EUROPEAN SCRUTINY IN THE COMMONS: GOVERNMENT OBSERVATIONS ON THE COMMITTEE'S THIRTIETH REPORT OF SESSION 2001-02
We will be taking oral evidence from the Leader of the House on European Scrutiny in the Commons on 5 November.
- The Government is grateful to the Committee for its thorough consideration of the system of European Scrutiny in the Commons. The Committee's comprehensive scrutiny of European documents and proposals is extremely valuable, and the Government wishes to place on record its appreciation of the Committee's work. The Committee's engagement on EU matters is a strength for the United Kingdom and for the EU as a whole. The Committee's concern to improve Parliamentary scrutiny of EU matters is shared by the Government which, as the Committee noted, believes that the involvement of national parliaments is important in contributing to the legitimacy of the EU. National parliaments provide an important way for the Union to connect with its citizens. The Government agrees with the Committee that the purpose of the scrutiny system in the Commons is
"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."
- The Government welcomes additional sources of balanced information for the public about Europe, particularly any that help to reduce the sense of remoteness of European citizens from the EU institutions. There already exists a number of impartial information-providing networks in the UK, such as the public library system, and the Committee may wish to consider how they can be used to increase knowledge of the EU and awareness of the work of the Committee amongst the public.
- The Government notes that national scrutiny procedures are being discussed within the Convention on the future of Europe and specifically in the Working Group looking at the role of national parliaments in the EU, chaired by Ms Gisela Stuart MP. More detail on this is provided in the Government's Response to the Committee's 33rd Report entitled "Democracy and Accountability in the EU and the Role of National Parliaments".
- Many of the Committee's detailed recommendations are a matter for the House, rather than for the Government.
- Turning to the recommendations and comments in the Report:
Basic principles of the scrutiny system
While we do not believe Departmental Select Committees could (or would wish to) undertake the task currently carried out by us, we would welcome greater involvement of Departmental Select Committees in EU matters. (para 28)
- In June this year the Liaison Committee produced guidance to select committees on core objectives and tasks. This reflected the model in the Modernisation Committee's First Report of Session 2001-02 (HC 224-1) as approved by the House of Commons on 14 May 2002. The first task that the Liaison Committee asks departmental select committees to fulfil is "to examine policy proposals from the UK Government and the European Commission in Green Papers, White Papers, draft Guidance etc, and to inquire further where the Committee considers it appropriate". We welcome this guidance which should encourage all committees to consider the European dimension to their work.
Consequently, we believe consideration of documents should remain our main task, though we also intend to develop pre-and post-Council scrutiny. (para 32)
- This is for the Committee rather than the Government. However, the Government agrees that maintaining a focus on documents rather than Councils results in more effective scrutiny of individual dossiers and shares the Committee's view that the European Scrutiny Committee should continue to have consideration of documents as its main task. The Government is willing to work with the Committee to develop pre and post-Council scrutiny so that the information received by the Committee is better focussed.
1/4 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. (para 35)
- This is for the Committee.
We regard the comprehensiveness of the Commons scrutiny system as one of its key strengths. (para 36)
- Again, although this is principally for the Committee, the Government agrees that the comprehensiveness of the Commons scrutiny system is a strength. The Committee receives a wide range of documents, both those that are formally deposited, and those that it is sent informally. The Government deposits around 1300 documents a year in the House. In addition, the Government will consider requests from the Committee for the deposit of additional categories of documents on a case by case basis under the terms of the Resolution of the House of Commons (known as the Scrutiny Reserve Resolution) dated 17 November 1998.
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 1/4 (para 38)
- The Committee has the power to decide how best to perform the remit set out in Standing Order No. 143, but the Government agrees that ensuring the thorough consideration of all documents best fits the United Kingdom's Parliamentary arrangements. The Government shares the Committee's views on the strengths of the Commons system, and believes that the complementarity of the work of the Committee and the Lords European Union Committee results in the most effective scrutiny. The Government welcomes the intention of the Committee to meet jointly with its Lords counterparts and other members of both Houses to consider developments in the Convention on the future of Europe.
