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


Conclusions and recommendations


Introduction

1.  The increase in the scope of Qualified Majority Voting—and 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 aspects—that is, which documents are being scrutinised and the nature and effect of parliamentary influence—are both carefully considered. (Paragraph 34)

2.  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. (Paragraph 38)

3.  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. (Paragraph 39)

The role of the European Scrutiny Committee

4.  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. (Paragraph 46)

Explanatory Memoranda

5.  Explanatory Memoranda are the Government's evidence to Parliament, and are signed off in each case by a Minister. We expect Ministers in all Departments to ensure that staff are supported and trained to produce high-quality EMs, and also to maintain strict systems of quality control and oversight, including by Departmental lawyers. (Paragraph 54)

Document deposit

6.  We would be willing to consider further refinements to the deposit system and requests for particular classes of document to be subject routinely to non-deposit or a shorter EM, but in our view a subjective, document-by-document, real-time triage system would not be appropriate, particularly given the bicameral nature of deposit. We ask each Government Department to set out in the response to this Report specific categories of documents which it seeks to be either subject to non-deposit, or shorter EMs, so that we (and the House of Lords European Union Committee) can consider best how to balance the need to avoid strictly unnecessary work with our desire to maintain the rigour and the breadth of the scrutiny system. (Paragraph 61)

Non-papers and limité documents

7.  We note the Minister's comments about non-papers and the offer of oral briefings. The number of documents on which we report (often more than twenty a week) means that oral briefings on individual items are rarely feasible. We therefore ask the Government to give us an undertaking that it will use Ministerial correspondence as a way of keeping us informed of the gist of non-papers. We also ask that whenever a non-paper is produced on a document which we have under scrutiny, that there be a presumption that the Government will at the very least provide a summary of its contents in the form of a letter. This could either be in a form which is publishable or made available to us on a confidential basis. We will keep the provision of such information, and the use which we can make of it, under review. (Paragraph 70)

8.  We call on the Government to publish details of the day-to-day working arrangements of UKRep and Coreper, the precise way in which, and when, UKRep is given Ministerial instructions on specific matters, and an assessment (with examples) of the discretion given to UKRep officials to come to agreements relating to particular proposals. (Paragraph 82)

9.  We were told that the UK Parliament is "among a few" national parliaments that do not have regular access to limité documents. We can ask to see such documents, and are supplied with them on an ad hoc basis, but we cannot ask to see documents if we do not know they exist. The current situation therefore leaves control of Parliament's access to these important legislative papers firmly in the grip of the Government. In our view this is wrong. We therefore recommend that the Government sends both Houses a weekly list of the limité documents which have been issued. We also recommend that the Government alerts the Committees whenever a limité document is produced on a document which is still under scrutiny, including a short summary of the limité text. Deposit is—and in our view should remain—a process which is inextricably linked with publication. It is now time to formalise separate mechanisms by which limité documents can be supplied to Parliament, which will assist our scrutiny of deposited documents. We will review how these mechanisms work once introduced, and in particular whether it should be possible in some way to hold limité documents under scrutiny. This links to arguments about the existence of this classification, which we cover below. (Paragraph 91)

10.  We note that the UK Government intervened in the General Court proceedings to support the request for unredacted disclosure, and we urge the Government to press the EU institutions to cease using the limité classification, particularly to protect Member States' negotiating stances. We also ask the Government for its opinion on the implications of this case for the limité classification. (Paragraph 95)

Scrutiny of Council meetings

11.  We conclude that the current process of Council decision-making and the role of Coreper and UKRep greatly obscures the position of individual Member States, and it is clear that Governments fall back on consensus if they know they are likely to be outvoted. This raises serious questions, given that some of the issues being decided would be the subject of an Act of Parliament if taken through domestic legislation. (Paragraph 99)

12.  Turning to consideration of Council meetings in Committee, we see this as a final check as our scrutiny of proposals will have already been completed in the vast majority of cases (the CFSP being a particular exception). We therefore conclude that our current approach is appropriate. However, we believe that there is scope in some cases for Departmental Select Committees to become more involved at this point if there are matters of detailed policy remaining to be negotiated (including possibly holding a pre-Council hearing), and will work with the Liaison Committee to develop suitable mechanisms and guidance to improve practice in this area. Scrutiny of European Council meetings is dealt with later in the Report in the section on the floor of the House. (Paragraph 100)

Document deposit: overall conclusions

13.  We propose changes to Standing Order No. 143 at the end of this chapter, building on a set of proposed Standing Orders and a scrutiny reserve resolution originally published in 2010 by our predecessor Committee. Overall, we conclude that we should retain our sifting role as it currently stands. (Paragraph 107)

