Select Committee on European Union Twentieth Report


APPENDICES


APPENDIX 1

HOUSE OF LORDS SELECT COMMITTEE ON THE EUROPEAN UNION SESSION 2002-03: FIRST REPORT

REVIEW OF SCRUTINY OF EUROPEAN LEGISLATION GOVERNMENT'S RESPONSE

  The Government welcomes this review which was prompted by the report of the Group on the Working Practices of the House of Lords, chaired by the Lord Privy Seal and Leader of the House, Lord Williams of Mostyn. We congratulate the Committee on its comprehensive survey of the issues surrounding scrutiny of European legislation. The review is, of course, timely. It coincides with the Convention on the Future of Europe which is looking at the role of national parliaments in the EU's decision-making processes. Moreover, it follows hard on the heels of a parallel review by the European Scrutiny Committee of the House of Commons to which the Government responded last October, published by the Committee as their Second Special Report, 2001-02, HC 1256.

  The Government is pleased to acknowledge the impact that the reports of the Committee have had over the years, both in helping to shape the Government's own policy positions and in influencing opinion in Brussels. The Government is keen to assist the Committee in maintaining the impact of its reports. Our responses to the Committee's recommendations below are framed with that objective in mind.

160.   National parliamentary scrutiny of EU legislation has a clear constitutional purpose and to that end entails (paragraphs 12-13):

    —  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.

  The Government agrees that a purposeful and effective system of parliamentary scrutiny of EU business should indeed be a process of rigorous examination and analysis with a view to ensuring that those responsible are accountable to Parliament for their actions. In particular, it is right that scrutiny should extend beyond the examination of specific proposals for EU legislation, to include a consideration of policy development within the EU at an early stage. Much of this has to do with providing more explanation, both for Parliament and for the public, and so increasing awareness of the purpose and likely impact of EU policies and placing EU legislation within a wider context.

161.   Our inquiries can be of value both on legislative proposals and on early discussion documents but we endorse the near unanimous view of our witnesses that we should aim to work at the earliest possible stage in the policy making cycle (paragraphs 29-30).

162.   Contributing to a climate of opinion forming is a key way in which we can have an impact, by analysing issues and presenting a range of evidence combined with our own conclusions on it (paragraph 140).

  As we have repeatedly stressed, scrutiny by the Committee is most effective, and influential, the earlier it takes place. The Committee will have more influence if it considers issues as early as possible in the process, and ideally before opinion formers in Brussels have fully formulated their own ideas. Upstream examination of eg the Commission's annual legislative and work programme is just one way of doing this, which is why the Government deposited it for the first time last year, and will continue to do so.

  Reliance on definitive texts, which by their nature are often only produced late in the decision-making process, reduces the practical influence of the Committee and the impact of its work. The Government has of course given an undertaking to consider points raised by the Committee at any point in the negotiating process. But left to the last moment, or wielded as a delaying device, scrutiny by any national parliament can be viewed in Brussels more as a procedural requirement than a substantive contribution to the policy debate.

163.   For the scrutiny reserve to be working "properly", it is first necessary for the Committee not to maintain the reserve unnecessarily: to do so would weaken the Government's negotiating position and devalue the reserve. But it is also essential that the Government does not override it without good cause (paragraph 63).

164. A mandatory scrutiny system would not work under UK circumstances (paragraph 70).

  The Committee helpfully recalls, and the Government agrees, that a mandatory system would force the Government to negotiate for British interests in Europe with one hand tied behind its back (as many believe the Danish scrutiny system effectively ties its Government's hands) putting it at a negotiating disadvantage relative to other Member States in the Council.

  As Lord Williams told the Committee on 8 October 2002, the Scrutiny Reserve exercises an important discipline on the Government. The Government does not override the Reserve lightly. It devotes considerable resources to ensuring that the override is used only as a last resort option in exceptional circumstances. Its record in this respect, though capable of improvement, is respectable. In 2002, over 1,200 documents were deposited. The reserve was overridden in 71 cases, 28 of which occurred when the House was not sitting. Whenever a scrutiny override takes place, the responsible minister accounts for it to the Committee or the House, as required by the Scrutiny Reserve Resolution. Nor are we complacent about the number of overrides. For example, the European Secretariat of the Cabinet Office now seeks to identify dossiers that may present timing difficulties, and to help manage the scrutiny process to minimise the risk of an override.

RECOMMENDATIONS ADDRESSED TO THE GOVERNMENT

165.   The Government should always draw to the Committee's attention any matters under discussion or consideration by the Commission which might merit detailed scrutiny when a proposal comes forward. Such an early warning system would greatly assist us (paragraph 31).

  The Government will do what it can, principally by liaising with the Clerks of the Committee. The Committee's task should also be helped now that the Commission and other institutions have readily-accessible websites which provide direct access to information both about what they have done and what they are planning to do.

166.   It continues to be essential that the right documents are deposited by the Government in good time (paragraph 63).

  Electronic receipt of documents from the Council Secretariat has significantly speeded up the process of depositing documents. We calculate that on average the Committees now receive documents some two weeks earlier. We are not aware of any cases where the "right documents" are not being deposited. Where there is doubt, the decision on whether to deposit is discussed and agreed with the Clerks.

167.   Subject to final agreement with the Commons (which has made a similar proposal), the following categories of document need no longer be deposited for scrutiny, although we would wish to see the same arrangements made to keep us informed as are proposed by the House of Commons (paragraphs 51-54):

  (1)  Community positions on rules of procedure for various Councils and Committees, including those established under Association Agreements;

  (2)  Proposals to extend Common Positions imposing sanctions (without making substantive changes) in pursuance of UN Security Council resolutions;

  (3)  Proposals for making minor changes to lists of people or organisations subject to restrictive provisions in existing measures;

  (4)  Draft Council decisions relating to decisions already made in Association Councils or Committees;

  (5)  Reappointment of members to EU organisations;

  (6)  Proposals for legislation concerning the administration of community tariff quotas.

