Select Committee on Modernisation of the House of Commons Seventh Report


Memorandum by the Select Committee on European Legislation

The House's Scrutiny of EU Business

A paper prepared for the Modernisation Committee by the Select Committee on European Legislation


1. The present system compares well with the arrangements in almost every other EU National Parliament. It is wide in scope; it combines analysis, sifting and debate; it seeks to make the maximum information publicly available;[3] it operates quickly; and the Government is required to produce an Explanatory Memorandum on every document, and is subject to the discipline of a Scrutiny Reserve.

2. So far as has been possible without Standing Order changes, we and our predecessors have secured a number of improvements - for example in coping with the difficulties of the co-decision procedure introduced by the Maastricht Treaty[4], and improving examination of the EC Budget. We have also been active in the EU forum, both through a series of Reports on the Inter-Governmental Conference and the Role of National Parliaments, and through the Conference of European Affairs Committees of EU Parliaments. A recommendation by the previous Committee, that there should be a binding period of notice to allow National Parliaments to consider EC legislative proposals, is now - uniquely for such a recommendation - incorporated in the Amsterdam Treaty.

3. Despite these changes, the House of Commons system is now in need of modernisation and improvement, to respond both to European institutional changes and to meet expectations as a wider range of subjects comes within EU competence.

4. A great deal of work was carried out in the last Parliament by the Select Committee on European Legislation (ELC) and by the Procedure Committee. The ELC's blueprint for modernising the system was contained in the July 1996 Report The Scrutiny of European Business. Our predecessors' recommendations (and the wider procedural implications) were then considered by the Procedure Committee, which reported in March 1997 (European Business). Copies of both Reports have been supplied to the Modernisation Committee.

5. In October 1996 the previous Government responded to the ELC's July 1996 Report so far as it concerned the operation of the existing arrangements.[5] On 29 January this year the new Administration published a paper on European Scrutiny which replied to some of the recommendations for reform made by the ELC and the Procedure Committee.

The approach of this paper

6. We have minimised rehearsing the work carried out in the last Parliament, but instead have focused on the areas for modernisation, referring to the other documents in footnotes.

7. European Scrutiny is complicated, mainly because it must react to the complex and often unpredictable operation of the European Institutions. To assist the Modernisation Committee, we have supplied copies of a Guide to the system, together with a "Key Facts" card. A description is also to be found in Part II of the July 1996 Report (paragraphs 22 to 63). We will be happy to provide any other material which the Modernisation Committee may need, including more detailed papers on particular aspects.

8. We work in close co-operation with the House of Lords Select Committee on the European Communities, and some aspects of the Scrutiny system affect both Houses equally.[6] From our exchanges over a long period, we have no reason to think that our counterparts would not readily endorse all the recommendations in this paper which might touch on their work; but we have left it to the Modernisation Committee, in the light of their deliberations, to decide what consultation might be appropriate.

The Orders of Reference of the Select Committee on European Legislation

Pillars 2 and 3

9. What is now Standing Order No.143[7] was originally tightly drafted to ensure a precise description of the European documents covered. However, this precision also meant the exclusion of any new category; and so activity under the "inter-governmental pillars" introduced by the Maastricht Treaty fell outside the Committee's remit. This was not the case with the more broadly drafted equivalent Standing Order in the House of Lords, and their Select Committee on the European Communities is not constrained in this way.

10. The Maastricht Treaty created the European Union, fancifully in the form of "a temple of three pillars". The existing Community Pillar was joined by Pillar 2 (Common Foreign and Security Policy, or CFSP)[8] and Pillar 3 (co-operation on Justice and Home Affairs, or JHA).[9]

11. The type of business transacted under the inter-governmental Pillars is of increasing significance. Annex A (taken from the latest edition of the White Paper Developments in the European Union) gives examples of the subjects involved.

12. It is now common ground that Pillars 2 and 3 should be brought within systematic Scrutiny. The recommendations of the ELC[10] and Procedure Committee[11] in the last Parliament have been accepted by the Government.[12] The new version of S.O.No. 143 in Annex B contains the necessary amendments as the Treaties stand at the moment. The version in Annex C reflects new provisions and nomenclature in the Amsterdam Treaty, and will be required when that Treaty enters into force. We hope that the agreement of the House to both versions, the second with an appropriate delaying provision, might be sought on the same occasion.