14.  We agree with the points made by our witnesses about the importance of seeking to influence the early gestative stages of the EU policy process, and note that this is a point at which the role of Departmental Select Committees can be highly significant. This is one of the reasons why we recommend enhanced scrutiny of the Commission Work Programme later in this Report, including the contemporaneous setting of priorities by Departmental Select Committees. (Paragraph 108)

15.  For our part, we will continue to scrutinise Commission Green and White Papers, recommending them for debate/Opinion as appropriate. We will aim to recommend documents for debate at an earlier stage of the legislative process, if possible before the Council adopts a common position or general approach. For this to work we will need as much notice as possible, which must be facilitated both by the UK Government and the Council. We look to the latter in particular to fulfil the commitment made under Article 4 of Protocol (No. 1) to the EU Treaties, which states that an "eight-week period shall elapse between a draft legislative act being made available ... and the date on which it is placed on a provisional agenda for the Council for its adoption or for adoption of a position under a legislative procedure". We urge the Government to ensure that any information it receives about the timing of Council consideration is passed on to us as quickly as possible, and that debates on such documents take place in a timely fashion. We note that it may be necessary to act at speed, for example if we have reported on the Council's approach just before the trilogues begin. Our consideration of the contents of non-papers will inform this. (Paragraph 109)

16.  In view of Sir Jon Cunliffe's statements that the Government "should aim to ensure that the Committee is updated on what we think will happen in the trilogue process" and "We will try to find ways to share information" we recommend that if there are substantive changes during trilogue negotiations the Government should provide Supplementary Explanatory Memoranda on documents which have cleared scrutiny (or deposit the new version of the document, with a new Explanatory Memorandum) automatically, rather than on request (thereby re-imposing the scrutiny reserve). The same should apply if there are material changes during negotiations within the Council, for example in the run up to a general approach or common position. (Paragraph 110)

Transposition

17.  We recommend that all Statutory Instruments involving transposition of EU legislation should have a subsidiary "(E)" serial number (in a similar form to the existing subsidiary systems for commencement orders (C), the legal series relating to fees or procedures in Courts in England or Wales (L), or the Scottish, Northern Ireland and National Assembly for Wales series ((S), (NI) and (W) respectively)). They would therefore appear in the form S.I. 1998, No. 2357 (E. 12). (Paragraph 111)

18.  We also recommend that all explanatory memoranda accompanying SIs contain a new section entitled Does this statutory instrument implement or supplement an EU obligation? Although it may be clear from the policy context whether an SI is implementing an EU obligation, we conclude that an unequivocal statement of this nature would be helpful for Members of Parliament and members of the public alike. (Paragraph 112)

19.  Under the European Communities Act, the Government is free to make statutory instruments implementing most EU legislation through the negative resolution procedure, which requires no debate on, or positive approval of, the instrument in Parliament. The negative resolution procedure provides the House with minimal scrutiny of the transposition of EU legislation. A possibility that could be considered further is to oblige certain statutory instruments implementing an EU obligation to be approved through the affirmative resolution procedure, which requires a debate and resolution of approval in both Houses. To be effective, this would require a change to the Standing Orders of the JCSI and an amendment of the European Communities Act to define which transposing legislation would require affirmative resolution. (Paragraph 113)

Non-legislative Acts, CFSP and CSDP

20.  In the absence of agreement with the Government to change our Standing Order as requested, we have relied on informal agreement with the Government about depositing non-legislative acts. This is not a satisfactory state of affairs, and so we propose amending Standing Order No. 143 to cover both legislative and non-legislative acts. Classes of non-legislative acts that are routine or trivial will be excluded from deposit by agreement with the Government. (Paragraph 118)

21.  We conclude, for the reasons we have given, that Standing Order No. 143 needs to be amended to list European Council and Council Decisions under the CFSP as depositable documents. (Paragraph 121)

22.  We do not recognise the distinction the Minister makes between "decisions" and "Decisions", and note the Minister appeared to be unaware that all CFSP Decisions are non-legislative. We take the view that action plans, strategies and frameworks form an important part of the CFSP process and should be depositable; we have accordingly added them to the new version of our Standing Order, which is set out at the end of this chapter, to cover situations where they are adopted by Council Conclusions. (Paragraph 128)

