PARLIAMENTARY SCRUTINY OF EU DOCUMENTS
OVERVIEW
1.1 This short guidance provides an overview of the UK process for
scrutinising draft EU legislation and other important documents. This overview
highlights the principles and stages of the Parliamentary scrutiny process.
WHAT IS PARLIAMENTARY SCRUTINY?
1.2 Parliamentary scrutiny is the process by which the Westminster Parliament
is given an opportunity to examine and express views on proposals for EU legislation and
other documents which fall within the terms of reference of the EU Scrutiny Committees
of both Houses of Parliament. These terms of reference are set out in Annexes A and B.
The Government is committed to effective Parliamentary scrutiny of all formal EU
proposals, and has given Parliament an undertaking that Ministers will not usually agree
to proposals in the Council of Ministers until scrutiny by the Committees of both Houses
has been completed.
1.2 Scrutiny by any of the devolved legislatures is the sole responsibility of
the relevant devolved administration, and should not normally entail any additional
obligation on the lead Whitehall Department. Nor can on-going scrutiny by a devolved
legislature of itself hold up "clearance" of a document from scrutiny.
DEPOSIT OF EU DOCUMENTS IN PARLIAMENT
1.3 Within Whitehall, the Cabinet Office is responsible for the management of
Parliamentary scrutiny procedures. It is also responsible for deciding, in consultation
with Departments and the Clerks of the two Scrutiny Committees, which documents
should be "deposited", ie sent for examination by Parliament. In most cases, the Cabinet
Office will take the initiative. The FCO/MOD and Home Office/MOJ take the lead
respectively in deciding which Common and Foreign Security Policy/European Security
and Defence Policy and non-European Commission inspired Justice and Home Affairs
documents are deposited for scrutiny.
EXPLANATORY MEMORANDA: THE GOVERNMENT'S EXPLANATION OF
EU DOCUMENTS
1.4 The deposit of a document in Parliament triggers the scrutiny process.
Within 10 working days of a document being deposited, the Government (ie a Minister
from the lead Department) is required to provide a brief to Parliament on that document's
content and implications. This written brief is called an "explanatory memorandum",
usually referred to as an "EM ". An EM summarises the document, its legal, policy and
financial implications and the likely timetable of its consideration by the Council of
Ministers. A separate EM is usually required for each deposited document. And a
further EM is normally required whenever a legislative proposal or significant document
undergoes substantial revision during its consideration by the European Parliament or
Council. There are also circumstances where an EM is provided to Parliament even
though a depositable document does not exist or is not yet available ; these are known as
unnumbered EMs. An EM constitutes a formal communication to Parliament. The
template for a standard EM can be found in Annex C.
SCRUTINY COMMITTEE PROCEDURES
House of Commons
1.5 The House of Commons Scrutiny Committee (whose formal title is the
European Scrutiny Committee) normally meets every sitting Wednesday to examine EMs
and their associated documents. It reports to the House with recommendations as to the
importance of each document and on whether further consideration by the Committee or
by the House (ie debate) is necessary.
House of Lords
1.6 The Chairman of the Lords Scrutiny Committee (formal title: European
Union Committee) carries out a " sift" of EMs and their associated documents every
sitting Tuesday. Sifts are occasionally held during the Parliamentary recess to prepare for
the resumption of Committee business. The purpose of the sift is to determine whether
each document (or unnumbered EM in the absence of a document) should be cleared or
considered further by one of the Committee’s 7 Sub-Committees. The Select Committee
and its Sub-Committees meet to a published timetable when the House is in Session.
1.7 The websites of the two Committees can be consulted at
www.parliament.uk These give details of the membership of the Committees, their
recent reports and their forthcoming work programmes.
ARRANGEMENTS FOR DEBATES
House of Commons
1.8 The Committee can:
o Recommend documents for debate in European Committee where all Members
may attend and speak although only members of the European Committee may
vote on the motion for debate; or
o Recommend documents for debate on the Floor of the House but the debate is
held on the Floor only of the Government agrees to provide time for it otherwise
the debate is held in Committee.
1.9 Debates must be held early enough to allow the House an opportunity to
influence the Government’s stance on the proposal.