13. We deal with Pillars 2 and 3 in the context of the Scrutiny Reserve in paragraphs 23 to 31 below.

14. In the last Parliament, the previous Foreign Affairs and Home Affairs Committees suggested to the Procedure Committee that they should carry out Scrutiny of Pillar 2 and Pillar 3 respectively.[13] The previous ELC felt that this was not the right way to proceed, on the grounds that these two Committees were on exactly the same footing as other Departmental Select Committees, and the existence of a central Scrutiny system in no way prejudiced their ability to carry out inquiries on any matter within their remit. Moreover, the ability to recommend debates is a key part of the Scrutiny process, and our predecessors thought that no Government would countenance a Select Committee being able to require debates on its own subject area.

15. The Procedure Committee endorsed this view.[14] We are sure that extension of the system to Pillars 2 and 3 would have no adverse effect on the work of the Foreign Affairs or Home Affairs Committees, and we would welcome inquiries by them into any Pillar 2 or 3 proposal. However, Departmental Select Committees have many competing priorities, and we think it axiomatic that the work of systematic Scrutiny and sifting should be carried out by the ELC.

Institutional change and Commission legislation

16. The ELC's July 1996 Report recommended that S.O. No. 143[15] should be amended by adding, at the end of paragraph (1)(c), the words "and related matters".

17. This would allow us to do two important things that are, strictly speaking, outside our Orders of Reference at the moment. First, we could examine institutional or procedural change in the Union - or, as the Procedure Committee pointed out, matters relating to the European Court of Justice[16] - without the trigger of a particular document.

18. Second, we could when necessary examine Commission legislation. There is a great deal of this, much of it ephemeral or unimportant, and it is not published in draft. Any systematic Scrutiny would not be profitable. Sometimes, however (food safety is a good example) both the legislation itself and the way it has been introduced are of great public interest. It will also normally be made under Council legislation which we do scrutinise; and it would be illogical if we were to be able to look at one but not the other.

19. Neither subject would change the balance of our work significantly, but from time to time might be of great importance. The Procedure Committee readily endorsed this amendment[17], and we commend it to the Modernisation Committee. The versions of the draft Standing Order at Annexes B and C incorporate it.

20. The Government has endorsed the suggestion that Commission implementing legislation should be open to Scrutiny[18] and has asked for the views of the Modernisation Committee on "how this could be achieved without imposing an undue burden on either the House or Government Departments responsible for negotiating such legislation". This apparent apprehension about the scale of such activity is unfounded. On experience to date, we would not want to look at such items more than two or three times a year (against the background of about 800 documents presently deposited for Scrutiny). We are certainly not suggesting, for example, any system of Explanatory Memoranda - or even lists of documents - and no more than the minor Standing Order amendment we suggest would be needed to effect the change.

The Committee's name

21. Our predecessors pointed out that the title "the Select Committee on European Legislation" was out of date, as only half their work was on legislation. They suggested that the Committee should be known as "the Select Committee on the European Union".[19] The Procedure Committee proposed "the Select Committee on European Documents"[20] to meet concerns of the former Foreign Affairs Committee.

22. We do not think that "the Select Committee on European Documents" would be an accurate title - not only because of the changes suggested in paragraphs 16 to 19 above, but also because of our intention of scrutinising Council business more generally.[21] In our view, the shorter the better: "European Select Committee", "European Scrutiny Committee" or "European Union Committee" would all meet the case; our preference is for the first.

The Scrutiny Reserve Resolution

Pillars 2 and 3

23. In its July 1996 Report, the ELC recommended the extension of the Scrutiny Reserve[22] to Pillar 2 and 3 documents.[23] This was endorsed by the Procedure Committee[24] and has been agreed by the Government.[25]

24. Both Committees and the Government considered how to deal with proposals under Pillar 2, and occasionally under Pillar 3, which have to be kept confidential until agreement.[26].

25. Drawing on those views, we think the best way of proceeding is as follows. The Scrutiny Reserve Resolution already allows a Minister to agree to a proposal which has not cleared Parliamentary Scrutiny if he or she considers it to be confidential.[27] But if confidentiality is indeed justified, then so far as Parliament is concerned, two things need to be achieved.

