House of Commons - The Work of the Committee in 2008

The Work of the Committee in 2008 - European Scrutiny Committee Contents

1 Introduction

1. This report covers our work from January 2008 to November 2008. Previous reports have been based on the calendar year, but this and subsequent annual reports on the work of the Committee will be based on the parliamentary session. As the 2007 report covered the calendar year until 31 December 2007,[1] this report covers the period from 1 January to 26 November 2008.

2. Our core task was to examine on behalf of the House the EU documents deposited in Parliament, to assess their legal and political importance and to determine which should be debated.[2] During the period covered by this report, 886 documents were examined,[3] 398 were deemed of legal and/or political importance and 50 were recommended for debate. 24 debates took place in European [Standing] Committees (sometimes covering several documents) and two on the Floor of the House. We used our power to seek an opinion on a document from another select committee on two occasions.

3. In addition to the forty weekly reports to the House on the scrutiny of documents, we carried out a number of inquiries and produced individual reports on Conclusions of the European Council and the Council of Ministers,[4] (an inquiry which began in 2007), and Subsidiarity, National Parliaments and the Lisbon Treaty. [5]

4. As in previous years, we continued to take oral evidence sessions from Ministers, outside organisations and individuals. Our oral evidence sessions are set out in Table 1.

Table 1 Oral evidence taken by the European Scrutiny Committee in 2008

Category Date Subject Main witness

Individual documents/EU policy areas 16 January 2008 Draft Council Decision establishing the European Police Office (EUROPOL) Mr Tony McNulty MP

EU policy areas 14 May 2008 Subsidiarity, National Parliaments and the Lisbon Treaty Professor Dashwood

Individual documents 4 June 2008 Recent scrutiny performance of BERR Baroness Vadera

EU policy areas 18 June 2008 Subsidiarity, National Parliaments and the Lisbon Treaty Professor Hix

Individual documents 23 June 2008 Subsidiarity, National Parliaments and the Lisbon Treaty Commissioner Margot Wallström

Individual documents 28 June 2008 Subsidiarity, National Parliaments and the Lisbon Treaty Mr Jim Murphy MP

5. We made a pre-Presidency visit to the Czech Republic, and visited the EU Institutions and UKRep in Brussels. A pre-Presidency visit to Paris was unfortunately cancelled due to business in the House and difficulties over whipping arrangements. The Chairman made the visit in a representative capacity at a later date. A list of visits is set out in Table 2.[6] The Committee attended a "Tripartite" meeting with Members of the House of Lords EU Committee and UK MEPs in Brussels. The Chairman attended a meeting of the EC-UK Forum comprising European Scrutiny and European Union Committees from Westminster, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly.

Table 2: Visits by the European Scrutiny Committee in 2008

Date Location Purpose of visit

11- 14 January 2008 Ljublijana International Conference on the 'The Role of National Parliaments in the EU Decision-Making Processes'

11-12 February 2008 Brussels Joint parliamentary meeting on the Lisbon Strategy

17-18 February 2008 Ljubljana COSAC Chairpersons meeting

6-8 May 2008 Bled COSAC XXXIX

26 June 2008 Brussels Joint parliamentary meeting on the European Union and Development Cooperation

6-7 July 2008 Paris COSAC Chairpersons Meeting

7-8 July 2008 Paris Pre-Presidency visit to France[7]

13-14 October 2008 Brussels Visit to EU Institutions

2-4 November 2008 Paris COSAC XL

18-20 November 2008 Prague Pre-Presidency visit to the Czech Republic

Reform of the Scrutiny System

6. The Modernisation Committee reported in 2005 on the scrutiny of European matters in the House of Commons. In our last two reports on the work of the Committee we expressed concern at the lack of progress on reform.

7. During 2007, meetings took place between the Chairman and the Leader of the House and her predecessor. By the beginning of the 2007-08 parliamentary session it was clear that some progress was at last being made.

8. On 7 February 2008, the House agreed Government amendments to the Standing Orders which were designed to reform the scrutiny process. The amendments were temporary and would run till the end of 2008. The reforms were modest and were concerned with the functioning of the European Standing Committees (henceforth to be known as European Committees).

CHANGES TO THE EUROPEAN SCRUTINY COMMITTEE

9. In keeping with the House's practice for select committees, the European Scrutiny Committee deliberated in private but took evidence from witnesses in public. This practice was changed by the Opposition amendment to Standing Order No. 143, which was agreed by the House on 7 February 2008. It provided that the Committee:

"shall sit in public unless it determines otherwise in relation to a particular meeting or part thereof."

