House of Commons - Reforming the European Scrutiny System in the House of Commons

Reforming the European Scrutiny System in the House of Commons - European Scrutiny Committee Contents

1 Introduction

The importance of European scrutiny and the reasons for this Inquiry

1. European Union (EU) legislation and EU policy-making has a profound impact on the United Kingdom, and lies at the heart of much of United Kingdom legislation by virtue of the European Communities Act 1972. Since 2002, when our predecessors published their most recent report on European Scrutiny, there have been the European Union (Amendment) Act 2008, the entry into force of the Lisbon Treaty in 2009, and other momentous events in Europe, inside and outside the eurozone, which have had a profound impact on the United Kingdom and on Europe as a whole.

2. These events have been accompanied by the European Commission's proposals for greater integration, such as A blueprint for a deep and genuine economic and monetary union,[1] which commented:

Interparliamentary cooperation as such does not, however, ensure democratic legitimacy for EU decisions. That requires a parliamentary assembly representatively composed in which votes can be taken. The European Parliament, and only it, is that assembly for the EU and hence for the euro.[2]

3. We recommended this Communication for debate on the floor of the House in January 2013,[3] alongside the President of the European Council's Report Towards a genuine Economic and Monetary Union. The debate did not happen until 18 June, and only after strong representations by the Committee, including a letter to the Prime Minister. At the end of the debate the House agreed a resolution which concluded:

that [this House notes that] recent European Treaties and protocols have emphasised the role of national parliaments throughout the European Union as the foundation of democratic legitimacy and accountability; and believes that this role is the pivot upon which democracy in the United Kingdom must be based on behalf of the voters in every constituency.

4. The Prime Minister's speech at the Bloomberg offices in London on 23 January 2013, which was followed by proposals by the Foreign Secretary[4] and the Minister for Europe[5] in their speeches in Germany in May 2013, set out the Government's thinking on democratic accountability: "It is national parliaments, which are, and will remain, the true source of real democratic legitimacy and accountability in the EU." It is to be recalled that in the course of his opinion on Factortame (No. 2), Lord Bridge said that "whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary."[6]

5. The increased interest in democratic legitimacy, scrutiny and accountability has been a great focus of COSAC,[7] the Conference of the Chairs of the National Parliamentary European Committees throughout the 28 Member States. At the most recent plenary meeting of COSAC, held in Vilnius in October 2013, the United Kingdom delegation (on the initiative of the Committee Chairman) proposed amendments to the Conclusions to include a reference to "the fundamental role of national Parliaments" in a call for a full debate on the strengthening of the democratic legitimacy of the Union, which was agreed to without a vote.[8] Recent COSAC debates have shown evidence of concern among national parliaments about their relationship with the EU, a corresponding interest in developing methods of more effective scrutiny and have included frank exchanges about the current limited role of national parliaments under the Treaties and options for Treaty change.[9]

6. Against this background, and the possibility of an in/out referendum on EU membership within the next four years, it is timely that full attention should be given both inside Parliament and outside, and in the media, to the role of the European Scrutiny Committee and wider scrutiny system in the House of Commons, to reflect on the process and to propose improvements in the interests of Parliament itself, the electors who are affected by European legislation, issues and policies, and in the national interest.

DISCUSSIONS ON SCRUTINY SINCE 2005

7. Most recently the Modernisation Committee reported on the scrutiny system in March 2005,[10] but it was not until over two years later, on 25 October 2007, that the then Leader of the House accepted a proposal from the European Scrutiny Committee to present specific proposals to improve the scrutiny process, stating that "We will seek to sort this matter out within three months of today".[11] The scale of the proposals tabled for consideration on the floor of the House three and a half months later, on 7 February 2008, was relatively modest. They included renaming European Standing Committees as European Committees, making ad hoc membership of those Committees a permanent feature, specifying that two members of the European Scrutiny Committee and the most relevant departmental select committee should be appointed to them "where practicable" and making provision for introductory statements by a member of the Scrutiny Committee. The most radical change was the result of an amendment tabled by the then Shadow Leader of the House (Mrs Theresa May MP) to provide that "the [European Scrutiny] Committee shall sit in public unless it determines otherwise" to consider documents.[12] That decision was reversed in the House on 12 November 2008 by 201 votes to 195 (see paragraph 269 for our consideration of the merits of public deliberative sittings).

