House of Commons - Modernisation of the House of Commons

Select Committee on Modernisation of the House of Commons Second Report

2 Proposals for change to the current system

42. A common complaint is that the Parliamentary scrutiny of EU business takes place when it is too late for it to have any significant impact on the final content of the proposed legislation. Mr Michael Jack MP told us that, in his experience as a former Minister, European standing committee meetings happened too late to influence the Government's position in the Council of Ministers. (The Government has a great deal of discretion over the timing of standing committee meetings.) He suggested that departmental and other select committees were in a good position to examine proposals when they were still at a very early stage, before the Commission had produced its first formal paper.[48] Dr Richard Corbett MEP said that the European Parliament often examined upcoming legislative proposals before national parliaments and that the sharing of information between MPs and MEPs would be one way of bringing Parliament into the scrutiny process at an earlier stage.[49]

43. The CBI suggested that national parliamentarians only became aware of EU legislation 'at its final stage of national implementation', though this overlooks the fact that, under the terms of the Scrutiny Reserve Resolution, the scrutiny process must be completed before a legislative proposal is agreed to in the Council, let alone before it is transposed into domestic law. They argued that Parliament should be involved in scrutiny 'ideally prior to the Commission producing a proposal, but at the very least before the European Parliament beginning first reading'.[50]

44. The ESC highlighted two ways in which scrutiny takes place at a very early stage. In recent years they have taken evidence from Commission officials on the Commission's Work Programme, which includes many proposals still at the early planning stage. Commission consultation documents are subject to the Parliamentary scrutiny process.[51]

45. Some of the criticism of the current system for being 'downstream' or 'backward-looking' is misplaced.[52] Scrutiny of EU legislative proposals in the UK in fact begins much earlier—indeed as early as in any other country. But the perception of a backward-looking system, even if inaccurate, is nonetheless worrying, shared as it is by many people both inside and outside Parliament. It suggests that, whereas scrutiny might have taken place at an early stage, few people are aware of it.

46. Beginning scrutiny any earlier, the Committee argued, would mean doing something before the Commission produced its first formal document on a subject. There is no obvious systematic way of doing this; the Commission sometimes consults widely and sometimes does not. The principal problem is that it is difficult for Parliament to keep close track of developments within the Commission at the early planning stage. As Chris Huhne MEP told us,

47. The European Scrutiny Committee proposes a system in which the Government would take the initiative in informing the Committee of proposals at that stage, which the Committee would then follow up on a selective basis. The Committee could then request an unnumbered explanatory memorandum from the Government which could, if the Committee so recommended, form the basis of a debate in standing committee.[54]

48. There is a case in our view for establishing a system for examining legislative proposals at an earlier stage, before the Commission has produced its first formal document. We accept the suggestion from the European Scrutiny Committee and from Chris Huhne MEP that the Government is best placed to identify those proposals which are likely to be of sufficient legal or political significance to warrant further scrutiny when they are still at the early planning stage. This is the case in Finland, where the Government often takes the initiative in referring proposals to the Parliament before they have reached the draft directive stage.[55]

49. We recommend that the Government give an undertaking to alert the European Scrutiny Committee by letter at an early stage of consultation exercises on important proposals in which it is involved. The Scrutiny Committee can then decide whether to ask for an unnumbered explanatory memorandum on the proposal from the Government, or to supplement the information supplied by the Government with information from pressure groups and others. The Scrutiny Committee might then decide to take evidence and produce a report on the proposal itself; to recommend a standing committee debate; or to draw the attention of the relevant departmental select committee to the proposal.

DEPARTMENTAL SELECT COMMITTEES

50. One of the great strengths of the Finnish system is the involvement of subject committees at the heart of the EU scrutiny process. This facilitates the development of an ongoing body of expertise among Members, who see every proposal from the relevant ministry, whether it an EU document, a bill or an annual Report. This is a feature of a committee-based Parliament, which it would not be easy to replicate here. But we do believe that select committees could play a more prominent role in scrutinising EU business, especially at the early planning stages where no document is available. The committees' core tasks currently include the examination of policy proposals from the Commission,[56] but it is not always easy for committees to find out what is going on in Brussels and to identify potentially fruitful areas of inquiry at an early enough stage. That is not to say that committees are not already giving a great deal of consideration to EU matters; we took evidence from the Chairmen of the Transport and Environment, Food and Rural Affairs Committees, both of which do a great deal of work on EU matters.[57]

51. Select committees of course may have their own sources of information: a number make regular visits to Brussels and they may also informally have early notice of forthcoming legislative proposals. But in practice, if they are to carry out effectively the task of examining Commission proposals at an early stage, they will usually need them to be drawn to their attention. The European Scrutiny Committee already has the power to do this and will occasionally seek the formal opinion of a departmental committee before deciding whether or not to clear a document for scrutiny. We recommend that, where the Government gives the European Scrutiny Committee early notice of a proposal being considered by the Commission, the ESC forward a copy to the relevant departmental select committee for information as a matter of routine. This is in addition to the more formal requests for an opinion which it also sometimes issues.

