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

5 European Union business on the floor of the House

148. Given the crucial nature of the primacy question and the impact of EU legislation on the electorate through the European Communities Act 1972, the floor of the House is where key EU business should be debated, thereby creating the opportunity for the widest cross-section of Members to take part. It is also, as Peter Knowles, Director of BBC Parliament, commented "the way in which most people will have encountered the work of this Committee."[148] We note that several debates on documents we have recommended for the Chamber this year have been over-subscribed, and short speech limits imposed.[149]

149. Dr Auel observed that the UK had been "ranked quite low" compared to the French Assemblée Nationale and the German Bundestag in terms of time spent in plenary;[150] and many of the Members who responded to our survey (44%), and stakeholders (80%), thought that more time should be taken on European Union business on the floor. Others, for example Martin Horwood MP, took a different view, telling us:

I would not support giving this Committee more time on the Floor of the House; it gets quite a lot already. In a sense, the whole point is to try to get it away from these generalist committees and into more specialist and policy-informed hands.[151]

150. Over recent years the number of debates on the floor of the House on European documents has increased, although a significant proportion of that increase has arisen from new procedures and practices such as Reasoned Opinions and opt-in debates. For example, in the 2012-13 Session four of the ten debates on the floor were on Reasoned Opinion or opt-in motions, and in the long 2010-12 Session the proportion was greater: eight out of 19.

Debates on EU Documents on the floor of the House

151. The ESC does not currently have the power to refer documents directly for debate on the floor of the House. When we believe a document warrants a floor debate, we have to wait for the Government to arrange it. Formally, the document stands referred to a European Committee (debates in these Committees are covered in a later Chapter of this Report).

152. There is an understanding that the Government will make time available for a floor debate if we so recommend. However, there have been problems with long delays and recently we have had something of a war of attrition with HM Treasury in particular, which at one point had a series of floor debates outstanding. One particular debate on the Commission's Blueprint for a deep and genuine EMU and the President of the European Council's report Towards a Genuine Economic and Monetary Union, which we made clear raised significant issues concerning the primacy of the UK Parliament, took five months to schedule and only took place on the floor of the House following direct representations by the Committee to the Prime Minister. Even then, it was combined with a significant debate on the unrelated subject of the Financial Transaction Tax.

153. We note in this context the Minister for Europe's view that:

As to formal debates on scrutiny, I have consistently taken the view that they need to be done as early as possible. The dilemma that business managers always face is that there are a limited number of parliamentary hours in the week, and there is a lot of competition for time, particularly on the floor of the House. I have always taken the view that, in principle, the sooner the better.[152]

154. We welcome the Minister's view that debates should take place "as early as possible". While we acknowledge the role of business managers, it is clear that Ministers in all Departments have responsibility for and are accountable for the timing of debates on their documents and for making decisions on whether to accept our recommendation that particular documents should be debated on the floor of the House.

155. Several witnesses said that we should have the power to refer documents directly for floor debate, as was the situation until the early 1990s. Those in favour of such a 'right to refer' included the Fresh Start Project[153] and Chris Heaton-Harris MP and Robert Broadhurst.[154] The Minister for Europe, however, rejected the idea, commenting:

I think a question arises: if the Committee has the right to insist on a floor debate, then whose time does it take? While I have not put this to colleagues in Government, I am pretty confident that the collective response would be that for this or any Committee there cannot be the untrammelled right to simply take Government time for a debate on the floor of the House.[155]

156. In our view this statement is wrong. It must be remembered that many of the documents we refer for debate are legislative proposals which will have direct effect on the citizens of the United Kingdom, and would—if enacted through domestic legislation—be the subject of an Act of Parliament. Time spent on such debates cannot be equated with, for example, backbench business, or with the recommendations of a Departmental Select Committee report, however important these two types of business undoubtedly are.

CONCLUSION

157. We have reflected carefully on consideration of European Union business in the Chamber, as it is the most high-profile aspect of the House's scrutiny process. We therefore propose a set of recommendations in order to make time on the floor of the House better-used, and to make Ministers more accountable for their decisions.

