2 The role of the European Scrutiny
Committee: examining merits?
40. When this Committee reviews deposited documents
it is assessing their "legal and political importance".
This test is set out in Standing Order No. 143(1):
There shall be a select committee, to be called the
European Scrutiny Committee, to examine European Union documents
and
(a) to report its opinion on the legal and political
importance of each such document and, where it considers appropriate,
to report also on the reasons for its opinion and on any matters
of principle, policy or law which may be affected;
(b) to make recommendations for the further consideration
of any such document pursuant to Standing Order No. 119 (European
Committees); and
(c) to consider any issue arising upon any such
document or group of documents, or related matters.
41. It is the same, in essence, as that recommended
in the Foster Committee Report 40 years ago:
The object of the Committee will be to inform the
House as to any proposals of legal or political importance and
to make recommendations as to their further consideration. Its
task would not be to debate the reasons for or against a proposal
but to give the House the fullest information as to why it considered
the particular proposal of importance and to point out the matter
of principle or policy which it affects and the changes to UK
law involved.[45]
42. This focus on legal importance, and in particular
on treaty base, was ahead of its time. Some of the new powers
given to national parliaments, for example by Protocol (No. 2)
of the Lisbon Treaty, require legal expertise to deploy and we
are well-resourced to deal with them, both through the experience
acquired by Members of the Committee and through our staff, in
particular the two Legal Advisers.[46]
This has served us particularly well in producing Reasoned Opinions
relating to breaches of the principle of subsidiarity.[47]
43. In making our judgement on the legal and
political importance of proposals we take account of any impact
assessment prepared by the Government (which will be referred
to in the Explanatory Memorandum) and also impact assessments
prepared by the Commission.
44. The concept of political importance can and
does blur in practice into wider discussions of the advantages
and disadvantages of, or the principles behind, a particular proposal.
Several witnesses proposed that this Committee should explicitly
become a "merits" Committee with a role—as it
was put by Chris Heaton-Harris MP and Robert Broadhurst—to
adopt a "clear political opinion on the rights and wrongs
of EU proposals".[48]
45. We noted earlier in this Report that the
part of our Standing Order which gives us power "to consider
any issue arising upon any such document or group of documents,
or related matters" is significant. It already extends our
role from merely a sift to one of analysis of issues and principles
emerging from the wide variety of documents we receive and, indeed,
EU developments more generally. Under this provision in our Standing
Order we have conducted over the last few years a number of discrete,
in-depth inquiries, including into the 2014 Block-opt out of pre-Lisbon
criminal law and policing measures,[49]
the Treaty on Stability, Coordination and Governance;[50]
the European Union Bill;[51]
and Parliamentary Sovereignty.[52]
46. Under Standing Order No.
143(1)(c) we have the flexibility to report on why particular
documents, or groups of documents, are politically important.
Clearly these powers already amount to 'sifting plus'. The workload
created by a detailed consideration of the political merits of
all the 1,000 documents a year which we scrutinise would risk
overburdening the process—and would overlap with the work
of Departmental Select Committees —but we see a need to
build on our existing powers to make the scrutiny process as a
whole more coherent and make a series of recommendations to achieve
this. We will also in future define our assessment of legal and
political importance as including in particular our assessment
of its political and legal impact on the United Kingdom,
continuing to draw on the impact assessments prepared both by
the Government and by the Commission.
45 Select Committee on European Community Secondary
Legislation, Second Report of Session 1972-73, HC 463-I, para
69 Back
46
The ESC is served by Counsel for European Legislation and Assistant
Counsel for European Legislation. Both also advise other Members
and Committees of the House on EU law. Back
47
See Glossary. Back
48
See Ev w13, para 9 [Chris Heaton-Harris MP; Robert Broadhurst];
Q 286 [Andrea Leadsom MP]. Back
49
Twenty-first Report of Session 2013-14, HC 683 Back
50
Sixty-second Report of Session 2010-12, HC 1817 Back
51
Fifteenth Report of Session 2010-12, HC 682 Back
52
Tenth Report of Session 2010-12, HC 633 Back
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