Submission from the Clerk of the House
of Commons
1. This memorandum has been prepared at
the request of the Select Committee on Modernisation of the House
of Commons and responds to the Government memorandum from the
Leader of the House to the Modernisation Committee, which was
published as HC 508 of Session 2003-04 on 1 April 2004. That memorandum
had been preceded by a statement in the House by the Secretary
of State for Foreign and Commonwealth Affairs on 11 February 2004
(HC Deb cols 1415-7). In the remainder of this paper, I refer
to that memorandum as "the Government memorandum".
INTRODUCTION
2. As is appropriate, my paper is primarily
concerned with commenting on the procedural implications of the
suggestions made in the Government memorandum. But I would like
first to comment on some of the assumptions on which the memorandum
appears to be based and to suggest some criteria against which
the Modernisation Committee and the House should, in my view,
judge proposals for change in this complex area of parliamentary
activity.
3. The Government memorandum starts from
the twin premises that "there is a worrying and widening
gap between our citizens and the institutions of the European
Union" (paragraph 2) and that "the House of Commons
has a key role to play in bringing the European Union closer to
our citizens" (paragraph 3). I certainly would not wish to
challenge the first of those propositions; and I also agree that
the way in which Members of Parliament address themselves to issues
relating to the European Union and to the provisions of proposed
European Legislation is likely, over time, to have a considerable
influence on the way the Union is perceived by the electorate
and the media.
4. On the other hand it seems to me open
to question whether procedural innovation alone is likely to change
the situation of European Scrutiny being "something of a
minority interest" (paragraph 2 of the Government memorandum).
Nor will procedural change alter the undoubted fact that the issue
of the United Kingdom's relationship with first the European Community
and now the European Union has been one of the most significant
fault lines in British political life for over 30 years. This
has led to the phenomenon, much commented on by academic and other
observers of Parliament, that most large scale debates about European
issues tend, whatever the particular issue, to become generalised
and end up sounding much the same.
5. Experience suggests that if new procedures
are to engage the interest and commitment of Members on a lasting
basis (and thereby, in this instance, assist the House in engaging
more effectively with European matters), they need to be, and
to be seen to be, driven by the House and its Members rather than
by the Government. For example, Departmental Select Committees
have in general been highly successful in engaging the commitment
of Members, and have thereby attracted genuine media and public
interest, largely because they choose their own subjects of inquiry,
meet when they rather than the Government decide they should and
engage in activity which has a clearly defined end product-normally
a report with recommendations. By contrast the recent procedural
innovation of cross-cutting questions in Westminster Hall, after
a promising start, has tended to attract diminishing interest
over time, in part because the sessions take place at times and
on topics chosen by Ministers rather than backbenchers or Opposition
parties. The Committee may wish to assess the proposals made in
the Government memorandum against that background.
STRENGTHS OF
THE PRESENT
SCRUTINY SYSTEM
6. As the Government memorandum states (paragraph
1), there are strengths in the House's existing system for the
scrutiny of European matters which need to be maintained and built
upon. Our processes of scrutiny are recognised by other national
Parliaments as being among the most thorough and effective in
the European Union, and it is important that any new procedures
should not, however unintentionally, have the effect of diluting
them. Their success is attributable both to the commitment and
accumulated experience of the members of the European Scrutiny
Committee (ESC) and to the fact that the committee is comparatively
well resourced, with a strong team of policy and legal advisers.
The Modernisation Committee will no doubt wish to take particular
account of the memorandum which the ESC has submitted and the
proposals which it has made for making its work and output more
accessible to the House and the wider public. In addition to its
existing core role of identifying European proposals which are
of political or legal importance to the United Kingdom and recommending
selected documents for debate, the ESC and its secretariat are
well placed to play a central role in any new procedures which
may emerge from the current review: for example, by proposing
subjects for debate and providing relevant background material,
publicising forthcoming debates and co-ordinating arrangements
for the attendance of non-Members. The European Union Committee
of the House of Lords, which fulfils a complementary role and
is similarly well resourced and respected, also needs to be considered
in this context.
A JOINT EUROPEAN
GRAND COMMITTEE
7. The Government memorandum proposes establishing
a new Committee, as a successor to the Standing Committee on the
Convention and that on the IGC, whose remit would cover the whole
of the EU's work.
8. The Standing Committee on the Convention,
which met on six occasions between 16 July 2002 and 16 June 2003,
was an innovative way to hold to account to both Houses the two
Commons national parliamentary representatives to the Convention
on the Future of Europe and their alternates from the Lords. Its
core membership was the membership of the Foreign Affairs and
the European Scrutiny Committees, plus the Commons representatives
at the Convention. Its meetings were triggered by the Progress
Reports from the representatives, which the Clerk of the House
laid formally on the Table of the House on their behalf. The proceedings
followed a similar format to a European Standing Committee, with
introductory statements, a question period and then a debate.
9. The Standing Committee on the IGC is
superficially similar, but its meetings are arranged through the
usual channels at the instigation of the Government, and Ministers
make the opening statement and respond to questions before opening
and closing the ensuing debate. The Standing Committee on the
IGC is therefore more under the control of the Government than
was its predecessor. The Order of the House constituting the Standing
Committee expires at the end of the current session of Parliament.