168.   We support the consolidation of all transfers of appropriations into a single report (paragraph 50).

  We are grateful for these changes, and the Government will of course provide the Committee with quarterly consolidated lists. But in a situation where the Committees are already stretched by examining over 1,200 deposited documents each year, the Committee might also look at a list system for dealing with routine documents which do not impact on UK policy or legislation (eg those on anti-dumping measures and on derogation requests from other Member States under the Sixth VAT Directive or from customs duties). On many of these, the Committee has hardly, if ever, expressed an interest. If quarterly consolidated lists are not acceptable to the Committee, the Government will want to consider other mechanisms given that the standard EM template is poorly suited for these sorts of documents. The Government hopes that the Lords and Commons Committees will take urgent steps to reach a common view on which categories of document are to be deposited and how.

  Separately, we have been in touch with both Committees about the handling of a range of JHA documents including recommendations, resolutions and various Europol documents; we hope to reach agreement soon on their handling.

  We welcome the Committee's initiative in asking for the reporting of all budget transfers including amounts over

25 million to be brought together in a single quarterly report.

169.   The Government should submit an EM on the Commission's Overview document of the Preliminary Draft Budget at the earliest possible opportunity, preferably by the middle of May. The Government should also quickly update the Committee by Ministerial letter after the various stages of the annual Budget cycle rather than waiting to draft an EM once they have received the official translated texts (paragraphs 80, 82).

  We likewise welcome proposals for further streamlining the flow of budget documents, building on improvements already implemented by agreement with the Committees. We have on occasion provided an EM on the Commission's overview document and are happy to provide this annually as a matter of course. We shall also be pleased to build on existing practice for Ministers to write to the Committees to report on budget developments by extending these arrangements to cover the outcome of the European Parliament's second reading.

170.   We find it disappointing that Ministers might be prepared to agree laws in Council without having determined how they are to be implemented in the UK. We therefore recommend that the Government's proposals to implement a particular piece of legislation be set out in more detail in the initial EM. The fullest possible explanation needs to be given on the implementation of EU legislation on matters concerned with Justice and Home Affairs (paragraph 47).

171.   More generally, the EM should as a matter of course state whether primary or secondary legislation is envisaged and if the latter under which power. An indication should be given of the factors which lay behind the decision. Furthermore, where the powers in section 2(2) of the European Communities Act 1972 are intended to be used, the Government should indicate whether the affirmative or negative procedure is envisaged and the reasons why (paragraph 47).

  As Lord Williams wrote to the Committee on 18 November 2002, the Government will give as much indication of how it intends to transpose legislation as it is possible to do at the time of sending an EM. But it is not possible to provide a definitive description. We can only provide our best assessment on the basis of the proposal as it stands at the time.

172.   EMs should give fuller information on the devolution implications of a proposal; on any proposed creation or extension of the powers of a Comitology committee; and a fuller account of the policy implications for the UK. There should also be a section on any potential human rights issues and the Government should consider whether the Minister signing the EM should make a statement of compatibility with the Human Rights Act 1998, as happens with primary legislation (paragraph 48).

  By noting the responsibility of one or more Ministers from the devolved administrations for the subject matter covered by the document, an EM indicates that responsibility for transposing the measure falls to those devolved administrations in their respective regions. Draft EMs on matters that are devolved are always prepared in consultation with the relevant Devolved Administrations.

  It is a principle of good governance that those who are to be required to implement legislation should be consulted on its content. In the EU context, the Government and the Devolved Administrations have argued in the Convention that the European Commission should consult implementing authorities at the pre-legislative phase. The Government believes this should include direct consultation with regional and local authorities on relevant policies, as the Subsidiarity working group has recommended.

  We shall of course draw attention to the proposed creation or extension of the remit of a comitology committee. We refer the Committee to our response at paragraph 203.

  Where human rights issues arise, the EM will of course draw attention to them in the section on legal implications. The Government will in future offer a preliminary view on the compatibility of the proposal with the 1998 Human Rights Act. The EU is in any case, by virtue of Article 6(2) of the TEU, committed to respect fundamental rights as guaranteed by the European Convention on Human Rights.

173.   All EMs—which are the Minister's evidence to Parliament—should be signed. Those categories of document currently subject to an unsigned EM should instead be accompanied by a short form EM, as at present, but with a signature (paragraph 49).

  The Government appreciates that the Committee wishes to be reassured that a Government Minister has read and approved the terms of any EM. Equally, the Committee will understand that Ministers take responsibility for all the actions of their Departments. If, in the interests of speed and efficiency, a Department wishes to communicate with the Committee by means of a private secretary's signature on behalf of his/her Minister or by an unsigned EM where no policy implications need to be recorded, then the Government hopes this will satisfy the Committee. Ministers accept that they remain answerable to the Committee for the content of any EM. Such is the volume of documents, now passed electronically from Brussels, and the number of recipients of EMs (some 80 at present), that the Government intends to move without delay to a system of electronic distribution of both EU documents and EMs.

174.   We would welcome proposals from our Government to ensure better provision of information on matters subject to the co-decision procedure at its various stages (paragraph 35).

  We have been in correspondence with the Commons Scrutiny Committee on this issue and were awaiting the present report to see whether the Lords Committee had further proposals of its own to make. We believe improvements can be made to the procedures for scrutinising proposals subject to co-decision, facilitating more effective and timely scrutiny by the Committees. Given, however, that the timetable for handling dossiers under co-decision is not in the government's gift, we hope the Committees will accept that less formal means of bringing them up to date with developments will need to be employed. It makes no sense, for example, for the Committee to continue their reliance on the Commission's opinions on amendments proposed by the European Parliament since these, despite being a treaty obligation, serve no practical purpose. Waiting for them merely results in unnecessary delay. The Government will come forward with considered proposals.