Meetings of the European Scrutiny Committee

52. Like all select committees, the European Scrutiny Committee generally takes evidence in public but follows the long-established convention of deliberating in private. The reasoning behind the Committee's decisions are subsequently set out in a report to the House, which is published and made available on the Internet. In December 2003, the Committee wrote to the Leader of the House asking for the Standing Orders to be changed so that, when it was considering which documents to recommend for further debate and which to clear for scrutiny, it could deliberate in public. The Committee raised the request again in its first written submission to this inquiry.[58] This would entail the presence of a shorthand writer, the public and possibly the press when discussions take place between members of the Committee and the Committee's staff about the justification for recommending one document or another.

53. Members of this Committee have attended meetings of the ESC, as they are entitled to do provided that the Committee does not object.[59] The discussions are to a large extent dry and technical, with little obvious appeal to the media, and involve staff correcting understandable misapprehensions on the part of Members. There might also be a danger that Members feel pressed to recommend more documents for debate than strictly merit it, which in turn would risk overloading the system and distracting attention from the most important documents.

54. Recently, the Committee wrote to us to withdraw the request. We are reluctant to go against the latest expressed wish of the Committee, but on balance we see little objection in principle to giving the Committee the power to admit the public only to those parts of their deliberative meetings which relate to the sifting process. Since the request is limited to those particular circumstances, we see no risk, which we understand chairmen of other select committees fear, that all the deliberations of select committees would become public, with the damage that could do to consensus-building. We recommend that Standing Orders be amended for an experimental period of one Session to allow the Committee, if it so wishes, to conduct the sifting part of its deliberations in public.

A new Joint Grand Committee

55. In June 2002, the House established a new kind of standing committee, the Standing Committee on the Convention.[60] The Committee was appointed to consider reports from the United Kingdom Parliamentary Representatives to the Convention on the Future of Europe, the body which was established to produce proposals for the new Constitution for Europe. It followed a similar form to a European Standing Committee, with the Representatives making a statement followed by questions, then a debate on a non-substantive Motion, 'That the Committee has considered the report' from the Representatives. The core membership consisted of the Representatives themselves and members of the European Scrutiny Committee and the Foreign Affairs Committee. Any other Member of the House was allowed to attend and speak. Members of the House of Lords were also allowed to participate in the Committee's proceedings on the same basis as MPs who were not core members of the Committee.

56. In September 2003, once the Convention had finished its work, a successor Committee on the Inter-Governmental Conference (at which the Convention's proposals were to be considered) was established. This committee followed identical procedures to the Committee on the Convention, but with Ministers, rather than the Convention Representatives, attending to answer questions.[61] The Committee last met in December 2003 and the Order appointing it expired at the end of last Session.

57. The Government recommended in its memorandum that a successor to these committees be established as a permanent part of Parliament's EU scrutiny system. They proposed that the Committee should be open to Members of both Houses and that members of the European Commission should be able to attend, make statements and answer questions.[62] Unlike its predecessors—Commons committees which Peers were entitled to attend—the suggestion is that this Committee should be a genuine joint committee in which Members of both Houses may participate equally.[63]

58. The House of Lords Procedure Committee recommended that the House should co-operate with the Commons in establishing such a committee. It also made several practical recommendations about the committee, suggesting among other things that it should have the opportunity to hear statements from, and put questions to, Commissioners and Commission officials, should meet no more than four times a year, should adjourn for divisions in either House and that the chairmanship should 'reflect the joint nature of the committee'.

59. The proposal was also widely welcomed by our witnesses, though some expressed reservations. The Lords Procedure Committee noted that 'some doubt was expressed about whether a new joint committee would add significantly to the work already done by the European Union Committee of [that] House', but clearly did not see these doubts as sufficiently compelling for them to recommend that the proposal not be proceeded with.[64] The Commons Foreign Affairs Committee also expressed doubt about whether the new Committee would add much to what the House does at present.[65]

60. The European Scrutiny Committee argued that it would add value to Parliament's scrutiny of European business by providing a high-profile forum for debate without undermining existing procedures.[66] Mr David Heathcoat-Amory MP, one of the UK Parliament's Representatives on the Convention, emphasised the value of direct contact between MPs and representatives of the European Commission.[67] Mr Timothy Kirkhope MEP told us that he had long advocated a forum in which MPs and MEPs could meet together,[68] and Dr Richard Corbett MEP emphasised the complementary nature of the work of national parliaments, which scrutinise their own ministers in their capacity as members of the Council of Ministers, and the European Parliament, which scrutinised the work of the Council as an institution.[69] The British Bankers' Association and the CBI both argued that the establishment of such a Committee would help to raise awareness of EU policy and legislation and stimulate public debate.[70]

61. We recommend that a Joint Committee of the two Houses be established to consider matters related to the European Union, along the lines proposed by the Government in its memorandum. Below, we set out our views on some of the issues relating to the membership and procedure of the Committee and the format of its meetings.

