Select Committee on European Scrutiny Thirtieth Report



THIRTIETH REPORT

 

The European Scrutiny Committee has agreed to the following Report:

 

EUROPEAN SCRUTINY IN THE COMMONS

 

INTRODUCTION

 

  1. As soon as we were appointed in the present Parliament, we began an inquiry entitled 'Democracy and accountability in the EU and the role of national parliaments'.[1] This reflected the decision made at the Inter-Governmental Conference (IGC) in Nice in December 2000 that there should be a further IGC in 2004 to consider, among other matters, the role of national parliaments in the EU and the allocation of powers between the EU and Member States.[2] The European Council's Laeken Declaration of December 2001 enlarged upon the themes to be considered at the IGC, and set up a Convention to consider them.
  2. The Government tells us that it
  3. 'has set as one of its own priorities for the Convention developing the role of national parliaments in the EU. As a symbol of democracy and legitimacy, national parliaments have a potentially important role in contributing to the legitimacy of the EU. The Government is also committed to strengthening the scrutiny of EU legislation by national parliaments.... The Government would be keen to examine any further proposals which enhance the scrutiny process or contribute to greater consultation with national parliaments by the Commission in the formulation of legislative proposals.'[3]

  4. As the Government has made clear, the reason for seeking to increase the role of national parliaments in the EU is their democratic legitimacy, and therefore their potential for remedying the 'disconnection' between citizens and the EU; national parliaments are generally closer to citizens than the European Parliament is. However, that potential can only be achieved if national parliaments, including our own, themselves deal with EU matters in a way which 'connects' with citizens. We therefore considered it essential, in the context of the wider inquiry, to examine the ways in which the House of Commons handles EU matters, and how they could be improved, and to produce a separate Report on that subject. The Leader of the House has agreed to give evidence to us following its publication, and has indicated that the Select Committee on Modernisation of the House of Commons may wish to examine this area.[4]
  5. The last Report on this subject was published as recently as 1998 by the Modernisation Committee, building on earlier Reports by our predecessor Committee (the Select Committee on European Legislation) and the Procedure Committee.[5] It led to a number of highly important innovations, including the extension of scrutiny and the scrutiny reserve resolution to pre-legislative documents such as Green and White Papers and to the EU's inter-governmental 'pillars' (the Common Foreign and Security Policy and police and judicial co-operation in criminal matters), an increase in the number of European Standing Committees, power for the European Scrutiny Committee to require an opinion on documents from departmental select committees, and the establishment of a National Parliament Office in Brussels. These reforms are fairly recent, and we are aware that many of the issues we deal with here were thoroughly examined in 1996-98, and that many of the difficulties remain the same, such as the quantity of EU proposals, the inadequate time available to consider them, and the complexity and lack of general appeal of most EU proposals. Nevertheless, we considered a further Report was justified in view of the increased expectations (especially within the Government) about the role which national parliaments should be playing in EU matters.
  6. This Report has five parts. We first provide a brief introduction to the Commons European scrutiny system (paragraphs 7-22).[6] Next we re-examine its purpose and whether the basic decisions which have shaped it remain the right ones (paragraphs 23-38). We then examine areas where we believe the system needs to be improved (including the operation of scrutiny, ways in which the House and its committees debate the more important EU matters, and the relationship with outside organisations and individuals) and make proposals (paragraphs 39-101). Finally we consider other aspects, including relationships with other organisations dealing with EU matters (paragraphs 102-115).
  7. Possible direct involvement of national parliaments in the EU will be dealt with in our separate Report on Democracy and accountability in the EU and the role of national parliaments. Our proposals there could significantly increase the importance of the House's work on EU matters by giving Members and committees opportunities for direct influence at EU level and better access to information.
  8.  

     

     

     

    PART 1: THE EUROPEAN SCRUTINY SYSTEM

     