175.   There should be a review, co-ordinated by the Cabinet Office and taking place say every six months, of those cases when the scrutiny reserve has been overridden and giving reasons why. This information should be reported to Parliament (paragraph 76).

  The reasons for any override will of course be set out in a letter from the relevant Minister, and the Government readily accepts the Committee's right to investigate the circumstances surrounding each occasion, including by calling on the responsible Minister to account in person to the Committee. The Government is happy to provide the Committees every six months with a list of occasions when the scrutiny reserve has been overridden during the previous period.

176.   The Government should review the importance of EU subsidiary legislation, and what its significance is in practice. The Government should inform the Committee on a regular basis of any significant proposals (paragraph 90).

  The Convention is considering the issue of implementing legislation. The Government is accordingly reviewing its approach on the basis of the ideas put forward in the report of the Simplification working group. The Government committed itself in 1998 to enabling the Scrutiny Committees to examine particularly significant proposals such as those referred to the Council or of such political or practical significance that they might cause Ministers to be concerned if they were to learn of them first in the newspapers. Departments have since been reminded of this and the Committee Clerks have on occasion been asked for guidance on whether a proposed measure might be of interest to the Committees. A particular difficulty arises from the fact that proposed measures are generally not made available to member states more than a few days before the relevant comitology committee meets to consider them (and never more than 14 days). The Commission's habit is to change its proposals right up to and during the committee meeting. Moreover, the role of member states in comitology committees is not to decide but to give advice on the merits of the proposed measure. These factors present obvious difficulties for scrutiny by national parliaments. That is why the Government is open to the suggestion, put forward by the Convention working group on simplification, to give the European Parliament a formal right of oversight of the most contentious measures. We refer the Committee also to our response at paragraph 203.

177.   Where a proposal is moving quickly through the legislative cycle we will more regularly ask government officials to be available at short notice to assist the Committee in matters of explanation and elucidation (paragraph 42).

  The Government is happy for the Committee to invite officials to be available to provide technical help and informal advice on the meaning and purpose of proposals.

178.   We will expect responses from Ministers within ten working days to letters sent by our chairman on behalf of the Committee and its Sub-Committees and we will where necessary follow up delays by way of Questions for Written Answer (paragraph 146).

  The Government agrees that it is unacceptable for letters to go unanswered for long periods. We shall strive to respond to letters from the chairman within ten working days. However, responding to complex matters may take longer. In that case, we shall send a holding reply.

179.   Our reports should receive a Government response within six weeks of publication (paragraph 150).

  The Government acknowledges the importance of responding in a timely fashion. This will be within two months of publication of the report if possible—a demanding timescale that compares favourably with the 6-month deadline for responding to reports from other Committees of the House.

RECOMMENDATIONS ADDRESSED TO THE CONVENTION ON WHICH THE GOVERNMENT SHOULD RESPOND

180.   Greater openness in the Council will facilitate faster scrutiny by national parliaments. Abolishing the six monthly cycle of presidencies could help too by avoiding the "end of term" rush to decision, provided that other artificial deadlines are not built in (paragraph 41).

  The Government supports the Committee's recommendations. The UK was instrumental in securing the reforms agreed at the Seville European Council to bring greater transparency to the work of the Council of Ministers when it is legislating. We continue to press our partners for further moves to make the Council more open and transparent. The Government welcomes the recognition by the Committee that the six monthly rotating Presidency will be unsustainable in an enlarged EU. That is why the Government is amongst those looking at ways of reforming the current system to make it more coherent and effective. We believe that this would help to minimise the "end of term" rush. One possibility might be "Team Presidencies" lasting, say, two and a half years. But we are open to other proposals that would achieve the same objective.

181.   The Convention should consider a revision of the co-decision procedure to allow a greater opportunity for national parliamentary scrutiny. When conciliation is triggered, the relevant documents (from the Commission, Parliament and the Council) should be issued publicly and submitted to national parliaments which would have four weeks to consider them before the Conciliation Committee can meet (paragraph 35).

  The Government notes that the Convention working group on simplification concluded that codecision works well in general. Moreover, the Convention working group on the role of national parliaments made no reference to the need to increase the time available for scrutiny of codecided dossiers approaching conciliation. The conciliation phase is intended to encourage the two sides of the legislature, Council and European Parliament, to reach agreement rather than to introduce issues that have not already been explored at first or second reading stage. That is why the treaty requires the Conciliation Committee to be convened within six weeks. The Government is happy to facilitate the provision of relevant documents to the Committees in Westminster prior to the convening of the Conciliation Committee. As the Committee notes, this would not be designed to permit national parliaments to play a direct role in the passage of legislation or to delay procedures. Accordingly, it would not be appropriate to deposit such documents formally.

182.   The Convention should consider whether the European Parliament's procedures could be strengthened by setting up an equivalent of our committees which scrutinise (or will scrutinise) Statutory Instruments; by strengthening the work of their existing committees in scrutinising comitology legislation; and by giving consideration to a procedure analogous to our negative and affirmative resolution procedure (paragraph 91).

  The Government is attracted to these ideas for strengthening the European Parliament's procedures for scrutinising implementing measures adopted under comitology. The Convention is examining the issue of comitology. However, reform in this area—which is for the European Parliament itself to initiate and implement—will naturally depend on the extent to which the Parliament is accorded formal powers under the treaty to scrutinise such measures.

183.   Scrutiny of the impact of legislation would be greatly enhanced if the European Parliament was obliged to produce a cost analysis of the effect of its own proposed amendments to EU law and we call on those responsible for Treaty amendment to ensure that such a procedure is introduced (paragraph 95).