House of Lords
1.10 If the Lords Committee makes a report on a document and recommends it
be debated, time is found for it. Liaison between the Government’s business managers
and the Clerk of the Committee is needed to ensure that debates are arranged at a time of
mutual convenience. Debates always take place on the Floor of the House. The
appropriate Sub-Committee Chairman either moves a motion to take note of the
Committee’s report, or asks a “question for short debate” about the issues raised in the
report and the Government’s spokesman responds to the points made in the debate.
UNCLEARED PROPOSALS
1.11 If an uncleared proposal is expected to come before the Council of
Ministers for political agreement, a general approach, agreement of a common position or
for final adoption, action must be taken to avoid a breach of the Government undertaking
that Ministers will not, except in very limited circumstances, give agreement to a
proposal before Parliamentary scrutiny procedures have been completed. This
undertaking is known as the "Scrutiny Reserve Resolution" and prevents the
Government from agreeing to proposals in the Council if they have not cleared scrutiny.
The texts of the Resolutions are at Annexes D & E.
COMPLETION OF SCRUTINY: CLEARANCE OF DOCUMENT
1.12. In the House of Commons, scrutiny is normally considered complete and
a document cleared when the Scrutiny Committee has cleared the proposal in one of its
reports or, if the document has been recommended for debate, the House has agreed a
resolution relating to the document (a debate in a European Committee does not on its
own clear a document from scrutiny).
1.13. In the House of Lords the position is more complicated. A document is
cleared when:
o It is cleared by the Chairman at the sift; or
o Having been sifted to a Sub-Committee, it is cleared by them, possibly after
correspondence; or
o The Sub-Committee having conducted an inquiry, it is reported for information
only; or
o The Sub-Committee having reported on it for debate , the debate has taken place.
,
1.14. However, where a proposal is modified in the course of Council
consideration, eg in the course of ordinary legislative procedure (previously the co-
decision procedure), a further EM should be submitted (usually on the basis of a new
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document). In the light of this the Scrutiny Reserve Resolution applies again and t e
Scrutiny Committees may then re-open their consideration of the proposal. A document
has "cleared scrutiny" when scrutiny procedures in both Houses of the Westminster
Parliament have been completed.
ANNEX A
STANDING ORDER 143: THE HOUSE OF COMMONS EUROPEAN SCRUTINY
COMMITTEE
1. There shall be a select committee, to be called the European Scrutiny Committee, to
examine European Union documents and -
(a) to report its opinion on the legal and political importance of each such
document and, where it considers appropriate, to report also on the reasons for its
opinion and on any matters of principle, policy or law which may be affected;
(b) to make recommendations for the further consideration of any such
document pursuant to Standing Order No. 119 (European Standing Committees);
and
(c) to consider any issue arising upon any such document or group of
documents, or related matters.
The expression 'European Union document' in this order and in Standing Orders No. 16
(Proceedings under an Act or on European Union documents), No. 89 (Procedure in
standing committees) and No. 119 (European Standing Committees) means -
(i) any proposal under the Community Treaties for legislation by the Council
or the Council acting jointly with the European Parliament;
(ii) any document which is published for submission to the European Council,
the Council or the European Central Bank;
(iii) any proposal for a common strategy, a joint action or a common position
under Title V of the Treaty on European Union which is prepared for
submission to the Council;
(iv) any proposal for a common position, framework decision, decision or a
convention under Title VI of the Treaty on European Union which is
prepared for submission to the Council;
(v) any document (not falling within (ii), (iii) or (iv) above) which is published
by one Union institution for or with a view to submission to another Union
institution and which does not relate exclusively to consideration of any
proposal for legislation;
(vi) any other document relating to European Union matters deposited in the
House by a Minister of the Crown.
2. The committee shall consist of sixteen members.
3. The committee and any sub-committee appointed by it shall have the assistance of
the Counsel to the Speaker.
4. The committee shall have power to appoint specialist advisers either to supply
information which is not readily available or to elucidate matters of complexity within the
committee's order of reference.
5. The committee shall have power to send for persons, papers and records, to sit
notwithstanding any adjournment of the House, to adjourn from place to place, and to
report from time to time.
6. The quorum of the committee shall be five.
7. The committee shall have power to appoint sub-committees and to refer to such
sub-committees any of the matters referred to the committee.
8. Every such sub-committee shall have power to send for persons, papers and
records, to sit notwithstanding any adjournment of the House, to adjourn from place to
place, and to report to the committee from time to time.
