JHA Council.

4. The reports on the 17 items were adopted by COREPER at its meetings on the following dates:

9.10.96: 1 agenda item involving 2 reports

31.10.96: 2 agenda items involving 4 reports

6.11.96: 1 agenda item involving 2 reports

14.11.96: 8 agenda items involving 12 reports

20.11.96: 1 agenda item involving 2 reports

27.11.96: 4 agenda items involving 10 reports

5. These figures then show:

The day before JHA Council: 4 agenda items and 10 reports

1 week before JHA Council: 1 agenda item and 2 reports

2 weeks before JHA Council: 8 agenda items and 12 reports

3 weeks before JHA Council: 1 agenda item and reports

4 weeks before JHA Council: 2 agenda items and 4 reports

7 weeks before JHA Council: 1 agenda item and 2 reports

6. The decision to put these reports through as "A" points will have been taken by the respective group - K4 Committee, Steering Group or the Presidency - prior to their consideration at COREPER.

7. Observations:

i) "A" points reports once agreed, and recommended to be put through as "A" points can pass rapidly through the structure.

ii) Assignation of "A" point status indicates there is unanimity among the 15 governments of the EU Member States, and that therefore they are not considered within these circles as in any way contentious. However, "A" points do contain reports which if made available to national parliaments, the media or to citizens would be considered worthy of scrutiny (in national parliaments) and comment and criticism by the media and citizens.

iii) in order to ensure the possibility for scrutiny of "A" points they would need to be made available to parliament as soon as the decision or recommendation has been made to forward a report as an "A" point for approval by COREPER.

C.

Another way into understanding the workings of the JHA Council is to consider the "authors" of the reports adopted. For those reports, which are available, the following breakdown can be given:

From: K4 Committee

To: COREPER/Council

Main agenda: 4

"A" point agenda: 6

From: Presidency

To: COREPER/Council

Main agenda: 3

"A" point agenda: 3

From: incoming Presidency

To: Council

Main agenda: 1

"A" point agenda: -

From: General Secretariat

To: COREPER/Council

Main agenda: 2

"A" point agenda: 14

From: Europol Group

To: K4 Committee

Main agenda: 3

"A" point agenda: 4

From: Drugs and organised crime working group

To: K4 Committee

Main agenda: -

"A" point agenda: 1

From: COREPER

To: COUNCIL

Main agenda: -

"A" point agenda 2

From: Presidency

To: K4 Committee

Main agenda 2

"A" point agenda -

From: Presidency

To: Migration Group

Main agenda 1

"A" point agenda -

Observation

While the K4 Committee (10 reports) and the Presidency (6 reports) is what might be expected this breakdown highlights the number of adopted reports originating in the General Secretariat of the Council, 16 reports in all. Reports from the General Secretariat, if not submitted to the K4 Committee (where all the Member States are represented), would probably be sent to the permanent delegation in Brussels.