  The Government agrees that the European Parliament and Council should carry out impact assessments of their amendments. So we welcome the current draft of an Inter-Institutional Agreement on better regulation which commits the institutions to making impact assessments of all significant amendments introduced at first reading and in conciliation. It also commits them to elaborating a common methodology for such assessments. We are working to encourage rapid agreement on this so that assessments start flowing as soon as possible. We think it sufficient for such commitments to be underpinned by the rules of procedure of each institution.

RECOMMENDATIONS ADDRESSED TO THE HOUSE ON WHICH THE GOVERNMENT SHOULD RESPOND

184.   To maintain effective parliamentary scrutiny of EU legislation, our Committee, acting on a recommendation from one of our Sub-Committees, should have the right to require that the Government secure a positive resolution from the House as a whole in order to lift a scrutiny reserve being maintained by our Committee because of significant outstanding policy concerns. We do not envisage this power being exercised other than exceptionally (paragraphs 71-2).

  The Government disagrees with this recommendation which it believes to be incompatible with the purpose of scrutiny set out in paragraph 13 of the Committee's report. As paragraph 19 of the report says, "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." Scrutiny is not intended to be a device to force the Government, or even the Council as a whole, to agree with the Committee and so to modify its policy (paragraph 60). That is what an obligation to secure a positive resolution from the House as a whole, providing the opportunity for the House to block for an indefinite period, would amount to. It would be in practice not far removed from a mandatory scrutiny reserve.

  Where a unanimous vote in the Council was required under treaty, it would allow one part of a national parliament in one Member State to bring EU decision-making to a halt. Where qualified majority voting applied, it would leave the UK powerless to act in the national interest in the Council. It would also give inappropriate power to the Committee. One effect might be, as the Committee acknowledges in paragraph 70, to encourage greater Government interest in the composition of the Committee.

  No such power has been sought in the Commons. Indeed, the Commons European Scrutiny Committee explicitly rejected a statutory reserve. The Commons Committee asked only for evidence from a Minister to the Committee when an override appeared unjustified. We have accepted this recommendation. (Commons European Scrutiny Committee Thirtieth Report 2001-02 paragraph 53-4, and Second Special Report paragraph 17)

  The purpose of the scrutiny reserve is to give the Committee enough time to do its work. Significant outstanding policy concerns should be expressed in the Committee's report, not by a refusal to lift the reserve. The Government therefore looks forward to the Committee's thinking on the practical proposals contained in the report of the Convention working group on the role of national parliaments.

185.   In those cases where a Minister overrides a reserve the Minister should come to Parliament and give an explanation by way of Ministerial Statement (paragraph 74).

  The Scrutiny Reserve Resolution provides that a Minister responsible for an override

    "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."

  In cases therefore when a debate is pending, what the Committee seeks is already provided for. In other cases, reasons are currently given by letter from the Minister to the Chairman of the Committee. In the spirit of the recommendation, the Government will give its reasons by Written Answer if this is felt to be a better discipline on Ministers (by making them more visible to the House and to the public) than correspondence with the Committee. This would require amendment of the Resolution, which of course is a matter for the Procedure Committee. Ministers are also, of course, prepared to give evidence to the Committee.

  But we cannot accept that every override should trigger a mandatory oral Ministerial Statement to the House. It would have the perverse effect of devoting prime parliamentary time to items of EU legislation which have already been agreed. It is open to any member to raise a particular override on the Floor of the House by any of the usual means (Starred Question, Topical Question, Unstarred Question etc); yet we have no record that this has ever happened.

186.   The Scrutiny Reserve Resolution needs to be amended to take account of all forms of agreement, including provisional agreements, in the Council (paragraph 75).

  The Government has done its utmost to assuage the Committee's concerns on this point. In particular, we have sought in the Council to clear up the use of terms such as provisional agreement, although we are often at the mercy of the Presidency in this respect.

  The Convention working group on national parliaments considered this issue in its report last October. It concluded, inter alia, that:

    "the six week period currently applicable [for scrutiny of original proposals but not subsequent amendments] was sufficient as a general rule for parliaments to be able to make their views known to governments, provided that they receive information rapidly";

    "no preliminary agreements should be acknowledged in the Council, working groups and Coreper, in the course of this six-week period";

    "a reserve put forward by a member state in the Council that has its origin in the position or the awaited position of the national parliament concerned, should prevent the said member state from taking part in an agreement on the proposal within the Council. This would not prevent a decision in the Council when decisions are taken by qualified majority, if that is reached without the member state concerned.";

    "the working group recognises the need to maintain a provision regarding exceptions on the grounds of urgency";

    "parliamentary scrutiny reserves should be given a clearer status within the Council's rules of procedure. Such reserves should furthermore have a specified time limit, so as not to unnecessarily block the decision procedure;"

    "the Council's rules of procedure [should] provide for a clear week to elapse between a legislative item being considered at Coreper and the Council."

  Against this background, the Government sees little purpose in amending the Resolution. The Government has given a commitment that it will not override the scrutiny reserve lightly, and that it will abide equally by the spirit of the reserve. If a Presidency, basing itself on the principles outlined above, is determined to record some measure of agreement in the Council, and the Government judges that the national interest is best served by its taking a decisive stance in favour of or against that agreement, then the Government will be forced to override the reserve.

  The Government disagrees with the conclusion in paragraph 75 of the report that the term "agreement" be defined to include a "general approach". As the Government has explained, most recently in the debate on Provisional Agreement in the House of Lords on 14 October 2002, a "general approach" does not equate to an agreement since it does not mark the end of a negotiation. The Government has made clear to its EU partners that in reaching a general approach it reserves the right to reopen the substance of the text at a future date. However, the ability to reach a general approach is a vital negotiating tool, allowing the Government to reserve the UK's position without having to block the progress of negotiations in the Council.