10. On 20 February, the Committee discussed how it might adapt its working methods in light of the change to its Standing Order. It agreed that it would meet in public for the sifting of documents and the consideration of related draft reports and pre-and post Council ministerial statements. It also agreed that the discussions with its advisers would take place only during the private meetings of the Committee.

11. These new working methods were put into immediate effect. Committee meetings were split into two parts; first, a briefing in private with the Committee's officials, and then a session in public for the consideration of the Committee's draft report.

12. In October, the Committee reviewed its procedures. Following that review, it agreed the following resolution:

"That the Committee believes that, in conformity with the practice of the House in respect of select committees, its deliberations should take place in private, and therefore requests the Leader of the House to ask the House not to renew the provisions contained in the temporary amendment to the Committee's Standing Order, Standing Order No.143 (10)."

The House did not renew the temporary Standing Order change and from 1 January 2009 the Committee reverted to deliberating in private.

CHANGES TO EUROPEAN COMMITTEES

13. In 2005 European Standing Committees ceased to have permanent memberships. Instead, a nominated Committee was appointed for each document referred for debate. The amendments to Standing Order No. 119 on 7 February 2008 continued this arrangement, but with some modification of the committees' composition and changes to the format of their meetings.

14. The House agreed that in nominating the Members of a European Committee, the Committee of Selection would, where practicable, nominate at least two members of the European Scrutiny Committee and at least two members of any relevant departmental select committee (DSC). The House also agreed that a member of the European Scrutiny Committee would open the sitting with a brief statement explaining why the scrutiny committee had referred the document (or documents) for debate.

15. These changes have been for the better. The short introductory statement provides a useful connection between the work of the European Scrutiny Committee and that of the European Committees. The nomination to European Committees of members of the European Scrutiny Committee and the relevant departmental select committee has increased the pool of expert knowledge. Finally, the move to a more select committee style of questioning in the European Committees has enabled members to pursue detailed lines of questioning.

16. On 12 November 2008, the House made permanent the changes to SO. No. 119 (European Committees). We remain disappointed that the Government did not give European Committees permanent memberships. In our opinion, a permanent membership would enable members to acquire knowledge over a range of issues which would assist them in their scrutiny role.

17. In addition, we reiterate the concerns, addressed in last year's report on the Work of the Committee,[8] that the failure to nominate European Committees with permanent memberships has had an detrimental impact on lobbyists and interest groups. These groups play an essential part in parliamentary scrutiny but, in the absence of a permanent membership of European Committees, outside bodies and campaigning organisations find it difficult to know how best to bring their concerns to the attention of the House.

Scrutiny Issues

ANNUAL POLICY STRATEGY (APS)

18. In 2007, the Committee conducted a substantial inquiry into the Commission's Annual Policy Strategy (APS) 2008.[9] We concluded that because the document was at a high level of generality the APS was unlikely to generate the sort of debate which the Commission says it would like to see. The document was useful in so far as it alerted members to the issues on which the Commission was developing proposals, but not in performing the document-based scrutiny function given to us by the House.

19. Our consideration of the APS 2009 served to reinforce our view that the APS is a document for debate rather than scrutiny. We therefore welcome the Government's intention to hold an annual debate on the APS in Westminster Hall, the first of which was held on 12 June. As the then Minister for Europe (Mr Jim Murphy) stated in his opening remarks, the annual debate will be a:

"… means of helping the House to achieve better scrutiny of the annual European Commission's work plan…I hope that this, the first of what we intend to be annual debates in Westminster Hall on the Commission's annual policy strategy and legislative work programme, will be an important stop in how Westminster scrutinises Brussels."[10]

CONCLUSIONS OF THE EUROPEAN COUNCIL AND THE COUNCIL OF MINISTERS

20. The Conclusions of the European Council have a powerful influence on the policies of the EU and its priorities. They are frequently cited by the Commission as the authority for a proposal. Yet the draft of the Conclusions is not deposited for scrutiny by Parliament. Nor are the draft Conclusions of the Council of Ministers, even though the Conclusions are politically binding on Member States.

21. We decided, therefore, to conduct an inquiry into the arrangements for the preparation, consideration, and approval of the Conclusions of both institutions. We published our findings and recommendations in February 2008.[11]

22. As we noted in our Council Conclusions report, some national parliaments are provided with the draft Conclusions by their governments.[12] In Denmark, draft Conclusions are routinely sent to the European Affairs Committee of the Folketing in advance of that Committee's regular pre-Council meetings with the Prime Minister or with Danish Ministers. Documents thus provided are available to the public via the parliament's website.