Meetings in public
We wish to make as much information public as we can and to meet in public whenever possible, while maintaining the effectiveness of the Committee. We regard this as an important issue, but one which needs further examination. (para 41)
- This is not a matter for the Government, but the Government supports the Committee's desire to meet more in public.
Delays in providing documents and information
We welcome the Cabinet Office's undertaking that it will press for the electronic transmission of documents, which has been long awaited. (para 45)
- The Government agrees with the Committee that the slow transmission of documents has in the past led to delays in the scrutiny process, and can now confirm that since early June the Cabinet Office has been attached to the Council Secretariat's EXTRANET system for the electronic transmission of documents. Documents from the Council Secretariat generally now arrive electronically in the Cabinet Office on the day that they are released by the Council Secretariat, and we aim to deposit them within 48 hours of receipt. This is a substantial improvement on the previous paper-based system, which required paper documents to be sent from the Council Secretariat to UKRep, from UKRep to the FCO by bag, and from FCO to the Cabinet Office before being deposited. This resulted in some of the delays identified by the Committee. The Government hopes that the Committee is already noticing the improved speed of transmission.
We have 1/4. initiated recently a system whereby Departments explain each month in respect of each outstanding request for information why that information has not yet been provided; the explanation is then included in the Committee's list of business remaining to be dealt with. We believe this will enable both Departments and us to monitor the situation more effectively. (para 47)
- The Government welcomes this initiative by the Committee and is working to ensure that Departments respond in a timely and comprehensive fashion. It is our impression that such monitoring has helped the Government to focus on outstanding pieces of work and ensure that requests for additional information are not overlooked. The Government is grateful for the efforts of the Committee's office manager for her co-ordination of the weekly report.
A more worrying problem, since it is far harder to monitor, is failure by Departments to deposit documents covered by our standing order and therefore which we ought to scrutinise. We do not believe this is common, but we do occasionally have to request that documents be deposited for example a recent Commission Communication on agricultural issues relating to enlargement. (para 48)
- The Government accepts that in certain, very infrequent circumstances documents covered by the Standing Order have not been deposited. Its view is that such incidents have usually been the result of human error, resulting in non-transmission of documents by the Council Secretariat. When the Council Secretariat has been asked about the reasons for non-receipt of documents, their answers have not been fully satisfactory. The Cabinet Office therefore stresses to Departments the need for them to alert the Cabinet Office if they have not been asked to provide an EM on a document on which they would expect to do so. The system has also recently been improved by the introduction of electronic transmission of documents from the Council Secretariat. No system, however, can be entirely foolproof since sifting may still be subject to human error.
- The delay in depositing the specific document referred to by the Committee (four working days, rather than the usual two working days) was a result of the initial incorrect identification of the lead Department, and not a failure of the system in depositing documents covered by the standing order. The document was received by the Cabinet Office on 21 February 2002. The document was initially incorrectly identified as a DEFRA lead before being directed towards FCO. Cabinet Office was contacted by a Clerk Adviser to the Committee on the same day that it was going to be deposited anyway (26 February). In hindsight, it would perhaps have been better had the process of depositing the document been decoupled from the commissioning of an Explanatory Memorandum from the correct department.
1/4 we are grateful to Departments for foreseeing problems over timescales and sending us EMs which enable us to comment before decisions are made. (para 49)
- The Government is grateful for recognition of recent efforts to provide more information to the Committee, often on an informal basis, when official texts are not available. It is helpful to the Government that the Committee is willing to accept more informal methods of information provision, for example ministerial letters, during fast-moving negotiations. This is particularly true in the context of co-decision where, to meet the Committee's concerns about the flow of information on co-decided dossiers, the Cabinet Office has been active in drawing Departments' attention to European Parliamentary first and second reading amendments.