187.   Scrutiny of secondary legislation implementing EU legislation is weak and needs to be strengthened. In addition to the work already undertaken by the Delegated Powers and Regulatory Reform Committee in scrutinising the delegation of powers, the scrutiny of delegated legislation implementing EU law should be a key task of the House's proposed new committee on Statutory Instruments. We will do all we can to assist the new committee, including making Sub-Committee Chairmen available to give evidence where necessary (paragraphs 96-97).

  This is a matter for the Liaison Committee, when it considers the new Committee's remit and resources, and for the new Committee itself.

188.   Subject to the availability of a sufficient number of Members with the relevant expertise, we see a prima facie case for increasing the number of our sub-committees (even if that means smaller Sub-Committees or Members serving on more than one Sub-Committee). We do not wish to see a change to the rotation rule but would welcome a wider pool of names coming forward (paragraphs 104-105).

  This is a matter for the Liaison Committee. The Government would observe only that more sub-committees will mean more reports, and more demands for time for debate. We consider the Committee's recommendations concerning debates below, and we suggest ways to make more parliamentary time available for them. If the number of debates is to rise, then it will become more important to explore these possibilities.

189.   We will propose to the Liaison Committee a plan for restructuring our Sub-Committees' work. This will be based on a practical assessment of the requirements for scrutiny in different policy areas. We note that our Sub-Committee structure would need to be expanded to nine to match more closely the formations of the Council of Ministers. Such an arrangement would, however, not cover the areas of Law and Institutions currently covered by Sub-Committee E which we would not wish to lose. In the meantime, Sub-Committee C will take on External Affairs (currently with A) and international development (paragraph 106).

  This is a matter for the Liaison Committee.

190.   The House should hold a general debate on European affairs within one month of every European Council (paragraph 109).

  The Government welcomes debate on EU matters, and the recent record of the House of Lords in this respect is good. In this Session so far, the House has held three debates on reports of the EU Committee, plus a debate on the Convention on the Future of Europe on a Government motion, all in "prime time".

  We note that the Procedure Committee, in its 5th Report in July 2002, called for more debates on select committee reports and general topics to be held in "prime time", and has written this call into the Companion to Standing Orders. Within the constraints of parliamentary time, we are making every effort to meet this objective.

  The procedural changes in the House of Lords are however still very new, and it is too early to judge their full impact, or to make further commitments as to the allocation of time on the Floor of the House. We also have to have regard to the other competing demands for parliamentary time.

  We note however the suggestion, floated by the recent House of Lords Group on Working Practices, chaired by the Leader of the House, and not ruled out by the Procedure Committee, that the House of Lords might consider holding debates on general topics in Grand Committee. This might be a way forward for the debates which the Committee has in mind. We note also the possibility of holding such a debate in the form of a 90-minute Unstarred Question at the end of business.

  Holding such a debate in Grand Committee would require procedural changes which would have to come through the Procedure Committee. Holding it in "Unstarred Question" time would require no special measures.

191.   Our reports should be debated within eight weeks of publication although on occasion a longer or shorter timeframe may be required (paragraph 150).

  The Government noted in its response to the recommendation in paragraph 179 that we would respond to reports within two months, if possible. We would support the suggestion that reports be debated within two weeks of the publication of the Government's response, so far as it lies with us, provided that, as suggested above, debates take place either in Grand Committee, or in the 90 minutes sometimes available for an Unstarred Question at the end of business.

  This position is consistent with that taken by the Procedure Committee (HL Paper 148 2001-02 paragraph 25): "We recognise that other reports, in particular European Union Committee reports on documents subject to a scrutiny reserve, might still have to be debated outside prime time because they might need to take place urgently at short notice in order that the reserve can be lifted."

  We note that the Committee consider a "dinner break Unstarred Question", limited to one hour, too short in most cases. We accept this, though we note as they do that there are exceptions.

  As noted above, holding such debates in Grand Committee would be a matter for the Procedure Committee. Holding them in "Unstarred Question" time would require no special measures.

  This recommendation, and the previous one, raise issues for the usual channels. We have set out here our own preliminary views, and we will listen to the debate. In the light of the debate, we undertake to initiate discussions through the usual channels to see whether changes can be made.

192.   We urge better planning of our debates, and more advance notice. The lack of a clear timetable announced in advance hampers the Government at the negotiating table: not knowing when the scrutiny reserve will be lifted by debate is a disadvantage for UK Ministers in the Council (paragraph 151).

  The Government agrees that better planning and more advance notice are desirable. If debates take place either in Grand Committee, or in the 90 minutes sometimes available for an Unstarred Question at the end of business, then better planning and more advance notice will be possible.

  If the Committee insist on "prime time" in the Chamber, then they must accept the two to three week horizon to which such time is allocated.

193.   The opportunities provided by the new pattern of sittings (and by the greater use of Grand Committees on bills) should be explored and exploited to ensure better time for our debates (paragraph 153).

  The Government accepts that, as part of the package of reforms to its working practices agreed in July 2002, the House expects more debates on select committee reports and general topics in prime time (Procedure Committee 5th Report 2001-02 paragraph 25). It is too early to see whether this aspect of the package is working as intended. We note that reports of the European Union Committee are not the only contenders for any "prime time dividend".

194.   The House should review the current Wednesday debates: does having two balloted debates rather than just one really make the best use of prime time? Consideration should be given to a regular time-limited slot for our debates on Thursday mornings (paragraph 153).

  The Government is open to the possibility of reorganising Wednesdays so as to make time to debate Committee reports. This is a matter for the usual channels, unless it affects the arrangements for Balloted Debates, which are a matter for the Procedure Committee.

  The House is currently getting used to the new shape of Thursdays. In our view it is too early to put additional pressure on the new system by ear-marking certain Thursday mornings for one particular class of business.

RESOURCES

195.   We are pleased to note the suggestion from the Leader of the House that vigorous and powerful revision and scrutiny require the House to "will the means" over the coming months. We expect the House to deliver the resources required to fulfil this commitment (paragraph 135).

