5 Parliamentary scrutiny: serving
the UK interest
346. Our decision to hold this inquiry was prompted
in part by concern about the working of the current system of
UK parliamentary scrutiny of EU decision-making in the JHA field.
The system has undoubted strengths, but also some weakness arising
from the split of responsibilities between departmental select
committees in the House of Commons and committees with a specific
EU-related remit in both Houses.
347. The principal engine of scrutiny of EU matters
in the Commons is the European Scrutiny Committee (ESC). The core
function of the ESC is 'sifting' EU documents including draft
regulations, directives and decisions, Commission proposals, and
papers generated by the Council of Ministers. If the ESC decides
that a document is of legal or political significance, it reports
on it to the House, and may recommend that it be debated, either
in one of the three European Standing Committees, or (in rare
cases) on the floor of the House. The ESC sifts through about
1,000 documents a year. A resolution of the House (the 'scrutiny
reserve resolution', dating in its present form from 1998) constrains
Ministers from giving agreement at European level to legislative
proposals which the ESC has not cleared, or which the ESC has
recommended for debate but on which the House has not yet come
to a resolution.
348. The House of Lords European Union Committee,
operating through a series of sub-committees, also examines EU
documents. Its approach is intended to complement rather than
duplicate that of the Commons ESC. The Lords Committee selects
a much smaller number of documents for more intensive scrutiny,
and publishes reports on these.
349. Both the ESC and the Lords Committee conduct
admirably thorough review of EU documents and produce high-quality
reports. The sifting function of the ESC is valuable in identifying
those documents which stand most in need of further parliamentary
debate.
350. However, a significant weakness in the system
is that this process of scrutiny has over many years been carried
on almost in isolation from other aspects of Parliament's work,
in particular the work of scrutinising Government policy carried
out in the Commons by the 18 departmental select committees (DSCs).
As a consequence, it can be argued that DSCs have frequently failed
to engage with significant policy proposals at EU level within
their department's remit—or have done so at too late a stage
in the policy process when decisions have effectively already
been taken. We can cite as an example the frustration expressed
by our predecessor Committee in its report on the Extradition
Bill in 2002, when it recorded its concern about aspects of the
European Arrest Warrant proposal, but noted that the scope for
changes was limited because the UK Government had already committed
itself.[256] The Committee's
frustration could have been much mitigated if the Government had
pro-actively sought to consult Parliament, including the relevant
DSCs, at an early stage in the process. It is arguable that DSCs
have also not always been sufficiently active in maintaining links
with their counterparts in the European Parliament.
351. The ESC has the power to seek from DSCs, and
certain other specified committees, their opinions on any EU document
(and to impose a deadline for response to such requests); but
in practice this power is very rarely exercised.[257]
For instance, only one such request has been directed at the Home
Affairs Committee in the past five years.
352. A report published in April 2005 by the Select
Committee on Modernisation of the House presented a package of
proposals for improving Parliament's scrutiny of EU issues.[258]
These included:
- That a Joint Committee of both
Houses be appointed to take evidence from Commissioners and Government
Ministers, with MEPs having rights of attendance;
- That the number of European Standing Committees
be increased from three to five;
- That the Government give the ESC an earlier notice
of important proposals being considered by the Commission; and
- That in such cases the ESC should forward a copy
of the proposal to the relevant DSC for information as a matter
of routine.
353. Despite the fact that this package of proposals
was published nearly two years ago, the Government has not yet
enabled the House to have an opportunity of debating or deciding
on any of the proposals. We
regret the absence of opportunity for debate on the Modernisation
Committee's report, and urge the Government's business managers
to find time for a debate in the near future.
354. We consider
it is desirable for the House and its committees to take concrete
steps to bridge the current divide in EU scrutiny between the
document-focused work of ESC and the policy-based work of DSCs
(which too often ignores developments at European level). We note
that the ESC itself has recently begun to extend its activities
beyond its traditional (and of course very valuable) sifting role,
by carrying out some thematically-based inquiries. We welcome
this development.
355. We believe
this should be complemented by greater efforts to 'mainstream'
EU scrutiny by engaging DSCs more fully in the process of examining
key EU proposals. We therefore invite the European Scrutiny Committee
to consider making more frequent use of its existing power to
request opinions from DSCs on significant issues.
356. We recommend
that the Home Office should undertake to consult us directly when
major EU developments in the JHA field are at a formative stage.
We request the Home Office to supply us with a quarterly report
on progress with JHA developments—with an emphasis on proposals
on which the UK Government has not yet reached its final settled
position.
357. On the
specific issue of the future of Europol, we noted earlier in this
report that the Commission's December 2006 proposal contains no
mention of scrutiny of Europol by national parliaments. We repeat
here our recommendation that the UK Government should not give
its approval to any changes in the status of Europol unless provision
is made for a scrutiny role for national parliaments in conjunction
with the European Parliament.
358. We have
taken such steps as are open to us as an individual committee
to mainstream EU business within our programme.