  9. The House has all the means of examining EU matters that it does for other subjects, including general debates on the Floor of the House, ministerial statements, written and oral questions and select committee inquiries. The European scrutiny system is additional to those, and has consisted in essence of a Committee whose main role is sifting to identify the more important EU proposals, a system of written information from the Government on each proposal and means for the House to express its views on the most important proposals. The main purpose of the scrutiny system is to enable the House to influence directly the activities of UK Ministers in the EU's Council of Ministers and hold them to account, though it may have much wider informal influence, not least by making available a great deal of information and analysis about EU proposals.
  10. The system is based firmly on the examination of documents, though not exclusively so. Its coverage is wide, taking in not just legislative proposals such as draft Regulations, Directives and Decisions but other documents such as Green and White Papers and Commission reports, as set out in detail in the Committee's standing order.[7] All such documents should be deposited in Parliament within two working days of an English text reaching the Foreign and Commonwealth Office. About 1100 documents are deposited in Parliament each year, and all of them are considered by the Committee.
  11. For each document the Government provides an Explanatory Memorandum (EM) with information under a range of headings, but above all assessing the likely impact of the proposal and setting out the Government's policy towards it. The Government has undertaken to provide EMs within ten working days of a document being deposited. These EMs are a crucial part of the scrutiny process: every EU document deposited is covered (except by agreement the most trivial), they are signed by a Minister (constituting the Minister's evidence to Parliament), they require the Minister and Department to define their attitude towards the proposal, and they are available to the public. We are not necessarily tied to documents, since texts are often not available in time to allow scrutiny, so we sometimes receive from the Government an 'unnumbered Explanatory Memorandum' in place of the official text (often accompanied by an unofficial text). It is the EM which triggers our consideration of a proposal.
  12. The European Scrutiny Committee (not to be confused with the European Standing Committees) consists of 16 Members, currently from four political parties, and normally meets and reports to the House every week when the House is sitting. We have 16 staff (three shared with other committees), which is more than twice as many as any other select committee[8] — indicating the substantial resources the House commits to making European scrutiny effective. Our main role is to assess the legal and/or political importance of each EU document and to decide which shall be debated, but other roles include:

  • being a source of analysis and information;

  • monitoring the activities of UK Ministers in the Council; and

  • keeping legal, procedural and institutional developments in the EU under review.

  1. The Committee necessarily works quickly. If an EM is deposited by noon on a Thursday and clearance is needed swiftly, we undertake to consider the document at our meeting on the following Wednesday morning. Even this timescale is sometimes compressed when a Council meeting is imminent.
  2. For each document we receive briefing and a staff recommendation (e.g. to clear, seek further information or recommend for debate). We ask three questions on each document:

  • Is it politically or legally important? If so we include a paragraph on it in our weekly Report. (If not, the document is cleared without further proceedings.) Political importance stems from factors such as the sensitivity of the subject matter, the financial implications or the likely impact on the UK. Legal importance may arise from a doubtful or contested legal base, an unexpected assertion by the Commission of its powers, drafting difficulties or impact on existing law.

  • Do we have enough information? If not, we put questions to the Minister in the Report, and occasionally take oral evidence; we then report on the document again when the information is received. Sometimes we return to the Minister for further information several times, and we regard this dialogue as one of the most important parts of the scrutiny process. We may also request a departmental select committee to provide an opinion, and we have the power to require that opinion within a specified time.[9] If a proposal is likely to be heavily amended, we usually leave it uncleared.

  • Should it be debated, and if so in a European Standing Committee or on the Floor of the House?

  1. We are not required to express a view on the merits of the proposal, though our Reports often do indicate our concern or approval. Unless a document is recommended for debate, it will usually be cleared provided that our questions have been answered and provided that we can be reasonably certain what form the proposal will be in when Ministers are asked to agree to it.
  2. In a typical year we consider documents about 1300 times (since some are considered more than once), designate about 500 as politically or legally important, and recommend about 30 for debate in European Standing Committee and two or three for debate on the Floor of the House.[10]
  3. The scrutiny reserve resolution,[11] passed by the House, is fundamental to our work. It constrains Ministers from agreeing in Council to legislative proposals and certain other proposals if we have not cleared them or (when we have recommended a document for debate) if the House has not yet come to a resolution concerning them. Exceptions are provided for in the resolution, including 'special reasons', but in such cases the Minister must explain those reasons to us at the earliest opportunity (or to the House if a proposal is awaiting consideration by the House).
  4. If we recommend a debate, a debate always takes place, though we cannot require that the Government provides time on the Floor of the House, and the timing of debates is determined by the Government. In European Standing Committees there is a combination of questions to the Minister (usually for up to one hour) and debate (for the remainder of the overall 21/2 hours). A government motion is moved, taking note of the document and expressing a view about it or about the Government's stance on it. The motion may be amended. Each committee has a permanent membership of 13, but any Member may attend, speak and move amendments (though not vote). Subsequently a motion is moved in the House, when there may be a further vote and a further amendment but no further debate.[12] If the debate takes place on the Floor of the House instead of in a European Standing Committee there is a debate on an amendable government motion for up to one and a half hours.[13]
  5. Another important part of our work is pre- and post-Council scrutiny, in which we examine Ministers' plans for forthcoming Councils and what they have done in recent Councils. We obtain written information before and after every Council (annotated agendas before; parliamentary written answers afterwards), and sometimes take oral evidence from Ministers.
  6. A National Parliament Office was established in Brussels in 1999, with two members of staff. It acts as the eyes and ears of this Committee in Brussels, providing a weekly bulletin as well as responses to specific requests.
  7. The House of Lords Select Committee on the European Union also scrutinises EU documents, but it does so in a different way. Although, like us, it has a sifting role, it is more selective. The Lords committee refers about 250 documents a year to sub-committees for examination, reports on about 30 documents in depth, and corresponds with Ministers on others. Its sub-committees, which conduct most of the inquiries, act in a similar way to departmental select committees in the Commons, normally taking written and oral evidence. The Commons and Lords committees are therefore complementary, and their staff are in close contact to ensure that work is not unnecessarily duplicated.
  8.  