TITLE

62. The House of Lords Procedure Committee recommends that the title of the committee should be simple and avoid confusion with other types of committee in either House, perhaps 'Joint European Committee'.[71] We concur with the spirit of the Committee's recommendation but we believe that the designation of 'Joint Committee' could be confusing as joint committees are invariably select committees with Members from both Houses which conduct inquiries and produce reports. The new Committee which we propose will be a standing committee. Also, it is not necessarily apparent to the general public that a joint committee is a committee of the two Houses of Parliament rather than, say, two Commons committees meeting concurrently. The title, 'Grand Committee' is also misleading, as it describes different types of committee in the two Houses.[72] In the interests of simplicity and clarity, we recommend that the committee be called the Parliamentary European Committee (PEC).

MEMBERSHIP AND QUORUM

63. The Standing Committees on the Convention and the IGC, which met in 2003 and 2004, to which this Committee is in some sense the successor, had a 'core' membership consisting of the members of the European Scrutiny and Foreign Affairs Committees, a total of 27 Members. One of the main advantages of a core membership in this case was the simplification of the voting process, since it was expected that the Committee would come to a resolution at the end of each meeting. Any Member of either House could attend and participate in the debate but only the core members could vote. Since we do not envisage the Parliamentary European Committee voting at the end of its proceedings, the argument for a core membership is less compelling.

64. One of our objectives in producing this Report is to encourage the mainstreaming of European business. We have seen that Westminster Hall works perfectly well without a core membership and we fear that appointing a small core of members to the PEC might give the impression that it is something which will be of little interest to anybody but a select group with a close interest in EU matters. We therefore recommend that there should be no core membership of the Committee; the quorum should be seven, including at least two Members from each House, and counting the occupant of the Chair. We anticipate that Members will attend, as they do in the Chamber and Westminster Hall, according to their interest in the subject under discussion. A debate on the CAP might therefore attract a completely different group of Members from one on aviation, for example.

CHAIRMANSHIP

65. Standing committees are currently chaired on an ad hoc basis by members of the Chairmen's Panel, with a new chairman or chairmen being appointed for each bill, statutory instrument or European standing committee. In the case of the Grand Committees, in particular the Welsh Grand Committee and the Standing Committees on the Convention and the IGC, the practice has been to have one Panel member who takes the chair for the majority of meetings, though that person is not formally designated as the permanent Chairman. It would not be practical to designate a single Chairman for the PEC. It is likely to meet only infrequently, but when it does meet the meeting time is likely to be subject to external constraints which could create serious difficulties if there were only one Chairman. More importantly, we are conscious of the fact that having a Chairman from only one House might be seen to undermine the joint nature of the Committee, as the House of Lords Procedure Committee has observed.[73]

66. But we do believe that there is a case for having some continuity in chairmanship, not least because it would provide somebody with the authority to take decisions about the timing and nature of sittings of the Committee (see below) between meetings. We recommend that the importance of the new Committee be reflected in its chairmanship and propose that a senior figure from each House should chair it. In the Commons, this might be the Chairman of Ways and Means or another Deputy Speaker, with a senior member of the Chairmen's Panel as an alternate. We would hope that a similar arrangement would seem appropriate in the House of Lords. The Chairmen from the two Houses would have a role in convening meetings and we would expect that each meeting would be chaired, wherever possible by one Chairman from each House. It would of course be for the individuals concerned to decide how to divide up the time in the Chair between themselves.

PARTICIPATION OF NON-MEMBERS

European Commissioners

67. In December 2004, the Chairman of this Committee wrote to the President of the European Commission, Mr José Manuel Barroso, and to the Vice-President with responsibility for relations with national parliaments, Mrs Margot Wallström, setting out the Government's proposals and seeking their views. Mr Barroso replied that he believed the proposal 'could contribute to a better examination of the Commission proposals'. He said that the Commission had an obligation 'always to be accessible and prepared to assist the national parliaments in their inquiries into EU policy'.[74]

68. As we have already noted, the institutions of the EU are not accountable to national parliaments. Commissioners and Commission officials, if they were to participate in meetings of the new Committee, would not be subject to scrutiny by the Committee or by either House; they would be there to share information, to inform the debate and to foster dialogue between the Commission and Parliament. We do not envisage that the Committee would meet any more than four times a year at most, nor do we envisage that a Commissioner would be invited to every meeting. It may well be that on many if not most occasions, the best person to represent the Commission at its meetings would be the UK Commissioner, who has already indicated informally to us that he would be happy to attend such meetings. We recommend that a Commissioner be invited to some meetings of the PEC.

69. As the Procedure Committee has pointed out, there are difficulties inherent in inviting people who are not Members of either House to participate in proceedings in Parliament, other than as witnesses.[75] Some of these difficulties have already been addressed in relation to joint working with the National Assembly for Wales by the use of the 'reciprocal enlargement' procedure. However, what we propose here is rather different and another solution is required. The Clerk of the House explained to us that

'it is for the House … to determine whom to invite to its committee proceedings. As long as the House retains control over the proceedings, and the "guests" have no vote, the difficulties that remain are practical rather than ones of principle'.

He pointed us to a precedent, in Standing Order No. 96 (1) and (4),[76] which permits 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, 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.[77] A rostrum or lectern in front of the dais might be a suitable place from which the Commissioner could contribute to proceedings.

