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

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

previous page contents next page

© Parliamentary copyright 2013
Prepared 28 November 2013