Select Committee on European Union First Report


What is meant by "National Parliamentary Scrutiny" of the EU?

6. The question at the centre of this review is: What is the purpose of national parliamentary scrutiny of the European Union, its policies and its legislation; and how can such scrutiny be strengthened? We begin by explaining our understanding of the phrase "national parliamentary scrutiny". Much of this report is concerned with the United Kingdom, and with the House of Lords in particular, but we have learned lessons from elsewhere and many of our recommendations may be more widely applicable than just to the work of this House. As we are looking at national parliamentary scrutiny, we do not consider in this report how the European Parliament operates, although the overlap between their work and ours is covered where necessary. As we are looking at parliamentary scrutiny, this report will cover scrutiny both by a committee such as ours and by the House itself.

7. By way of introduction, we should also clarify what we mean by scrutiny in this context. There is a constitutionally important distinction between the making of EU legislation and the making of domestic legislation. In the case of domestic legislation, Parliament makes the law, except where it has delegated to others the power to do so. In the case of European legislation, national parliaments have little direct input. EU legislation is made by the Council of Ministers (comprising ministers drawn from the Member States), often in co-decision with the European Parliament; or by the Commission under delegated powers ("comitology", on which we say more in paragraphs 87-91 below). National parliaments are not involved. The work of scrutiny has been very different in the case of EU legislation from the work of scrutiny of domestic legislation. This report accordingly makes recommendations for enhancing the scrutiny of EU legislation.

8. We have interpreted the word "scrutiny" in its broadest sense, namely a process of examination and analysis of the proposals and actions of those responsible for government, with a view to ensuring they are accountable to Parliament for their actions. This part of the report considers three models of scrutiny: ours; that of the House of Commons European Scrutiny Committee; and the Danish model. The word "scrutiny" does, however, have a particular meaning in the context in which we operate. For the purposes of clarity we should stress that scrutiny in this report is not merely the internal procedure by which our Committee and its Sub-Committees consider specific EU documents. That is an important part of scrutiny, and we consider it critically and in some detail in this report, but scrutiny is a much broader concept[8].

What is the Purpose of National Parliamentary Scrutiny of EU Legislation?

9. Dr Adam Cygan, Lecturer in Law, Leicester University, stressed that scrutiny was "substitute sovereignty" (p 51). Lord Howell of Guildford, official Conservative opposition spokesman on Foreign and Commonwealth Affairs in the House of Lords, similarly stressed that scrutiny was central to the proper exercise of power (Q 42). Dr Caroline Jackson, MEP, Chairman, European Parliament Committee on the Environment, Consumer Protection and Public Health, noted a second purpose in our scrutiny work: the gathering together of "a detailed compendium of views" in our reports was of value (p 60). Dr Cygan agreed that our reports, drawn up by an "unrivalled body of experts" with the time to devote to the task, provided the House "with a comprehensive up-to-date analysis of EU activity, including detailed reports on specific legislative proposals" (p 51).

10. The Leader of the House, Lord Williams of Mostyn, combined these two ideas in stressing that, as EU legislation grew in importance, it deserved more vigorous and rigorous scrutiny, and more explanation (Q 4). Lord Howell of Guildford too argued that Parliament needed a "greater influence" over decisions taken at EU level to help bridge the gap which challenged the democratic legitimacy of the Union (Q 42). Baroness Williams of Crosby (Leader of the Liberal Democrats in the House of Lords) noted that scrutiny served two purposes: to hold Ministers to account and to ensure that citizens were aware of the impact of EU legislation. It was of constitutional importance to do so (Q 158).

11. The European Scrutiny Committee in the House of Commons has recently set out a definition of the purpose of the scrutiny system in their House:

12. While we note the Commons' Committee's definition of the purpose of national parliamentary scrutiny of EU legislation, we also underline the constitutional importance of such scrutiny. It is an inevitable and desirable consequence of the principle of the separation of powers, on which modern national democratic constitutions are founded, that it is for the legislature, not the executive, to have constitutional responsibility for legislation. Parliament can delegate power to make legislation and, in the case of domestic subordinate legislation, retains control over Ministers exercising that power. Parliament can, ultimately, vote down such legislation, even though this power is rarely used. The situation with European legislation is very different. Once European regulations, directives and decisions have been through the law-making processes enshrined in the Treaties (which to varying degrees involve the Commission, the European Parliament and national government ministers operating in the Council), it is in practice too late for national parliaments to seek to reverse them, even if the EU instrument in question has to be given effect in the United Kingdom by means of domestic primary or secondary legislation. Thus Professor Neil MacCormick MEP emphasised that scrutiny was required before EU legislation was passed, as it would be directly binding on the United Kingdom (p 62).

13. We accordingly stress that national parliamentary scrutiny of EU legislation has a clear constitutional purpose. Scrutiny at an early stage is therefore essential and must be as effective as possible. To that end, scrutiny should include:

  • The accumulation, presentation and summary of relevant material, including information, statistics, explanation and analysis.
  • The provision of information to the House and to the public as a contribution to transparency.
  • Drawing the attention of the House, the Government, European institutions and the public to significant matters contained within that information and in particular making recommendations—"focusing the debate".
  • Contributing to the law-making process by detailed analysis of draft texts, by exposing difficulties and proposing amendments.
  • An examination of the Government and its role in agreeing European legislation and, as part of that process, compelling the Government not only to think through what it is doing or has done but sometimes to account for it.
  • An examination of the Commission and the policies it formulates.