70. We recommend that, where a representative of the Commission is present, he or she should be invited to make a brief statement before responding to questions from the Committee. In order to clarify the status of Commissioners at these meetings, we recommend that arrangements similar to those set out in Standing Order No. 96 in relation to a Minister who is not a Member of the House be adopted in relation to Commissioners attending the Committee. As well as making a statement and answering questions, we recommend that a Commissioner attending a meeting of the Committee should be permitted by the Chair to make a brief reply to any subsequent debate.

Members of the European Parliament

71. The Members of the European Parliament who gave evidence to us were very keen to participate in the Committee. Mr Timothy Kirkhope MEP said that joint meetings of UK MPs and MEPs were something he had long argued for and that it was his party's official policy to promote such meetings.[78] Dr Richard Corbett MEP argued that, since MPs and MEPs had complementary roles in scrutinising EU legislation, the link between the two groups was very important. The EP dealt with the Council of Ministers as an institution, whereas national Parliaments held their own country's ministers to account in their capacity as members of the Council.[79] None of the MEPs felt that attending Committee meetings without having the right to speak would be an attractive option, but they were sensitive to the need to keep the roles and functions of the UK Parliament and the European Parliament completely separate. They favoured being permitted to attend and speak only.[80]

72. We recommend that UK Members of the European Parliament should be permitted to attend and speak at meetings of the PEC. We have already referred to the 'reciprocal enlargement' procedure whereby members of a specified committee of the National Assembly for Wales may attend and participate in the proceedings of the Welsh Affairs Committee. We envisage a similar status for MEPs attending the PEC: they would attend and participate as guests of the UK Parliament, rather than as full members of the Committee.

Representatives of the devolved Parliament and assemblies

73. The European Scrutiny Committee proposed that the Scottish Parliament, the National Assembly for Wales and (if it is reconvened) the Northern Ireland Assembly should be invited to send representatives to meetings of the Committee.[81] The Chairman of the European and External Affairs Committee of the National Assembly for Wales has written to us in support of this proposal.[82] While we are sympathetic to the suggestion, we are wary of over-complicating from the outset what is already a novel set of proposals. The three bodies have very different responsibilities and powers in relation to EU matters;[83] the devolution settlements are different, so that there are aspects of the UK's Community responsibilities where one body may have a clear involvement and the others may not; and the potential attendance at meetings of the PEC will be such that there is already likely to be severe pressure on speaking time. For these reasons, and with some reluctance, we do not recommend that the devolved bodies should be formally involved at this stage. We do not wish to rule out the possibility entirely, however, and this is something which we believe should be kept under review once there is sufficient experience of the working of the PEC to reach an informed conclusion.

PROCEDURE

74. We envisage a pattern for each meeting based largely on the arrangements for the Standing Committees on the Convention and the IGC. It would begin with a statement followed by questions, with a Commissioner if one is present, or from Government Ministers. This would last for up to an hour and a half and be followed by a debate, which would continue until the Committee had sat for a total of two and a half hours, on a motion for the adjournment.[84]

75. The question arises as to whether the Committee should follow Commons or Lords procedure, to the extent that the two diverge. The Lords Procedure Committee has recommended that Commons procedure should not automatically be followed and suggested that a speakers' list for debate would be desirable.[85] We believe that, given the unusual nature of the proceedings, it would be desirable for the occupant of the Chair to have similar powers to keep order as he or she does in the Commons. In the light of the unusual composition of the Committee and the participation of invited guests, we can also see the merit of having a provisional speakers' list. Given the unique nature of what is proposed here, we do not see that this would set any precedent for other committees of the Commons, or for the Chamber itself.

76. We recommend as follows:

a) Meetings of the Parliamentary European Committee should follow the pattern of the Standing Committees on the Convention and the IGC. They should begin with a statement from a Commissioner or a Minister, followed by questions, lasting for up to one and a half hours.[86] This should be followed by a debate on a specified subject on a motion for the adjournment of the Committee, which may continue until the Committee has sat for a total of two and a half hours.[87]

b) The occupant of the Chair should enjoy similar powers of order as the occupant of the Chair in a Commons standing committee.

c) There should be a provisional speakers' list for the debate, but no list of the participants who are to be called to ask questions, who should rise to catch the Chairman's eye in the usual way.

d) The Chairmen of the PEC should meet well in advance of the Committee's first meeting to discuss any matters arising from these recommendations.

e) The Committee should not normally meet when either House is sitting.

f) In the meantime, we recommend that the Chairmen of the Modernisation Committee, the Procedure Committee, the House of Lords EU Committee and the House of Lords Procedure Committee, among others, meet informally at an early stage to discuss procedural issues relating to the PEC.

TRIGGERING MEETINGS

77. We accept the view expressed in the Government's memorandum, that the Committee is likely to meet twice each year, in January and July, to consider the Foreign Secretary's White Papers.[88] Other meetings—of which we do not envisage more than two a year—would be as the need arose. The European Scrutiny Committee has suggested that they might be on a specific area of EU policy, such as asylum and immigration or the EU's external action; on the Commission's forward planning documents;[89] or possibly on a few other EU documents of particular importance. They might include areas covered by reports of the Lords EU Committee.[90] We thus do not expect that the Committee will usually meet more than four times per year, two of which will be to consider the Foreign Secretary's White Papers.