23.  We conclude that there is a real problem with current scrutiny of CFSP. First, there are a high number of 'systemic' overrides on measures relating to sanctions and asset-freezing which risk devaluing the scrutiny reserve. Second, the Standing Order is woefully out of date and in the absence of an agreed definition of 'depositable document' in this area we have had a series of ongoing disputes with the Government about particular categories of papers. It is important to address this because these are high profile and significant measures. (Paragraph 129)

24.  Dr Huff suggested that Ministers giving evidence to the ESC or other Committees before Council meetings was "absolutely critical in making sure that Parliament has its voice heard in these sorts of discussions". We recommend that not only should our Standing Orders be updated but also that we, the Foreign Affairs Committee and the Defence Committee should liaise to develop a more coherent system of CFSP and Common Security and Defence Policy (CSDP) scrutiny, including a pre-Foreign Affairs Council hearing, in order both to reduce unnecessary overrides and make the scrutiny process in this area more effective. In order to facilitate this we ask the Government to supply the three Committees with relevant limité draft Foreign Affairs Council Conclusions. (Paragraph 130)

25.  Given the sheer number of documents in this category it is clear that depositing all delegated and implementing acts would swamp the scrutiny system. The existing ad hoc arrangements work reasonably well, but given the weaknesses identified by the Government we ask it to propose a coherent cross-Departmental approach for determining which implementing and delegated acts will be subject to deposit for the consideration of both this Committee and the European Union Committee in the House of Lords. (Paragraph 133)

The scrutiny reserve

26.  We conclude that the reserve must remain the centre of gravity of the House of Commons scrutiny system. We therefore propose two major changes to reflect the reality of EU decision-making highlighted throughout this Report: first, that an override shall be regarded as having occurred when the Government abstains on a vote on a document held under scrutiny, not just when it votes in favour; and, second, that agreement or acquiescence by Government in reaching a consensus in Coreper on a document held under scrutiny, when the Government does not intend to object to the matter being raised as an A point in Council, should also trigger an override. (Paragraph 143)

Scrutiny of overrides

27.  The general scrutiny reserve resolution does not cover a Government decision that the UK will participate in an EU justice and home affairs measure, where the UK has discretion over its participation under the EU Treaties. Such discretion exists either under the Title V opt-in or Schengen opt-out arrangements. Under the EU Treaties, a UK decision to participate in such an EU law is irreversible, and by their nature these laws typically concern sensitive matters. When Baroness Ashton, for the previous Government, made a statement on 9 June 2008 on improving Parliamentary scrutiny of these opt-in decisions, she said that these Government undertakings on better scrutiny should be reflected in an amended or new scrutiny reserve resolution. We therefore propose at the end of this Chapter an opt-in scrutiny reserve resolution to cover decisions taken in Whitehall to opt into or out of Title V or Schengen measures. (Paragraph 144)

28.  Since our exchange of letters with the Cabinet Office the information we have received on scrutiny overrides has improved and we look forward to continued engagement with the Government with the aim of eliminating unnecessary overrides. To this end we will continue to scrutinise the override statistics closely. As a further measure to increase transparency we will from now on be placing the correspondence on overrides on a special section of our website. (Paragraph 145)

29.  We will also continue to hold oral evidence sessions with Ministers in cases where there are serious breaches of the reserve (as took place in July 2013 with the then Minister for Public Health, Anna Soubry MP; in July 2012 with Crispin Blunt MP, then Parliamentary Under-Secretary at the Ministry of Justice; in February 2012 with Baroness Wilcox, then Parliamentary Under-Secretary at the Department for Business, Innovation and Skills; and in December 2011 with Chris Grayling MP, then Minister for Employment at the Department for Work and Pensions). For particularly serious breaches of the reserve, or repeated serious breaches, we will in future issue a Report censuring the Minister concerned, and if necessary recommend that this be debated on the floor of the House. (Paragraph 146)

Debates on EU documents on the floor of the House

30.  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. (Paragraph 157)

31.  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. (Paragraph 158)

32.  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). (Paragraph 159)

33.  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. (Paragraph 160)

34.  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. (Paragraph 162)

35.  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. (Paragraph 163)

A national veto and disapplication of EU law

36.  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. (Paragraph 170)

37.  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. (Paragraph 171)

38.  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. (Paragraph 177)

39.  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. (Paragraph 178)

European Council meetings

40.  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). (Paragraph 180)

41.  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). 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. (Paragraph 182)

Oral questions on EU matters

42.  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. (Paragraph 187)

Departmental Select Committees

43.  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. (Paragraph 204)

44.  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. (Paragraph 205)

45.  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 Commission Work 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. (Paragraph 209)

Committee Reporters

46.  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. (Paragraph 216)

