THE TIMING OF DEPOSIT OF DOCUMENTS FOR SCRUTINY

  16.    The stage at which a Third Pillar proposal is deposited in Parliament for scrutiny is crucial in determining the options for action available to the Committee. If a document is deposited at an advanced stage in the legislative process, the chances of the Committee having an influence on its final shape may be limited, as the negotiating positions of the Member States will have already been decided and there will be a reluctance to reopen matters which have already been resolved to the satisfaction of the Member States. The Third Pillar presents particular problems in defining when a proposal should be deposited for scrutiny. Unlike Community legislation, Third Pillar proposals do not follow a clearly defined legislative process.

  17.    In its 1993 Report the Committee stated that the key to effective Parliamentary supervision of the inter-governmental pillars was to obtain the right documents, and to obtain them in time to influence the outcome. In order to exercise influence over the substance of international agreements and decisions it was essential to see texts in draft. The Committee recognised that, once a text is finalised at the international level, the only options available in practice to national parliaments, even where national implementing legislation is required, are acceptance, outright rejection or a demand for re-negotiation[11]. The Government agreed that the key to effective Parliamentary scrutiny in the Third Pillar was to make available the right documents in time to influence the outcome, and proposed providing Parliament with the first full text of any convention or proposal which would, if agreed, require later primary legislation in the United Kingdom, and of other documents of significant importance.

  18.    The Home Office reaffirmed the Government's commitment to ensure that documents were deposited at the earliest possible stage:

    "Our objective is to try to let you have texts of draft conventions or other instruments, or other documents of significance, at the earliest possible stage. That will usually be when they emerge, perhaps in a working group as a first draft ... That can lead to some nugatory work because often the first draft of a text looks totally different from what it finally ends up as, and sometimes there may be concerns expressed about aspects of a text which it is fairly clear at an early stage no Member State is going to agree to and they disappear in the course of negotiation. Nevertheless, I think it is best from our point of view ... to let you have it at the earliest possible stage because then we can present it to you as something which has been tabled by a Member State or the Presidency or the Commission simply for what it is; whereas if we wait until a later, and perhaps more near-final draft is available, then it tends to have reservations attached to it and it will indicate the negotiating position of different Member States and that can be an embarrassment for us."(Q 6).

Nevertheless, officials indicated that there had been problems about the early identification of what were proper documents for deposit and the timing of deposit and recognised that this was a matter that needed to be addressed (QQ 2, 29). The Home Office did not, however, consider it possible to lay down hard and fast rules about the timing of deposit of Third Pillar documents because proposals could come forward in many different ways (Q 5, p 10).

  19.    Mr Jeremy Hill, Legal Counsellor at UKREP, stated that from UKREP's perspective the sooner the Committee had sight of Third Pillar proposals the better. He gave two reasons to justify this view. First, the more advanced the negotiations on a proposal were, the less chance there was that any comments which the Committee might wish to make on a proposal would be able substantively to influence the negotiation in the final stages. Secondly, from UKREP's negotiating perspective, if they were looking to secure political agreement on or even formal adoption of a proposal at the Council, it helped if the proposal had cleared Parliamentary scrutiny (Q 217). Whilst recognising that first drafts of Third Pillar proposals might have many deficiencies and might change radically in the course of the negotiations, Mr Hill believed that there was a lot to be said for a document going to scrutiny when it was first produced by the Presidency (Q 218).

  20.    Mr Fortescue from the Commission's Title VI Task Force commented that there were more opportunities for national parliaments to get involved in work under the Third Pillar than many national parliaments had ever properly exploited. He believed that national parliaments should look at whether they were "switching into the system at the earliest possible moment today and how they can do it even better tomorrow" (Q 238). He commented that if national parliaments wanted to influence the shape of a proposal then the earlier they received it the better. He drew attention to the fact that Third Pillar proposals can often move much faster than Community legislation precisely because of insufficient parliamentary scrutiny in the Member States (QQ 247-8).