78. As a matter of principle, the calling of meetings should be a matter for the two Houses, in consultation with the Government. As a matter of practice, it is highly likely that the Government will need to be involved in the planning stage, not least of all to liaise with the Commission over the attendance of a Commissioner. We believe decisions as to the dates, times and subjects of meeting of the PEC should be considered by the Chairmen drawn from the two Houses. In the Commons, as with the arrangements for Westminster Hall, the business should be 'such as the Chairman of Ways and Means shall appoint'.[91] Acting in concert with the Chairman of the PEC drawn from the Lords, he should consider proposals from the Government, the European Scrutiny Committee and the House of Lords EU Committee. A Motion setting the time for each meeting would then be moved in the House, as with the Scottish and other Grand Committees.

Proceedings relating to European Council meetings

79. We have already noted (paragraph 19) that the UK's system of EU scrutiny is primarily, but not exclusively, document-based. One important, non-document-based aspect of the system is the mechanism for seeking the House's views before, and reporting to the House after, meetings of the European Council—the regular, biannual summits of heads of state or of government, foreign ministers and representatives of the Commission. Parliament's scrutiny of European business is, in some respects, scrutiny of the way that UK Government ministers exercise their ministerial functions as members of the Council of Ministers. Since the functions of the European Council are to resolve issues which could not be settled in the Council of Ministers, as well as to provide the EU with overall political direction, oversight of the UK Government's work in the Council is an essential part of Parliament's scrutiny of EU business.

DEBATES BEFORE EUROPEAN COUNCIL MEETINGS

80. A few days before the European Council meetings in June and December, there is a debate on European Affairs on a motion for the adjournment.[92] The purpose of these debates is to give the House an opportunity to influence the Government's stance at the Council meetings. The Government in its memorandum has asked the Committee to consider whether these debates were still appropriate and of appropriate length.[93] There are also occasional debates on EU documents on the floor of the House, and further adjournment debates on EU matters in Westminster Hall from time to time. The Government does not envisage that the creation of the Parliamentary European Committee should replace existing opportunities for debate on EU matters or reduce the need for debates on the Floor of the House, and nor do we.[94]

81. We believe that it is important to retain an opportunity for the House to influence the Government's thinking before European Council meetings. Although the debates occur at a very late stage in the process—only a few days, sometimes only a day, before decisions are to be taken in the Council—it is important that Ministers are able to take account of the views expressed in Parliament. However, the use of general debates on European Affairs often allows the debate to range well beyond the matters that are to be considered at the Council meeting. On some occasions, the Council's agenda may be so diverse as to rule out any more targeted debate but on others, where there are clearly one or two major issues that will dominate discussions, there may be merit on confining the scope of debate to those issues alone. We recommend that the biannual debates before the European Council meetings be retained but that the scope of the debate be confined more narrowly to the main subjects which the Council will consider.

REPORTS FROM COUNCIL MEETINGS

82. The Prime Minister makes a statement to the House after each European Council meeting. We believe that, in the majority of cases, this will still be the appropriate course of action. However, there are from time to time routine European Council meetings which do not necessarily merit a statement on the floor of the House. On the few occasions when the business of the European Council has been uncontroversial and of less significance, we believe that a written statement by the Prime Minister should suffice.

Westminster Hall

83. As the Government points out in its memorandum, under the current arrangements it is possible to use the cross-cutting questions in Westminster Hall to cover areas of European business where there is cross-departmental responsibility. For example, it might be possible to have ministers from the Treasury, DTI and Foreign Office answering questions on trade matters. We do not envisage that cross-cutting questions on an EU-related subject would happen very often; only when there is genuine interest in a subject where there is significant cross-departmental responsibility. We recommend that cross-cutting questions on an EU-related matter be held in Westminster Hall as and when a suitable opportunity arises.

European Standing Committees

84. European Standing Committees are perhaps the most important component of the House's scrutiny of European Documents. It is here that most of the scrutiny of documents deemed by the Scrutiny Committee to be of legal or political importance takes place. Unlike the Scrutiny Committee, any Member of the House may participate in standing committee proceedings, so the committees represent the natural forum for involving as many Members as possible in European scrutiny.

85. Many have recognised great strengths in the European standing committee system. It provides, as the Foreign Affairs Committee pointed out, a rare opportunity for Members to pursue a sustained line of questioning with a Minister on a single subject.[95] Other witnesses, including former ministers, agreed that the committees, in particular the question period, were good at putting ministers on the spot.[96]

86. But European standing committees are not without their flaws. The Scrutiny Committee told us that they themselves has sometimes been disappointed by the debates in the standing committees, in particular by the level of attendance, the lack of public and media interest and the failure to follow up the issues which the Scrutiny Committee had identified as being important.[97] Others argued that the Committees were essentially impotent talking shops which were unpopular with Members because it was obvious that they had no effective powers.[98]

87. The strengths of the current standing committees are such that, in our view, to abolish the system and replace it with something entirely different would be to throw the baby out with the bathwater. There are however some clear shortcomings in the current system which we believe can be addressed. The most commonly-identified problem is poor attendance: overall attendance by core Members was only about half for Standing Committees A and B in Session 2003-04. This represents a bipolar distribution, with some Members attending most meetings and some only two or three. Interestingly, attendance was nearly three-quarters for standing Committee C, which met about half as often as the other two.

