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


6  Departmental Select Committees

189.  House of Commons Departmental Select Committees are appointed under Standing Order No. 152 to scrutinise the expenditure, administration and policy of particular Government Departments. Unlike 'subject' committees in some other EU countries, they do not routinely examine legislation; nor are they obliged under Standing Orders to look at EU documents or developments, though we have the power formally to request an Opinion from a Select Committee on an EU document under our Standing Order No. 143(11). The Liaison Committee recently reported on Select committee effectiveness, resources and powers, welcoming our inquiry and strengthening the Committees' relevant core task, which now reads to "scrutinise policy developments at the European level and EU legislative proposals". In the context of the transposition of EU Directives, new Core Task 5—"To assist the House in its consideration of bills and statutory instruments"—is also, clearly, relevant.[182]

190.  Much of the evidence we received emphasised the importance of Departmental Select Committee involvement in scrutinising EU policy because of their knowledge of the wider subject and ability to conduct inquiries. Many other EU national parliaments have 'mainstreamed' EU matters wholly or partly to their 'subject' or 'sectoral' Committees (see the comparative systems Annex to this Report), as have the Scottish Parliament, Northern Ireland Assembly and the National Assembly for Wales. Dr Auel told us that in some of those systems subject committees have become "very involved" in EU issues and that in Finland, for example "in the committees of commerce or environment EU issues take up 60% to 70% of committee time".[183]

191.  We heard (and know from our own experience) that the approach of Commons Departmental Select Committees to scrutinising European issues varies greatly. This is not surprising—for a start, the subject matter covered by some Committees is much more influenced by EU policy than others. There is good practice; the Environment, Food and Rural Affairs Committee was mentioned to us as a positive example during oral evidence[184] and was also the only select committee to submit written evidence in its own right.[185] The Justice Committee produced an excellent Report on complex data protection proposals following our request for an Opinion,[186] and the Transport Committee conducted a follow-up Report on Flight Time Limitations within a short timescale.[187] The Energy and Climate Change Committee responded quickly to an Opinion request, and in the light of its comments we recommended a Commission Communication for debate in European Committee.[188]

192.  Others, in the words of one Select Committee Chair, recognise that there is a "need to do more".[189] The memorandum from Dr Julie Smith and Dr Ariella Huff concluded that "while some DSCs have been effective at systematically incorporating the European dimension into their broader scrutiny, others have proven largely unable and/or unwilling to do so."[190] Members of the European Conservatives and Reformists Group of the European Parliament stated "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. At the moment, we rely entirely on the House of Lords to provide this detailed examination."[191] The Fresh Start Project commented that DSCs could be "more proactive",[192] and the Liberal Democrat Parliamentary Party Committee on International Affairs noted the ad hoc nature of current Departmental Select Committee scrutiny.[193]

193.  The Minister for Europe said:

I know this Committee has the power to refer particular issues to departmental Select Committees, and sometimes there is a reluctance there to take up the baton, and I think the departmental Select Committees do need to take more seriously their strategic responsibility for an overview of both the formulation and implementation of EU-level policy.[194]

194.  He added later:

What I am seeking, whatever institutional form this takes, is something of a cultural change in the House to regard European business as mainstream however we do European business. In those circumstances, we would need to look again at the Standing Orders of the House to reinforce that the European aspect of a Select Committee's responsibilities is something that is core.[195]

195.  The Rt Hon Sir Alan Beith MP, Chair of the Liaison Committee and of the Justice Committee, urged us not to "discount" what was already being done by Select Committees.[196] He observed that there was an "additional barrier" to such inquiries;[197] explaining that "unless you have been able to establish that something that is doing the rounds in the Commission is going somewhere then you risk taking up a lot of Committee time on things that will not be productive in the end."[198] He also noted that "each Chairman is juggling a very considerable workload".[199] Nonetheless, even after taking all these factors into account, he concluded that "there is a great deal more that can and should be done."[200]

LIAISON BETWEEN THE EUROPEAN SCRUTINY COMMITTEE AND DEPARTMENTAL SELECT COMMITTEES

196.  There are currently systems of informal and formal liaison between the European Scrutiny Committee and Departmental Select Committees. After each Scrutiny Committee meeting the staff of other Committees are notified of the outcome, and relevant briefing material is made available to them. Departmental Select Committee Chairs are also notified of debate recommendations to European Committee, so that their Committees can nominate members.

