Examination of Witnesses (Questions 220-239)
15 SEPTEMBER 2004
MR ROGER
SANDS AND
MR LIAM
LAURENCE SMYTH
Q220 Martin Linton: Would you recommend
that in order to make the system of European scrutiny more effective
we should adopt a different system?
Mr Sands: I think it would be
a mistake to move away from a document-based system, and indeed
even the European Union Committee in the House of Lords bases
itself on proposals; the essential difference is that they try
to be much more selective than the House of Commons Committee:
the sift, which is the main purpose of our European Scrutiny Committee,
used to be done by the chairman and the clerk in concert and the
Committee itself was not bothered with it. Then they have this
structure of sub-committees which looks in detail at those selected
proposals. Their system was set up to be complementary to ours—my
recollection is that ours came first—so I think one has
to look at the efforts of Parliament on a two House basis, and
I do not think it would be sensible for this House to try to replicate
or compete with the work that is being done by the House of Lords.
Q221 Martin Linton: Perhaps Mr Smyth
might like to comment in terms of European scrutiny.
Mr Laurence Smyth: There are more
things that the House might do, but what we do do we do extremely
well. I do not think it is exactly backwards-looking because,
very often, the Committee is looking at documents that are on
their way to Council. The Committee is looking at documents when
an idea has crystallised sufficiently to be a proposal that can
be analysed. I think the Scrutiny Committee has been quite influential
in pushing the idea of using impact assessments, for example,
which is something I think the Chancellor intends to make one
of the themes of the UK Presidency, getting better quality regulation
done. He is working, interestingly, in collaboration with the
other presidencies, leading up to our presidency. That is quite
an imaginative approach in trying to get better results out of
Europe. I thought it was quite interesting what the select committee
chairmen were saying last week about things that their committees
might do if they wanted, but it is quite clear that they are not
going to attempt comprehensively to identify all of the things
on the European radar at an early up-stream stage before an idea
has crystallised. One of the things that came out strongly from
the Foreign Secretary's statement in February, which we have not
heard a lot about so far, is the debate about transposition and
the report done by Robin Bellis. Once we have signed up to a Directive
to say we are all agreed there ought to be a law on something,
how well do we make that into law in Britain? There were some
very interesting ideas there which the House of Lords Committee
on the Merits of Statutory Instruments has made some great progress
with. Sir Nicholas, your Committee has expressed its views about
how this House might get involved in the merits. For the time
being the Lords are going it alone. The wonderful thing they have
already achieved is they have got the Government to agree that
there will be a memorandum for every statutory instrument explaining
how it is going about implementing a European obligation. That
is a wonderful opportunity. You know as Members that you get far
more information than you can use but if this Committee can find
a way of using that extra information, I think that is an area
which would contribute to better scrutiny.
Q222 Martin Linton: All the Nordic countries'
European committees, though, come in at a much earlier stage as
a matter of course. Do you not think that would be a good idea?
Mr Sands: I do not think that
is true, Mr Linton. I saw this comparison made between a document-based
and a mandate-based system of scrutiny and the systems in Denmark
and Finland held up as great examples to us; but the mandate is
still given at the last moment before a meeting of the Council
of Ministers, and as that meeting of the Council of Ministers
will be based on a document so the mandate is also based on a
document. I do not think there is a huge amount of difference
between that and our system of a European standing committee meeting
just in the run-up to a Council of Ministers meeting—that
is when they tend to be arranged—and agreeing to a motion
or not agreeing to a motion which the Government have put forward
indicating their intentions with regard to a particular document.
Q223 Sir Nicholas Winterton: Do we take
it, Mr Sands, that European standing committees can disagree with
the motion and could perhaps even pass an amendment but the Government
does not have to do anything about that, it tables the original
motion on the floor of the House? Is that a satisfactory way to
proceed?
Mr Sands: No, I do not think it
is, Sir Nicholas. It is said in the Government's own paper to
this Committee that there is a lack of interest in European standing
committees. Well, we know that what really interests Members is
when there is an element of uncertainty in proceedings; but if
the Government, at the same time as saying that, are also removing
any possible element of uncertainty from the proceedings, they
cannot be surprised if there is a lack of interest.