158. Firstly, there is a strong case for adopting some of the procedures used for opt-in debates—namely a prior commitment by the Government to arrange a floor debate for measures which attract particularly strong Parliamentary interest (without prejudice to any recommendations we may make) across all types of EU business. The measures likely to be subject to these commitments could be announced by way of a Statement following consultation with this Committee, and could tie into the more systematic consideration of the Commission Work Programme we propose later in this Report.

159. We propose that the Government should undertake to make time available in the House within four sitting weeks of a Committee recommendation for a floor debate (unless the Committee has for any reason waived this requirement or has recommended a more urgent timescale).

160. We further recommend that the format of House debates should follow that of a European Committee— the debate should begin with a short explanatory speech by the Chairman or a nominated member of the ESC, before the Minister first makes a statement and responds to questions, and then moves the motion; the total length of such a debate would be no more than two and a half hours.

161. When we put this to the Minister he gave a positive though non-committal response:

I can see the case for doing that. It would mean more time being used than at present. I do not want to give a firm view this morning. It sounds to me like the sort of thing, if the Committee includes it in its report, I would look at with an open mind and take to colleagues and discuss with them.[156]

162. In the case of a Reasoned Opinion we note that the Procedure Committee recommended in 2011 (with particular reference to European Committees) that:

It is evident that the present situation, in which a Minister must move a motion for a reasoned opinion whether or not the Government supports that motion, is confusing and misleading for Members and for the public. Since it is the European Scrutiny Committee which recommends that the House should consider a motion for a reasoned opinion, it would be logical for that motion to appear in the name of the Chair of the European Scrutiny Committee or in the name of another member of the Committee acting on its behalf. The difficulty at present is that Standing Order No. 119 refers, in paragraph 9, to a motion 'of which a Minister shall have given notice'. We recommend that paragraph 9 of Standing Order No. 119 be amended by inserting, after 'Minister', 'or, in the case of a motion for a reasoned opinion under Protocol (No. 2) to the Lisbon Treaty, a member of the European Scrutiny Committee'.

We fully agree with this recommendation, and take the view that it should apply, modified as necessary, to debates on Reasoned Opinions on the floor of the House.

163. We also support the introduction of a procedure "for an appropriate number of MPs to table a motion challenging the [European Scrutiny] Committee's decision [not to refer a document for debate] and force a vote on the floor of the House" originally made in a 2007 paper by the think-tank Politeia written by Theresa May MP. We note that the paper commented that "the procedure should be a last resort and be limited to serious issues that are in the national interest". In our view the threshold for such a procedure should be reasonably high. Where such a motion is tabled, it should impose the scrutiny reserve on the relevant EU document until the House has come to a resolution on the matter.

A NATIONAL VETO AND DISAPPLICATION OF EU LAW

164. Finally, and linking back to the comments we made at the beginning of this Report about the ongoing debate on the role of national parliaments within the EU, we recommend that the option should be available for this Committee to recommend to the House a form of national veto on EU legislation in particular circumstances. We recall that the White Paper The United Kingdom and the European Communities, published in July 1971, (following which the House of Commons gave a Third Reading to the European Communities Bill, on division, by 301 votes to 284), stated:

The Community is no federation of provinces or countries. It constitutes a Community of great and established nations, each with its own personality and traditions. The practical working of the Community accordingly reflects the reality that sovereign Governments are represented round the table. On a question where a Government considers that vital national interests are involved, it is established that the decision should be unanimous.

...