10. The Government memorandum makes a number
of proposals about attendance at and participation in the meetings
of the proposed European Grand Committee, which I comment on in
the following sections of this paper. It is rather less specific
about the form and objectives of the Committee's deliberations,
although it is evident that the Government envisages a combination
of general debate, statements from and questions to Ministers
and possibly others, and does not intend that the Committee should
conduct inquiries, make reports or even adopt substantive motions.
There must be some doubt whether such an institution would in
practice engage the attention of Members on a lasting basis, particularly
if its meetings and topics for debate were seen to be instigated
by the Government, through the usual channels, rather than reflecting
the wishes and interests of the House more widely. The Modernisation
Committee may therefore wish to consider whether there might be
an alternative to the usual channels in fixing the meetings of
the proposed European Grand Committee. As suggested above, the
ESC could play a role, for example by identifying the key documents
in the annual cycle which deserve wider attention; or the House
of Lords European Union Committee might select certain of its
detailed reports on important issues to be recommended for a debate
in the bi-cameral environment of the Joint European Grand Committee.
The formal "trigger" could be a motion moved by a Minister
in the Commons to send a message to the Lords proposing the date,
time and subject for a meeting of the Joint Committee.
PARTICIPATION OF
MEMBERS OF
THE HOUSE
OF LORDS
11. The Standing Committees on the Convention
and the IGC were established by orders of the House of Commons,
have been chaired by members of the Chairmen's Panel and have
followed Commons procedure. Members of the House of Lords have
been welcome to participate in the Committee's proceedings, but
have not been able to vote, make a motion or be counted in the
quorum. As far as I am aware, the only significant inconvenience
that has been experienced by the Lords as a result of these arrangements
has arisen from the fact that the Standing Committee has been
suspended for divisions in the Commons but not for divisions in
the Lords. This is a matter which can be dealt with by an adjustment
to standing orders and without the need for any fundamental change
of procedure. There have also been some difficulties about the
attendance of a quorum, which could be assisted by enabling peers
to be counted for that purpose.
12. However, in a recent report the House
of Lords Procedure Committee has recommended that the proposed
European Grand Committee should be established on a fully joint-House
basis and that "the chairmanship should reflect the joint
nature of the committee" (HL Paper 99, Session 2003-04, paragraph
2). Parliament has a substantial body of experience of joint select
committees where generally, unless otherwise agreed, procedure
follows the procedures of select committees of the Lords. Select
committee procedure is substantially the same in the two Houses,
and it is rare for any difficulty to arise in that context.
13. Creating a truly Joint European Grand
Committee would present a challenge of a quite different order.
It would require the House of Lords to create a parallel Standing
Committee, presumably on the pattern of the Commons Standing Orders,
to join with a Commons Committee. That in itself might be a considerable
undertaking for the House of Lords, unless it simply adopted the
corpus of Commons procedure in this area. Even then it would be
necessary to resolve the questions of who should take the Chair
and how the powers of the Chair were to be exercised. In the Commons
the Chair regulates proceedings and calls Members to speak. In
the Lords proceedings are self-regulated and there is a speakers'
list. There is no obvious compromise between these different forms
of proceeding; and it would not be practicable to alternate between
the two. My preference would therefore be to follow the basic
pattern established for the Standing Committees on the Convention
and the IGC, but to recognise the joint House nature of the new
body in the provisions for the quorum and in its name. (The Lords
Procedure Committee has proposed the "Joint European Committee".)
Other issues relating to membership
14. The question of the Joint Committee's
membership is linked to consideration of what business will be
before the Committee. If its meetings are not intended to come
to a conclusion—because they are confined to statements,
questions and debates on a formal non-amendable motion such as
"the sitting be adjourned" then it would be possible
to allow any Member or Peer who chose to turn up to take part.
It may be considered desirable to have a defined "core"
membership for the Commons committee, such as the existing membership
of the European Scrutiny and Foreign Affairs Committees.
PARTICIPATION OF
MEMBERS OF
THE EUROPEAN
PARLIAMENT
15. The Government memorandum proposes that
UK Members of the European Parliament should be enabled to attend
and participate in the proceedings of the European Grand Committee.
This would represent a significant departure from even quite recent
opinion in the House on this matter. In its 1998 report on the
Scrutiny of European Business, the then Modernisation Committee
concluded that: "Quite apart from the political sensitivities
involved, we see no advantage in formal involvement of MEPs in
Westminster business." On the other hand it saw considerable
benefit in the extension of informal links, such as those between
Committees here and their opposite numbers in the European Parliament
and other National Parliaments[1]
A similar conclusion was reached by the Procedure Committee in
1989[2]
16. In the course of that latter inquiry,
indeed, my then predecessor, Sir Clifford Boulton, expressed the
view that primary legislation would be required to allow the formal
participation of MEPs in the proceedings of the House[3]
However, a rather different approach was taken by the joint working
group of officials which the Clerk of the National Assembly for
Wales and I established to consider methods of closer working
between Westminster and Cardiff[4]
The joint working group concluded that parliamentary privilege
would apply to all those taking part in enlarged Westminster meetings,
since they would be held to be parliamentary proceedings for the
purpose of Article IX of the Bill of Rights. In my memorandum
to the Procedure Committee, I expressed my confidence that the
advice on privilege relayed in the joint working group's report
was sound[5]
17. The Procedure Committee concluded that,
without recourse to further legislation, the House could alter
its rules to allow members of the National Assembly to take part
in its proceedings and the House has now approved experimental
provisions to that effect[6]
18. Under this approach, it is for the House,
rather than primary legislation, to determine whom to admit to
its committee proceedings. As long as the House retains control
of the proceedings, and the "guests" have no vote, the
difficulties that remain are practical rather than ones of principle.