This inquiry is a contribution to that process. In addition, we
have sought to establish contacts with the main European institutions
and with our fellow parliamentarians in other Member States. The
next four paragraphs repeat the summary of these activities we
set out in our most recent annual report.[259]
359. In November 2005, to mark the UK presidency
of the EU, we hosted a conference at Westminster of representatives
of equivalent committees in the EU's national parliaments, and
of the European Parliament. The theme of the conference was 'terrorism
and community relations', which had been the subject of the Committee's
report published six months earlier. For the benefit of delegates
to the conference, we commissioned a translation of the report
into French. Keynote speeches were given by the European Justice
Commissioner (Franco Frattini), the then Home Secretary (Rt Hon
Charles Clarke MP) and the Lord Chancellor (Lord Falconer).
360. In addition to the visit to Brussels in November
2006 by the whole Committee (see paragraph 363 below), the Chairman
and other Members have several times attended in a representative
capacity meetings in Brussels of our 'sister committee' of the
European Parliament: the Committee on Civil Liberties, Justice
and Home Affairs (usually known for short as 'LIBE'). In October
2006 the Chairman gave a short presentation to LIBE on migration
policy. In addition, in May 2006 the Chairman attended a "Parliamentary
Meeting on the Future of Europe" in Brussels, organised jointly
by the European Parliament and the Austrian Parliament, acting
as rapporteur of a working group on JHA issues.
361. We have also held (in December 2006) a joint
meeting with the European Scrutiny Committee to take evidence
from Ministers on the implications of Bulgaria and Romania's accession
to the EU; and received a joint briefing on EU issues in Brussels
from the office of the UK Permanent Representative for ourselves
and Sub-Committee F (Home Affairs) of the House of Lords European
Union Committee.
362. We have collaborated with the ESC and Lords
Sub-Committee F in setting up regular meetings of the Chairmen
and Clerks of the three committees to co-ordinate our scrutiny
of EU JHA issues.
363. In November 2006 we spent two days in Brussels
meeting a range of representatives of the Commission and others.
We sat in on a meeting of the LIBE Committee. We also held two
oral evidence sessions, one with representatives of the European
Commission and one with British MEPs.
364. At the session with MEPs we explored how effective
they consider themselves to be in scrutinising EU initiatives
on behalf of the UK, rather than from the perspective of EU political
groupings. Timothy Kirkhope MEP said that MEPs were aware of the
perception that they were "remote and removed" over
in Brussels rather than in the UK. Jean Lambert MEP agreed with
this analysis:
Quite often at the European Parliament level a lot
of people do not know that there is a job being done despite the
best efforts of many of us to get that information out there.[260]
365. Mr Kirkhope said that MEPs often work closely
with UK political parties on issues which are "patently in
the interests of Britain" but said that MEPs "work in
an extra dimension to national parliaments" and therefore
had in mind both UK interests and the European dimension. Jean
Lambert MEP emphasised that that the role of British Members of
the European Parliament was not always to consider the British
interest, and told us that this makes it all the more important
for national parliaments to get involved early:
Our job is to look at how this works not just for
the UK but also for elsewhere and there is a balance sometimes
to be found in that. Sometimes we will consider that we do want
to defend a British interest. At other times maybe there are other
things that we think outweigh that the involvement of our national
parliaments at that point, further upstream, is really important,
not when we have made the decision and you are then implementing
it.[261]
366. The MEPs from whom we took evidence were agreed
that the effectiveness of the UK Parliament, and other national
parliaments, in scrutinising EU affairs could be improved. Graham
Watson MEP told us:
It is clear that allowing for unanimity voting in
the Council in theory allows national parliaments to commit their
government to a certain negotiating mandate, which can ultimately
be defended via the use of their veto powers. In reality most
national parliaments do not possess the ability to scrutinise
the actions of their governments prior to the adoption of acts
in Council.[262]
367. Timothy Kirkhope MEP said "I think the
big problem we have … is that there is not enough parliamentary
scrutiny per se in national terms."[263]
Michael Cashman MEP told us "I do think that there is a greater
role for national parliaments to engage in the scrutiny process
at an earlier opportunity."[264]
368. We agree
with these comments by our colleagues from the European Parliament.
Our exchange with MEPs during the course of this inquiry was very
valuable. Whilst it might not be necessary to institute formal
joint scrutiny with MEPs, we will attempt to maintain a high level
of informal dialogue with British MEPs on key issues, using the
services of the UK National Parliament Office in Brussels.
369. We will
do our best to increase the quality and quantity of our scrutiny
of the European dimension to Home Office decision-making. In particular,
we propose to discuss with colleagues on the ESC, Lords Sub-Committee
F and the LIBE Committee how we can build on recent encouraging
contacts so as to create mechanisms for regular contact and liaison.
256 Home Affairs Committee, First Report of Session
2002-03, Extradition Bill (HC 138), summary (second para),
and paras 28-31 Back
257
The power is conferred by House of Commons Standing Order No.
143 (11). Back
258
Select Committee on Modernisation of the House of Commons, Second
Report of Session 2004-05, Scrutiny of European Business
(HC 465-I) Back
259
Home Affairs Committee, First Report of Session 2006-07, Work
of the Committee in 2005-06 (HC 296), published 20 February
2007, paras 33 and 34 Back
260
Q 109 Back
261
Q 109 Back
262
Ev 172 Back
263
Q 108 Back
264
Ibid. Back
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