    Strengths and weaknesses

  9. The scrutiny system, built up over nearly three decades, has a number of strengths:

  • wide coverage;
  • written evidence by a Minister on every document;
  • sifting to identify documents of political or legal importance;
  • rapid scrutiny and reporting;
  • public access to explanatory memoranda and our Reports;
  • a process of written or oral questioning of the Government until we have the information needed;
  • debates on the most important documents;
  • the European Standing Committee format; and
  • the scrutiny reserve resolution.

  1. Assessing the extent to which the scrutiny system influences UK Ministers and, through them, EU legislation is extremely difficult. This is partly because Council proceedings take place in private and partly because the scrutiny process is only one of the influences on Ministers and the UK is only one of 15 Member States. For example, when we considered the proposed European Arrest Warrant we identified four major problems which could have led to miscarriages of justice. Three of these, and in part the fourth, have since been resolved,[14] but the extent to which we and our Lords counterparts contributed to this is unclear. Many similar examples could be cited.[15] We are confident that our questions sometimes require Ministers and officials to focus on aspects of EU proposals likely to cause difficulties which would otherwise receive too little attention, particularly as we usually withhold clearance while awaiting the answers. We are also confident that the debates we recommend have a similar effect. If the scrutiny system did not exist, Ministers would be free to make decisions and legislate in the Council almost entirely without democratic oversight, and there would be pressure on the Commons to establish a scrutiny system.
  2. While recognising the strengths of the scrutiny system, we identify a number of weaknesses, including:

  • problems in the operation of the scrutiny process, especially breaches of the scrutiny reserve and the time taken to make available documents, EMs and information requested;

  • reluctance of successive EU Presidencies to allow adequate time for scrutiny by national parliaments;

  • lack of impact of many of the debates we recommend on documents;

  • lack of attention among other Members to the Committee's ongoing written interrogation of Ministers on EU proposals;

  • the relationship with outside organisations and individuals; and

  • restrictions imposed on us by the House's rules of privilege preventing information being made public soon enough following our deliberations.

Before considering ways of strengthening the scrutiny system, we first re-examine the aims of the system and the basic choices which underlie the way it operates.

 

 

 

 

PART 2: AIMS AND BASIC PRINCIPLES OF THE SCRUTINY SYSTEM

 

Aims

  1. The basic aim set out in 1973 by the Select Committee on European Community Secondary Legislation (the Foster Committee), which established the present system, was to ensure that Parliament received full and accurate information about proposals for Community legislation as early as possible, and that it had means for reaching and expressing a view on proposals before decisions were made in the Council of Ministers, so that Parliament was not bypassed.[16]
  2. That remains appropriate as the core aim, but in the context of concerns about 'disconnection' between citizens and EU institutions it concentrates too much on Parliament and Members. As indicated above,[17] the scrutiny system would have value through making Ministers accountable even if it were entirely unnoticed by the public. Nevertheless, national parliaments can help to bridge the gap between citizens and EU institutions only if they, and especially their European scrutiny systems, are less disengaged from their own citizens.
  3. Our new definition of the purpose of the scrutiny system in the Commons is therefore:
  4. to ensure that Members are informed of EU proposals likely to affect the UK, to provide a source of information and analysis for the public, and to ensure that the House and the European Scrutiny Committee, and through them other organisations and individuals, have opportunities to make Ministers aware of their views on EU proposals, seek to influence Ministers and hold Ministers to account.

  5. This definition underlies the rest of our Report. It does not of course imply that the Commons is the only route by which the public can expect to obtain information or make their views known. Nor does it imply that this Committee is the only instrument by which the House can achieve these aims. It is, however, the most important.
  6.  