47.  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? (Paragraph 217)

48.  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. (Paragraph 218)

European Committees

49.  We remain of the opinion that the best solution would be to revert to the previous system of permanent membership. Moreover, giving European Committees a permanent membership, with a permanent Chair, would enable them to make decisions about their business and timetabling, as well as developing expertise among their members and potentially making them more independent from the Whips. It would also give interest groups the opportunity to make their views known in advance to members of the relevant Committee. Given the impact of EU legislation on the voter, and the fact that many matters which come before European Committees would be the equivalent of an Act of Parliament—and have not necessarily originated from Government policy—we recommend that European Committees should not be whipped. (Paragraph 234)

50.  The role of these Committees is questioning the Government about its negotiating approach on particular documents, and considering the wording of the motion to be considered on the floor of the House about the Government's position on those documents. We therefore recommend that they should be renamed as EU Document Debate Committees. (Paragraph 236)

51.  Our new EU Document Debate Committees should also have permanent Chairs. We see considerable merit in these Chairs being elected, and possibly the Committee Members too. We also believe that Members of the House who are not members of the Committee should be permitted not just to attend and move amendments, but also—crucially—to vote. In this way the independence of the Committees would be guaranteed and it would enable all Members of the House to determine, not merely suggest, the form of the motion which goes to the floor of the House (on the assumption that the Government accepts our recommendation later in this chapter that it should commit to tabling in the House the motion agreed to by the Committee). (Paragraph 237)

52.   We further recommend that EU Document Debate Committees should be given power to vary the way they conduct their business, for example: to dispense with the Ministerial statement, and proceed straight after the explanatory statement by the ESC Member to the debate on the Motion; to agree to reduce the length of the sitting of the Committee from two and a half hours to an hour and a half; to debate certain documents together; or to permit a member other than the Minister to move the motion (for example, in the case of a Reasoned Opinion, to allow this to be moved by a member of the European Scrutiny Committee). In order to do this the Committee would deliberate in public in exactly the same way as a Public Bill Committee considering a Programme Motion. (Paragraph 238)

53.  We recommend that similar provisions on timing should apply to EU Document Debate Committees as we have recommended for debates on the floor of the House: that the Government should undertake to ensure that the debate takes place within four sitting weeks of a Committee recommendation (unless the Committee has for any reason waived this requirement, or—indeed—has suggested a tighter timescale). (Paragraph 239)

54.  Finally, we recommend that delegated legislation introduced under the European Communities Act which requires affirmative resolution (and would therefore normally fall to be considered by a Delegated Legislation Committee) should also be taken in the relevant EU Document Debate Committee. This would be one way of accommodating the recommendations from the Chair of the EFRA Committee about introducing amendable motions in Delegated Legislation Committees cited earlier in this Report. (Paragraph 240)

55.  The then Deputy Leader of the House noted in 2008 that the then Government "recognise[d] the long running view expressed by previous Committees, including by the Modernisation Committee in 2005, that the motion tabled [in the House] should be the one agreed by the [European] Committee." We recommend that the Government should set out a commitment that the motion tabled in the House should be the motion agreed by the EU Document Debate Committee. (Paragraph 243)

56.  A particular issue has arisen with Reasoned Opinions, where there have been cases where a Minister has had to move a motion relating to a Reasoned Opinion proposed by the ESC, even when the Government did not agree with it. As we have already noted, the Procedure Committee reported in 2011 and recommended that in these cases the "motion [should] 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 Government's response rejected this. We ask the Government to reconsider its opposition to this change. (Paragraph 244)

57.  We recommend that a new resolution of the House provide 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. (Paragraph 245)

58.  It is noteworthy that on a number of recent occasions there has been confusion about the procedures involved in European Committee sessions. We therefore intend to work with the House authorities to produce further guidance on this process. (Paragraph 246)

The visibility of scrutiny and the media

59.  We conclude that given the possibility of some form of EU referendum—either on membership or following treaty change—over the next ten years, the media, particularly (given its role) the BBC, needs to ask itself difficult questions about how it deals with EU issues. We are not convinced that the Prebble Review and the responses from the BBC Executive and BBC Trust have sufficiently asked, let alone answered, these questions. Some issues highlighted in the review (such as apathy, which is described in the Prebble review as "the main enemy") are not, in our view, best addressed by measures such as the "cross-promotion of BBC services"; something more profound and strategic is necessary. We are disappointed, in this respect, that the section at the back of the BBC Trust's response which lists the areas in which an update is required from the BBC's Editorial Director in summer 2014 makes two specific references to religion and ethics but no specific mention of EU coverage. It is unacceptable that we have not had the opportunity to resolve these outstanding points because the Chairman of the BBC Trust, which commissioned the Prebble Report, has refused to appear before us for a public oral evidence session. (Paragraph 259)