8. This was a period when there was no consensus for radical change of the House's scrutiny system. Perhaps this experience is one of the reasons why the following years have seen no significant proposals for change come to the floor of the House, despite first the advent of the Lisbon Treaty and then the economic crisis. The provisions introduced by the Treaty (Reasoned Opinions on Subsidiarity and extension of the United Kingdom's opt-in to EU policing and criminal law measures) have therefore been, in effect, bolted on to the existing document-based system, and our efforts to agree the wording of new Standing Orders and a scrutiny reserve with the Government stalled.[13] The current definition of 'European Union document' in Standing Order No. 143 and the scrutiny reserve resolution both date from November 1998 (well before the Lisbon Treaty took effect)—clearly a highly undesirable state of affairs.[14]

DISCUSSIONS SINCE THE 2010 GENERAL ELECTION

9. In January 2011 the Minister for Europe issued a Written Ministerial Statement on EU Business: Enhancing Parliamentary Scrutiny. This set out measures relating to scrutiny of EU justice and home affairs measures and concluded:

The Government are committed to strengthening its engagement with Parliament on all European business as part of our wider work to reduce the democratic deficit over EU matters. It will review the arrangements on EU issues in consultation with Parliament, and make a further announcement in due course.[15]

10. A letter from the Minister to the Chairman of the Liaison Committee in September that year referred back to this Statement, stating that:

I would be open to explore with Parliament whether any changes need to be made to scrutiny, given the changing nature of the EU.

I am fully aware that Government does not own this process, but I am nevertheless keen—given the importance of scrutiny in transparency and development of Government policy—to work with Parliament to explore possible changes in the way it scrutinises Government on EU day-to-day work and not just Treaty change.

The Government has no fixed ideas at present but the questions we are asking ourselves include: is the level of visibility of EU business in Parliament sufficient? How can we involve more parliamentarians on issues with an EU dimension? Are Parliament's views being made clear at the most appropriate time for the EU to hear them and for Ministers to be able to act on them?

If Parliament wishes to consider this further, I would be happy to reflect with you on these questions in the autumn.[16]

11. Following further exchanges of letters with the Liaison Committee, in December 2011 a letter from the Minister for Europe to the Chair of the Procedure Committee set out that the "Government was considering the response to [the Procedure Committee's Report on Reasoned Opinions on Subsidiarity] along with the wider review of European scrutiny". The fact that this review was still "on-going" in July 2012 was given as the reason for the Government taking a year to respond to the Procedure Committee's Report.[17]

12. Given the fundamental questions we raise at the beginning of the Report, this stagnation was one of the reasons we launched our inquiry in June 2012. "It is Parliament that owns the scrutiny process", as the Minister for Europe stressed when he gave oral evidence.[18] In fact, when we took oral evidence from him for a second time in connection with the inquiry, he told us:

We have very much been waiting for this Committee's Report to focus minds and test the water in Parliament to see whether there is an appetite going beyond those who already take a keen interest in EU matters for the types of reforms we are now discussing.[19]

13. Our objectives for the inquiry, and this Report, are to take a considered view on whether the system as a whole — the European Scrutiny Committee, Departmental Select Committees, European Committees, and debates on the floor of the House—works in a coherent way and matches the essential democratic expectations of Members and the public. We also take a wider view and comment on what the future purpose of scrutiny should be, given the actual and prospective changes in the EU following the financial crisis.

14. Under Standing Orders our Committee conducts political and legal analysis not just of individual documents but also wider and more profound related issues, such as the 2014 block opt-out of pre-Lisbon criminal law and policing measures, the Treaty on Stability, Co-ordination and Governance and Parliamentary Sovereignty.[20] As we note later, we believe it is time not just to enhance this role, but also to develop a deeper and wider engagement with Departmental Select Committees.

15. We held thirteen oral evidence sessions, and received written evidence from a range of witnesses. Members and other stakeholders were given the opportunity to take part in an online survey we conducted about the scrutiny process. While the response rate to the survey of Members was disappointingly low[21]— which is perhaps indicative of the lack of interest in the details of EU policy-making within the House— some of the responses were nonetheless revealing.