Overriding the scrutiny reserve
We give notice here that we will normally call a Minister to give evidence when we believe the scrutiny reserve resolution has been overridden without good cause. (para 53)
- The Government takes seriously its obligations under the Scrutiny Reserve Regulation not to override the scrutiny process except in certain particular and unavoidable circumstances. It stands ready to share the reasoning behind any such decision when asked to by the Committee.
1/4 we do not favour a statutory scrutiny reserve. (para 54)
- The Government agrees that a statutory scrutiny reserve would be inflexible and could work against United Kingdom interests. The current system retains the flexibility that Ministers need for negotiations in the Council, without challenging the right of the Committee to call the Government to account for any breach of the scrutiny reserve. The Committee remains able to call Ministers to account if it is not satisfied that a scrutiny override was appropriate. (This is distinct from a subsidiarity mechanism, which the Government has proposed in the Convention on the future of Europe).
There is a particular risk of scrutiny reserve overrides in respect of legislative proposals subject to the 'co-decision' procedure1/4.. (para 56)
- The Government agrees that the Committee should be able to take an active role in scrutinising the development of negotiations in co-decision, and is currently discussing with the Committee how to reduce the increased risk of scrutiny reserve overrides for co-decided dossiers agreed at first or second reading.
- Much of the difficulty stems from the fact that co-decision is sometimes a fast-moving process. The Government needs to be able to react flexibly and rapidly if the UK is not to be sidelined in negotiations. It is accordingly anxious to find ways of getting useful information to the Committee more rapidly. The Government would in turn welcome the possibility of faster consideration by the Committee when this is necessary to enable the UK to agree to a favourable deal if one is available. The Committee might therefore wish to consider extending its use of informal information and documentation, for example greater use of ministerial letters to keep the Committee up to date. The Government also proposes to dispense with Explanatory Memoranda on co-decision documents that are not in practice operational, such as Commission opinions on the European Parliament's amendments.
We welcome the Cabinet Office European Secretariat's plan for 'a system for guiding potential problem documents through the scrutiny process under our close supervision'. (para 57)
- Since providing evidence to the Committee in March, the Cabinet Office European Secretariat has underlined to Departments the need for a step change in the handling of dossiers the scrutiny of which might pose timing difficulties. It has underlined the importance of flagging potential problems so that the Secretariat can take a key role in ensuring effective passage through scrutiny, and reminded Departments about the need to plan ahead for recesses. The Cabinet Office believes that its involvement in several dossiers has shown how a better outcome can be achieved through early co-ordination.
The Commission's Annual Work Programme
We intend to make scrutiny of the Commission's Annual Work Programme an important part of our own programme. ... Also we are considering elsewhere what role national parliaments in general might have in respect of the Work Programme. (para 58)
- While it is for the Committee to decide its own priorities, the Government welcomes scrutiny of the Commission's Annual Work Programme as well as the Committee's involvement in the post-Seville Council exercises Annual Operating Programme and the 3-yearly Multiannual Strategic Programme.
Pre and Post Council meetings
We emphasise that we expect Departments to tell us what role the UK played in Council meetings, so that the information adds to what is available in Council press releases. (para 63)
- The Government believes that written answers are a key part of effective post-Council scrutiny, and its intention is always to provide information of interest to the Committee within the normal constraints on the length of replies to parliamentary questions. It is possible, however, that on occasion Departments do not fully meet the main interests of the Committees in their responses. If the Committee would consider it useful, the Government would be willing to ask scrutiny co-ordinators in Departments to speak to the Clerks following each Council to identify the Committee's priorities. It is always open to the Committee to write asking the relevant Department for greater detail on the handling of a particular dossier if the Committee feels it is insufficiently covered in the response to the parliamentary question.
We believe that, as in other areas of the House's work, there is scope for introducing new procedures on an experimental basis. However, we also emphasise the importance of debates on the Floor of the House as a way of raising the profile of EU business, as discussed below. (para 66)
- The Government welcomes debate on European matters, and will continue to respond positively wherever possible to requests for debates on the Floor of the House, consistent with the other competing demands for Parliamentary time.