88. The Committees also fail to draw in the wider membership of the House. Nearly 90 other Members attended meetings of one or more of the committees during the Session, some of them more than once.[99] But this includes Ministers and opposition spokespeople. Given that there is certain to be at least two front-bench spokespeople at each meeting, and there were a total of 34 in the period in question, it does not appear that the number of backbench MPs turning up to standing committee meetings is much more than a few dozen. Likewise, there is little public or media interest in the committees' work.

89. The Committees also lack focus. The range of subjects covered by each committee is very broad, as shown by the Table in paragraph 27. In the last Session of Parliament, European Standing Committee C held only seven meetings, but it considered a wide range of disparate measures: space policy, the Working Time Directive, GM sweetcorn, disposal of batteries, the Doha Development Agency, nutrition and health claims made on foods and European industrial policy. It is highly unlikely that any single Member would be able to take a close and informed interest in such a range of subjects.

90. There is a further criticism, made by several witnesses but most forcefully by the Scrutiny Committee, that the standing committees lack real power. In particular, if they amend the Government's motion in standing committee, the Government is still free to table the motion in the House in its unamended form.[100]

91. In the paragraphs below, we set out our recommendations for tackling these shortcomings of the European Standing Committees.

INCREASING THE NUMBER OF COMMITTEES

92. It might seem perverse to recommend increasing the number of committees as a means of improving attendance but, as we have already noted, Standing Committee C, which met significantly less frequently than the other two committees last Session, also had significantly better attendance. We recommend that the number of European Standing Committees be increased from three to five, that the Committees be designated by names, which indicate clearly their functional ambit, rather than letters and that the core membership of each Committee be reduced from 13 to nine.

93. The European Scrutiny Committee has proposed a structure for a new five-committee system, which is set out in the Table below. We recognise that it is a sensible proposal which spreads the workload as evenly as possible between the five.

Committee title Matters within the responsibility of the following Departments: Likely no. of meetings [101]

European Committee for the Environment DEFRA, Food Standards Agency 11-13

European Committee for Transport Department for Transport 3-5

European Committee for Trade and Industry Trade & Industry; Education and Skills; Culture, Media & Sport; Health 5

European Committee for Home and Foreign Affairs Home Office, FCO, DFID, Department for Constitutional Affairs, remaining Departments 7

European Committee for Finance MH Treasury, Department for Work and Pensions 4-6

94. We believe that this proposal would have several benefits:

a) Each committee would have a narrower order of reference and thus be able to focus more effectively on the areas within its sphere of responsibility.

b) The number of members required to 'staff' each committee would be smaller which, combined with the narrower focus, should make it easier to find Members who are willing to serve. The total number of members required to serve would only be slightly greater that at present: 45 rather than 39.

c) The narrower focus would make it easier for the Committee of Selection to have proper regard to the qualifications of Members nominated to the Committees, perhaps facilitating some overlap with membership of the relevant select committee.

d) Each committee would meet less frequently—an average of six or seven times a Session compared to 11 or 12 at present—making attendance less of a burden for committee members.

e) The use of names rather than letters—something which is not really possible with the wide remits of the current committees—would help to make the committees more accessible to the media and others. The likely business of the European Committee for Transport is more readily apparent to the untutored observer than the likely business of European Standing Committee A ,for example. We also believe that it would make the committees more attractive to Members.

CHAIRMANSHIP

95. European Standing Committees are currently chaired by members drawn from the Chairman's Panel, on an ad hoc basis. Like the chairmen of other standing committees—and the occupant of the Chair in the House—their job is to call Members to ask a question or to speak in the debate, to keep order and to ensure that the rules of procedure are adhered to. The formal report of the Committee's Resolution is also made to the House in their name. Unlike select committee chairmen, they are impartial and do not participate in the debate or otherwise concern themselves publicly with the merits of the matter under consideration.

96. We recommend that each European Standing Committee be given a permanent chairman, drawn from the Chairman's Panel. Although he or she would not be able to participate in the Committee's work in the same way a select committee chairman does, we believe that the appointment of a permanent chairman will help to reinforce the ongoing corporate existence of the committees between meetings. He or she might also act as a primary point of contact between the standing committee and the European Scrutiny Committee, for example, in deciding whether a member of the Scrutiny Committee will attend the standing committee meeting to make a statement (see below).

STRENGTHENING LINKS WITH THE EUROPEAN SCRUTINY COMMITTEE

97. The Government, in its memorandum, proposed that a representative of the Scrutiny Committee should attend each meeting of a European Standing Committee in order to explain the Committee's reasons for referring the document under consideration for debate.[102] This would help to address the Committee's frustration at standing committees failing to address what it considered to be the central issues. The Scrutiny Committee itself suggests that the same end be achieved by making a member of each standing committee a member of the Scrutiny Committee as well. We agree with the suggestion that there should be scope for some formal participation by the ESC in European Standing Committee meetings and we note that members of the ESC are at present free to attend and speak at these meetings. However, a member attending in this way is unlikely to get an opportunity to set out the reasons for the referral until he or she is called to speak in the debate, more than half-way through the meeting.