  21.    Other witnesses were critical of the present scrutiny arrangements and highlighted shortcomings in the system. The all-party lawyers' organisation Justice drew attention to a possible loophole in the present scrutiny arrangements where negotiations on a proposal reach a very advanced stage without there being a composite English text available. An example of this was the Convention on Simplified Extradition Procedures which was negotiated in little bits and pieces in French and was only deposited in Parliament a matter of days before it was formally accepted (Q 99). In Justice's view, earlier access to documents remained the key to better scrutiny, and the Government's record contained far too many failures in this area (p 23). The Immigration Law Practitioners' Association argued that Third Pillar proposals should be deposited in Parliament once they were presented by a Member State to either the relevant steering group or any of the working groups. The Committee could only effectively participate in the formation of policy on a proposal if this was the case (p 102). Liberty agreed that all legislative proposals must be provided to Parliament at the earliest possible stage (p 107). The Law Society of Scotland and the General Council of the Bar supported the view that Third Pillar documents should be deposited at the earliest possible stage and commented on the difficulty of amending proposals once they had entered the legislative process (pp 105, 100). The Netherlands-based Standing Committee of Experts on International Immigration, Refugee and Criminal Law (the Meijers Committee) referred to the experience of the Dutch Parliament. In almost all the cases where the Dutch Parliament succeeded in having the draft of a Third Pillar proposal amended, the Parliament had acted on the basis of information received early in the drafting process and before the final draft text had passed the K.4 Committee or COREPER (p 111).

  22.    The Home Secretary believed that it was vital in a democracy like the United Kingdom that Parliament was given the fullest possible opportunity to examine draft European Union legislation before it was adopted by the Council. In his view effective scrutiny of Third Pillar proposals was even more important than scrutiny of Community legislation. "As a general rule, Parliament should be informed as early as possible and not as late as is necessary". However, the arrangements for scrutiny of the Third Pillar needed to take account of the special inter-governmental characteristics of the Third Pillar (Q 288). He stated "The longer the time available to scrutinise proposals, the better in principle the decision is likely to be. I take the view that once a decision has been made, those of us who participate in its making have to be accountable for it. There is every advantage to Government as well as to Parliament in there being openness" (Q 289).

Opinion

  23.    The Committee believes that early deposit of Third Pillar proposals is essential if the Committee is to exercise its Parliamentary scrutiny function and make an effective contribution to the debate on Third Pillar proposals. Whilst we welcome the Home Office's assurance that it will endeavour to deposit Third Pillar proposals at the earliest possible stage, we are dismayed at the persistent delays in depositing documents in Parliament. Many documents are not deposited until they have reached an advanced stage in negotiations and when the Committee can have little chance to influence the outcome.

  24.    We believe that the problems arise from the Government's unduly restrictive view of what constitutes the first full text of a Third Pillar proposal. This is most starkly illustrated by reference to the Committee's recent experience on the draft Second Protocol to the Convention on the protection of the financial interests of the Community. The text of the draft Protocol was deposited in Parliament on 22 May 1997 only five days before the proposal was due to be considered at the Justice and Home Affairs Council where political agreement was reached on the text. The Government justified the delay in depositing the document on the basis that "The draft protocol has only recently emerged in a form which is likely to be reasonably close to the final version." The delay in depositing this proposal was surprising because the minutes of the Justice and Home Affairs Council held on 4 April 1996 had recorded that "the Council had before it a report on the progress of the discussions on the draft Second Protocol to the Convention on the protection of the European Communities' financial interests. The report highlights the significant progress already made on the preparation of this draft." Furthermore, the European Parliament's Committee on Civil Liberties and Internal Affairs had reported on the text of the proposal in October 1996[12]. Regrettably, this was not an isolated incident and many other examples of such delays exist[13].