23. We called on the Government to deposit in Parliament the draft Conclusions of the European Council and recommended that Standing Order No. 143 be amended accordingly. We also recommended that Ministers should either deposit for scrutiny the draft Conclusions of the Council of Ministers or, if time is short, write to us enclosing the draft and explaining the Government's position on it.

24. The Foreign Secretary, the Rt Hon David Miliband, wrote to the Committee on 17 May 2008 in response to our recommendations. He said that:

"With regard to the deposit of draft European Council Conclusions for scrutiny, I regret that the Government is not at liberty to submit these documents to Parliament. Under Council rules agreed by all 27 Member States, these are 'internal documents with a limited distributions' (LIMITÉ) and we are obliged to respect these rules (actions by others do not excuse this obligation). Furthermore, given that the European Council is not a legislative body and does not take legally-binding decisions, such scrutiny would not be appropriate. European Council Conclusions are working, evolving documents with no formal legal basis - they usually give rise to legislative proposal that are themselves subject to Parliamentary scrutiny. Finally, on a practical level, the draft Conclusions are often not finalised until just before the European Council meeting itself, so there are procedural barriers too."

25. As to our recommendation about the draft Conclusions of the Council of Ministers, the Foreign Secretary said that he believes that the Government already goes to great lengths to ensure that Parliament is fully informed of deliberations at the Council of Ministers. He supported government departments being as open as possible regarding the context of the Conclusions and the general position the UK would be taking in the Council, although he recognised that this fell short of actually making the text available.

26. We published a follow-up report on 12 June 2008.[13] We said that it appeared to us that the Foreign Secretary's letter repeated the Government views which had been put to us during the inquiry and which we had considered before we made our recommendations. We saw no reason to depart from what we had said in our Tenth Report and we called on the Government to pursue our recommendation in the interests of greater openness and accountability.

27. Two instances that illustrate our position concern the way revisions to existing Common Positions dealing with sanctions against named individuals connected with the regimes in Belarus and Uzbekistan were handled. Rather than being informed in advance of the 13 October General Affairs and External Relations Council (GAERC) about what the Foreign Secretary describes as "the context of the Conclusions and the general position the UK would be taking in the Council", we were presented, not with a proposal to be scrutinised ahead of the Council, but with a fait accompli — a decision about those changes that had already been announced in the 13 October GAERC Conclusions and widely publicised, which was then embodied in changes to the Common Position which we were asked to clear ahead of the November GAERC in order to give effect to that decision. We shall be pursuing this matter with the Minister for Europe in the New Year.

SUBSIDIARITY

28. We decided to conduct an inquiry into the provisions of the Lisbon Treaty which are intended to "encourage greater involvement of national parliaments in the activities of the European Union and to enhance their ability to express their views on draft legislative acts … as well as on other matters which may be of particular interest to them".[14] We devoted most attention to the provisions on the role of national parliaments in considering the compatibility of proposals for EU legislation with the principle of subsidiarity.[15] This is because, irrespective of the Lisbon Treaty, the principle will remain a part of EU and Community law.

29. Our report, Subsidiarity, National Parliaments and the Lisbon Treaty was published on 21 October. Our main conclusions were that:

the substance of the subsidiarity Article in the Lisbon Treaty is the same in its effect as the existing Article in the EC Treaty;
examination of EU proposals for compliance with the principle of subsidiarity is a long-established and fundamental part of the scrutiny process in the House of Commons;
whether a proposal does or does not comply is a matter of political judgement and is unlikely to be capable of an entirely objective assessment.;
where we have concerns about a proposal's compatibility with the principle, we draw them to the attention of the Government and, where it shares our assessment, Ministers take up the concerns with the Commission and other Member States;
we doubted, therefore, whether the Lisbon Treaty's provisions on subsidiarity would make much practical difference to the influence presently enjoyed by the UK Parliament; and
we also noted that, under the Lisbon Treaty's yellow and orange card procedures, the legislative decision on subsidiarity would continue to rest with the EU Institutions.[16]

The scrutiny process

DEPARTMENTAL PERFORMANCE

30. The scrutiny reserve resolution is fundamental to the House's scrutiny process. It imposes a general discipline on Ministers and departments to provide Explanatory Memoranda on documents submitted for scrutiny, to respond to the Committee's requests for information and to arrange debates in advance of consideration of EU proposals by the Council. The Committee monitors the operation of the resolution and calls Ministers to give oral evidence if it believes they have overridden the resolution without good cause.

31. The Government provides us with six-monthly breakdowns of departmental overrides of documents which are still under scrutiny. The most recent covers the period January to June 2008 and contained four overrides. Over the last two years there have been significant improvements in departments' performance.