    Basic principles of the scrutiny system

  7. The following paragraphs examine five of the basic choices underlying the operation of the Commons scrutiny system, and whether those choices remain appropriate. Apart from the first, they relate largely to the way our own Committee operates.
  8. (1) A specialised committee as opposed to mainstreaming European matters among the departmental select committees (DSCs).

  9. We have already indicated the great quantity of EU documents to be dealt with and the speed with which they have to be examined. We do not believe the task of scrutinising them could be taken on by DSCs without overwhelming their other work. At the very least there would need to be a central unit of staff to brief DSCs in the way that our own staff brief us, but even then the problems of the quantity of documents, the fact that briefing would necessarily arrive at the last minute and the shortness of the time available for consideration would remain. From the House's point of view, problems would include lack of consistency in recommendations for debate and reduced ability to consider matters which cross departmental boundaries, including developments in the EU which affect the scrutiny process as a whole. Nevertheless, while we do not believe DSCs could (or would wish to) undertake the task currently carried out by us, we would welcome greater involvement of DSCs in EU matters, and discuss this below.[18]
  10.  

    (2) Concentrating on documents as opposed to Council meetings.

  11. Some of the most effective scrutiny systems in the EU concentrate on questioning Ministers before Council meetings and establishing a negotiating mandate rather than on examining documents. The best-known is the Danish system, where a Minister attends the European Affairs Committee before each Council meeting and explains his or her mandate from the Government, and the Committee then decides whether it agrees with the mandate, sometimes (though not often) rejecting it. The mandate agreed is generally broad enough for Danish Ministers to reach agreement in the Council.[19] The Finnish and Swedish Parliaments have similar systems (though the Swedish system appears to make more use of members of the specialist committees); during the Nice Inter-Governmental Conference a Swedish Minister spent eight hours discussing the proceedings with the Swedish Committee by phone.[20]
  12. The Danish system is undoubtedly effective, but it has some disadvantages. In particular, considering EU proposals just before Council meetings means considering them very close to the point of final decision, when the major decisions have often been made long before. For that reason, the Danish Parliament established in 1996 a new system of hearings on Green and White Papers and important Commission proposals. Thus, just as we are not exclusively focussed on documents but also sometimes question Ministers before or after Council meetings, our Danish counterparts are not exclusively focussed on Ministers and Council meetings; however, no Committee is likely to have time to cover both documents and Councils systematically. The other disadvantage is that meetings which determine Ministers' negotiating mandates give rise to only limited public information, at least in the Danish case.
  13. More fundamentally, the Danish, Swedish and Finnish systems reflect their own political and constitutional arrangements, with strong parliaments and (usually) minority or coalition governments. If we had similar powers, it is likely that we would soon cease to be a backbench committee, and we doubt anyway whether the House would wish to have a committee of only 16 Members determining the Government's negotiating position. Moreover, such a system would either cut the House of Lords out of the process or include Peers among the small group making the decisions (the Danish, Swedish and Finnish Parliaments each have only a single Chamber).
  14. Consequently, we believe consideration of documents should remain our main task, though we also intend to develop pre-and post-Council scrutiny.
  15.  

    (3) Determining the importance of documents rather than their merits

  16. Our standing order does not require us to assess the merits of EU documents — only their legal and/or political importance and whether they should be debated. In practice, we do often look at merits, especially when requesting further information, and the conclusions in our Reports sometimes express a general view on an EU proposal. In particular, we frequently question the likely effectiveness, cost, consistency or result of a measure, or ask the Government to justify its policy towards it, and we certainly regard it as an important part of our work to ensure that the Government has considered any potential problems and has done what it can to remedy them. However, we do not usually express views in our Reports on controversial aspects of the merits of documents.
  17. The main reasons for not paying more attention to merits are that far more evidence would have to be gathered, making our task unmanageable, it would be difficult or impossible for a cross-party committee to reach agreement on documents which address issues of party political controversy, and we could duplicate the work of DSCs and European Standing Committees. While we could probably obtain more staff, the limits on Members' time would remain. In the Lords system, where merits are examined, over 70 Peers are involved in the Committee and its six sub-committees in a typical session. A more comprehensive examination of merits would require a radical reorganisation of the scrutiny system — for example, splitting the European Scrutiny Committee into a number of committees (or sub-committees) which combined the functions of the Scrutiny Committee and the Standing Committees, each responsible for several Departments. However, even in a system such as that (assuming enough Members were willing to serve), committees would often find it impossible to agree on the merits of documents, they would have heavy workloads covering a range of Departments, and there would be a continuous risk of overlap with the work of DSCs. Greater involvement of DSCs in EU matters, thereby integrating consideration of EU and UK policy and bringing specialist knowledge to bear on it, is a better option if it can be achieved.
  18. Therefore we will continue to regard questioning Ministers on documents, assessing the importance of documents and deciding whether they should be debated as our central responsibility. However, we may occasionally report in somewhat more detail on EU documents we regard as especially important, or where particular scrutiny issues have arisen, as we have done recently on the European Arrest Warrant and on cosmetic products and animal testing.[21]
  19.  