  25.    Whilst the Committee recognises that it is not possible or desirable to lay down hard and fast rules for depositing Third Pillar proposals which are linked to a specific stage in the legislative process because of the absence of a clearly defined legislative process, the Committee recommends that the existing undertaking to deposit the first full text of a Third Pillar proposal should be replaced by an undertaking to deposit the text of Third Pillar proposals when they are first tabled by the Presidency, the Commission or a Member State for consideration in a working group, the relevant steering group, the K.4 Committee or the Council. This would enable the Committee to make an effective contribution to the debate on proposals and avoid the risk of the Government compromising its (or other Member States') negotiating stance by depositing a later text which clearly indicates the matters on which Member States have entered reservations. We accept the view expressed by Home Office officials that this may lead to some "nugatory work" but we believe that that is an acceptable risk and infinitely preferable to receiving a proposal at a late stage of development when the Committee is unlikely to be able to influence its final shape and content.

  26.    We are concerned about the practice which Justice referred to in evidence where Third Pillar proposals are developed in bits and pieces and a composite text only appears when all the substantive issues have been resolved and the proposal is ready for presentation to the Council for adoption. We recommend that where this occurs the Government should provide an Explanatory Note to the Committee when the initial work commences outlining the nature of the proposal being negotiated, its implications for the United Kingdom and the Government's policy stance in the negotiations. Such a step would at least draw the Committee's attention to the proposal and enable it to take a preliminary view on the matter. As soon as the composite text is available it should immediately be deposited in Parliament for consideration.

SCRUTINY CRITERIA

  27.    In its 1993 Report the Committee explored a number of criteria which might be applied in determining whether or not a Third Pillar proposal should be deposited in Parliament. The Committee concluded that there was no single criterion which was satisfactory and advocated three tests which should be applied:

  - significance - particularly where the rights or duties of individuals may be affected;

  - the eventual need for United Kingdom legislation; and

  - the imposition of legally binding commitments on the United Kingdom[14].

  A document which qualified under any one of the above criteria should, in principle, be provided to Parliament. The Committee did not accept that the need for fast decisions should restrict disclosure.

  28.    In its response, the Government offered to provide the first full text of any convention or proposal which would, if agreed, require later primary legislation in the United Kingdom and of other documents of significant importance, subject to possible security or operational exceptions, which would be used only "where absolutely necessary". The Government expected that documents of a legally binding nature would fall under the "significant importance" heading.

  29.    The Government's response fell short of the Committee's recommendations by the (apparent) exclusion from the Third Pillar arrangements of documents that would need to be implemented by secondary legislation. However, during the course of the debate on the Committee's Report held on 12 April 1994[15] the then Minister of State at the Foreign and Commonwealth Office (Baroness Chalker of Wallasey) indicated that, in her view, documents which:

    "might require secondary legislation or would otherwise impose legal commitments on the United Kingdom would certainly be judged to be of significant importance, as would other documents which helped to provide an overview of the work - for example, work programmes or progress reports."

  30.    The House of Commons Select Committee on European Legislation[16] (the Commons Committee) in its recent report, The Scrutiny of European Business[17], has suggested that, in the event of its mandate being extended to cover Third Pillar matters, its terms of reference should be amended to allow it to scrutinise "any proposal for a joint position, joint action or a convention under Title VI (provisions on co-operation in the fields of justice and home affairs) of the Treaty on European Union which is prepared for submission to the Council and which is not confidential."

  31.    The Home Office were satisfied that the present criteria have worked in a generally satisfactory manner but admitted there have been problems in identifying proper documents for deposit (Q 2). Home Office evidence indicated that the criteria recommended by the Committee in 1993 were in fact applied, and confirmed that the Home Office accepted that proposals which required secondary legislation in the United Kingdom should be deposited. The Home Office made a practice of making available texts of Third Pillar proposals that were of significance even if they were not legally binding so as to give the Committee a full picture of the work being carried out (QQ 11-12, 39). The Home Office did accept that there was a certain subjectivity in deciding what was significant but insisted that it would invariably deposit a text which looked as if it might lead to any form of legislative change. The Home Office drew attention to the fact that it was not often entirely clear how a Third Pillar document, when it appeared, might finish up in terms of its legal authority: "We may get a joint action text which turns up later as a resolution or vice versa, because there is often a debate about what is the most appropriate form for a particular instrument. So that is why we do want to err on the side of making it available rather than not" (Q 15). Officials sought to assure the Committee that it was not the Home Office's policy to withhold anything of significance and stated "we are anxious to give you everything you could possibly want" (Q 39). In a subsequent memorandum the Home Office commented that the Government had no wish to interpret the term "significant importance" restrictively and took the view that it would include work programmes or other documents which provided an overview of the activity under the Third Pillar (p 9).