32. We welcome the Government's commitment to reducing the number of overrides. The figures for July-December are not yet available and, now the Government has accepted the Committee's argument that general approaches fall within the scrutiny reserve, there is potentially a greater risk for the Government in breaching scrutiny.

33. Where Departments breached the resolution without good cause, we held Ministers to account. In 2007, the Home Office repeatedly breached the spirit of the scrutiny reserve resolution because they agreed to "general approaches" to two documents while they were under scrutiny. We took oral evidence from the Parliamentary Under-Secretary (Meg Hillier) in December 2007 and from the Minister of State (Mr Tony McNulty) in January 2008. Relations between the Home Office and the Committee have greatly improved since these evidence sessions and we are grateful to Home Office Ministers and officials for their help in strengthening the scrutiny process. We also believe that our reports on these cases and a previous one were influential in persuading the Government that, in future and as a general rule, Ministers should not take part in the agreement of general approaches if the document concerned remains under scrutiny.

34. The Committee met during the summer recess in order to consider documents in advance of Council meetings and, in particular, the meeting of the GAERC on 15-16 September. The Committee's September meeting enabled measures to be agreed by Ministers without incurring overrides and will have helped ensure that the scrutiny override figures for the period July-December 2008 show a further reduction when compared to previous years.

35. In July we held an oral evidence session with Baroness Vadera, Parliamentary Under-Secretary for Business and Competitiveness at the Department for Business, Enterprise and Regulatory Reform (BERR), to discuss her department's failure to reply to requests from the Committee for further information. She responded positively to our concerns and, as a result of the evidence session, the Department has reviewed its internal scrutiny process and put in place a training programme for its officials aimed at improving BERR's scrutiny performance. The Committee's clerk advisers participated in BERR's training programme.

36. Problems remain within certain departments, however. For instance, the Fisheries Directorate in the Department for Environment, Food and Rural Affairs does not have a good track record in responding to requests for information made by the Committee; delays of up to three and a half months have occurred. We will be pursuing these scrutiny oversights when we take oral evidence from the Minister.

Co-operation with Departmental Select Committees

37. Departmental Select Committees set their own agendas. Standing Order No. 143, however, gives the European Scrutiny Committee a formal power to seek an Opinion from a DSC. For example, we asked the Innovation, Universities, Science and Skills Committee for its opinion on a Commission Communication which advocated joint programming of national research and development programmes.[17]

38. We also draw our weekly report chapters to the attention of the relevant DSC when the subject matter is relevant to that Committee's work. For example, recognising the work which the International Development Committee had carried out on trade and the Commission's Economic Partnership Agreements (EPAs), we have drawn our report chapters on EPAs with individual countries to the attention of that committee. Similarly we have drawn the attention of the Treasury Committee, in relation to its inquiry into the banking crisis, to our report chapter on proposals to amend the Capital Requirements Directive.[18]

39. In addition, we sent the Annual Policy Strategy 2009 to each DSC so they have the opportunity, if they wish, to communicate to the Commission their views on items relevant to their work. The APS is a means to alert DSCs to the areas in which the Commission is likely to make proposals in its legislative and work programme for the next year.

Parliamentary networking

40. COSAC is the body which brings together members of the European affairs committees of national parliaments. It meets twice a year in plenary and also holds biannual meetings of COSAC chairmen. The principal business on each agenda is derived from COSAC's role as a body for exchanging information, in particular on the practical aspects of parliamentary scrutiny.

41. Examining whether EU proposals comply with the principle of subsidiarity has been part of our own scrutiny process ever since the principle was introduced in 1993. During 2008, national parliaments in COSAC agreed to conduct checks of two legislative proposals for compliance with the principles for subsidiarity and proportionality. These checks have been carried out on a voluntary basis under the auspices of COSAC and the provisions of the existing Treaties. If it is ratified, the Lisbon Treaty will give national parliaments a formal role in examining legislative proposals for their compliance with the principle of subsidiarity, and in registering objections if appropriate. COSAC's own checks will then cease and national parliaments will submit their reasoned opinions on subsidiarity to the Commission in accordance with the provisions of Article 6 of Protocol 2 to the Lisbon Treaty. So far this year one subsidiarity check has been run, that on the Draft Council Directive implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation.[19] The Committee concluded that the proposal, provided it respects the limits of Community competence, appeared to be compatible with the principle of subsidiarity.