Q224 Sir Nicholas Winterton: So what
would your recommendation be to the House—I cannot say "to
the Government" because you are a servant of the House—on
this matter?
Mr Sands: A recommendation has
been made repeatedly by the Procedure Committee that an amendment
to a Government motion in European standing committee should have
some procedural consequences, whether it be a short debate on
the floor of the House or, more likely, putting the committee's
motion to the House and forcing the Government to reject it if
they really feel strongly about it.
Q225 Sir Nicholas Winterton: Thank you.
Can I just pick you up on one thing. You almost implied that the
procedures we have here are as good as those in Finland and Denmark
where Ministers appear and are mandated ie, their parliament mandates
them on the line that they should take. We do not do that here.
Mr Sands: I think there is more
of a connection between what we do and what they do than is acknowledged
in some of the papers that have been put to you. I do not know
exactly what mandates in the Danish European Committee look like
but I believe they are pretty open-ended documents and pretty
brief. They are not tying the minister down in any detail. So
I suspect they are not very much different from the sort of motion
that the Government tends to table for a European standing committee
saying "this Committee notes European proposal so and so,
and supports the Government in its effort to secure a particular
outcome." That is a sort of mandate.
Sir Nicholas Winterton: Thank you. Ann
Coffey.
Q226 Ann Coffey: You mentioned previously
that there are things that we do quite well but you thought there
were things we could do better. Can you give three suggestions
of ways that it could be done better and the reasons for making
those suggestions?
Mr Laurence Smyth: I would like
to see a Commons involvement of some kind in the select committee
on the merits of statutory instruments, so that when a department
was claiming that this new set of regulations is necessary to
implement a European objective there was some focused Commons'
scrutiny of that claim. I think a joint committee on the merits
of statutory instruments is peculiarly difficult to tackle. I
think it is very wise of the Government to see how the Lords get
on before turning it into a joint committee because it has got
a lot to do with who controls the time on the floor of the House.
It is very sensitive between two Houses. I do not think anybody
would accept a Lords majority suggesting that something did not
deserve a debate in the Commons. That would be really inappropriate.
It is difficult to see how it would work but I would like there
to be something to work in that area. When the Modernisation Committee
looked at this in 1998 they said pre- and post-Council scrutiny
is the thing, and I must say I agree with that. On the European
Scrutiny Committee agenda today they have as a standing item pre-
and post-Council scrutiny. The department says, "This is
what is going to be on the competitiveness agenda next week. This
is the scrutiny history. You cleared this item on this date. The
Lords published a report on this date. There was a debate . .
." and so on and because of the scrutiny reserve nothing
is going to happen that has not been cleared at some point. That
is a little bit different from the Friday afternoon in Helsinki
but it serves the same kind of purpose. Where I think some of
our departmental select committees are missing an opportunity
is calling in a minister just before the big Council in each Presidency
and saying, "What are you hoping to achieve on Tuesday?"
I know select committees have an enormous range of things they
can do and that is their strength, they can be so selective and
creative and imaginative, but my magic wand would be to make select
committees choose more often to do that kind of work
Sir Nicholas Winterton: You might be
unpopular with select committees. Ann.
Q227 Ann Coffey: Yes, that is not entirely
within anybody's control. I suppose that is down to the select
committees themselves and their particular interests. In a sense
part of the difficulty is that of course select committees take
place upstairs. They obviously have a number of MPs that sit on
them but they are outside what is seen as the main business and
the focus which is the Chamber of the House of Commons, and that
is where the interest is and if the media are picking up anything
it is from the House of Commons, so I understand the point you
are making but I was maybe trying to think of a way in which the
Chamber could be more engaged in debating European affairs as
a matter of course.
Mr Sands: We also have the facility
now of Westminster Hall and of course if select committees did
as Liam has suggested and routinely picked up significant European
issues and reported on them, there is this regular slot now in
Westminster Hall for debating select committee reports, and if
they produce a report on a European issue it can be debated.
Q228 Ann Coffey: It would be wonderful
if select committees were actually doing that. Say, for example,
select committees were not focusing in on how the business of
their departments relates to Europe then you are not going to
get that kind of report to debate in Westminster.
Mr Sands: No you are not. It does
depend on the select committee choosing and it is more of a natural
for some select committees than others.