26. First, there must be some way of securing Parliamentary input. As our predecessors and the Procedure Committee suggested, this could be through the subject Select Committee - often the Foreign Affairs Committee, but occasionally the Home Affairs Committee - being informed in confidence and giving its view privately to the Government. Such Committees already routinely handle sensitive information.

27. Second, there should be an obligation upon the Government to give full information to us and to the House, normally in an Explanatory Memorandum, as soon as a proposal is no longer confidential. That full information must of course include an explanation of the need for confidentiality.

28. The Procedure Committee thought that the Scrutiny Reserve Resolution should "lay an explicit duty on Ministers to ensure that the relevant Select Committee is informed of confidential proposals; to explain the need for confidentiality; and to take into consideration any views upon them expressed by a Select Committee."[28]

29. We do not think that amendment of the Scrutiny Reserve Resolution is necessary to achieve the first two aims; a Government undertaking, monitored by the Committees concerned and ourselves, would probably suffice. It may be that the third limb (requiring the Government to take views into account) is an over-specification, as this principle must of course also apply to our consideration and to any document, whether confidential or not, under any of the Pillars.

30. Where proposals under Pillars 2 and 3 which are not confidential need to be agreed quickly and it is not possible to complete Parliamentary Scrutiny in time, then the "special reasons" saving in the existing Resolution may be used.[29] It should go without saying that these must be genuine cases of urgency, not matters of administrative convenience or the result of delayed proposals. Where texts are not available in time, the unnumbered Explanatory Memorandum process can be used.

31. We invite the Modernisation Committee to agree that the Scrutiny Reserve should apply to Pillars 2 and 3, with the arrangements for confidential proposals which we suggest in paragraphs 24 to 28.


The Scrutiny Reserve Resolution and co-decision

32. The European legislative procedure known as "co-decision"[30] was introduced by the Maastricht Treaty. It was designed to make the European Parliament a more nearly equal legislative partner with the Council of Ministers. It is extremely complex (a chart of the procedure is at Annex B to the ELC's 1996 Report and in the green Scrutiny Guide) and it poses special difficulties for national Parliaments. Scrutiny of an original proposal is one thing, but keeping up with the subsequent stages (during which a proposal may be heavily amended and events may move quickly) can be a real problem.

33. The Amsterdam Treaty extended the use of co-decision, and slightly simplified the procedure, and it may now be seen as the normal legislative route. In co-operation with the previous Government our predecessors made some progress in adapting the Scrutiny process to cope with co-decision. They concluded that the Scrutiny Reserve should be extended to cover three points: agreement to a common position; agreement to a joint text; and agreement to confirmation of a common position (with or without European Parliament amendments). During the last Parliament informal arrangements operated, and the Government agreed "to behave in negotiations on proposals under co-decision as if they were already subject to the constraints" that had been agreed informally. The previous Leader of the House had offered to put before the House in due course appropriate amendments to the Resolution.

34. By July 1996 the ELC had had enough experience of co-decision to conclude that the informal arrangements should be incorporated in the Scrutiny Reserve Resolution, and they so recommended. Their analysis is set out at paragraphs 143 to 156 of the July 1996 Report.

35. Especially in view of the increasing use of the co-decision procedure, we endorse the previous ELC's recommendation. We invite the Modernisation Committee to approve the appropriate amendments, which are set out in the new versions of the Scrutiny Reserve Resolution at Annexes D and E.[31] As with the Standing Order, we have supplied versions suitable for use before ratification of the Treaty of Amsterdam, and afterwards.

Political agreement

36. It was agreed between the previous Administration and our predecessors that the Scrutiny Reserve Resolution should be interpreted to include "political agreement".[32] Increasingly, the formal adoption by the Council of Ministers is preceded by a stage of "political agreement". Significant change thereafter is rare, and so it is important that Ministers should not give "political agreement" to a proposal that has not cleared Scrutiny. This constraint should now be formally incorporated in the Resolution. An appropriate amendment is set out in the new versions at Annexes D and E. We invite the Modernisation Committee to endorse this.