197.  The formal power is that given under Standing Order No. 143(11) to the European Scrutiny Committee, "to seek from any committee specified in paragraph (12) of this order an opinion on any European Union document, and to require a reply to such a request within such time as it may specify." This power was originally introduced in 1998 and represents an unusually strong power for one select committee to possess. When it was introduced the Modernisation Committee stated that it should be used "sparingly in the first instance".[201]

198.  We requested 12 Opinions in Session 2010-12, two in Session 2012-13 (in several other cases Committees announced inquiries into specific measures at the same time as our scrutiny, rendering a formal Opinion unnecessary); and five to date in Session 2013-14. The format of the responses has varied. Some have been in the form of letters from the Chair of the relevant Committee. Two Opinions requested of the International Development Committee fell within an inquiry which it was already conducting. The International Development Committee wrote to us outlining its findings subsequent to producing a Report. Two, from the Justice and Transport Committees, were in the form of Reports based on a series of evidence sessions and written evidence submissions, as we have already noted.

199.  The Liaison Committee memorandum suggested that there was scope for more use of Opinions, though it added the caveat that "the right of individual Committees to determine their work programmes" should be respected,[202] and one of the Chairs giving evidence to us expressed some concerns about the volume of extra work which would be involved if many Opinions were requested.[203] As we have already noted, given the potential significance of White Papers and Green Papers at the earlier stages of the policy process, we are considering referring these to DSCs for Opinion more frequently, and have noted the Liaison Committee's view that there is scope for more Opinions to be issued.

UPSTREAM ENGAGEMENT

200.  We set out some of the evidence we received about engagement at the initial stages of policy development earlier in this Report. We heard from the Rt Hon Sir Alan Beith MP that the Liaison Committee had been in discussions with the Minister for Europe on how to improve the flow of 'upstream' information on EU policies to Westminster.[204] When we first took evidence from the Minister for Europe he confirmed that:

We are also considering across Government a proposal that the more senior officials in UKRep and other posts offer oral off-the-record briefings to parliamentary Committees, including the European Scrutiny Committee. That is something that will have to be agreed on a cross-Government basis, because this would involve some officials who are parented to departments other than the Foreign Office, but that I think is indicative of the approach we want to see for greater engagement.[205]

201.  Links between UKRep and the NPO are already being further developed following discussions between the Minister for Europe and the Liaison Committee and we hope that this, coupled with our earlier recommendation to widen access to the material which the NPO produces, will improve upstream engagement of Committees. Dr Julie Smith emphasised the importance of utilising information received from the NPO and its links with UKRep to influence EU policy at an early stage.[206] As the written evidence from the Liaison Committee noted, gaining access to the expertise of UKRep in Westminster could further enhance a Committee's ability to engage at a sufficiently early stage in the EU policy formation process.[207] In his evidence to us Sir Jon Cunliffe said that UKRep would be "very happy" to assist Committees in informal briefings, however he added a caveat stating "the policy on these issues is not owned by UKRep".[208]

202.  Following these discussions what looked to be a promising initiative has not progressed as fast as had been hoped. The Minister for Europe told us:

We made it clear, in our discussions with the scrutiny coordinators across Whitehall, that we think this is a sensible approach, but it is ultimately for the Ministers in each Department to decide, case by case, whether they will agree to a request from the Committee or take the initiative and offer this ... I encourage my colleagues to do that, but I cannot order them.[209]

203.  This is the subject of ongoing discussions between the Liaison Committee and the Minister for Europe. In our view, a solution must be found in line with parliamentary accountability, and which will enable Departmental Select Committees to pursue their policy analysis, while we retain our sifting role.[210]

CONCLUSION

204.  We recognise that much of the strength of Departmental Select Committees comes from their autonomy and the independence they have to set their agenda. We are aware that our colleagues on Departmental Select Committees already have busy work programmes and it is also right to acknowledge that for some Committees EU matters may prove divisive. For all these reasons there appears to be no appetite for full mainstreaming of EU legislative scrutiny to Departmental Select Committees, but in our view the current situation is not sustainable. It is 15 years since our predecessor Committee wrote to the Modernisation Committee concluding that "There has been wide agreement that DSCs 'should do more about Europe', but in practice nothing much has happened." The fact that the debate still has a similar tone, given all that has happened in the EU over those 15 years, is disappointing.

205.  We have already concluded that we should retain our sifting, overarching remit: we provide a crucially-important mechanism for the House to focus on the most important proposals on the basis of a judgement made by elected politicians, with expert support. But it is clear to us that without broader analysis conducted across the Departmental Select Committee system the scrutiny process is incomplete. As Dr Julie Smith put it "you need to find a way of making select committees feel there is a reason for looking at Europe": the question is, how can this be done in a way which is effective, but also manageable at individual Departmental Select Committee level? We therefore seek to propose changes which introduce more coherence across the House, building on significant recent activity at official level, for example by the re-establishment of the network of Departmental Select Committee staff 'contact points' and regular meetings between these staff and those of the European Scrutiny Committee and the NPO.