Three ways of doing scrutiny


14. This section of our report explains how we currently operate. We also set out how the House of Commons and the Danish Parliament (the Folketing) perform scrutiny through their respective committees. We have chosen to examine the House of Commons in particular because some have argued that our work should be combined with, or operate more closely with, theirs. We have examined the Danish model because it has been held up in the House as one which the UK might wish to emulate. A very brief account of the parliamentary scrutiny systems of the national parliaments in the other Member States appears in Appendix 4.


15. These paragraphs summarise our current working methods. More details are given in Appendix 3. We operate under the terms of a "Scrutiny Reserve Resolution" passed by the House, which is intended to ensure that Ministers do not agree to EU legislation in Council unless our scrutiny is complete. The full text of the Reserve also appears in Appendix 3.

16. The House has appointed us "to consider European Union documents and other matters relating to the European Union". The documents are deposited in Parliament by the Government along with an Explanatory Memorandum, prepared by the relevant Department, which sets out the Government's view on a number of key areas, including the policy implications of the proposal and the timetable for its consideration in Council. Each week when the House is sitting—and as required during Recesses—the Chairman of our Committee performs a sift of the deposited documents (see paragraph 56 below). Since its inception,[10] the Committee has delegated to the Chairman the task of conducting a first sift of all the documents formally deposited for scrutiny. The Chairman examines each document and its Explanatory Memorandum and decides whether it should be referred to one or more of the Sub-Committees for examination or cleared from scrutiny. About a quarter of all the EU documents deposited in Parliament are sifted to our Sub-Committees.

17. The Sub-Committees which examine documents are each responsible for a number of policy areas in which their members have expertise. A Sub-Committee can deal with each document referred to it in a number of different ways:

  • clear it from scrutiny with no further action (for example, after noting the contents);
  • clear it from scrutiny but write to the Minister expressing particular points of view;
  • retain it under scrutiny and write to the Minister: correspondence continues until the Sub-Committee is satisfied and clears the document from scrutiny;
  • retain it under scrutiny and call for evidence on it, which can in turn lead to correspondence with the Minister; or a short report; or a full analysis of the issues in a substantial report sometimes leading to debate in the House: all reports receive a written Government response.
  • Key features of our system are:
  • the Government's Explanatory Memorandum, on which we rely as a major source of information;
  • the sift, which focuses attention on significant documents, although Sub-Committees are not precluded from following up issues in documents which have been cleared by the sift and they do occasionally do so;
  • the flexibility provided by a range of options for handling documents;
  • the ability to maintain the Scrutiny Reserve until the process is completed: Ministers can override the Reserve but must give an explanation when they do so;
  • the ability to secure a Government response, sometimes by way of a debate which has the effect of concluding the scrutiny process and lifting the Reserve;
  • the ability to scrutinise "other matters" under our terms of reference, including matters on which no document is available;
  • Scrutiny of Council activity is also becoming more important (in addition to scrutiny of the Commission) as activity increases under the Second and Third Pillars (Common Foreign and Security Policy; and Justice and Home Affairs).

19. It should, however, be understood that our system does not require the Government to agree with our views before the Reserve is lifted: the requirement is merely that the process of scrutiny is complete. Nor does our system require a Minister to secure a mandate from Parliament before negotiating a position in Council.


20. The European Scrutiny Committee in the House of Commons operates on the basis of a similar Scrutiny Reserve Resolution to that which applies in the Lords. The Committee receives the same Explanatory Memoranda and the same documents for consideration. There are, however, a number of significant differences in what they do with them:


21. As part of this inquiry, we have heard evidence on how the Danish Folketing's European Affairs Committee conducts its work. We chose to hear a presentation from Denmark on this occasion because the Danish system has been cited as a model in the House[12].

22. Mr Claus Larsen-Jensen, Chairman of the Folketing's European Affairs Committee, explained that his Committee gave a mandate to Ministers before every Council on the basis of hearings with civil society, NGOs, institutions and companies, etc. He said that Ministers then knew that, in a country of coalition governments, they had a majority behind them in their Parliament. There was, however, still a lack of understanding among other committees in his parliament that EU policy was not foreign but domestic. There was a need for more involvement in the co-decision process. The transmission of papers by the Commission direct to national parliaments—at the same time as sent to governments—would help, as would enhanced contacts with MEPs. Overall, the aim was to exert influence throughout the decision-making process (Q 87).

23. He stressed that Ministers sought a mandate "that is as wide as possible" to ensure that there was no problem in feeling "bound" in negotiations (Q 93). The mandate was usually given, because Ministers worked hard to present proposals the Committee would accept but, very occasionally, a Minister had to seek clarification from the Committee or its Chairman (Q 94). Since 1983 there had been no examples of a Minister trying to "cheat" the Committee over the content of a mandate (Q 96). He argued that mandating did not provide a block on negotiating or slow down the legislative process: it was about being a politically mature democracy giving the Minister room to negotiate (Q 118).

8   Our Committee publishes, through TSO, a fortnightly document entitled "Progress of Scrutiny" which lists all EU documents recently considered and sets out in the most basic factual terms what the state of play is on each. This document is freely available to Members of the House, and publicly available from TSO and on the internet at Back

9   "European Scrutiny in the Commons" 30th report, Session 2001-02, HC 152, paragraph 25. Back

10   As recommended by the 2nd report of the Select Committee on Procedures for Scrutiny of Proposals for European Instruments (Paper 194, 25 July 1973) paragraph 118. This is the Maybray-King Committee, whose reports led to the establishment of this Committee almost 30 years ago. Back

11   HC 152-xxxiii-I and HC 152-xxx, Session 2001-02. Back

12   Lord Howell of Guildford in the debate on our Second Chamber report (HL Deb. 11 February 2002, col. 934). Back

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