1st Report, 1999
Report on Scrutiny of European Documents: covering 18 August 1999 to 19 October 1999
This Appendix contains a description of the process followed by the European Committee for the scrutiny of European documents. The text below was issued as a MSP Briefing Paper for the meeting of the European Committee of the 18 August 1999, and was formally endorsed by the Committee during the course of the meeting.
"The Scrutiny/Sift of European Documentation: Process"
The European Committee has been established by Parliament under rule 6.1 of the Standing Orders with the following remit:
To consider and report on
In doing so, the Committee will be required to consider all European documentation received at the Parliament from the European Institutions by undertaking a scrutiny/sift function.
During the 1st Committee meeting of Session 1 (held on the 23rd June 1999), a briefing paper on the remit of the Committee outlined the general issues around this function (EU/99/1/2, Annex A). This briefing paper now summarises the key procedural issues that need to be discussed in order to commence with this role.
It is not the intention of this paper to reproduce the original material prepared for the 1st Committee meeting. Following a brief reminder of the key issues presented previously, the focus is on the means by which scrutiny/sift will take place, and a proposed timetable.
It is recalled that around 8,000 documents a year on a very wide range of issues are received by the UK Government from the European Institutions. Of this some 1,200 are referred to the UK Parliament with around 800+ detailed for scrutiny. The Scottish Parliament will receive a copy of all of the documents received by Westminster. It will clearly be impossible for the Scottish Parliament to effectively consider all of them.
Therefore, if it wishes to be effective, it would be appropriate for the European Committee to be very selective regarding the material it chooses to consider, with a view to reviewing perhaps one-quarter of these documents (some 200 per year). Once reviewed, four options are available to the Committee:
The main aim of this process is to inform the UK Governments position via both the Scottish Executive and the UK Parliament, as it will be the UK Government that will continue to negotiate with the European institutions.
The key issues are therefore ones of timing and depth. First, it will be necessary once a document has been considered for further action (i.e. those not deemed as "no action"), to clearly identify the timetable over which scrutiny by Westminster is taking place. If this is short, there may not be time for the document to be referred to a subject Committee of the Scottish Parliament. Consequently, it may be more effective for the European Committee itself to take a view and ensure that it is fed to both the Scottish Executive and the UK Parliament.
Second, related to timing, there is an issue of how detailed the consideration can be. For example, does the legislative timetable allow for one or more meetings of the subject Committee in considering the document, can an inquiry be held to take external views etc.
A "twin-track" approach has been developed which will effectively take both these key issues into account. The draft proposals for this approach have been discussed and elaborated in conjunction with officials in the Scottish Executive and the Commons European Scrutiny Committee in order to ensure a mutually acceptable procedure. In this sense, the approach is well developed. However, final approval is still the prerogative of the Committee.
Figure 1 sets out a basic flow chart for the scrutiny process as it relates to the members of the Committee.
Figure 1: Scrutiny/Sift Process
Step 1: Initial Sift
As stated above, all European material that is received at Westminster will also be submitted to the Scottish Parliament. Once it is received, an initial sift will be carried out by the Convener and Deputy Convener (when selected), assisted by the Clerk. This will categorise issues in terms of their importance and urgency. Three different categories will be available:
All documents will be scrutinised and categorised into one of the three possibilities above. The Clerk will prepare a note summarising the recommendations for each. A pro-forma for how this recommendation note would look is set out in Annex 1.
For priority matters only, a Scottish European Brief (SEB) will be requested from the Executive, and the item will probably need to be considered by the European Committee itself as a matter of urgency. Annex 2 contains a pro-forma for the SEB. To speed up timing, the SEB will be requested immediately after the initial sift.
The aim for priority matters will be to consider the item before the UK Government view is finalised, and before the Commons European Select Committee has completed its consideration. The selection of an item as a priority will also be notified to Westminster, so that the Commons Committee is aware of the particular Scottish interest, and can take the European Committees view into account when coming to its conclusions.
The Westminster system is based upon the scrutiny reserve that requires the Government not to take a view on a European issue until Parliament has had the opportunity to consider it. Whilst it is not proposed by the Cabinet Office that the Scottish Parliament would develop a parallel relationship, those involved at Westminster do not appear to be opposed to an informal arrangement whereby issues, identified as of particular Scottish interest, are not considered until a view has been delivered by the European Committee. Any system of this nature will require a high level of co-operation with the UK Government and Parliament, and should ultimately be subject to some agreement between the two Parliaments, or at least a working agreement between Committees.