All the countries concerned recognise that an attempt to impose a majority view in a case where one or more members considered their vital national interests to be at stake would imperil the very fabric of the Community.[157]

165. Ministers of the UK Government have recently proposed the introduction of some form of collective 'red card' or 'emergency brake', for new legislation. The Minister for Europe explained that:

We thought it was right to bring forward the idea that we should go beyond the yellow card and propose an outright power of veto. If a given number of National Parliaments around the EU said that a certain Commission proposal should be blocked, the Commission simply would not be able to review it and decide to resubmit but would have to take it off the table. It is not something the British Government have yet formally adopted as a policy, but it is an idea we have put out that we think needs serious consideration.[158]

166. He made it clear to us that the Government had in mind that this card should not be playable unilaterally: "The Foreign Secretary, the Prime Minister and I have been proposing not that a power of veto should be accorded to a single national parliament but a development of the process that is in the Lisbon treaty ... we should give consideration to giving National Parliaments above a certain threshold an outright power to block a Commission initiative."[159]

167. In our view, such a development is no substitute for Parliamentary sovereignty. Once the principle of a form of veto has been conceded, it is logical to explore the many ways in which it could be deployed. With regard to EU legislation, the three important questions are: what should the threshold for such a veto be, what effect should it have if deployed (across the EU or just in the country or countries concerned) and should it apply to existing as well as new legislation?

168. We raised these questions with some of our witnesses, in particular Professor Damian Chalmers of the LSE, and author of a recent paper entitled Democratic Self-Government in Europe — Domestic Solutions to the EU Legitimacy Crisis that advocates a form of unilateral red card for national parliaments. He summarised his views as follows: Article 4(2) TEU, particularly the obligation it contains that the EU "shall respect the essential State functions" of its Member States, puts into doubt the principle of supremacy of EU law and the monopoly of the Court of Justice on its interpretation. Accordingly, Professor Chalmers stated, the primary purpose of EU law is to respect the democratic identity of its Member States. Consistent with this, the great majority of constitutional courts of the Member States consider that national constitutional provisions have primacy over EU law, demonstrated, for example, by the decisions of the constitutional courts of Germany, Poland and the Czech Republic.

169. In Professor Chalmers' view, where a national electorate wishes its legislators to disapply a provision of EU law (for reasons not limited to subsidiarity) it should be entitled to do so. A procedure for consulting other national parliaments would then have to follow a national decision to disapply. His central thesis was that national parliaments, as the embodiment of the democratic identities of their Member States, should be given a more powerful say in what the EU legislates on.[160]

170. We conclude that there should be a mechanism whereby the House of Commons can decide that a particular EU legislative proposal should not apply to the United Kingdom. The House's view could only be expressed prior to the adoption of the measure at EU level: but if such a motion was passed the UK Government would be expected to express opposition to the proposal in the strongest possible terms, including voting against it.

171. We further conclude that parallel provision should be made to enable a decision of the House of Commons to disapply parts of the existing acquis. This, we acknowledge, would require an Act of Parliament to disapply the European Communities Act 1972 in relation to specific EU legislation. There have been several Private Members' Bills over recent years endorsing the principle of disapplication which have sought to achieve this, and amendments to the same effect were proposed in both Houses to the Legislative and Regulatory Reform Bill in 2006, which were whipped by the then official opposition. Such a development would be much more legally complex and controversial, but we were taken by the logic of the arguments of Professor Chalmers questioning the supremacy of EU law, and we look forward to the Government's detailed response to this proposal.

172. Closely related to this issue, and potential "notwithstanding" provisions, the week before formal agreement of this Report there was considerable coverage in the media of comments by Mr Justice Mostyn concerning the applicability of the Charter of Fundamental Rights to the UK in the High Court case of R (AB) v Secretary of State for the Home Department.[161] Mostyn J stated that he was surprised that, as a result of a 2011 preliminary ruling of the ECJ,[162] the Charter was now legally binding in the UK as he "was sure that the British government (along with the Polish government) had secured at the negotiations of the Lisbon Treaty an opt-out from the incorporation of the Charter into EU law and thereby via operation of the European Communities Act 1972 directly into our domestic law".

173. He continued:

The constitutional significance of this decision can hardly be overstated. The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.