  The Government notes that this is a matter in the first instance for the Liaison Committee (which allocates resources among Committees) and the House Committee (which allocates the House's budget).

  The House is not cash-limited. If a case is made for additional resources, HM Treasury will consider it on its merits and in the context of the public expenditure situation at the time.

196.   We will consider further what support we can offer to, and expect from, the valuable National Parliament Office in Brussels, currently staffed by the House of Commons (paragraph 135).

  The Government notes the Committee's intention.

197.   The House should equip a Committee Room for video-conferencing by Lords Committees (paragraph 111).

  This is a matter for the Administration and Works Committee.

RECOMMENDATIONS WE WILL IMPLEMENT

198.   We have begun to scrutinise the Commission's Annual Work Programme. We will consider further the suggestion for national parliamentary scrutiny of the Council's strategic agenda (paragraph 30).

  The Government is pleased that the Committee has begun to scrutinise the Commission's annual legislative and work programme. The Government welcomes the Committee's interest in scrutinising the Council's strategic agenda.

199.   We will enhance our scrutiny of the EC Budget by concentrating our efforts at an early stage in the budgetary cycle. Sub-Committee A will continue to consider in detail any changes to the overarching legal framework within which the annual Budget is set. Sub-Committee A will therefore take oral evidence from the Government on an annual basis before the first reading of the Budget in the Budget Council and thereafter we will publish a short report. The major spending decisions will also remain a focus of rigorous scrutiny for all of our Sub-Committees. The Sub-Committees will continue to scrutinise in detail proposals for legislation that have budgetary implications and will follow closely negotiations on such proposals at Council meetings (paragraphs 78, 80).

  The Government agrees that in order to make scrutiny of the EC budget relevant and timely, it is appropriate to shift the focus of scrutiny to the most important financial issues for the EU. We stand ready to provide oral evidence.

200.   We continue to monitor the work of the Convention on the Future of Europe, and the output of its Working Groups. We propose to examine in a separate report proposals on the role of national parliaments and on subsidiarity emerging from the Convention. The Convention's conclusions on subsidiarity may lead to new tasks for national parliaments. We are willing to take on additional work in these and other areas (paragraphs 4, 40, 85, 106).

  The Government is, of course, pleased that the Committee expresses its willingness to take on the additional work that would arise out of the proposals from the Convention working groups on subsidiarity and national parliaments. We have, for example, pushed hard in the Convention for national parliaments to be able to convey early on in the legislative process their views on the compliance of a legislative proposal with the principle of subsidiarity. We hope that the Committee will appreciate the efforts we have made to secure this advance, overcoming significant resistance.

201.   We reinforce the importance of the sift process, which we consider works well provided that proper EMs are deposited. A Sub-Committee is not precluded from examining a document cleared on the sift. We will examine the criteria used for sifting documents at the later stages of the legislative cycle (paragraphs 35, 57-59).

  The Government welcomes this recommendation. We too appreciate the sift process as an efficient system for clearing from scrutiny those routine and uncontentious documents that are most unlikely to interest the Committee. While mindful that the sift process depends on the provision of proper EMs, and that clearance in the sift does not preclude subsequent examination of a document, we find this a useful mechanism particularly for managing fast moving Council business through the scrutiny process. We are grateful to the Chairman of the Committee for conducting a sift at times when the House is in Recess.

  However, from our perspective, some of the advantages of the sift are dissipated by the uncertainty surrounding the handling of documents that are sifted for examination. The Sub-Committees do not routinely meet on a weekly basis; indeed, their schedule of meetings may not permit examination of a particular document for several weeks. Of course, the volume of business may not justify each Sub-Committee meeting on a strict weekly basis. So the Government would like to suggest that the Committee consider introducing a fast-track procedure permitting the early scrutiny of documents on which, for objective reasons beyond the Government's control, we need to take a clear, decisive and early position in the Council of Ministers. It would be for the Committee to decide how to do this. And no doubt safeguards would be required to ensure the procedure was used only exceptionally and for genuinely deserving cases. But we feel strongly that, for the UK to maintain credibility with our partners in the Council, a procedure is required to enable scrutiny of politically important documents to take place and be concluded within days rather than weeks.

202.   We will ensure that every report takes into account an analysis of the cost impact assessments, based on scrutiny of figures from the Government and the Commission when they are available and giving a clear statement when they are not. This will, however, require us to commission additional advice, as it is not work we ourselves could undertake without detracting from our existing scrutiny (paragraph 95).

  The Government shares the Committee's concern to enhance the rigour of cost and impact assessments of proposed legislation. That is why we are putting pressure on the Commission to deliver on the commitments it has made in its Better Regulation Action Plan, with respect to providing credible impact assessments when proposals are tabled. We are also applying pressure on the Commission to consult with those responsible for implementing proposed legislation. This issue is being debated in the Convention. Moreover, an Inter-institutional Agreement on better regulation is being negotiated which we hope will improve the care paid by both Council and European Parliament to the regulatory aspects of their amendments. The Government's own procedures require a regulatory impact assessment to be produced when inter-departmental clearance of a policy stance on an EU proposal is sought. And the Government is committed to attaching an impact assessment to its EMs.

  We are convinced that the more consultation and effort goes into producing decent impact assessments on the part of all involved, the better EU legislation will become. That said, we are sure that the Committee will accept the inherent difficulty in producing a domestic impact assessment of someone else's proposal, particularly before the precise intent of a proposal has been exposed during the negotiating process. Differences of assessment, say, as between the Commission's expectation of future costs and our own, are in practice very hard to reconcile.