We believe the style of questioning in European Standing Committees should be like that in select committees, with supplementaries permitted, and we ask the Chairman's Panel to consider making this change. (para 68 i.)
- The Government notes that proposals for a change of practice in European Standing Committees require no Standing Order changes. It is for Chairman's Panel to decide whether such a change is desirable; the Government agrees that more sustained questioning could make proceedings more informative.
We believe it would contribute to the quality of debate if means were established for making such material generally available, and plan to investigate ways of achieving this through the Committee's web-site. (para 68 ii.)
- The Government welcomes this initiative to make the Committee's Reports, the relevant EM and the EU document more widely available through the Committee's web-site.
We recommend that the number of European Standing Committees be increased to five. (para 69)
- The European Standing Committees were remodelled in 1998 in response to similar recommendations from the Select Committee on Modernisation of the House of Commons. At that time the Government undertook to consider the feasibility of increasing the number of European Standing Committees, but it proved impossible to introduce the number of Committees and the degree of specialisation the Select Committee recommended. The Government does not believe that such an increase in number will be possible now due to the expected difficulties in finding sufficient Members to serve on the additional European Standing Committees.
We also believe it would be beneficial if Departmental Select Committees or their members were more involved in the work of the European Standing Committee covering their Department. (para 70)
- The Government agrees that Select Committee Members may have valuable expertise to contribute to European Standing Committees. Questions about membership of Committees are complex, and heavily dependent on the wishes of individual Members. The Government notes that any Member may take part in European Standing Committee's proceedings or move amendments to motions. While every effort is made to minimise clashes between European Standing Committee meetings and relevant select committee business, there are many factors affecting when a meeting may be held and clashes cannot always be avoided. In such cases, of course, select committees and their Members are free to decide their own priorities.
We recommend that the motion moved in the House on an EU document should always be that agreed by the European Standing Committee, that if the Government does not wish to move it another Member should do so, and that in such circumstances a brief explanatory statement by the mover and a Minister should be permitted. (para 73)
- The Government does not agree to this proposal. The motions which go to the Committee reflect the position which the Committee and later the House is asked to endorse, and the arguments for and against that position are set out in the debate, which can be attended by any Member. If the Committee chooses to amend the motion, that is also a matter of record that Members can take into account when considering the motion put before the House.
We recommend that the Modernisation Committee consider modifying the application of the deferred division rule to motions on EU documents. (para 75)
- This proposal seems unnecessary since urgent business can be taken at the start of public business if it is considered likely that the motion to disapply the Order relating to deferred divisions will be opposed.
We recommend that provision be made for us to refer EU documents for debate in Westminster Hall. (para 77)
- Westminster Hall can already be used for debate on European matters and the Liaison Committee can recommend matters which committees consider important for debate in Westminster Hall. The Modernisation Committee has recently reported on future arrangements for Westminster Hall. The Government thinks that it is inappropriate to put forward further changes at this stage, but will bear the proposal in mind for the future.
We recommend that provision be made for the European Scrutiny Committee and one or more Departmental Select Committees to call meetings of a European Grand Committee. (para 79)
- The House has recently agreed to establish a Committee on the Convention to debate the Convention on the future of Europe. The Government believes that proposals for a European Grand Committee should be considered when Members have had the opportunity to evaluate the Committee on the Convention.
We recommend that the Modernisation Committee consider the possibility of longer Floor debates on EU documents incorporating questions to the Minister. (para 80)
- The Government will be interested in any comments the Modernisation Committee may have. However, it should be noted that the current time limit has applied since 1995 when it was introduced as part of the Jopling reforms, which were introduced to limit the sitting hours of the House. The House of Commons continues to sit longer than most, if not all, comparable legislatures, and constant increases in the time allotted to particular types of business will increase this disparity.