The enforcement of disciplinary powers of the Chair, for example,
against a persistently irrelevant or tediously repetitive MEP,
to take an admittedly far-fetched example, might be problematic.
Infringement of the House's own sub judice rule, even inadvertently,
might have serious consequences for the administration of justice
and this House's relations with the courts.
19. Allowing for those caveats, I see no
fundamental procedural reason for ruling out the possibility of
permitting MEPs to attend and participate in the proceedings of
the European Grand Committee if the House concludes that this
would be desirable. The Modernisation Committee will, however,
no doubt bear in mind that the participation of MEPs will add
to the already considerable practical difficulties that are likely
to be encountered in fixing dates for meetings and communicating
the details of meetings to all those who may be concerned.
PARTICIPATION OF
EUROPEAN COMMISSIONERS
ETC
20. The Government memorandum expresses
the hope "that it will be possible for the new Committee
to accommodate statements by, and questions to, European Commissioners
or perhaps other senior officials or representatives of the European
Parliament or other European institutions". Select Committees
frequently meet Commissioners and on occasions, by agreement,
take evidence from them, here or in Brussels. Self-evidently,
however, Commissioners are not accountable to national Parliaments
but to the European Parliament. Indeed, in the enlarged Union,
it will be quite impracticable for the key Commissioners to acknowledge
any liability to attend national Parliaments on any more than
a very occasional basis. Making such provision in the standing
or sessional orders of the House relating to the European Grand
Committee could create a false impression or expectation which
might not be well received by the European Union institutions.
The Modernisation Committee will therefore no doubt think it advisable
to consult the next President of the European Commission and his
senior colleagues before making such a recommendation. There are
of course other ways to accommodate European Commissioners and
other senior EU officials who express an interest in addressing
an audience of Members and Peers and responding to questions put
to them, including ad hoc meetings arranged by the ESC,
which already happen from time to time.
21. If it were nevertheless decided to proceed
with the proposal in the Government memorandum, I would suggest
as a precedent the provision in Standing Order No. 96 (1) and
(4) which enables a Minister of the Crown who is not a Member
of the House to make a statement to the Scottish Grand Committee
and to answer questions put by members of the committee, but stipulates
that such a Minister may not do so from the body of the committee,
and shall not vote or be counted in the quorum.
22. The Government memorandum also suggests
(paragraph 18) that Westminster Hall might be used as a forum
for questioning European Commissioners. This idea raises more
complex procedural issues. Westminster Hall is not a Committee
but is formally a sitting of the House itself. There is no present
provision for any person other than a Member to address the House
except in the capacity of a witness and non-Members have no right
to be heard: they may only be heard if the House so orders. The
procedural basis of "sittings of the House in Westminster
Hall" would therefore need to be reconsidered if this proposal
were to be pursued. It would also raise the issue of the accountability
of European Commissioners to national Parliaments in a particularly
acute form.
DEBATES ON
THE FLOOR
23. The Government memorandum (paragraph
15) states that the Government would welcome the Modernisation
Committee's view on whether the two European debates in the Chamber
each year timed to coincide with the European Council meetings
in June and December are still appropriate, and of appropriate
length. The practice of using two days a year for dealing with
EEC business was well established as part of the old Supply Procedure,
before the 1981 Report by the Select Committee on Procedure (Supply).
That Report led to the abolition of Supply days and their replacement
by Opposition days and Estimates days, with certain days traditionally
provided in Supply time, including three days on each of the armed
services and two days on EEC matters, being provided thenceforward
in Government time. It could be argued that the two European debates
now provided stem from the House's traditional powers of Supply
and should not lightly be abandoned[7]
This matter could be reconsidered eventually if the proposed European
Grand Committee establishes itself as a popular and accepted part
of the House's procedures and the time provided for its proceedings
proves sufficient to match reasonable demands.
QUESTIONS TO
MINISTERS IN
WESTMINSTER HALL
24. The Government memorandum suggests (paragraph
17) that European Questions sessions might be held in Westminster
Hall, building on the model introduced in 2002 of cross-cutting
questions sessions where ministers from several departments appear
together to answer questions on a theme which crosses departmental
boundaries[8]
25. Standing Order No 10(3) provides that
the Chairman of Ways and Means is responsible for appointing business
to be taken at any sitting in Westminster Hall, which may "include
oral answers to questions under arrangements to be made by him".
The Modernisation Committee's report in 2002 proposed an experimental
period for "cross-cutting questions in Westminster Hall"[9]
26. Seven sessions have been held so far
on themes announced by the Leader of the House at Business Questions
some 10 sitting days in advance, presumably after consultation
in the usual channels as well as with the Chairman of Ways and
Means. No regular pattern of questions sessions has yet developed
and, to date, neither the Modernisation Committee nor the Procedure
Committee has undertaken any evaluation of the experiment. In
statements during these sessions the Chairman of Ways and Means
has made clear that the arrangements are experimental and has
invited Members to let him have comments. The Modernisation Committee
will no doubt wish to seek the views of the Chairman of Ways and
Means on any proposed extension of the experiment.