174. These comments, although not legally binding, have called into question whether the full range of rights provided by the Charter apply to the UK or, as the Government considers, only those fundamental rights already existing in EU law. The ruling by the ECJ referred to by Mr Justice Mostyn was in response to a preliminary reference from the UK Court of Appeal and Irish High Court. The questions of interpretation referred to the ECJ concerned Article 3(2) of the Dublin Regulation which provides the criteria to establish which Member State is responsible for examining an asylum claim and the application of the Charter of Fundamental Rights, specifically to the UK. In particular the Court of Appeal asked whether answers to the preliminary ruling questions should "be qualified in any respect so as to take account of" Protocol (No. 30) on the application of the Charter to Poland and to the United Kingdom.

175. The ECJ found that the Protocol does not exempt the UK from the obligation to comply with the Charter nor prevent its courts from ensuring compliance with the Charter. In doing so it noted that in the proceedings before the Court of Appeal, the Government had accepted that, in principle, the fundamental rights set out in the Charter could be relied on as against the United Kingdom, and that the purpose of the Charter Protocol was not to prevent the Charter from applying to the United Kingdom, but to explain its effect.

176. We have taken a longstanding interest in the application of the Charter in the United Kingdom. At the time of the negotiations of the Lisbon Treaty and Protocol (No 30), our predecessors expressed doubts about the level of protection offered by the Protocol, particularly in respect of preliminary rulings by the ECJ on the Charter. The then Committee considered that these would be still be binding on the UK because of its existing Treaty obligations, notably the duty of sincere co-operation under the then Article 4(3) TEU.[163] It concluded:

In our view, the only way of ensuring that the Charter does not affect UK law in any way is to make clear, as we have already suggested that the Protocol takes effect 'notwithstanding the Treaties or Union law generally'.[164]

177. More recently the Committee Chairman was granted an Urgent Question in the House on 19 November. We hold a related document—the Report on the Commission's 2012 Annual Report on the Charter on Fundamental Rights—under scrutiny. We have noted as part of the scrutiny process on that Report that to date the Government has expressed a very general view that the Charter only applies when the Member State is implementing EU law and also only to the extent that the rights under the Charter already apply as a matter of ECJ fundamental rights case law. But it has said little of detail on the impact of ECJ preliminary rulings on the Charter on UK law. Given these recent profound developments we will hold an oral evidence session with the Justice Secretary on the implications of this judgment.

178. Our predecessor's suggestion for reinforcing the Protocol was not followed by the then Government. As a consequence, the Protocol appears to offer little safeguard from the application of the entirety of the Charter to the UK when applying EU law, as confirmed by the ECJ in the judgment above. This, we argue, is a direct consequence of Sections 2 and 3 of the European Communities Act 1972, shows some of the potential weaknesses of the European scrutiny system in the House of Commons and might be said to provide support for the suggestion that there should be a Parliamentary power to disapply EU legislation.

European Council meetings

179. Historically there were regular opportunities for the wider membership of the House to debate the latest developments in the EU around the time of European Council meetings. Until 2010 there were set-piece pre-European Council debates, which ceased when the Backbench Business Committee was created. Some of the Members who gave evidence to us thought that these debates should be reinstated.[165] Others were a little more cautious, for example Chris Bryant MP, who commented:

I just wonder ... Having, I think, in my 12 years, been to every one, and having heard your single transferable speech immediately before my single transferable speech ... There should certainly be an annual one, and it should be presented by the Prime Minister— I have always thought that—in the Chamber, which should be on the Commission's work programme, but I wonder whether the quarterly ones should be in Westminster Hall and take one of the slots on a Tuesday or Wednesday afternoon.[166]

180. We recommend that there should be an opportunity for Members in the Chamber to air issues in advance relating to forthcoming European Council meetings, and rather than a debate, we recommend that this should be timed to coincide with a session of Oral Questions on European Union matters (see later in this Report chapter).