Q229 Ann Coffey: But that does not sort
the problem out really because it is left to the select committees
to make the choice.
Mr Sands: I think you have to
do that.
Q230 Ann Coffey: But that is always the
issue in this place, is it not, because basically there is always
a reason for why things are the way they are, and often you go
round in a circle and you come back to leaving things the way
they are because there is a reason for them being the way they
are, so it does not really get us very far, does it?
Mr Sands: I would defend the freedom
of select committees to choose their subjects because Members
devote huge amounts of time and effort to select committees and
I think they do that in part because they feel that they are in
control of what is happening.
Q231 Ann Coffey: I am not disputing the
point about select committees. What I am pointing out is that
the weakness of your suggestion is exactly that, that the select
committees have that kind of freedom. That is the only point I
am making. I was going back to the problem not only of scrutinising
European legislation better but being seen as a House to scrutinise
it, because that is part of connecting Parliament with the outside
world, that people see that we do debate things that are European
as well as national.
Mr Sands: That is a standing problem
with a lot of activity here. It is particularly so with this area.
I hope that the members of this Committee will, before reaching
a judgment on the European Scrutiny Committee's existing work,
read a few weeks' worth of their reports because it will demonstrate
the way they go about the job and the way they keep government
departments, civil servants and ministers, under pressure on a
continuous basis. There is all that work and information there
and it is a tragedy that it is so little read and so little used.
Ann Coffey: It is a tragedy in everything
that things are not read.
Q232 Sir Nicholas Winterton: Do you not
accept, Mr Sands, that there is concern right across the House
that the House of Commons does not deal with the scrutiny of European
legislation adequately?
Mr Sands: If I am told that, yes,
I obviously have to accept it. I think though that some of the
concern is coming from a feeling that if we were dealing with
European legislation effectively there would be a whole lot less
of it, and I do not think—
Q233 Sir Nicholas Winterton: —that
is wishful thinking!
Mr Sands: —and I do not
think that that is true. But I think that is part of the concern.
Mr Laurence Smyth: If I may, Chairman,
just thinking over what Ms Coffey was saying about using the floor
of the House, I think this Committee has already begun to influence
and shape how things are done. Because your inquiry has been going
on, when the European Scrutiny Committee came to look at the justice
and home affairs legislative programme for the next period they
said, "Let's break this out from our normal weekly report
and let's make this a book on its own to say this is really important.
Though the Standing Committee is great in its way let's send this
one to the floor of the House." In the last business statement
that is what the Leader of the House has done. After the House
returns, on Thursday 14 October the business is "justice
and home affairs future programme". That is up-stream. What
are these guys thinking of doing about our civil liberties; absolutely
the most basic things affecting us. Now it will be on a Thursday.
I think it will be on a wonderful opportunity to show how European
business can be really mainstreamed and brought into focus on
the floor of the House. There may be Members who think that it
is a chance to go home and see their family.
Sir Nicholas Winterton: We will leave
that one undebated. Can I say to David Kidney, who has offered
to take a question, clearly we are running out of time and look
as though we may well run out of Members which means we will no
longer be quorate. Can I suggest, David, that you might deal with
questions eight and ten of the suggested questions on our paper
because we are going to be running out of time and Members. David
Kidney.
Q234 Mr Kidney: Can I say to Liam I thought
those were very constructive answers to Ann Coffey. Just on a
point of clarification can I ask when you said that it would be
really useful to get the minister in before they go to the main
Council meeting to say "what is your position going to be?"
and you said that the select committees are very busy; why did
you think that the select committees were the people to do that
rather than the European Scrutiny, European Standing or even the
Government's proposals for a new Joint European Committee?
Mr Laurence Smyth: The European
Scrutiny Committee does it on a paper basis now and they check
stuff on the agenda they have dealt with. What I was hoping to
do with departmental select committees is it would be a chance
for the departmental select committee perhaps to pick up on work
it had already done in the past and identify issues it might want
to do inquiries into in the future. It would be a "variety
pack" evidence session with the minister. If it appeals to
a select committee as part of their repertoire then I think it
might be a good way to go.