27. The Government memorandum (paragraph
17) suggests that, rather than holding general questions sessions
on "European matters" it would be better to identify
a particular cross-cutting issue, or range of issues, with a European
dimension. Such issues might include CAP reform or the Doha round
(mainly DEFRA, DTI and DFID) or environmental measures (mainly
DEFRA and DTI) although it is not clear that there would be very
many major issues which cut across departmental boundaries. Nonetheless
I agree that it would be best for the concept of "cross-cutting"
issues to be retained for such European sessions in Westminster
Hall, to distinguish them from questions, whether in European
Standing Committee on particular EU documents or on the floor,
to individual ministers. Thus European questions sessions in Westminster
Hall would be an additional type of scrutiny.
28. It would be a logical extension of the
present scrutiny arrangements for the European Scrutiny Committee
to identify themes under consideration in Brussels, or aspects
of Commission activity where policies of more than one department
are involved, for this new type of European scrutiny session.
This would differ from the present arrangements involving the
usual channels and would give the House greater ownership of the
procedure. If opposition parties (or Ministers) wished to press
for a questions session on a particular theme, they could make
representations to the ESC or to the Chairman of Ways and Means.
29. Under the existing standing order the
Chairman of Ways and Means has responsibility for all aspects
of questions in Westminster Hall: thus his agreement would be
required before a session was decided upon and announced. The
Modernisation Committee may want to consult the Chairman of Ways
and Means as to whether European questions sessions should be
treated in like manner to other cross-cutting sessions, or whether
in this case the European Scrutiny Committee might decide to initiate
a session, consulting the Chairman of Ways and Means on the date.
THE EUROPEAN
SCRUTINY SYSTEM
30. The Government memorandum (paragraph
20) states that the European Scrutiny Committee itself works effectively,
but identifies a problem with "what comes next" (paragraph
21). As the Modernisation Committee will be aware, what underpins
the effectiveness of the European Scrutiny's document-based approach
is its power to require a debate to take place in a European Standing
Committee. The Government, through the usual channels, may settle
only the date and time of the debate, subject to the constraints
of the scrutiny reserve. One reason that the European Scrutiny
Committee commands the attention of Whitehall (and the Government
memorandum acknowledges the heavy workload imposed on departments)
is the deterrent factor of Ministers having to debate issues on
which officials have not satisfied the European Scrutiny Committee.
The Modernisation Committee may conclude that something would
be lost if the sifting mechanism were to be made no more than
advisory, or merely suggestions to busy departmental select committees,
or if a number of documents identified as being of legal or political
importance were "rolled up" in a general themed debate
over a general policy area.
Public information about the European scrutiny
system
31. The Government memorandum (paragraph
19) welcomes the European Scrutiny Committee's commitment to improving
the accessibility of information about its work, and hopes that
the House will consider whether the resources to support this
are adequate. The 2002 Review of Select Committee Resources recommended
the recruitment of media officers to support the work of select
committees. The first post (supporting Defence, Foreign Affairs,
Home Affairs, Constitutional Affairs, International Development
and Public Administration) is already operating, and two further
media officers are being recruited this autumn. Once all three
are in place, it is planned to extend professional media support
to include the European Scrutiny Committee, which should assist
it in increasing media coverage and reaching target audiences.
Reform of the European Standing Committees
32. The Government memorandum (paragraph
20) argues that there is "a very strong case for reform"
of the European Standing Committees. The paragraphs below set
out some recent figures relating to European Standing Committees
as background for the Modernisation Committee's consideration.
Workload of the Committees
33. Since the 1998-99 Session, the general
trend has been for an increase in the number of documents considered
in each Session and in the number of meetings of European Standing
Committees.
NUMBER OF DOCUMENTS CONSIDERED BY, AND NUMBER
OF MEETINGS OF, EUROPEAN STANDING COMMITTEES
| European Standing Committee
| 1998-99 | 1999-2000
| 2000-01 | 2001-02
| 2002-03 |
| Sitting days in the Session
| 149 | 170 |
83 | 201 | 162
|
| A | documents considered: |
8 | 3 | 6 | 22
| 14 |
| meetings: | 7
| 3 | 5 | 9 |
13 |
| B | documents considered: |
8 | 14 | 6 | 38
| 14 |
| meetings: | 4
| 5 | 4 | 15 |
12 |
| C | documents considered: |
12 | 9 | 7 | 16
| 8 |
| meetings: | 4
| 6 | 5 | 8 |
7 |
| | |
| | | |
Attendance
34. Each of the three Standing Committees comprises 13
Members (eight Labour, three Conservative and either two Liberal
Democrats or one Liberal Democrat and one Plaid Cymru or one Liberal
Democrat and one UUP). The level of attendance by members nominated
to the Standing Committees has varied among the three Committees[10]
Other Members of the House may attend, pursuant to SO 119(5),
but may not make any motion, vote, or be counted in the quorum.
35. In Session 2002-03, for all three Standing Committees,
the average number of Members attending who were not "core"
nominated members of the committee was four[11]
Of those four Members invariably there will be one Minister, and
usually one official opposition spokesman and one Government whip.
In addition a Liberal Democrat spokesman, an official opposition
whip or a PPS to the Minister may be expected to attend. In the
2002-03 Session, there was no more than one Member on average
attending each European Standing Committee meeting who was neither
a "core" nominated member nor there in his or her official
capacity as either spokesman, PPS or whip.