POST-EUROPEAN COUNCIL STATEMENTS

181. It remains the House's clear expectation that the Prime Minister should make an oral statement to Parliament about the outcome of a European Council. When this did not happen in March 2013, and a Written Ministerial Statement was made instead, an Urgent Question was granted by the Speaker to our Chairman. We followed this up by an exchange of letters with the Prime Minister. The Prime Minister's letter to us of 23 April concluded that "it is my intention that I will usually update the House by an Oral Statement following European Councils."[167]

182. We will monitor the provision of Oral Statements following European Councils closely. While we note that the three European Councils since the Prime Minister's letter have been the subject of an oral statement by the Prime Minister, in two cases the statement also included another subject (on 3 June 2013, events in Woolwich; on 2 July 2013, Afghanistan).[168]Given that the dates of the European Councils are known well in advance, we recommend that the dates of European Council oral statements should also be set well ahead and given to the House by means of a Written Ministerial Statement three times a year. The statement on the European Council should be self-standing.

Oral Questions on EU matters

183. We heard evidence in favour of the reintroduction of a special session of oral questions on EU matters. Special sessions on "EEC matters" ended in 1985; according to a PQ of 22 March 1985, this was under a temporary arrangement following "representations from hon. and right hon. Members and consultations between the usual channels".[169] The arrangements for Overseas Development questions (also a "standalone slot") were not affected by this change. The next FCO questions, and therefore the first with EEC matters included, took place on 24 April 1985. It was followed by a series of points of order from Members, including the following representations from Eric Deakins MP:

On a point of order, Mr. Deputy Speaker. I wish to draw your attention, in case it has escaped your notice, to the fact that this is the first occasion of the use of the new experimental system under which the 20-minute slot traditionally allocated to European Community questions has been absorbed into the overall hour for Foreign and Commonwealth Office questions ...

I make no complaint about the fact that on this occasion only three European Community questions were reached, instead of the normal seven, eight, or nine which would have been reached under the previous system, but I wish to inform you that this change, which was announced by the Leader of the House just before Easter, on a Friday, in a written parliamentary answer— it having been agreed between the usual channels—does not reflect the feelings of a large number of Opposition Members. I cannot speak for Conservative Members ...

The Leader of the House should take note of the fact that at the end of the experimental period we shall expect to be consulted not merely by our own usual channels but by him, perhaps in a debate on the subject, so that we can make our views absolutely clear. It is wrong that the new questions system should apply to an organisation such as the European Community, which, unlike South Africa, the countries of central America or the countries of eastern Europe, has the power to tax and legislate for the British people. We should have a separate slot to enable us to question Ministers on those matters.

And Eric Forth MP:

Further to that point of order, Mr. Deputy Speaker. Can you advise the House of the length of the experimental period for EEC questions? As we are about to enter a crucial period of major decisions being taken on the EEC, it would be regrettable if hon. Members were denied the opportunity to ask questions on Common Market matters because such questions are now subject to the usual ballot rather than to the certainty of the previous system. Can you say for how long the experiment is likely to run?[170]

184. On 7 November 1986, and again in response to a PQ, the Lord Privy Seal confirmed that the experiment "following consultations with the usual channels" would be made permanent and "will take effect with the introduction of the new questions roster".[171]

185. Gisela Stuart MP,[172] Chris Bryant MP[173] and Andrea Leadsom MP[174] all spoke in favour of reintroducing a special session of oral questions on EU matters, though Martin Horwood MP did not support it.[175] Theresa May MP, at that time Shadow Leader of the House, also spoke favourably about the idea in February 2008.[176] Peter Knowles, Director of BBC Parliament stated:

the idea around having dedicated Europe Questions taken on the floor of the House ... Given the increasing focus on Europe, for the reasons you have given, Mr Chairman, I could see that a regular Europe Questions slot on the floor of the House, in terms of my output, would be really useful.[177]

186. The Minister for Europe, however, noted significant potential difficulties — "The problem with this idea is that it would only work on the basis of European Ministers plural, because, as the Committee knows, every Government Department has European responsibilities".[178] The Minister suggested Westminster Hall as a compromise,[179] but this was rejected in terms by Gisela Stuart MP,[180] and we share her view.