16. Part of the inquiry was a visit to Brussels and The Hague where we spoke to, among others, the President of the European Council Herman Van Rompuy, Vice-President of the Commission Olli Rehn and the European Affairs Committee of the Dutch Parliament's Tweede Kamer (lower chamber). We also met the then UK Permanent Representative to the EU, Sir Jon Cunliffe, for an informal meeting in Brussels, having already held an oral evidence session with him.

17. During the inquiry we also had the opportunity to discuss these issues at the regular COSAC meetings and with our colleagues in the House of Lords and UK MEPs. We held a useful informal meeting via video-conference with members of the European and External Relations Committee of the Scottish Parliament and EU Reporters from its subject committees.

18. On the issue of "visibility", we regarded the role of the media, and the provision of information to the public, as an important part of the inquiry; we therefore took evidence from a number of media organisations, including the BBC (see Chapter 8).

19. While our duties are set by the House in Standing Orders, comparisons with other Member States provide important context. We therefore produced (with colleagues across national parliaments of the EU, the National Parliament Representatives in Brussels and the House of Commons Library) a comparisons Table, which is annexed to this Report.

20. We are very grateful to all those who contributed to the inquiry.

How the House of Commons scrutiny process works

21. The scrutiny process in the House of Commons begins with our work as the European Scrutiny Committee, sifting deposited documents[22] for their legal and political importance. We consider proposals quickly—often less than a week after receiving the Government's Explanatory Memorandum (EM). We report substantively on around half of the documents,[23] producing a Report which summarises the proposal, the Government's views and our conclusions. We may clear a document from scrutiny, ask for further information, refer it for debate, or possibly seek an Opinion under Standing Order No. 143(11) from a Departmental Select Committee. But this is not all we do: we regard our role as sifting plus; the "plus" coming from Standing Order No. 143(1)(c) which states that we are "to consider any issue arising upon any such document or group of documents, or related matters"; we therefore on occasion take oral evidence on the principles behind a particular proposal, or more generic issues, which may lead to a separate and more detailed Report.

22. There are also three ad hoc European Committees, which meet to debate those documents which we have referred. The most important documents may be debated on the floor of the House, but as we have no right of direct referral we are reluctantly obliged to rely on the Government finding time for a debate. Under the scrutiny reserve resolution (a resolution of the House, the current version of which dates from November 1998) "No Minister of the Crown should give agreement in the Council or in the European Council", until the document has been cleared, either by an ESC decision or by the House agreeing a Resolution following a debate in European Committee or on the floor, unless the proposal is "confidential, routine or trivial or is substantially the same as a proposal on which scrutiny has been completed", or if the Minister decides that "for special reasons agreement should be given" (in which case the reasons "in every such case" should be explained promptly to the Committee and the House, if the document awaits consideration there).

Activity levels between financial years 2006-07 and 2012-13

Financial year	2006-07	2007-08	2008-09	2009-10	2010-11	2011-12	2012-13
EU Documents scrutinised	1,045	1,044	941	915	1,013	1,138	980
Reported as legally/politically important	484	472	443	416	454	643	506
Debates in European Committee	42	34	32	33	40	35	38
Debates on the floor of the House[24]	6	3	5	1	6	10	12

23. In parallel with this sifting/clearance process, the House's Departmental Select Committees may inquire into relevant EU policy and legislation (indeed, it is one of their 'core tasks'). The Foreign Affairs Committee, with its remit covering the expenditure, administration and policy of the FCO, recently conducted an inquiry into The future of the European Union: UK Government policy.[25] However, outside the formal remit of the Foreign Affairs Committee, or when the ESC asks for a formal Opinion, Departmental Select Committees are not obliged to consider particular documents or proposals.

24. Some evidence we received commented that there were weaknesses in the current process in the House of Commons. The European Conservatives and Reformists Group in the European Parliament stated that:

We work on many proposals of great economic importance to the UK where a more detailed response from one of the Commons Select Committees would be welcome ... We also observe that the transposition of European legislation is not systematically examined by the House of Commons ... we do not feel that the House of Commons scrutiny process for EU legislation is well understood.[26]

25. The Liberal Democrat Parliamentary Party Committee on International Affairs commented "despite the hard work and dedication of the Commons European Scrutiny Committee (ESC), the current system of Scrutiny of European Affairs in the House of Commons in particular, is in need of serious reform."[27]

26. Other evidence was more positive, particularly about the sifting role of the ESC. Dr Katrin Auel of the University of Vienna set out her assessment as follows:

When it comes to the analysis of documents, the filter function of the European Scrutiny Committee or the function of holding the Government accountable ex-post, I would rank the House of Commons quite highly compared with other systems. I would also rank it quite highly, or very highly, on the transparency of its proceedings in the Committee and the European committees. When it comes to influencing the Government position, I would probably put it somewhere in the middle because obviously the in-depth analysis of the European Scrutiny Committee raises important points that will be taken up and considered by the Government, but I think that here we will find that other Parliaments have more influence, especially when it comes to the immediate impact regarding European Council meetings.[28]

27. In this Report we examine the different components of the process in turn: starting with our role and remit, before considering debates on the floor of the House, the work of Departmental Select Committees and European Committees. We conclude with a section about the visibility of scrutiny and the media. We recognise that many of these recommendations will need to be further considered by other Committees of this House, in particular the Procedure Committee and the Liaison Committee, and look forward to working with our colleagues to bring changes both to Standing Orders and working practices into effect.

The House of Lords European Union Committee

28. The European Union Committee of the House of Lords functions in an entirely different context within its House as there is no separate Departmental Select Committee system. Its work was praised in the evidence we received, including that from the FCO, which commented that from "a Government perspective, we see strengths in the Lords' system of sifting documents by the Chairman and consequent consideration by the six Sub-Committees".[29]

29. The Government continued that the systems of the two Houses had "many—often complementary—strengths" and that it is "important to maintain the strengths of the different approaches used."[30] The need to maintain complementarity was also raised by Dr Julie Smith, Department of Politics and International Studies, Cambridge University, who said that the "advantage of the UK system is precisely that you have the depth of the Lords scrutiny and the breadth of the House of Commons system"[31] and Chris Heaton-Harris MP and Robert Broadhurst, whose memorandum referred to the comprehensive scrutiny system of the House of Commons as a "good complement to the modus operandi of the EU scrutiny system in the House of Lords, which tends to focus on a select number of EU documents each year."[32]

30. Our predecessor Committees, in their Reports on the scrutiny system, subscribed fully to the principle of complementarity,[33] as do we. We maintain good informal relationships with our Lords colleagues while respecting our different competences, as well as the distinctions between the elected and non-elected natures of our systems. Some aspects of this Report, particularly those relating to document deposit, have bicameral implications; we will work closely with the House of Lords Committee in considering how to take these forward. In that context, we note that the Lords Committee is currently conducting an inquiry into the role of national parliaments in the EU, and is expected to report next year.

Comparisons across the European Union

31. Despite the fact that the key task—holding Governments to account for their decisions in Brussels—is essentially the same, Parliaments across the EU approach scrutiny in significantly different ways. Much of this tends to lie in the context of their own domestic constitutional and political systems, and their history. As well as producing the comparative Table on the distinctions between national parliaments, we held meetings with our colleagues in the Tweede Kamer in the Netherlands and the Oireachtas in Ireland, systems which have been reformed over the past few years; we also benefited from the wider perspective of three academics currently involved in a major comparative study of scrutiny processes across the EU, known as OPAL (Observatory of Parliaments after the Lisbon Treaty).

32. The classic categorisation is between 'document-based' and 'mandating' systems, and the Minister for Europe presented it to us as something of an either/or choice — at least in the House of Commons context: "The approach has to be one or the other. I do not think it would be feasible to have both the current document-driven system and a mandate system in addition."[34] However, we were told by other witnesses that the distinction is a false dichotomy. Dr Katrin Auel said that "I know that this has become sort of the mainstream distinction ... but I do not find it very helpful"[35] and Dr Ariella Huff of Cambridge University referred to it as "a little bit simple ... Most systems, even the mandating ones, operate often on the basis of documents - they do not dream things up."[36]

33. As can be seen from Annex 2, almost all systems across the EU are indeed based on documents in some form or another, and most include a degree of influence, sanction or mandate on the Government, though this is much stronger in some systems (for example Denmark) than others.[37] Even in these so-called 'strong' systems, there are limits to influence that arise from the nature of the EU itself, and in particular the operation of Qualified Majority Voting (QMV). As Dr Julie Smith put it, "It does not matter how wonderful the mandate is, it does not matter how wonderful the scrutiny process is, if a national government is outvoted, that is the end of the story."[38]