NUMBER OF MEMBERS ATTENDING ONE OR MORE MEETINGS UNDER
STANDING ORDER NO 119(5)
| Session | 1997-98
| 1998-99 | 1999-2000
| 2000-01 | 2001-02
| 2002-03 |
| No. of Members attending one or more meetings
| 92 | 44 | 64 |
59 | 83 | 71 |
| No. of meetings | 26 | 15
| 14 | 14 | 32 |
32 |
| Av No. of Members attending a meeting | 7.4
| 4.8 | 6.2 | 6.4
| 4.8 | 4.0 |
| | |
| | | |
Proceedings in European Standing Committees
36. The analysis of the previous Sessions' Standing Committee
debates reveals that a far greater proportion of the time available
for questions is used than the time available for the debate.
AVERAGE ATTENDANCE AT EUROPEAN STANDING COMMITTEES AND
SHARE OF TIME AVAILABLE TAKEN FOR QUESTIONS AND FOR DEBATE
| Session | European Standing Committee
| Average No. Members attending Nominated"core"pursuant to SO No. 119(5)
| Percentage time available used for questions
| % time available used for debate |
| 2002-03 | A | 7.62
| 4.38 | 78.33% | 44.44%
|
| B | 7.25
| 3.50 | 60.28% | 42.59%
|
| C | 9.29
| 4.29 | 75.71% | 38.10%
|
| 2003-04 | A | 7.11
| 5.33 | 94.63% | 50.25%
|
| B | 7.40
| 4.60 | 70.00% | 54.22%
|
| C | 9.50
| 5.67 | 89.17% | 65.00%
|
| | |
| | |
37. Of the 32 meetings in the 2002-03 Session, 13 question
sessions lasted for the full hour[12]
In the current Session a greater proportion of time available
for both questions and debates has been used. In the 2002-03 Session,
on average, "core" nominated members of the Committee
asked about half of the questions put to Ministers.
Assessment
38. Ultimately it is for Members to judge whether the
European Standing Committees are not working out as it was hoped.
My personal judgement is that the assessment in paragraph 20 of
the Government memorandum is far too sweeping, and that it is
at least worth consideration whether it would be worthwhile to
experiment with some improvements to existing systems (see paragraph
41 below) rather than risk losing the baby with the bath water.
39. Before reaching a final decision on this point, the
Modernisation Committee will no doubt wish to canvass views of
those who take part in European Standing Committee debates, including
Ministers, and the Opposition spokesmen whose role would be much
diminished if the House adopted the Government's preference (paragraph
28) for Standing Committees to be abolished with documents referred
instead to select committees.
Proposals for change
40. The proposals in the Government memorandum for possible
changes (paragraphs 24 and 25) themselves raise a number of questions
and potential problems; and I offer the following comments, which
are based on the experience of Standing Committee Clerks:
— committees appointed ad hoc to consider
specific documents, such as Standing Committees on Delegated Legislation
often experience membership changes at the last minute and such
last-minute appointments would make it difficult for those to
digest the large quantity of briefing material provided for each
meeting,
— if the membership were reduced to fewer than 10
Members, the main Opposition party's proportion in the current
Parliament would be reduced to only two seats on the committee,
— the quorum of the committee could not reasonably
be reduced to fewer than the present three members,
— a substantive motion provides a focus for the
committee by setting out the Government's view in relation to
the document,
— the time taken for a Committee is essentially
self-regulating: meetings for which there is little interest end
well before the two and half hours because Members have nothing
more to say, but if the subject is of great interest the meeting
runs for the full two and a half hours,
— if the standing committees were given the power
to take evidence and travel it would be hard to include in those
activities Members who were not "core" Members nominated
to the committee other than by devices such as taking evidence
from spokespersons of the opposition parties, and
— un-whipped "optional" attendance would
inevitably lead to inquorate meetings, irrespective of the importance
of the subject matter, as happened on the Standing Committee on
the Convention.
41. If the Modernisation Committee decides that it would
be preferable to try to improve the existing system of European
Standing Committees rather than to replace them entirely, I suggest
the following measures for consideration:
— reinstating the practice of giving information
about European Standing Committees in the weekly Business Statement,
— keeping the notice of the Government Motion on
the Order Paper, instead of only its single appearance on the
"blues" a week or more before each meeting,
— making information relating to European Standing
Committees, such as Hansards of previous meetings and details
of forthcoming meetings more widely available, in particular on
the parliamentary website,
— e-mailing all interested Members of the House
with information on forthcoming meetings,
— ensuring Departments make the necessary documentation
available earlier,
— extending the Library's "debate packs",
already prepared for certain Westminster Hall debates, to suitable
debates in European Standing Committees, and
— giving the Committees names which are more understandable
to the public ("European trade and external affairs",
"European social, food and environmental policy" and
so on).
SCRUTINY BY
SELECT COMMITTEES
42. The Government memorandum (paragraph 27) suggests
that where the ESC recommends a document for further consideration
by the House, this consideration should in future be undertaken
by the relevant Departmental Select Committee rather than by one
of the European Standing Committees. The Modernisation Committee
will no doubt be considering the views of the Liaison Committee
on this suggestion. The experience of the Clerks Department over
the years is that Select Committees tend to resist schemes which
fetter their discretion to set their own work priorities.