    (4) Examining all documents rather than a selected few

  20. Most European Committees in other EU parliaments which scrutinise documents are much more selective. In theory, greater selectiveness would enable us to spend more time on the most important EU proposals. However, we would not want to have to trust Departments to deposit only what was important, and even allowing our staff or Chairman to conduct a sift would remove control from the Committee as a whole (to which the House has entrusted the task), whereas in practice we sometimes disagree with a staff recommendation that a document is not politically or legally important. Moreover, not much Committee or staff time would be saved, since the staff need to examine each document closely to determine its importance and the Committee already spends most of its time on the documents deemed important. We do make some proposals below for removing certain categories of document from scrutiny, but in general we regard the comprehensiveness of the Commons scrutiny system as one of its key strengths.
  21.  

    (5) Separate scrutiny systems in Commons and Lords

  22. We received one submission suggesting a joint committee with members from both Houses to discuss EU matters.[22] The Spanish Parliament has such a Committee, and when we met our counterparts there last November they impressed on us the disadvantages, especially the practical difficulty of finding times suitable for members of both Houses to meet. There is anyway little advantage in more joint action when, as now, the scrutiny systems in the two Houses at Westminster are largely complementary. On the other hand, we do not rule out co-operation where it can prevent duplication of effort. For example, we plan shortly to embark on a series of joint meetings involving our Lords counterparts, the Commons' Foreign Affairs Committee and other members of both Houses to enable the UK's four parliamentary representatives to the Convention on the Future of Europe to report back.
  23. Our conclusion in this part of our Report is that the general principles on which the European scrutiny system in the Commons operates are largely sound, subject to the caveats above. We therefore, in the next part, discuss how weaknesses in that system can be remedied and its strengths can be built on.

 


1   The terms of reference are set out in the Committee's press notice, No. 1 of 2001-02. Back

2   Treaty of Nice, Declaration 23, on the future of the Union. The two other subjects mentioned were the status of the Charter of Fundamental Rights and simplification of the Treaties. Back

3   ESC, 2001-02, HC 152-xx, paragraph 19.4, pp. 72-3. Back

4   Memorandum, HC 440, 2001-02, paragraph 60. Back

5   Twenty-seventh Report from the Select Committee on European Legislation, 1995-96, HC 51-xxvii, The scrutiny of European business; Third Report from the Select Committee on Procedure, 1996-97, HC 77, European business; Seventh Report from the Select Committee on Modernisation of the House of Commons, 1997-98, HC 791, The scrutiny of European business. Back

6   A booklet describing the Committee's operation in more detail is available free from the Committee staff. Back

7   Standing order No. 143. Back

8   Other than the Transport, Local Government and the Regions Committee (ten staff) which operates both as a full committee and as two sub-committees. Back

9   Standing order No. 143 (11). Back

10   In session 1999-2000, just over 1200 documents were considered, of which 500 were designated as important. Back

11   See p. 49 below. Back

12   Standing order No. 119. Back

13   Standing order No. 16. Back

14   ESC, 2001-02, HC 152-xvii, European Arrest WarrantBack

15   e.g. ESC, 2001-02, HC 152-xxiii, paragraph 8 and HC 152-xxvii, paragraph 5. For an example of our Lords counterparts' scrutiny work causing an amendment relating to EU accession to the Council of Europe Convention on Data Protection to be dropped, see letter from George Howarth MP to Lord Tordoff of 19 January 1999. Back

16   First and Second Reports from the Select Committee on European Community Secondary Legislation, 1972-73, HC 143 and 463. Back

17   Paragraphs 12 and 21 above. Back

18   Paragraphs 71 and 81-7. Back

19   Contribution of the Danish Parliament's European Affairs Committee to the May 2002 COSAC. For a sceptical view of the Danish system, see Q. 477. Back

20   Information obtained during the Committee's visits to Stockholm in 2001 and Helsinki in 1999. See also Q. 307. Back

21   ESC, 2001-02, HC 152-xvii, European Arrest Warrant; HC 152-xvi, Animal testing and cosmetic productsBack

22   Ev 75. See also Q. 189. Back

 
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