34. The increase in the scope of Qualified Majority Voting—and the accompanying change in the nature and significance of the decision-making processes in the Council and Coreper (see paragraphs 80 and 81)—is highly significant for parliamentary scrutiny. In this context, it is clear that any EU scrutiny system is necessarily a hybrid of document-based and mandating processes. The challenge is to ensure that both aspects—that is, which documents are being scrutinised and the nature and effect of parliamentary influence—are both carefully considered.[39]

The National Parliament Office

35. Our work and that of the Departmental Select Committees has been assisted since October 1999 by parliamentary officials from Westminster working in Brussels at the UK National Parliament Office (NPO). There are currently two officials representing the House of Commons and one representing the House of Lords. They form part of an informal network of representatives from nearly all EU Member States' parliaments, who liaise with the European institutions, with government representatives in Brussels and with each other to provide invaluable briefing, advice and support.

36. The creation of the NPO was originally recommended by a Modernisation Committee Report in 1998[40] and it continues to prove its worth, particularly given the trend of increased co-operation between national parliaments and the new powers provided under the Lisbon Treaty. Dr Julie Smith noted that the representatives are "incredibly well informed and spend a lot of time talking to their opposite numbers representing national parliaments from the other member states",[41] while Gisela Stuart MP recalled that the briefings she had received in the past from the Office were "gold dust".[42]

37. The National Parliament Office assists the work of the House of Commons in other ways, including:

explaining and promoting the work of the House on EU matters and fostering personal contacts with MEPs and officials in the EU institutions;
providing support to delegations visiting Brussels and to inter-parliamentary meetings elsewhere in the EU, including COSAC and the EU Conference of Speakers;
assisting in the development and negotiation of new fora for inter-parliamentary cooperation, most recently in the fields of Common Foreign and Security and Common Security and Defence Policy, and EU economic governance;
producing a weekly briefing document primarily for the European Scrutiny Committee, but which is also made available to all Departmental Select Committees, known as the Brussels Bulletin, as well as occasional subject-specific policy papers providing upstream information on EU developments in different policy fields; and
circulating, for a Brussels readership, a weekly summary of Commons European Business, including the work of the European Scrutiny Committee, Select Committees, European Committees and business taken on the floor of the House.

38. When giving oral evidence to us the Minister for Europe referred to the staffing levels of the NPO.[43] Although he focussed on the larger establishment of the Brussels office of the Bundestag—"If you look at how the Germans do this, the Bundestag and Bundesrat have about 18 people representing them in Brussels; the two Houses at Westminster have three"— we note that the size of the UK office is similar to that of the Danish, Dutch and French Parliaments, and larger than most others.[44] We believe that the House is very well served by the current level of UK representation in the National Parliament Office in Brussels. We see no reason, particularly at a time of budgetary restraint, substantially to increase the size of the NPO, though we note that in the lead-up to and during the UK Presidency of the EU in the second half of 2017 there may be a need for a modest increase in its staffing.

39. In our view there is scope for increasing, and a need to increase, access by other Members of the House to the valuable material the NPO provides, particularly the Brussels Bulletin, and we will liaise with the NPO in order to take this forward.

1 COM(2012) 777 final/2 Back

2 COM(2012) 777 final/2, section 4.1 Back

3 Twenty-eighth Report of Session 2012-13, HC 86-xxviii Back

4 Speech delivered on 31 May 2013 at the Königswinter Conference, Britain and Germany: partners in reform, www.gov.uk. Back

5 Speech delivered at the WDR Europe Forum in Berlin on 16 May 2013, Europe's new balance - necessary EU reforms, www.gov.uk. Back

6 [1991] 1 AC 658, 603 Back

7 Formally, the Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union. Back

8 Conclusions of the L COSAC, para 3.4, available at www.cosac.eu. Back

9 See, for example, the paper What should be the position of National Parliaments in the construction of a European Political Union, Claude Bartolone, President of the French National Assembly, Policy Paper no. 291, www.robert-schuman.eu. Back

10 Select Committee on Modernisation of the House of Commons (referred to in this Report as 'the Modernisation Committee'), Second Report of Session 2004-05, Scrutiny of European Business, HC 465-I. Back

11 HC Deb, col. 443 Back

12 CJ (2007-08) 188 Back