43. An alternative approach, implied in some of the suggestions
in paragraph 27 of the Government memorandum, would be to reconstitute
the European Standing Committees as select committees in their
own right. It seems to me that the main drawback of this proposal
would be the loss both of the facility for any Member of the House
to turn up and participate in the further consideration of a piece
of European Union legislation which is of particular interest
or particularly relevant to his or her constituency and of the
facility for Opposition spokespersons to represent the views of
their parties and question ministers.
THE SUBSIDIARITY
EARLY-WARNING
MECHANISM
44. Paragraph 31 of the Government memorandum draws attention
to the Protocol on the role of national Parliaments which is attached
to the draft European Union Constitutional Treaty, and which includes
provision for national Parliaments to raise objections to particular
European legislative proposals on the grounds that they breach
the subsidiarity principle. The ESC memorandum deals with this
matter quite thoroughly, and I agree with much that it says. I
should also mention that the Protocol has already been the subject
of discussion at a number of meetings of Secretaries General and
Speakers of national Parliaments of the member States, some of
which I have myself attended. These discussions are referred to
in more detail in the following section of this paper.
45. The principal concern about the practical operation
of the early warning mechanism is that the six-week deadline laid
down in the protocol is likely to prove very tight if every step
of the existing scrutiny process has to be taken before the reasoned
opinion is submitted in the House's name. These difficulties would
be compounded if any attempt were made to ascertain the views
of the devolved assemblies or to concert the opinion with other
national Parliaments.
46. Members of the Modernisation Committee may like to
consider the illustration below and consider whether the intervals
provided would be realistic, based on their experience of how
Government and Parliament work. There is no leeway, for example,
to allow for the pattern of parliamentary recesses.
Illustrative timetable: consideration of six-week subsidiarity
mechanism
| Week 1 | [Thurs] Commission proposal published
|
| Week 2 | Lead Govt Dept consults lawyers, other Govt Depts, affected interests
|
| Week 3 | Minister's explanatory memorandum submitted to scrutiny committee
|
| Week 4 | [Weds] Scrutiny Committee considers Minister's memorandum + recommends debate
|
| Week 5 | Debate in Standing Committee (or Westminster Hall or House)
|
| Week 6 | [Weds] Scrutiny Committee considers reasoned opinion, in light of debate and contributions from devolved assemblies + reports to House. Motion tabled in House to approve opinion.
|
| Week 7 | [Weds] Result of deferred division, if motion in House not previously decided
|
| |
47. These practical problems suggest to me that it may
be necessary for the House to consider delegating to the European
Scrutiny Committee the authority to operate the early warning
mechanism on its behalf.
ENGAGEMENT IN
EUROPE
Co-operation between national parliaments in the EU
48. The Conference of Presiding Officers of Parliaments
of EU member states (the Conference of EU Speakers) has been working
on guidelines for inter-parliamentary co-operation. Given the
wide variety of constitutional arrangements in different EU member
states, these guidelines could only ever be advisory. The Conference
of EU Speakers has no ambition to become a formal institution
itself. At present a conference is held each year in a different
national capital: Athens in 2003, The Hague in July 2004 and Budapest
in 2005. A wider Conference of Presiding Officers of member states
of the Council of Europe (Conference of European Speakers) meets
every two years, most recently on 17 and 18 May 2004 in Strasbourg.
49. The Chairman of Ways and Means, representing the Speaker,
attended the Strasbourg Conference where a meeting of EU Presiding
Officers took place "in the margins" to review the proposed
guidelines, which have been developed since the Athens EU Speakers
Conference in 2003, in preparation for their adoption in The Hague
in July 2004. The latest available text of the draft guidelines
is at Annex A to this paper. The guidelines are intended to reflect
the fact that, as the draft EU Constitutional Treaty recognises,
the European Union is composed of sovereign states with their
own sovereign Parliaments; and that the interests of the Union
and the European Parliament have to be counterbalanced by those
of the national Parliaments if this delicate balance is to be
maintained. The purpose of the guidelines is to help the national
Parliaments to "get their act together" in the aftermath
of enlargement, and to make practical reality of the protocol
on the role of national Parliaments which forms part of the new
Constitutional Treaty.
50. As the UK holds the EU Presidency from 1 July to
31 December 2005, we can expect to hold a few inter-parliamentary
meetings of specialist select committees at Westminster over that
period, as well as the well-established Conference of Community
and European Affairs Committees of Parliaments of the European
Union (COSAC).
51. The shared IPEX (Inter-parliamentary EU Information
Exchange) website, currently hosted by the European Centre for
Parliamentary Research and Documentation (a joint Council of Europe/European
Parliament body) at http://www.ecprd.org/ipex, gives easy-to-use
links to relevant pages on each parliament's website. Further
development of IPEX may require willing national parliaments to
provide staff time and money for software to create an interactive
exchange of information on scrutiny of current EU proposals, including
the operation of the subsidiarity mechanism.
Facilities for MEPs
52. The Government memorandum (paragraph 32) expresses
the Government's hope that the House authorities will facilitate
political engagement at the European level by extending the access
that UK MEPs have to facilities in the Palace of Westminster.
This is not a matter for me; but it may be helpful to set out
the current position in detail.
53. Around 60 of the 81 British MEPs in the 1999-2004
European Parliament held Palace of Westminster photo-passes, which
allowed them to pass through security checks without hindrance.