9. The committee shall have power to report from time to time the minutes of
evidence taken before such sub-committees.
10. The quorum of every such sub-committee shall be two.
11. The committee shall have power to seek from any committee specified in paragraph
14 of this order its opinion on any European Union document, and to require a reply to such
a request within such time as it may specify.
12. The committee or any sub-committee appointed by it shall have leave to meet
concurrently with any committee specified in paragraph 14 of this order or with any
committee of the Lords on the European Communities (now titled European Union
Committee) or any sub-committee of that committee, for the purposes of deliberating or
examining witnesses.
13. The committee shall have power to communicate to any committee specified in
paragraph 14 of this order its evidence or any other document relating to matters of
common interest.
14. The committees specified for the purposes of this order are those appointed under
Standing Order No. 152 (Select committees related to government Departments) including
any sub-committees of such committees, the Select Committee on Public Administration,
the Committee of Public Accounts, and the Environmental Audit Committee.
15. Unless the House otherwise orders, each Member nominated to the committee shall
continue to be a member of it for the remainder of the Parliament.
ANNEX B
HOUSE OF LORDS EUROPEAN UNION COMMITTEE: TERMS OF
REFERENCE AND SUB-COMMITTEES
Orders of Reference
That a Select Committee be appointed to consider European Union documents and other
matters relating to the European Union.
That the expression “European Union documents” shall include the following documents:
(i) Any proposal under the Community Treaties for legislation by the Council
or the Council acting jointly with the European Parliament;
(ii) Any document which is published for submission to the European Council,
the Council or the European Central Bank;
(iii) Any proposal for a common strategy, a joint action or a common position
under Title V (provisions on a common foreign and security policy) of the
Treaty on European Union which is prepared for submission to the Council;
(iv) Any proposal for a common position, framework decision, decision or a
convention under Title VI (provisions on police and judicial co-operation in
criminal matters) of the Treaty on European Union which is prepared for
submission to the Council;
(v) Any document (not falling within (ii), (iii) or (iv) above) which is published
by one Union institution for or with a view to submission to another Union
institution and which does not relate exclusively to consideration of any
proposal for legislation;
(vi) Any other document relating to European Union matters deposited in the
House by a Minister of the Crown.
That the Committee have power to appoint Sub -Committees and to refer to such Sub -
Committees any of the matters within the terms of reference of the Committee; that the
Committee have power to appoint the Chairmen of Sub-Committees, but that such Sub -
Committees have power to appoint their own Chairman for the purpose of particular
inquiries; that two be the quorum of such Sub -Committees;
That the Committee have power to co-opt any Lord for the purpose of serving on a Sub -
Committee;
That the Committee have power to appoint specialist advisers;
That the Committee and any Sub-Committees have power to adjourn from place to place;
That the Committee have leave to report from time to time;
That the Reports of the Select Committee from time to time shall be printed,
notwithstanding any adjournment of the House;
Sub-Committees
Sub-Committees of the House of Lords European Union Committee are:
a. Economic and Financial Affairs and International Trade
b. Internal Market
c. Foreign Affairs, Defence and Development Policy
d. Environment and Agriculture
e. Law and Institutions
f. Home Affairs
g. Social Policy and Consumer Affairs
ANNEX C
STANDARD FORM OF EXPLANATORY MEMORANDUM
[Council number*]
[COM or SEC number]
[Other identifying reference]
EXPLANATORY MEMORANDUM ON EUROPEAN UNION LEGISLATION
[Title of document]
Submitted by the [Department]
[day/month/year]
SUBJECT MATTER
SCUTINY HISTORY (if appropriate)
MINISTERIAL RESPONSIBILITY (inc reference to responsibilities of the devolved
bodies)
LEGAL AND PROCEDURAL ISSUES
i. Legal basis
ii. European Parliament procedure
iii. Voting procedure
iv. Impact on United Kingdom Law (including implementation issues)
v. Application to Gibraltar
vi. Fundamental Rights Analysis
APPLICATION TO THE EUROPEAN ECONOMIC AREA
SUBSIDIARITY
POLICY IMPLICATIONS
IMPACT ASSESSMENT
FINANCIAL IMPLICATIONS
CONSULTATION
TIMETABLE
OTHER OBSERVATIONS (if appropriate)
[Minister’s signature]
[Title]
[Department]
ANNEX D
HOUSE OF COMMONS SCRUTINY RESERVE RESOLUTION OF 17
NOVEMBER 1998
That,
(1) No Minister of the Crown should give agreement in the Council or in the European
Council to any proposal for European Community legislation or for a common strategy,
joint action or common position under Title V or a common position, framework
decision, decision or convention under Title VI of the Treaty on European Union –
(a) which is still subject to scrutiny (that is, on which the European Scrutiny
Committee has not completed its scrutiny) or
(b) which is awaiting consideration by the House (that is, which has been
recommended by the European Scrutiny Committee for consideration pursuant
to Standing order No. 119 (European Standing Committees) but in respect of
which the House has not come to a Resolution).