98. There would be a clear benefit in setting out the ESC's reasons for referring a document at the beginning of each meeting in order to inform subsequent proceedings. Accordingly we recommend that the Chairman of a European Standing Committee should have the power to permit at the very beginning of the meeting a brief opening statement, of no more than five minutes, from a member of the European Scrutiny Committee who is present. This should be followed immediately by the Minister's statement. For this proposal to work effectively it will be important to avoid scheduling meetings of European Standing Committees at the same time as the European Scrutiny Committee meets.

MOTIONS IN THE STANDING COMMITTEE

99. On a very few occasions, the standing committee amends the motion which is put to it by the Government. This does not necessarily have any impact on what subsequently happens in the House: the Government may table the original form of the motion, the amended form, or something else entirely. There appears to have been only one occasion when an amendment was agreed in a European Standing Committee on a division, with Government Members voting against. It related to state aid for Irish steel, in December 1995. The motion subsequently put to the House by the Government was neither the original motion nor the amended motion, but a new version with stronger wording then the original.

100. On a number of occasions amendments have been agreed without a division. In one case, on guarantees for consumer goods in June 1994, the amendment regretted that the debate had not taken place in good time and agreed that debates must take place before the Government submitted a response to the Commission; this was omitted from the motion proposed in the House. Otherwise the Government has put the amended motion to the House (though once with the amended partly re-worded). There were six examples of this in 1990-91, but otherwise never more than two per session up to 1996-97. There were seven occasions from 1990-91 to 1996-97 when the motion was negatived on a division, and the Chairman reported to the House that the Committee had come to no resolution. In most cases a motion was subsequently agreed by the House, but in a few no further proceedings are recorded.

101. Concern about what appears to be a procedural anomaly needs to be understood in the light of the Scrutiny Reserve Resolution. Scrutiny is cleared once the House has come to a resolution on the document, regardless of its wording. In fact, even if the House were to pass a Resolution which was highly critical of a proposal, a Minister could still agree to it in the Council without breaching the scrutiny reserve although such action could have serious political repercussions for the Minister concerned and the Government generally. It is, however, clearly anomalous that the Government, in the House, is able to table in its original form a Motion which was amended in the standing committee. Several witnesses suggested that it emphasised the impotence of the committees to such an extent that Members had little interest in them. We believe that the credibility of the European Standing Committees would be greatly improved if there were to be some practical consequence of an amendment being made to the Government's motion. In such circumstances, we recommend that a Motion in the same terms as the Resolution of the Standing Committee should be taken forthwith (currently Standing Order No. 119(9) provides for such motions to be taken forthwith) and it should be open to the Government to table an amendment to reverse or modify the Resolution agreed to by the Standing Committee. The question on the amendment should be put in a similar way to the Question on Opposition days, thus giving primacy to the Resolution from the Standing Committee. The Question would be "That the original words stand part of the Question". If that were defeated the proposed words to be inserted by the Government amendment could be declared by the Chair to have been agreed to.

Transposing directives into UK law

102. It is often suggested that the UK is over-zealous in its transposition of EU directives into domestic law. The complaint of 'gold plating' was effectively summed up by Mr Chris Huhne MEP, who told us that

'During this [transposition] process, it is quite possible for departments to hang all sorts of their own decorations onto the Christmas tree before it arrives as a statutory instrument'.

He went on to cite the example of the UK implementation of the requirement for veterinary inspection of abattoirs, arguing that the insistence on each abattoir meeting the full cost of full-time inspection had wiped out small abattoirs in Britain, in contrast to other Members States.[103]

103. The Prime Minister himself is conscious of these problems. He recently told the Liaison Committee that 'with all regulation that now comes from Europe we have made it clear there should be an end to gold-plating'.[104] He gave the example of the End of Life Vehicles Directive,[105] where the Government had worked closely with the industry to minimise the negative impact of the UK's implementation of the Directive.

104. The Government identifies four types of gold-plating:

a) extending the scope, adding in some way to the substantive requirement, or substituting wider UK legal terms for those used in the directive;

b) not taking full advantage of any derogations which keep requirements to a minimum (e.g. for certain scales of operation, or specific activities);

c) providing sanctions, enforcement mechanisms and matters such as burden of proof which go beyond the minimum needed (e.g. as a result of picking up the existing criminal sanctions in that area); and

d) implementing early, before the date given in the directive.