UK MEPs may be issued with photo-identity passes which must be
worn at all times in the precincts, allowing them access to the
Central Lobby, and to attend meetings in Westminster Hall, the
Committee Corridor and Upper Committee Corridor. In Portcullis
House, they may also be admitted to the courtyard and the first
floor to attend meetings. The pass, in addition, entitles them
to use the Members' Dining Room at lunchtime only. They may not
bring guests into the precincts. Within the House of Lords, UK
MEPs may use the Peers Lobby, the Galleries of the House, the
Committee Corridor and the offices of the European Union Committee
and the Lords Bar.
54. The House of Commons Commission, and the Domestic Committees,
which advise the Commission on such matters, are conscious of
pressure on accommodation and services on the parliamentary estate.
I understand that MEPs would appreciate some kind of cloakroom
facility where they could leave their belongings while attending
meetings in Westminster. The House of Commons Commission and the
Domestic Committees on such matters will no doubt take the Government's
views into account.
55. At present UK MEPs can sit in the Special Gallery
but have no means of reserving places. Following the incident
on 19 May 2004, the use of the Special Galleries is under review.
Members' European travel scheme
56. In the financial year 2003-04, about 270 visits were
made by around 200 Members (of whom about 40 made two visits each
and a further 13 made three visits each). Spending and usage of
the scheme are both increasing rapidly, up from £50,000 in
2001-02 to £150,000 in 2002-03 and £200,000 in 2003-04[13]
57. On 9 May 2002 the maximum number of visits for any
Member was increased to three per year, the former cash limit
was removed with effect from 1 April 2003 and the national parliaments
of candidate countries were added to the list of allowable destinations.
On 9 February 2004 the Members Estimate Committee agreed to extend
the list of allowable destinations to include also the national
parliaments of EFTA countries and of applicant countries, and
all European institutions and agencies, including those outside
Brussels, Luxembourg and Strasbourg.
58. The Government memorandum (paragraph 33) invites
the Modernisation Committee to explore whether it would be practicable
within the existing budget to enable those Members who have regular
and valuable contact through approved visits to do so more than
three times. It has been suggested that individual Members should
be able to transfer their visits "entitlement" to others,
but I am advised by the House's Director of Finance and Administration
that this would be unworkable. In any case, in view of the changes
made earlier this year the Members Estimate Committee would probably
want to ask the Advisory Panel on Members' Allowances to review
how the current provision was working before raising the ceiling
on the individual number of visits.
Language skills
59. The Government memorandum (paragraph 34) says that
the Government is exploring with the House authorities whether
those Members who wish might be able to get support from the House
for language training provided by the FCO. The FCO have offered
to provide language training to Members in the form of classes,
or materials and regular consultations in support of self study.
The Advisory Panel on Members' Allowances has approved a scheme
under which Members would be expected to pay out of their own
pockets initially, but would be able to claim reimbursement from
central funds once they have completed ten classes or consultations.
Details of this scheme have recently been circulated to Members
by the Department of Finance and Administration.
CONCLUSION
60. The Government memorandum, although comparatively
short, raises a great number of suggestions, some of them quite
radical and far-reaching in their implications and not all of
them directly relevant to the Modernisation Committee's remit
relating to the House's practice and procedure. This paper, although
probably longer than the Modernisation Committee would have wished
to see, does not cover all the possible ramifications of the suggestions
made. I and my colleagues are of course at the disposal of the
committee to provide any further advice or assistance that may
be requested, including the drafting of any standing or sessional
orders that may become necessary.
Clerk of the House
June 2004
Annex
GUIDELINES
Interparliamentary co-operation in the European Union
INTRODUCTION
With reference to
— The Guidelines for the Conference of Presiding
Officers, article 2 p 2:
"To this end the Conference is a forum for the exchange
of opinions, information and experiences, as well as for the promotion
of research activities and common action, among the Speakers,
on topics related to the role of parliaments and the organisation
of parliamentary functions, also with respect to the forms and
tools of interparliamentary co-operation. "
— The European Convention's Protocol on the Role
of National Parliaments in the European Union, p 9 II:
"The European Parliament and the national parliaments
shall together determine how interparliamentary co-operation may
be effectively and regularly organised and promoted within the
European Union. "
— Presidency Conclusions at the Conference of Speakers
of the European Union Parliaments, Athens 24 May 2003.
The Conference of Speakers of the European Union Parliaments
at its meeting in The Hague 2-3 July 2004 recommended the following
guidelines as a base for interparliamentary co-operation in the
EU field.
I. OBJECTIVES
The autonomy of each parliament shall be respected. The degree
of involvement in interparliamentary co-operation is decided by
each parliament.
Taking into account the principle of national parliaments
and the European Parliament being on an equal footing and having
complementary roles in the EU structure, the main objectives of
interparliamentary co-operation in the European Union should be:
(a) To provide information and strengthen parliamentary
scrutiny in all areas of competence of the EU.
(b) To ensure the efficient exercise of parliamentary
competencies in EU matters, in particular in the area of subsidiarity
control by national parliaments.
II. FRAMEWORK
The co-operation is performed within the following framework.
Conference of EU Speakers
The Conference has a responsibility for overseeing the co-ordination
of interparliamentary EU activities. A particular co-ordinating
responsibility rests with the host Parliament for the forthcoming
Conference.
Meetings of sectoral committees
Meetings of sectoral committees organised by national parliaments
or by the European Parliament constitute one of the long-established
modes of interparliamentary co-operation in the European Union.