203.   We will examine most keenly any proposal to delegate power under the comitology procedure (paragraph 89).

  The Government refers the Committee to its response above at paragraph 172. We welcome the Committee's intention to scrutinise any proposal to delegate power under the comitology procedure. The Commission reports that 3,490 draft decisions were put to comitology committees for an opinion in 2001. Of these, 10 were referred to the Council and none were found to be of interest by the European Parliament. This suggests, in broad terms, that the comitology procedures work well. The vast majority of implementing measures are not politically controversial. There is a legitimate issue concerning the degree of scrutiny they ought to be subject to by the Council and EP, and this is being examined in the Convention. But most practitioners anticipate that an enlarged European Union will require more framework legislation and more delegation of detailed implementing measures. For our own part, we welcome this, not least for the flexibility it will allow in implementation. Moreover, the issue of how powers are to be delegated and how those powers are to be governed (ie which type of comitology procedure is to be used) has frequently been the most difficult issue to resolve as between the Council and the European Parliament in legislation adopted under the co-decision procedure. It would be unfortunate were the Committee to seek to limit the Government's negotiating flexibility on this issue.

204.   We will hold more regular scrutiny with Ministers on the general issues coming before Council. In particular, Sub-Committee C will in future invite Ministerial evidence on the outcome of every General Affairs Council. We will make greater use of techniques such as videoconferencing to get round some of the practical problems of hearing busy witnesses (paragraph 111).

  The Government notes this recommendation. We have already taken steps to provide a Ministerial letter reporting the outcome of meetings of the GAERC.

205.   Questioning of witnesses must be based on the best possible use of information and make the best use of the time we spend with them. Where necessary, at least the relevant Government officials need to be examined during scrutiny of individual legislative items, even if these are not the subject of a full inquiry. Sub-Committees need to limit the amount of time spent on oral evidence and cross-examining witnesses, to ensure that adequate time is made available for other work (paragraphs 110,112).

  The Government notes this recommendation, and recalls the value of informal advice which officials are able to provide to the Committee, as suggested in response to paragraph 177 above.

206.   We will seek to devote the necessary time and resources to following up our previous work. This could take the form of periodic reviews of our recommendations before proposals are implemented (paragraph 86).

  The Government notes this recommendation.

207.   The suggestion for general review of European legislation is not one we can usefully undertake, without a major disruption of our scrutiny work (paragraph 86).

  The Government notes this recommendation.

208.   The integration of substantive policy into European scrutiny is a strength of our Sub-Committee system, which must be maintained (paragraph 102).

  The Government agrees.

209.   While European scrutiny is enhanced by the involvement of those with a range of policy specialism and expertise, we are not complacent about the expertise of our Members. Many members of the House have been appointed because of their expertise in particular areas but that expertise needs to be kept up to date. We accordingly consider that it is of positive benefit to those conducting scrutiny of specific legislative items that they have also conducted in depth inquiries into general policy (paragraphs 102-3, 113).

  The Government notes this view.

210.   We believe that our Sub-Committees, which examine sectoral policy issues in the European context, provide a model for a national parliament wishing to scrutinise European legislation in depth and on the basis of genuine expertise. There is, in our view, a weakness in any system which confines "European scrutiny" to a small group of specialists. There is a danger that scrutiny is conducted in a purely mechanistic way with Members not having the time to do more than draw attention to matters which they think are important (paragraph 103).

  The Government notes this view.

211.   In order to ensure that the Sub-Committees continue to operate in the most effective way possible, they will continue to take into account cross-cutting scrutiny undertaken by the Select Committee. This will in turn help the Select Committee to inform the planning of the work by the Sub-Committees (paragraph 114).

  As noted in its response to paragraphs 201 and 212, the Government hopes that the Committee might look again at how the timetables and agendas are set for its Sub-Committees so that these mesh with and can be adapted to suit the ever-changing flow of business in the Council. Alternatively, the Committee might consider establishing a fast-track procedure for handling documents that are moving quickly through the Council.

212.   We are confident that the revised the sitting times of the House will not adversely affect our scrutiny (paragraph 115).

  The revised sitting times of the House will undoubtedly help with scrutiny of issues that come to the Council in September and October, a period where in the past the Government has been forced to override the scrutiny reserve. However they may cause problems for scrutiny of business coming to the Council in July. The month of July, of course, marks the start of a new Council Presidency, and Presidencies do not necessarily indicate how they intend to timetable their business until they assume the chair.

  In order to ensure that national parliamentary scrutiny is effective and taken seriously by all those involved in adopting legislation in Brussels, it would be helpful if the Committee were able to convene and give its opinions at any time that the Council of Ministers is convened, that is in every month except August. It is unhelpful in Council negotiations to have to place a scrutiny reserve on a dossier because the relevant Committee has not met to consider it. To a large extent, this problem is manageable through forward planning, but not completely so. In our view, this reinforces the need for something on the lines of the fast-track mechanism suggested in response to paragraph 201.

213.   We will consider further the opportunities for greater openness in our meetings (paragraph 116).

  The Government notes this recommendation.

214.   On balance the arguments advanced do not persuade us of the need for a joint European scrutiny committee of the Lords and Commons. The different scrutiny systems in the two Houses complement each other and should continue (paragraphs 123, 127).

215.   We nevertheless make recommendations for more joint working and warmly welcome Jimmy Hood's commitment to collaboration and working together. We will take up with the Commons Committee the question whether the balance of work between the two Committees is appropriate. We will also examine ways by which we can use and build on their scrutiny work in conducting our own. We will, in particular, consider with the Commons the case for a joint meeting after each European Council to allow the two Committees to exchange views on the future planning of work on the basis of the agenda set by the European Council. We will also consider practical means for joint dissemination of our views, where they coincide, to increase our impact (paragraphs 123, 128-9).

