Select Committee on Home Affairs Third Report

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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