Q235 Mr Kidney: Question eight is about
the trigger for calling a meeting of the new Joint European Committee
of both Houses that the Leader proposes in his memorandum. Why
does it have to be a Government minister tabling a motion in the
House of Commons to send a message to the House of Lords? In your
memorandum you say that the European Scrutiny Committee ought
to be able to initiate meetings and items on the agenda and the
House of Lords Committee ought to be able to initiate meetings
and items on the agenda, so how could they do that within the
confines of the Government having to table the motion?
Mr Sands: They could only trigger
the meetings: it would have to be written into the terms of reference
of the European Joint Committee that its subjects for discussion
would include matters recommended for that purpose by the European
Scrutiny Committee and/or the European Affairs Committee of the
House of Lords. So there would be that bit there in the standing
orders' terms of reference of the European Joint Committee, and
the committee could therefore only meet when there was an outstanding
recommendation of that sort. The timing of meetings is very difficult,
because to whom do you give the discretion to launch a meeting
of the joint committee? Hitherto we have always left that to a
motion in the House to determine the time and date of the meeting,
and a motion in the House means it has to be moved by the Government.
I cannot see an easy alternative to that unless you appoint a
Chairman of the European Joint Committee who has truly awesome
powers and can convene a meeting on his own say so whenever there
is something outstanding in the Committee's pending business;
but that would be a departure for us.
Q236 Mr Kidney: I suppose I am departing
if I say that I suppose some parliaments have a business management
committee which is separate from the government and they table
motions and if we ever set such a thing up they could table this
sort of motion.
Mr Sands: That is the norm rather
than the exception on the Continent.
Q237 Mr Kidney: The second question,
number ten, is about the perceived accountability of the Commissioners
if they come to these Joint European Committee meetings as though
we are holding them to account in some way and that is transparently
not the case because their accountability is over in Brussels.
Mr Sands: European Commissioners
have tended to be quite sensitive about this. Some of them see
an advantage in increasing their visibility in national parliaments
and are keen to attend meetings. It has been meetings of select
committees up to now of course; but I think they like to do so,
if I could put it this way, on their own terms and I think any
implication, whether in the way that we drafted a new standing
order setting up the European Joint Committee or in the way that
standing orders were implemented, that the House was actually
summoning these people and requiring them to come at a certain
time to answer questions would be very badly received. I do not
know if Liam wants to comment
Mr Laurence Smyth: In carrying
out his responsibilities, Chairman, "the Commissioner shall
be completely independent, and members of the Commission shall
neither seek nor take instructions from any government or other
institution, body, office or agency", according to the Draft
Constitutional Treaty. I think they would be quite clear that
they were not accountable to the House. If this Committee opens
a dialogue you may well find that the Commission itself is actually
quite keen to do better at relating to national parliaments. They
might be happy to talk but I think there would be a sensitivity
about the perception of who was in charge.
Q238 Sir Nicholas Winterton: So are you
saying, Liam, that they would be happy to explain but not to be
accountable?
Mr Laurence Smyth: I think that
is right, Chairman.
Mr Kidney: In fairness, I think personally
there would be a lot of parliamentary and media and therefore
public interest in such sessions so I am very strongly in favour
of this getting started and see where it leads to. Because we
have been short, Roger and I, on questions eight and ten, could
I ask him two very tiny consequential matters that we have not
reached?
Sir Nicholas Winterton: They do not appear
here?
Mr Kidney: They are on this list and
I would like an answer to them.
Sir Nicholas Winterton: If you are very
quick.
Mr Kidney: Firstly, to allow the European
Scrutiny Committee to sit in public simply requires a change of
standing orders, does it not, there are no other consequences?
Q239 Sir Nicholas Winterton: I was going
to ask that one but you asked it and you do it much better than
I do!
Mr Sands: Giving it power to do
so, yes, would only require a simple change in standing orders.
I have to say that I was quite surprised to see that the Committee
had recommended this. It did not strike me as the most obvious
committee where deliberating in public would be a good idea because
of the intractability of the material that it is presented with,
number one, and also—a particular point I would like to
make, because it has been mentioned to me by colleagues—because
it could potentially cause some difficulties for the staff who,
as you know, play a more prominent role in its meetings than is
the case in most other select committees. They are there to give
candid advice and they give it candidly, and how that would come
across in public I am not at all sure.
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