  32.    Several witnesses drew attention to shortcomings in the present arrangements and suggested matters which should be covered. Justice commented on the differences between what was recommended by the Committee in 1993 and the Government's undertaking and noted that there were two areas of difference: "One is that the Government's response did not include issues which were likely to create binding legal obligations for the United Kingdom.... The other area of discrepancy is the question of secondary legislation which is not covered" (Q 82). Justice argued that these matters should be added to the existing criteria for determining significance. In addition, Justice, the Meijers Committee and the Immigration Law Practitioners' Association suggested that the existing criteria should be expanded to include any measure which would affect human rights obligations accepted by the United Kingdom in other international contexts (Q 82, pp 110, 102). Liberty advocated that Government Departments should carry out human rights impact assessments of proposed measures and that such assessments should be deposited with the proposals (p 107).

  33.    The Home Secretary believed that under the existing scrutiny criteria Third Pillar proposals which had consequences for the human rights obligations of the United Kingdom fell within the definition of "significant importance". He confirmed that he would be happy to add that as a fourth criterion if the Committee so wished. However, the usual exceptions applicable to documents based on intelligence, security arrangements or operational matters concerned with police, customs and other law enforcement and security agencies would have to apply (Q 305).

  34.    Justice expressed concern that documents which, although not legally binding, might, nevertheless, have serious implications were not being deposited by the Government on the grounds that they did not fulfil the significance criteria. They gave the example of a Memorandum of Understanding on the legal interception of telecommunications (QQ 86-94).

  35.    Professor Patrick Birkinshaw of the Institute of European Public Law, University of Hull, suggested that there was an implication that where domestic legislation was not required scrutiny need not take place. In his view the criteria should not be restricted to papers relating to proposals that may become United Kingdom legislation. Parliament should have a right to scrutinise all documents unless there were grounds for urgent action or the proposal fell within the accepted grounds of security, confidentiality or diplomatic sensitivity (pp 91, 93). Fair Trials Abroad believed that any document that had a bearing on primary or secondary legislation in the United Kingdom should be deposited in time for scrutiny and consultation of experts (p 97). Statewatch argued that the formula of supplying the first full text of a measure combined with the Government's discretion to decide what is to be scrutinised had led to a highly unsatisfactory situation. They suggested that any change to the present arrangements for Parliamentary scrutiny of the Third Pillar should seek to remove the Government's discretion and establish the Committee's right to receive full documentation and to decide what to scrutinise (pp 34, 36, Q 139). The General Council of the Bar, the Law Society of Scotland and Liberty shared the view that all documents relating to matters falling within the Third Pillar should be provided to Parliament (pp 99, 104, 106).

The practice in other Member States' Parliaments

  36.    Evidence received from other national parliaments indicated a wide diversity in practices. The Meijers Committee and the First and Second Chambers of the Dutch Parliament drew attention to the provisions of Article 3 of the Dutch Act[18] approving the ratification of the Treaty on European Union which obliges the Netherlands Government to publish and communicate to Parliament the draft of any decision to be taken under the Third Pillar that will be binding upon the Netherlands without any reservations (pp 110, 85-6). In Austria, the Federal Government is required to inform the Nationalrat and the Bundesrat on all projects of the European Union. The Austrian Constitution does not provide for any circumstances which allow Third Pillar proposals to be withheld from Parliamentary scrutiny (p 74). In Finland any act, agreement or other measure which is to be decided by the Council or by another EU organ and which pursuant to the Finnish constitution would otherwise fall within the competence of Parliament must be brought to the attention of Parliament for scrutiny. Under no circumstances can any Third Pillar proposal, or any other document, be withheld from Parliament (pp 75-6).