A GREATER SENSE OF COHERENCE AND PRIORITISATION — COMMISSION WORK PROGRAMME

206.  We believe that more use could be made of the Commission Work Programme. Dr Katrin Auel noted that it had been used as a cue to set priorities in the Netherlands, which we also heard when we visited the Tweede Kamer.[211] The Tweede Kamer produces an annual document, EU Scrutiny, which contains a list of the proposals from the Work Programme which have been prioritised by Standing Committees. The final list is discussed by the Standing Committee on European Affairs and then approved by the plenary. A COSAC questionnaire conducted in 2011 revealed that seven Parliaments/Chambers used the published Work Programme to define priorities for scrutiny.[212]

207.  Other witnesses, for example the Minister for Europe,[213] the Liberal Democrat PPC on International Affairs,[214] Gisela Stuart MP,[215] and Andrea Leadsom MP,[216] all raised the potential advantages of working in a more strategic way, and the written evidence from the FCO commented that an early debate on the Work Programme could "help identify areas of policy concern for both Parliament and Government"[217] though Sir Jon Cunliffe noted some of the Work Programme's limitations as a document, particularly the general terms in which it is drafted, acknowledging that "it is a pretty difficult document to wrestle with. Much of it is aspiration rather than concrete plan ... but we have that document, which suggests areas of action where the Commission intends to bring forward proposals."[218]

208.  Professor Simon Hix noted that the election of a new President of the Commission might change the nature of the Programme:

I can imagine that if there are rival candidates for the Commission Presidency next spring and a Commission President is then chosen through this mechanism, the Commission President will feel that he or she has a much clearer mandate. I then think you will see the work programme take on a different characteristic ... If that is the case, then I think the work programme could be much more useful as a tool for national parliaments and governments and the European Parliament to hold the Commission to account on the types of promises of the things it wants to deliver.[219]

209.  We recommend that the House, through the European Scrutiny Committee and Departmental Select Committees, produces a document along the lines of the Netherlands model. All Departmental Select Committees would be expected to set out which of the proposals in the Programme they will aim to scrutinise, forming the basis for a debate which takes place in the House at the beginning of the Work Programme period. Should a Departmental Select Committee indicate to us that it saw a document as particularly worthy of debate, we would take account of that. We as a Committee would also continue to review the Work Programme. The Government would then use this information as a basis for making commitments to hold debates on particular documents, following discussions with this Committee (and without prejudice to our right to refer documents for debate). The Work Programme for the coming year is usually published in the autumn and comes into effect in January, so the timeframe for doing this would typically be November and December. We would publish a Report for debate on the floor of the House setting out our priorities and those of the Departmental Select Committees.

210.  At the very least this would introduce a sense of common purpose, and progress from the current situation where, as the Rt Hon Keith Vaz MP, Chair of the Home Affairs Committee, said, that the "worst thing is everybody doing things separately".[220] It would also link to the concept of upstream scrutiny which has already been considered in this Report and has been the subject of correspondence since 2011 between the FCO and the Liaison Committee.[221] It could provide an appropriate 'nudge' to Departmental Select Committees at the beginning of the year to at least consider which European proposals might be the most significant in their area, and how work on these could fit into their other activity. But on its own this is unlikely to be sufficient.

EUROPEAN REPORTERS

211.  The Liaison Committee memorandum stated:

We believe there may be merit in adopting the Scottish Parliament Committee model of appointing a Member to act as a Rapporteur to monitor developments in the European Union in their subject area.[222]

212.  The Rt Hon Sir Alan Beith MP, in his oral evidence, stated that in his view:

as far as rapporteurs are concerned, Committees do need the freedom to experiment and develop tools that work for them; that has certainly been the approach of the Liaison Committee: to recommend ideas without saying, 'This is the way every Committee has got to do it.' It may depend also on the personalities you have on the Committee. If you have got somebody who is prepared to take on a more continuous responsibility for Europe-related issues, primarily to alert other Members as appropriate, then Committees should feel free to take that step.[223]

213.  Several of the Members we took evidence from, including Chris Heaton-Harris and Richard Bacon[224] were in favour of the Reporter proposal. We also heard from members of the Scottish Parliament at an informal video-conference meeting that, on balance, it had worked well there; an evaluation of the role at the end of the pilot period concluded:

There remain different views as to whether there is benefit in retaining the EU Reporter role as presently defined. On balance, it is considered that there is merit in retaining the role of EU Reporter, clearly defining the role and responsibilities, which are far greater than the weekly scrutiny of EU documents. The role of the EU Reporter is to act as 'champion' for EU matters within the committee. This will involve promoting the European dimension in the work of the committee, taking the lead on EU early engagement and in developing relationships with the European Commission and European Parliament, leading the committee's EU scrutiny work, promoting and speaking to European issues, highlighting the European dimension within policy debates and acting as a conduit between the committee and the European Committee of the Scottish Parliament. It is recommended that the role should be reviewed after an agreed period (e.g. 12 months).[225]

214.  David T C Davies MP, Chair of the Welsh Affairs Committee, expressed concerns about Reporters in general, describing this as "opening up a bit of a Pandora's box".[226] Dr Ariella Huff noted that it might not be a particularly popular position, and "a very difficult sell";[227] Dr Julie Smith commented that "It might not be my first choice ... but we are not in a perfect world and it would at least mean there would be some European expertise developed in each of the select committees".[228] Responses to these questions on our survey were finely balanced.