Pre-legislative documents

37. The July 1996 ELC Report[33] stressed the extent to which certain Commission papers set the European legislative agenda. Green Papers and White Papers, Commission Communications and reports, and draft Council Resolutions,[34] once endorsed or agreed to by the Council of Ministers, may establish the policy; and when the draft legislation comes along it is a foregone conclusion. Our predecessors said:

"If the purpose of a pre-legislative document is consultation, then, so far as Westminster is concerned, there must clearly be a Parliamentary input before agreement by the Council. If the use of such documents is a way of setting a long-term legislative agenda, then this House must be able to influence Ministers before they give their assent."[35]

38. We endorse this view, and welcome the Government's agreement with it.[36] We therefore invite the Modernisation Committee's approval that the Scrutiny Reserve Resolution should cover agreement to any programme, plan or recommendation for European Community legislation. The necessary amendment is incorporated in the new versions of the Scrutiny Reserve Resolution at Annexes D and E.[37]

European Councils

39. Our predecessors recommended that the Scrutiny Reserve Resolution should be amended to cover documents submitted for approval to European Councils - normally six-monthly meetings of Heads of State and Government distinct from meetings of the Council of Ministers. Although European Councils cannot legislate, their importance means that major policies are put to them for discussion, and for political agreement which then binds the Council of Ministers.

40. Documents prepared for submission to European Councils are already covered by our Orders of Reference; it would clearly be sensible for them to be included in the Scrutiny Reserve Resolution. The Procedure Committee[38] and the Government[39] have both endorsed this proposal. We invite the Modernisation Committee to give its approval. Again, an appropriate amendment is included in the new versions of the Resolution.

European Central Bank

41. We think it likely that documents submitted to the European Central Bank (ECB) may be of a character which will require Parliamentary Scrutiny. Accordingly, the possibility of referring to the ECB in the ELC's Orders of Reference is one which should be borne in mind. We have suggested an appropriate amendment in Annexes B and C.

3   For example, the Government's Explanatory Memoranda are public documents, and the European Legislation Committee publishes its analysis, views and decisions in its weekly Reports (which are available on the Internet alomst immediately they are published in hard copy). Back

4   Formally known as The Treaty on European Union. Back

5   Published in the First Special Report from the Select Committee on European Legislation, HC 140 of Session 1996-97. Back

6   Of the subjects covered in this paper, we have in mind: the Scrutiny Reserve, some aspects of relations with the European Parliament, the possibility of a National Parliament Office, the performance of Departments and electronic transmission of documents. Back

7   Set out in the "Key Facts" card supplied to the Modernisation Committee. Back

8   Title V of the Treaty. Back

9   Title VI. Back

10   Paragraphs 64 to 82, and especially paragraph 83. Back

11   Paragraphs 37 to 43, and particularly 44. Back

12   Memorandum by the President of the Council, paragraph 8. Back

13   See ELC Report, paragraphs 86, 103 and 104; and Procedure Committee Report, paragraphs 40 to 44. Back

14   Paragraph 44. Back

15   Then S.O. No.127. Back

16   Paragraph 53. Back

17   ibid. Back

18   Paragraph 13 of the President of the Council's Memorandum. Back

19   Paragraphs 120 to 122. Back

20   Paragraph 53. Back

21   See paragraphs 43 to 48 below. Back

22   A Resolution of the House of 24 October 1990 which constrains Ministers from agreeing to legislative proposals before Parliamentary Scrutiny clearance. There are savings which allow a Minister to agree in certain circumstances; but he or she must inform the Committee or the House as soon as possible. The text of the current Resolution is set out in the "Key Facts" card supplied to the Modernisation Committee.  Back

23   Paragraphs 93 to 98. Back

24   Paragraph 48. Back

25   Paragraph 11 of the Memorandum by the President of the Council. Back

26   Under Pillars 2 and 3, there is no automatic point when a proposal "surfaces", unlike the system where the Commission publishes draft legislation for consideration by the Council. Back

27   Paragraph 3(a) of the Resolution. Back

28   Paragraph 49. Back

29   Paragraph 4 of the Scrutiny Reserve Resolution. Back

30   Set out at Article 189b of the Treaty. Back

31   Paragraph 2(c). Back

32   See paragraphs 157 to 159 of the ELC Report. Back

33   Paragraphs 161 to 166. Back

34   Draft Council Decisions are legislative in character and so are caught by the existing arrangements. Back

35   Paragraph 164. Back

36   Paragraph 12 of the President of the Council's Memorandum. Back

37   Our predecessors did not think this would be a burdensome addition; their views on this point are set out in paragraph 166 of the July 1996 Report. Back

38   Paragraph 51. Back

39   Paragraph 11 of the President of the Council's Memorandum. Back

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