  37.    The German Bundestag drew attention to paragraph 2 of Article 23 of the Basic Law and section 3 of the Law on the Co-operation of the Federal Government and German Bundestag in European Union Affairs which requires the Federal Government to inform Parliament comprehensively and rapidly of all plans of the European Union including Third Pillar plans. Section 4 of the Law on Co-operation establishes particularly wide-reaching reporting requirements where legislative acts are concerned (pp 82-3). The Swedish Riksdag indicated that it was for the Government to decide what documents to deposit in Parliament (p 90). In France the Government is obliged by law to deposit draft Third Pillar legislative instruments (pp 78-9)[19]. In Ireland, Third Pillar proposals are not deposited for scrutiny although they are available through the EC Documentation Service of the Department of Foreign Affairs (p 85).

Opinion

  38.    The present arrangements give the Government considerable discretion in deciding whether to deposit a Third Pillar proposal for scrutiny. Whilst we accept that it has not been the Government's intention to interpret the existing criteria narrowly we note the Home Office's admission that in certain incidents it has been difficult to determine whether a document falls within the criteria.

  39.    We believe that it would now be appropriate to adopt more formal guidelines for the deposit of Third Pillar documents. We note with approval the changes proposed by the House of Commons Select Committee on European Legislation to the House of Commons Standing Order No. 143. If that Committee's recommendations are accepted, the following categories of Third Pillar documents will be added to the documents which that Committee considers:

    "any proposal for a joint position, joint action or a convention under Title VI (provisions on co-operation in the fields of justice and home affairs) of the Treaty on European Union which is prepared for submission to the Council and which is not confidential."

  40.    The Commons Committee has also proposed that documents other than proposals for joint positions, common positions, joint actions or conventions should also be depositable in Parliament under an amended final limb of the definition of "European Union documents" in S.O. No. 143:

    "any other documents relating to European Union matters deposited in the House by a Minister of the Crown."

These amendments to Commons S.O. No. 143 would considerably improve the present situation with regard to deposit in Parliament of Third Pillar documents.

  41.    The final limb of the Commons' definition of depositable documents might be thought to leave too much discretion to Ministers as to which documents are depositable. In practice, we do not believe this to be the case. Ministers have already shown themselves willing to discuss with the Committee whether documents should be deposited or not. The draft Confidentiality Regulations to be adopted under the Europol Convention provide a useful example of such a document which the Government initially had considered as falling outside the present criteria for deposit in the House of Lords. Following a request from the Chairman of the Select Committee, the Home Office deposited an Explanatory Note on the Confidentiality Regulations. This was sifted to Sub-Committee E (Law and Institutions) who decided to obtain evidence from interested organisations on the document. The evidence received indicated that there were several matters of concern to witnesses and which could have serious repercussions for individuals in the European Union. The Committee has made a short Report drawing the House's attention to the issues raised by the proposed Regulations[20]. We commend the flexibility displayed by the Home Office Minister in this case, and consider that this illustration is an example of how good practice will evolve in the light of experience.

  42.    Where Government Departments are in doubt as to whether a proposal falls within the criteria for deposit, we recommend that they contact the Committee Secretariat to discuss the matter on an informal basis. Were this to become official Government policy or common practice, many unnecessary misunderstandings could be avoided.

  43.    We accept that applying the revised criteria might result in an increase in the workload of the Committee, but we do not believe that this would be such as to jeopardise the Committee's overall effectiveness. The increased workload would be more than offset by the advantages arising from prompt and comprehensive Parliamentary oversight of Third Pillar matters.