215.  The idea of Committee Reporters (or Rapporteurs) is not a panacea. It is also not a new idea—the Modernisation Committee recommended that select committees "experiment" with appointing one of their members as a Rapporteur on a specific task over 10 years ago,[229] and our predecessor Committee developed that idea to suggest that Departmental Select Committees "or at least those in subject areas with much EU legislation" considered appointing a European Rapporteur to "keep a watching brief on developments in the EU, and whom we could consult and pass information to."[230] We note that the Liaison Committee looks favourably on the idea, but as a voluntary step.

216.  We take the view that, Committee autonomy notwithstanding, it is clear that the existing approach to EU scrutiny within Departmental Select Committees needs improvement. We see engagement with the Work Programme as a way of setting priorities, and in order for this to work during the year it also requires ongoing engagement at Member level. We therefore recommend that the requirement to appoint a European Reporter on each Departmental Select Committee should be written into Standing Orders. This could be reviewed after the system has operated for two years.

217.  If this is agreed to, we note that a number of practical questions remain to be resolved through discussion in the Liaison Committee: How would Reporters be chosen by Departmental Select Committees? Could there be more than one per Committee? Would there need to be some kind of co-ordination across the House of which political party they were from? What resources, if any, would they need to do their job effectively? What precisely should their role be? Could Members seeking election for membership of Select Committees within their parties, for example, publicise that they would seek to take on this role? Should Reporters be required to sit on European Committees?

218.  We think that the combination of European Reporters, and a more systematic approach to the Commission Work Programme, could mark a significant shift in the way the House as a whole approaches EU business. We hope that the Liaison Committee will take these recommendations forward.


182   Liaison Committee, Second Report of Session 2012-13, HC 697, Table 2 Back

183   Q 140 Back

184   See Q 140 [Dr Smith]. Back

185   Ev w26 Back

186   Justice Committee, Third Report of Session 2012-13, The Committee's Opinion on the EU Data Protection framework proposals, HC 572 Back

187   Transport Committee, Sixth Report of Session 2013-14, Flight time limitations: follow-up, HC 641 Back

188   Eighth Report of Session 2013-14, HC 83-viii, Chapter 2 Back

189   Q 151 [Rt Hon Keith Vaz MP]  Back

190   Ev w10, para 5 Back

191   Ev w3, para 9 Back

192   Ev w1, para 1(g) Back

193   Ev w19, Annex 1, para 1 Back

194   Q 1 Back

195   Q 12 Back

196   Q 152 Back

197   Q 150 Back

198   Q 150 Back

199   Q 159 Back

200   Q 152 Back

201   Modernisation Committee, Seventh Report of Session 1997-98, HC 791, para 35 Back

202   Ev w24, para 6 Back

203   See Qq 163-4 [David T C Davies MP]. Back

204   Q 150 Back

205   Q 29 Back

206   Q 119 Back

207   Ev w24, para 7 Back

208   Q 417 Back

209   Q 533 Back

210   The reference in para 204 is to Modernisation Committee, Seventh Report of Session 1997-98, Memorandum by the Select Committee on European Legislation, HC 791, Appendix 1, para 78 and the reference in para 205 is to Q 143. Back

211   Q 122 Back

212   COSAC, Fifteenth Bi-annual Report: Developments in EU procedures and practices relevant to parliamentary scrutiny, May 2011, para 4.1.2 Back

213   Q 41 Back

214   Ev w20, para 6(c) Back

215   Q 254 Back

216   Q 289 Back

217   Ev w7, para 14 Back

218   Q 414 Back

219   Q 460 Back

220   Q 151 Back

221   Ev w25 Back

222   Ev w24, para 11 Back

223   Q 176 Back

224   Q 309 Back

225   EU scrutiny, Evaluation of pilot report, para 37, http://archive.scottish.parliament.uk/s3/committees/europe/reports-11/EU_scrutiny.pdf Back

226   Q 165 Back

227   Q 141 Back

228   Q 144 Back

229   Modernisation Committee, First Report of Session 2001-02, Select Committees, HC 224, para 34 Back

230   European Scrutiny Committee, Thirtieth Report of Session 2001-02, European Scrutiny in the Commons, HC 152-xxx, para 87 Back


 
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Prepared 28 November 2013