The Government's policy is not to go beyond the minimum requirements of European directives unless there are exceptional circumstances, justified by a cost-benefit analysis and extensive consultation with stakeholders.[106]

105. The House of Lords has chosen to address these concerns by the establishment of a new Select Committee on the Merits of Statutory Instruments. This followed from a recommendation of the Royal Commission on Reform of the House of Lords in 2000.[107] The Lords Committee was appointed in December 2003, with a remit to consider every instrument which is laid before each House of Parliament with a view to determining whether the special attention of the House should be drawn to it on any of the following grounds:

a) that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House;

b) that it is inappropriate in view of the changed circumstances since the passage of the parent Act;

c) that it inappropriately implements European Union legislation;

d) that it imperfectly achieves its policy objectives.[108]

The Committee has so far identified two instruments which, in its view, inappropriately implement EU legislation. It argued that the Horse Passports (England) Regulations 2004, which were being introduced to implement a Directive intended to protect the human food chain and the trade in pedigree horses, were drafted in such a way as to require 800,000 horses to be issued with passports, whereas the total number of horses which fell into the categories to be protected was more like 210,000.[109] The Minister subsequently wrote to the Committee to argue that the Regulations did not in fact go beyond the requirements of the relevant directives.[110] The Regulations are now in force.[111] The second instrument, identified in March 2005, is the Financial Services and Markets Act 2000 (Market Abuse) Regulations 2005,[112] made under the ECA 1972, which the Treasury noted in its explanatory memorandum went beyond the scope of the Directive on insider dealing and market manipulation which they were designed to implement, in part by retaining the scope of existing UK market abuse prohibitions which are wider than those required by the directive.[113]

106. As we have already noted, gold-plating is not something that happens at the stage where draft legal instruments are being considered, it is something that happens as part of the UK legislative process, when the relevant statutory instrument is being made or (less commonly) bill is being passed. It happens for a number of reasons. It might be that the Government chooses to use the implementation of the directive to introduce other changes which it believes are justified on their own merits, and on which it has consulted properly; it might be that the language of the directive requires a certain amount of interpretation or elaboration in order to transpose it into domestic law; or it might be that giving even minimal effect to the directive requires consequential policy changes to be made in other, related areas.

107. There may be very good reasons for introducing provisions beyond the minima that are required by an EU directive, or for implementing the directive in a different way from other Member States. Any move to restrict the scope of transposing legislation to the scope of the parent directive would be misguided. What is important is that Parliament is in full possession of the facts when it is making the law; that MPs and Peers know which bits of a bill or SI are necessary to meet the minimum required by an EU directive and which bits are being proposed by the Government on its own initiative—what we are doing because we must in order to meet our Community obligations and what we have chosen to do in addition. Parliament needs the best possible information on which to reach informal decisions.

108. Legislation which implements an EU directive should be accompanied by a transposition note (TN) when it is presented or laid before Parliament, except where the costs of producing one would, in the Government's view, significantly outweigh the benefits to the reader. In the case of Government Bills, the TN is annexed to the explanatory notes. The Government has just published new guidance on the production of transposition notes, which specifies that the TN should be easy to understand, should clearly set out how the main elements of the directive are transposed and should state explicitly where over-implementation is proposed. The new Guidance includes a model TN, from the Electronic Signatures Directive which is set out in a clear, tabular format. We have had little time to consider the new Guidance. We welcome the Government's new Transposition Guide but our initial examination suggests how limited the Parliamentary role is in this process compared, for example, with Nordic Member States.

109. We recommend that the relevant EU directive and any related publications—such as the ESC's Report, if there is one—should be 'tagged' on the Order Paper whenever the House is considering legislation which implements a directive. Copies of the relevant EU legal instrument should also be made available to Members of standing committees on bills and delegated legislation committees, where appropriate.

Co-operation between national parliaments

110. A new project to improve co-ordination between the scrutiny systems of the national parliaments has recently been launched: IPEX, the Inter-Parliamentary EU Information Exchange.[114] Its purpose is to provide a platform for the electronic exchange of EU-related information between parliaments in the Union. All national parliaments in EU member states (and accession and candidate states) may take part, with the degree of involvement decided by each parliament. The project, which is being led by the Swedish, Danish and Italian Parliaments and the European Centre for Parliamentary Research and Documentation (ECPRD) is now in its initial phase, the aim of which is to build up a common web site. The site is mainly composed of a collection of links leading to various parts of the web sites of each parliament. IPEX involves the use of a standard format for displaying information, including easy-to-follow symbols indicating where a document has reached in the scrutiny process of each country.

111. As part of the project, the House administration proposes to re-vamp the House's European website pages, alongside other priorities flowing from our Report on Connecting Parliament with the Public. House officials are represented on the IPEX Steering Group. We welcome the development of the IPEX project, and the House's involvement in it. We hope that it will prove to be a useful resource in the future for co-ordinating the scrutiny activities of national parliaments.

48 QQ 190 & 191. Back

49 Q 121. Back

50 Ev 126. Back

51 Ev 25. Back

52 For example, Chris Huhne MEP told us that 'the Commons is repeatedly surprised to discover that some piece of EU legislation that is about to be enacted through a statutory instrument has already been agreed by the Council of Ministers' (Ev 43), whereas the Scrutiny Reserve Resolution is in place precisely to prevent that happening. Back

53 Q 147. Back

54 Ev 25. Back

55 See Annex 2, paragraphs 7-11. Back

56 Core Tasks For Select Committees: Guidance From the Liaison Committee, agreed at its meeting on Thursday 20 June 2002, Task 1. Back

57 Ev 61. Back

58 Ev 9. Back

59 Standing Order No. 126. Back