For documents classed as regular scrutiny, it is proposed that more detailed consideration be undertaken, once the Explanatory Memorandum produced by Whitehall is available, and probably once Westminster consideration has, at least, begun. To help understand the Scottish perspective to the issue, the Executive would be asked to produce a Scottish Cover Note to Whitehalls Explanatory Memorandum.
Of the documents taken forward for regular scrutiny, most will be recommended for referral on to subject Committees with the more relevant expertise. The Committees likely to be the recipients of most European documents are Rural Affairs (particularly on agriculture and fishing issues), Transport and the Environment, Enterprise and Lifelong Learning, and Justice. The option remains, however, for the European Committee to review itself or to refer the document to the whole Parliament.
In due course, the aim is identical to those documents selected for priority scrutiny, i.e. inform the UK Governments position via both the Scottish Executive and the UK Parliament. Additionally, however, the longer timeframe for discussion may also allow for direct discussions with the European institutions depending on the nature of the document itself. For example, it may be appropriate in the case of draft Regulations/Directives or Commission Green/White Papers or Working Documents, where views are not yet finalised, for the Scottish Parliament to seek to influence directly the decision-making process in Brussels. This is a role the Committee needs to discuss at greater length.
Step 2: Committee Meeting
At each of the Committee meetings, a rolling agenda of documents selected for priority scrutiny, regular scrutiny or no action would be presented to the whole Committee. The aim is to agree formally, on the basis of the recommendations from the Convenor/Deputy Convenors sift, the proposed course of action from each document.
Note that prior to each meeting, members would have already received a copy of all documents classed as priority or regular, and a note outlining the recommendation of the sift. They would also have a list of all documents received, and could ask the Clerk to give them copies of anything additional they wished to look at. These papers would be given to them well in advance of the meeting to ensure adequate time for them to come to their own view. Discussion time will also be set aside during the Committee meeting itself. This ensures that it is the Committee view itself that agrees the course of action for a document.
To increase the scrutiny safeguard, a set of all European documentation will be placed in the Parliaments Document Centre, with a list published in the Business Bulletin. In this sense, any MSP can scrutinise documents and, as a consequence of Standing Orders rule 12.2, attend the meeting and contribute to the debate (but not vote).
Step 3: Follow-Up and On-Going Tasks
Aside from the administrative tasks carried out by the Clerks, the Committee itself will be required to discuss and report on documents it selected for priority scrutiny. Given the timescales involved for this track, this would probably take place at the next meeting of the Committee. The Committee report would then be sent to the Executive and to Westminster.
Where documents are selected for regular scrutiny, the Committee may be required to liaise with the relevant subject Committee (where the document has been passed on). When the subject Committee has reported, the European Committee will be required to come to its own view, on the basis of the subject Committees perspective. The Committee report would then be sent to the Executive and to Westminster. It is envisaged that a close relationship would need to be established between the European Committee and the relevant subject Committee.
Depending on the timescales involved, and the course of action being followed, the Committee may find it useful and/or necessary to seek further technical and legal advice. Members should also note that they might also wish to seek expert advice, either from within the Parliament (Clerking, SPICe, Legal Office etc.) or from external advisors and or witnesses.
It is difficult to be certain as to what the operational timetable will be for the Committee in terms of its scrutiny/sift function. Two factors remain that will require the situation to be flexible. First, it is not known exactly how many documents will be received by the Committee or what the recommendations will be for each. Second, it is not known at this stage the frequency of which the Committee proposes to meet weekly, fortnightly or more ad-hoc.
Despite these factors, however, it is possible to develop working models for the operational timetable and workload based on a range of assumptions (mostly drawn from the practices of the Commons European Scrutiny Committee and adapted to meet the requirements of the Scottish Committee). Table 4.1 below sets out the proposed models.
These two possible models have been designed to minimise the amount of time between receipt of a document, the date of the sifting of that document and the next available Committee meeting to agree formally a course of action (priority/regular scrutiny or no further action). Given the volume of material due to be received, and the likelihood that only a proportion of it will be prioritised (see below), it is recommended that the fortnightly pattern be followed, at least initially.
Note, however, that for matters of extreme priority, where timing is very tight (say less than 2-4 weeks), a more ad-hoc approach would be followed to ensure a quick turn-around time.
In terms of volume, the workload may look something like this, based on an adapted Westminster model and the considerations of the Constitutional Steering Group.
These figures may change on the basis of working experience when the Committee is into full operation. They will also not be spread evenly throughout the calendar year, with peaks and troughs in terms of workload.