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 keengiven the importance
of scrutiny in transparency and development of Government policyto
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 Houseworks 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
quicklyoften 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 "manyoften complementarystrengths"
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 taskholding
Governments to account for their decisions in Brusselsis
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 Votingand 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 aspectsthat is, which documents are being
scrutinised and the nature and effect of parliamentary influenceare
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
13
Sixth Report of Session 2009-10, The Work of the Committee
in 2008-09, HC 267 Back
14
CJ (1997-98) 812 Back
15
HC Deb, 20 January 2011, col. 52WS Back
16
Letter dated 7 September 2011, available via the Liaison Committee
website at www.parliament.uk Back
17
Procedure Committee, First Special Report, Session 2012-13, Reasoned
Opinions on Subsidiarity under the Lisbon Treaty: Government Response
to the Committee's Fourth Report of Session 2010-12, HC 712.
See also para 162. Back
18
Q 1 Back
19
Q 515 Back
20
See para 45. Back
21
41 Members responded. Back
22
See Chapter 3. Back
23
Financial year 2012-13:52% [506 out of 980]; 2011-12:57% [643
out of 1,138]; 2010-11:45% [454 out of 1,013]; 2009-10:45% [416
out of 915]; 2008-09:47% [443 out of 941] [statistics in the House
of Commons Commission Annual Report 2012-13, HC 595, Annex 1,
which are also used for the Table overleaf]. Back
24
Since the Lisbon Treaty, there are now debates on Reasoned Opinions
and opt-ins on the floor of the House (see para 150), which are
included in these statistics. Back
25
First Report of Session 2013-14, HC 87-I Back
26
Ev w3, paras 9, 10 and 13 Back
27
Ev w19, para 5 Back
28
Q 116 Back
29
Ev w6, para 7. See also Ev w3, para 12 [European Conservatives
and Reformists Group of the European Parliament]. Back
30
Ev w6, para 6 Back
31
Q 136 Back
32
Ev w12, para 2 Back
33
Thirtieth Report of the European Scrutiny Committee, Session 2001-02,
European Scrutiny in the Commons, HC 152-xxx, para 19;
Twenty-seventh Report of the Select Committee on European Legislation,
Session 1995-96, The Scrutiny of European Business, HC
51-xxvii, para 61 Back
34
Q 529 Back
35
Q 113 Back
36
Q 115 Back
37
Ev w5 [David Millar OBE]; Ev w13, para 12 [Chris Heaton-Harris
MP; Robert Broadhurst]; Q 113 [Dr Auel] Back
38
Q 124 Back
39
As Dr Katrin Auel put it "'document base' refers to the object
of the scrutiny, while mandating seems to refer more to the legally
binding character of the parliamentary opinion" [Q 113]. Back
40
Modernisation Committee, Seventh Report of Session 1997-98, The
Scrutiny of European Business, HC 791, para 43 Back
41
Q 119 Back
42
Q 267 Back
43
Q 511 Back
44
The delegation from the German Parliament consists of seven officials
from the Bundestag, one from the Bundesrat and a number of political
group staff sent by the parties. Back
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