187. Given the profound increase in the transfer of competences to the EU and the pressure for greater integration it is now time to give all Members of the House a regular opportunity to question Ministers specifically on European Union matters. We conclude that a session of oral questions (including a session of topical questions) to the Minister for Europe on EU matters, including other Ministers in a cross-cutting form, should be introduced, and that this should take place on the floor of the House, timed to coincide with the run-up to a European Council meeting. We note the comments by the Minister for Europe about the range of issues which could be covered, but see no reason why Ministers from other Departments could not accompany the Minister for Europe during these sessions. If necessary, the Questions for each session could be themed depending on the matters to be discussed at the European Council.

Commission Work Programme

188. This year we recommended the Commission Work Programme for debate on the floor of the House (rather than European Committee) - a successful debate with contributions from a number of Select Committee Chairs.[181] During our visit to the Hague we saw how the Work Programme has been used to provide a means for their sectoral and the European Affairs Committee to prioritise proposals for scrutiny during the year. We make separate recommendations relating to enhanced scrutiny of the Commission Work Programme later in this Report. We expect this to become a regular fixture in the annual scrutiny of EU business and an important 'forward look' by the House to forthcoming EU proposals.

DRAFT REVISED STANDING ORDER AND RESOLUTION RELATING TO BUSINESS ON THE FLOOR OF THE HOUSE

16.— (1) The Speaker shall put the questions necessary to dispose of proceedings under any Act of Parliament ~~or on European Union documents (as defined in Standing Order No. 143 (European Scrutiny Committee))~~ not later than one and a half hours after the commencement of such proceedings, subject to the provisions of Standing Order No. 17 (Delegated legislation (negative procedure)).
(2) For proceedings on a European Union document (as defined in Standing Order No. 143, other than those to which paragraph (11) of Standing Order No. 119 applies) the Speaker may permit a member of the European Scrutiny Committee to make a brief statement of no more than five minutes, at the beginning of the debate, explaining that committee's decision to refer the document or documents.

(3) The Speaker may permit Ministers of the Crown to make statements and to answer questions thereon put by Members, in respect of each motion relative to a European Union document or documents referred by the European Scrutiny Committee of which a Minister or, in the case of a motion for a reasoned opinion under Protocol (No. 2) to the Lisbon Treaty, a member of the European Scrutiny Committee, shall have given notice; but no question shall be taken after the expiry of a period of one hour from the commencement of the first such statement: Provided that the Speaker may, if he sees fit, allow questions to be taken for a further period of not more than half an hour after the expiry of that period.
(4) Following the conclusion of the proceedings under the previous paragraph, the motion referred to therein may be made, to which amendments may be moved; and, if proceedings thereon have not been previously concluded, the Speaker shall interrupt the consideration of such motion and amendments after a period of two and a half hours after the commencement of proceedings on the document, and shall then put forthwith successively
(a) the question on any amendment already proposed from the chair; and
(b) the main question (or the main question, as amended).
(5) Business to which this order applies may be proceeded with at any hour, though opposed
New resolution on European scrutiny: opt-in and Schengen opt-out debates, timing of debates and notice of motions
(1) In the case of parliamentary scrutiny of opt-in and Schengen opt-out decisions in relation to new proposals from the Commission, the House notes the commitments made by successive Governments in the Ministerial Statements of 9 June 2008 and 20 January 2011.
(2) That this House agrees that debates on European Union documents referred by the European Scrutiny Committee should take place in a timely manner, and, more specifically, that the Government should undertake to make time available in the House within four sitting weeks of a Committee recommendation for a floor debate (unless the Committee has for any reason waived this requirement or has recommended a tighter timescale). The same applies, mutatis mutandis, to a Committee recommendation for a debate in EU Document Debate Committee.
(3) That this House agrees that any motion tabled following a debate in EU Document Debate Committee for consideration without debate on the floor of the House should appear in the European business section of the Order Paper for at least one sitting day before it is put on the main Order paper for decision, so that Members have the opportunity to consider whether or not to table amendments.