COSAC
COSAC (Conference of Community and European Affairs Committees
of Parliaments of the European Union) handles the co-operation
between EU Affairs Committees.
Simultaneous debates in interested parliaments
Interested parliaments can promote simultaneous debates on
the EU legislative programme or on the main issues of European
policies.
Secretaries General
The Secretaries General or other official appointed by the
Speaker should take the lead in preparing the interparliamentary
EU work. A particular responsibility for co-ordination rests with
the Secretary General in the host Parliament for the forthcoming
Conference. Here close contacts with national parliaments in the
Member States holding the EU Presidency are necessary.
IPEX
The objective of IPEX (Interparliamentary EU Information
Exchange) is to support interparliamentary co-operation in the
European Union by providing a platform for the electronic exchange
of EU-related information between parliaments in the Union including
a calendar of meetings and forums for exchange of views on subsidiarity
control. Each parliament/chamber has an IPEX correspondent to
represent the parliament.
Representatives from National Parliaments in Brussels
When having a national parliament representative based in
Brussels, the permanent representative participates in the regular
exchange of information between the EU parliaments, as well as
with the COSAC secretariat in Brussels, and in the co-ordination
on a practical level.
ECPRD
The objectives of the ECPRD (European Centre for Parliamentary
Research and Documentation) are to promote the exchange of information
and to strengthen the cooperation between parliamentary services
in all fields of parliamentary information, research and documentation.
Each parliament/chamber has an ECPRD correspondent to represent
the parliament. ECPRD includes all parliaments within the Council
of Europe.
III. FIELDS OF
CO -OPERATION
Interparliamentary EU co-operation is of particular value
in the following fields.
Subsidiarity control
Each EU parliament is recommended to inform the other parliaments
on its activities concerning subsidiarity control. IPEX provides
electronic tools for this exchange of views and serves as a means
of communication between national parliaments with regard to proposals,
which are thought to offend against the subsidiarity principle.
Exchange of information and documents
Exchange of information and documents should be promoted
on all levels and between different committees and services within
the framework. Electronic information emanating from different
channels should be structured within the IPEX and ECPRD networks
in order to avoid confusion and duplication of work.
Conferences and other events
Interparliamentary meetings, be they ad hoc or within the
framework of a regular exchange between Speakers, sectoral committees
or within COSAC, constitute one of the recommended methods of
interparliamentary co-operation in the Union. They are usually
organised by national parliaments or the European Parliament.
Political areas
Every year the Conference of EU Speakers may indicate priority
political areas for interparliamentary co-operation.
1
Seventh Report from Select Committee on Modernisation of the House
of Commons, Session 1997-98, The Scrutiny of European Business,
HC 791, paragraph 37. MEPs may of course be also Members or Peers. Back
2
Fourth Report from the Select Committee on Procedure, Session
1988-89, The Scrutiny of European Legislation, HC 622-I,
paragraph 110. Back
3
Fourth Report from the Select Committee on Procedure, Session
1988-89, The Scrutiny of European Legislation, HC 622-II,
QQ 392, 396. Back
4
The Report of a joint working group of officials on joint meetings
of Members of the House of Commons and Members of the National
Assembly for Wales is attached to my memorandum to the Procedure
Committee at HC 582, pages 9 to 16. Back
5
Third Report from the Procedure Committee, Session 2003-04, Joint
activities with the National Assembly for Wales, HC 582, Appendix,
page 9. Back
6
Third Report from the Procedure Committee, Session 2003-04, Joint
activities with the National Assembly for Wales, HC 582, paragraph
8. Approved by the House on 7 June 2004. Back
7
First Report from the Select Committee on Procedure (Supply),
Session 1980-81, HC 118-I, paragraph 99 and HC 118-II Ev 269. Back
8
Occasionally Ministers from more than one department answer questions
on documents referred to European Standing Committees: for example,
at European Standing Committee C's sitting on 24 March 2004 to
consider the Working Time Directive, both the Parliamentary Under-Secretary
of State for Trade and Industry (Mr Gerry Sutcliffe) and the Minister
of State, Department of Health (Mr John Hutton) replied to questions. Back
9
Second Report from the Select Committee on Modernisation of the
House of Commons, Session 2001-02, Modernisation of the House
of Commons: a reform programme, HC 1168-I, paragraph 99. Back
10
European Standing Committee A's attendance has fallen from a high
of 80% in 1997-98 to 59% in 2002-03. Similarly, European Standing
Committee B's attendance has fallen from 80% in 1997-98 to 56%
in 2002-03. However, European Standing Committee C's attendance
has risen from 63% in 1998-99 to 71% in 2002-03. Back
11
In the current Session the number of Members who were not nominated
to the committee attending has risen by almost 30 per cent to
an average of just under 5.5 per meeting. Back
12
Under Standing Order No. 119 (7) the Chairman of the Standing
Committee may "allow questions to be taken for a further
period of not more than half an hour". This power to extend
questions is hardly ever needed, but it was used in European Standing
Committee B on 11 May 2004 in a debate on the Occupied Territories
of the West Bank and Gaza Strip. Back
13
All figures from 2003-04 are provisional figures supplied by the
Department of Finance and Administration. Under the Resolution
of the House of 18 December 2001, those Members who have chosen
not to take their seats and thus do not qualify to participate
in the proceedings in Parliament may claim allowances relating
to travel only within the United Kingdom. Back
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