42. The XXXIX COSAC in Slovenia established a mandate for a working group, comprising the national parliaments' representatives to the EU, to look at proposals for better cooperation between national parliaments in the application of Protocol 2 on the principle of subsidiarity, should the Lisbon Treaty come into force. The House of Commons was represented by its National Parliament Office in Brussels. The working group set out ideas put forward by national parliaments for consideration at the Paris COSAC meeting. It stressed, however, that all parliaments were sovereign in determining not only their own internal procedures but also the degree to which they are willing to commit themselves to inter-parliamentary coordination in the implementation of the Protocol.

43. The Chairman and Committee members have played an active part in COSAC debates and in the formulation of COSAC Conclusions and the Contribution, which is addressed to all EU Institutions. At the Paris COSAC meeting the European Scrutiny Committee and the Lords European Union Committee were instrumental in ensuring that COSAC's Conclusions did not call for elaborate arrangements to deal with reasoned opinions on subsidiarity, but rather sought to exchange information on a regular basis through the existing national parliament staff network in Brussels.

NATIONAL PARLIAMENT OFFICE

44. The National Parliament Office (NPO) in Brussels monitors the activities of the EU Institutions which are relevant to the House's scrutiny of EU business. Its staff attend committee meetings and plenary sessions of European Parliament, and monitor key events relating to EU matters (such as weekly Commission meetings and the Council of Ministers) and regularly meet staff of the Institutions. They report on relevant outcomes of such meetings to the European Scrutiny Committee and to departmental select committees. Over 35 briefing papers have been provided for the European Scrutiny Committee during 2008. The NPO also produces a weekly information sheet detailing European business in the House of Commons for MEPs and interested parties in Brussels (the Commons European Business).

45. The NPO acts as a resource to provide information and intelligence on emerging EU issues in Brussels on demand to Members and staff of the European Scrutiny Committee and other select committees. NPO staff have responded to requests for information from committees including: Public Administration; EFRA; Foreign Affairs; Home Affairs; Treasury and Culture, Media and Sport Committees. The NPO has also provided support for Members visiting Brussels and for joint parliamentary or joint committee meetings, organised by the European Parliament.

46. The Interparliamentary EU Information Exchange (IPEX) website at www.ipex.eu has now been functioning for two years. It contains details of all EU documents issued by the Commission and of the state of Parliamentary scrutiny in each EU member state. This allows national parliaments' European affairs committees to compare their reports with those being made by their counterparts throughout the EU. Users may also request to be notified of all new material, either generally or within a particular subject area.

JOINT PARLIAMENTARY MEETING

47. The Committee continues to play an active part in joint parliamentary meetings (JPMs) and joint committee meetings (JCMs) convened by the parliament of the Presidency country and the European Parliament. In the last year the Chairman and Members of the Committee have attended a JPM on the Lisbon strategy and a JCM on the European Union and development cooperation, in addition to an International Conference in Slovenia on the 'Role of National Parliaments in the EU Decision-Making Processes'. The House of Commons has also been represented at a number of other such meetings by representatives from departmental select committees. Members have attended meetings on the western Balkans, agriculture, budgets and a forum on judicial cooperation.

TRIPARTITE MEETINGS

48. We continue to hold regular meetings with the House of Lords European Union Committee and with UK MEPs. The subjects discussed at these meetings have included (in March 2008) the western Balkans, the energy package and the Lisbon Treaty; (in July 2008) ratification of the Lisbon Treaty, the Commission's review of the Budget and high food prices; and (in November 2008) the Lisbon Treaty and European Parliament elections 2009, EU-Russia relations, and EU action in the face of the 'credit crunch.' The meetings continue to provide a valuable forum for exchanging information and views as well as enabling MEPs to provide the Commons and Lords committees with early notice of issues.

DEVOLVED ADMINISTRATIONS

49. The Chairman attends the meetings of the UK European Committee Chairs which include representatives of the House of Commons, House of Lords, National Assembly for Wales, Scottish Parliament and the Northern Ireland Assembly. The group met in Edinburgh in June and discussed the impact of the Lisbon Treaty, and the prioritisation of EU issues. The meeting also discussed the importance of the Assemblies and the Scottish Parliament alerting the Lords and Commons Committees to proposals which concern them, taking account of the tight timetable to which the Committees work.

Pre- and post Council scrutiny

50. The Government issues a written Ministerial Statement shortly before each Council meeting confirming the agenda, the reason why each of the items is on the agenda, and the Government's general position on them. There is a further written Ministerial Statement on the outcome of the Council meetings. Following the concern we expressed last year, we are pleased to see a marked improvement in the quality of pre-and post Council statements and the provision of annotated agendas, but regret that there is still an uneven pattern between departments. The Foreign and Commonwealth Office still think it inappropriate to state the positions adopted in the Council by other Member States. Other departments have no such qualms and we suggest that the FCO follows their example.