  The Government is grateful to the Committee for giving some thought to the idea, floated by the Leader of the House of Lords among others, of establishing a single European Committee of the two Houses. There would undoubtedly be difficulties in fusing the work of the two existing Committees, as the Commons European Scrutiny Committee concluded in their own recent review of the scrutiny system (30th Report, HC 152-xxx). These might be overcome in a way that preserved the complementarity that current arrangements allow and which we commended in our response to that report (HC 1256). Experience of the Standing Committee established to oversee the work of the Convention on the Future of Europe highlights, for example, the advantages that would accrue from jointly taking evidence before or after European Councils (or indeed other formations of the Council of Ministers). It also points to the value of Westminster being able to feed a single view into ongoing discussions in Brussels. If the Convention and subsequent IGC result in national parliaments having a right to opine on whether proposed legislation meets the subsidiarity principle, new arrangements will need to be devised.

  The Government welcomes the Committee's readiness to envisage more joint working with the Commons Scrutiny Committee, including through formal concurrent meetings to take evidence. The Committee and the House may wish to revisit the issue of a single committee once the outcome of the Convention is known.

216.   The question whether MEPs should have further rights of access to our Parliament is not one that we are qualified to address. This would be a matter for the House itself. We undertake to ensure that relevant UK MEPs have the opportunity to give evidence to our inquiries, and that the outputs of our work are communicated directly to them (paragraph 132).

  The Convention working group on the role of national parliaments noted the usefulness of networking and regular contacts between national parliaments and the European Parliament to help foster a greater understanding and involvement of national parliaments in the activities of the EU. It also suggested a more systematic approach to cooperation between national parliamentary committees and European Parliament committees. It proposed a common window for debates in national parliaments involving MEPs, Commissioners and Government Ministers. We look forward to the Committee's comments on these ideas.

  The Government is strongly of the view that it would be beneficial to enhance day-to-day links between Westminster and UK Members of the European Parliament. These are not as close as they could or should be, to the detriment of our national debate about and the UK's influence in the EU. The Government recognises that formal joint meetings between the Committees of the UK Parliament and those of the European Parliament, or indeed any other parliament, would be a radical departure and might throw up some problems, not least in respect of the extent to which proceedings of such meetings would attract parliamentary privilege. Nevertheless, the Government hopes that the House authorities will examine whether these problems can be overcome since the advantages would be considerable. We also believe that the Committee should in any case give serious and early consideration to more and closer joint working including informal meetings to discuss matters of mutual interest. It would only enhance the effectiveness of our national scrutiny arrangements and of Westminster's ability to help shape EU legislation if the Committee were to draw on the EU expertise of MEPs. Other Select Committees, not just those dealing directly with EU affairs, might also seek power to invite EP Committees to meet jointly with them when inquiring into matters that have an EU bearing. At the same time, and while recognising the pressures on the Parliamentary estate, the Government believes improved access to Westminster for UK MEPs visiting in a scrutiny capacity should be secured.

217.   We are happy to share our experience with any other parallel national parliamentary body among the current Member States or the incoming countries. We will take evidence from a number of national parliaments (including bicameral parliaments) whose scrutiny systems are well developed, to see what we can learn from their work (paragraph 133).

  The Government encourages the Committee in its wish to develop links and share experiences, best practice and information with its counterpart committees in other national parliaments. As the Convention working group on the role of national parliaments has noted, existing mechanisms for exchange are not used to their full potential.

218.   We urge all our members to make more use of unstarred questions, Question Time (and the new topical questions) to raise matters of concern on the floor (paragraph 154).

  The Government notes this recommendation.

ADMINISTRATIVE MATTERS

219.   We endorse the practice whereby all our letters are signed by the Chairman of the Select Committee, regardless of which Sub-Committee has been considering the issue. This provides a single focus for our work (paragraph 108).

  The Government notes this recommendation.

220.   We work on the assumption that letters, once sent, are presumed to be public and can therefore be released to the press and interested parties (paragraph 146).

  The Government notes this recommendation.

221.   We will ensure quicker and more regular publication of significant correspondence (using the internet) in addition to the twice-yearly published volume (paragraph 146).

  The Government notes this recommendation.

222.   We will make more use of letters to follow up scrutiny issues raised by proposals which come forward after a major inquiry (paragraph 146).

  The Government notes this recommendation.

223.   We will increase efforts to foster a culture of respect for scrutiny in Whitehall, including the holding of regular sessions of evidence from senior civil servants responsible for European policy (paragraph 146).

  The Government notes this recommendation. Formal appearances before the Committee by senior officials will continue to be subject to the approval of Ministers.

224.   We propose that regular digests of significant scrutiny by correspondence be made freely and publicly available (paragraph 147).

  The Government notes this recommendation.

225.   Our reports should be presented to have the most impact. There is no necessary correlation between the shortness of a report and its focus. Internal improvements to the layout and presentation of reports are underway. We have nevertheless considered how in practice a focused and readable report can actually be produced. To this end we will aim to ensure that all our substantive reports accord with standards set out in this report (paragraphs 142, 145).

  The Government notes and welcomes this recommendation.

226.   We will produce an annual report from the Committee, giving an account of our activity, drawing attention to any problems in the scrutiny process and outlining key emerging issues in a short and punchy document produced in time for the debate on the Queen's Speech (paragraph 155).

  The Government notes this recommendation.

227.   We will look at administrative questions such as finding ways to improve the availability and accessibility of our work by means that Members of the House actually notice, namely through their party whips, the Crossbench notices and the Forthcoming Business document (paragraph 156).

  The Government notes this recommendation.

228.   We will discuss further the public provision of information including via the redesigned website (www.parliament.uk) (paragraph 158).

  The Government notes this recommendation.

229.   We will consider with the Information Officer for Select Committees how publicity and information provisions on our work may be enhanced. In addition we would wish to see copies of our reports made as freely and easily available as possible by the House (paragraph 159).

  The Government notes this recommendation.

CONCLUSION

230.   This report raises many issues requiring further work to implement recommendations over the coming year. We will review and follow up the responses given to our recommendations. We will ensure that we continue to scrutinise the work of the Convention and relevant developments arising in that forum. In the meantime we make this Report to the House for debate.


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003