(2) In this resolution, any reference to agreement to a proposal includes –
(a) agreement to a programme, plan or recommendation for European Community
legislation;
(b) political agreement;
(c) in the case of a proposal on which the Council acts in accordance with the
procedure referred to in Article 251 of the Treaty of Rome (co-decision),
agreement to a common position, to an act in the form of a common position
incorporating amendments proposed by the European Parliament, and to a joint
text; and
(d) in the case of a proposal on which the Council acts in accordance with the
procedure referred to in Article 252 of the Treaty of Rome (co-operation),
agreement to a common position.
(3) The Minister concerned may, however, give agreement –
(a) to a proposal which is still subject to scrutiny if he considers that it is
confidential, routine, trivial or is substantially the same as a proposal on which
scrutiny has been completed;
(b) to a proposal which is awaiting consideration by the House if the European
Scrutiny Committee has indicated that agreement need not be withheld pending
consideration.
(4) The Minister concerned may also give agreement to a proposal which is still subject to
scrutiny or awaiting consideration by the House if he decides that for special reasons
agreement should be given, but he should explain his reasons –
(a) in every such case, to the European Scrutiny Committee at the first opportunity
after reaching his decision; and
(b) in the case of a proposal awaiting consideration by the House, to the House at
the first opportunity after giving agreement.
(5) In relation to any proposal which requires adoption by unanimity, abstention shall, for
the purposes of paragraph (4), be treated as giving agreement.
ANNEX E
HOUSE OF LORDS SCRUTINY RESERVE RESOLUTION OF 6 DECEMBER
1999
That,
(1) No Minister of the Crown should give agreement in the Council or in the European
Council to any proposal for European Community legislation or for a common strategy,
joint action or common position under Title V or a common position, framework
decision, decision or convention under Title VI of the Treaty on European Union –
(a) which is still subject to scrutiny (that is, on which the European Union
Committee has not completed its scrutiny) or
(b) on which the European Union Committee has made a report to the House for
debate, but on which the debate has not yet taken place.
(2) In this resolution, any reference to agreement to a proposal includes –
(a) agreement to a programme, plan or recommendation for European Community
legislation;
(b) political agreement;
(c) in the case of a proposal on which the Council acts in accordance with the
procedure referred to in Article 251 of the Treaty of Rome (co-decision),
agreement to a common position, to an act in the form of a common position
incorporating amendments proposed by the European Parliament, and to a joint
text; and
(d) in the case of a proposal on which the Council acts in accordance with the
procedure referred to in Article 252 of the Treaty of Rome (co-operation),
agreement to a common position.
(3) The Minister concerned may, however, give agreement to a proposal which is still
subject to scrutiny or which is awaiting debate in the House –
(a) if he considers that it is confidential, routine, trivial or is substantially the same
as a proposal on which scrutiny has been completed;
(b) if the European Union Committee has indicated that agreement need not be
withheld pending completion of scrutiny or the holding of the debate.
(4) The Minister concerned may also give agreement to a proposal which is still subject to
scrutiny or awaiting debate in the House if he decides that for special reasons agreement
should be given, but he should explain his reasons –
(a) in every such case, to the European Union Committee at the first opportunity
after reaching his decision; and
(b) in the case of a proposal awaiting debate in the House, to the House at the
opening of the debate on the Committee’s report.
(5) In relation to any proposal which requires adoption by unanimity, abstention shall, for
the purposes of paragraph (4), be treated as giving agreement.