60.  We reject the assertion in Lord Patten's letter that our invitation to him to give oral evidence was "inappropriate". We fully respect the editorial independence of the BBC. But that does not mean that the BBC Trust is above Parliament, and should pick and choose its interlocutors here. (Paragraph 260)

61.  We publish our exchanges of letters with Lord Patten alongside this Report. We do not see why it is "inappropriate" to question—in public—a publicly-funded organisation on a review it has conducted, and what it will be doing to follow up that review. The BBC Trust's defensiveness on this point is deeply disappointing and the broad-brush nature of the refusal will be of interest to all Select Committees. We invite, as part of the follow-up to this inquiry, the BBC (including the Chairman of the BBC Trust), to give oral evidence in the spring of 2014, to set out what follow-up actions have been taken in the light of the Prebble Review, and to take forward the points raised in correspondence and in our supplementary questions, on such key matters as broadcasting decisions, complexity and explanation, the Prebble Review and Charter Obligations. (Paragraph 262)

62.  Since the beginning of the 2013-14 Session we have produced public meeting summaries, which are usually on our website the day of or the day after the meeting. These have been widely welcomed. We recognise that more could be done to develop our communications and our website—particularly by making it easier to navigate—and we will be taking this forward over the coming year. Until 2010 most Select Committees (including the European Scrutiny Committee) produced an Annual Report. This practice has now ceased, but it has become clear during the course of this inquiry that so many of the issues we consider recur over time that we should re-establish this practice with effect from the end of the 2013-14 Session. (Paragraph 270)

63.  We agree with the evidence of Professor Simon Hix that the legislative nature of the UKRep position makes it different in nature to other Ambassadorial appointments. While we note the position of the Government, we believe that prospective holders of this post should make themselves available to give oral evidence to Committees of this House. We deeply regret the fact that the Government did not permit this in the case of the new Head of UKRep, and will take this forward through the Liaison Committee. (Paragraph 277)

Conclusion

64.  We noted at the beginning of this Report that our influence must be focused on the UK Government. This is the key purpose of scrutiny; reflecting the primacy of the UK Parliament. As we pointed out in the introduction, the context of the Prime Minister's Bloomberg speech is highly relevant, in particular the 'fourth principle'—"It is national parliaments, which are, and will remain, the true source of real democratic legitimacy and accountability in the EU". The collective influence of national parliaments in the light of the Lisbon Treaty, for example through the Reasoned Opinion process, must also be considered to be part of the scrutiny process. (Paragraph 278)

65.  There are two reasons why a system of Parliamentary scrutiny of EU proposals was first established in 1972. First, by joining the EU the UK agreed to be legally bound by directly effective EU legislation; such legislation became automatically binding on UK citizens without the rigorous scrutiny which accompanies the enactment of a Bill. This was a very significant shift away from full Parliamentary scrutiny of legislation which is, in effect, the same as national legislation but without Acts of Parliament—and, because of Qualified Majority Voting, does not necessarily originate in Government policy. Secondly, if not directly effective, EU obligations were to be implemented by secondary legislation by virtue of section 2(2) of the European Communities Act 1972. Parliamentary scrutiny of secondary legislation implementing EU obligations is limited in scope—it cannot question the policy being implemented, but simply whether it has been done so correctly. Hence the pre-eminent importance of Parliamentary scrutiny of EU documents: it is the only means Parliament has of influencing EU policy before it becomes binding legislation. The reforms we recommend in this Report should be viewed in that light. (Paragraph 279)

66.  Our conclusions and recommendations are set out in full in the following section of this Report. They represent an agenda for radical reform of the scrutiny system. On the primacy question, we make a set of recommendations to improve the way in which debates are scheduled and conducted, but also conclude that there must be a strengthening of the scrutiny reserve to reflect the reality of decision-making in Coreper and by Qualified Majority Voting. We ask that more use is made of Supplementary Explanatory Memoranda to re-impose the scrutiny reserve when documents change during negotiations. More fundamentally, we see no reason why the idea of a national veto should not be urgently developed and decided, given the emerging discussions about collective 'red cards'. (Paragraph 280)

67.  The Modernisation Committee's 2005 Report on the scrutiny of European business was not debated by the House until three years after its publication, which was completely unacceptable. In the context of the current tone of debate at EU level, the moves towards deeper EU integration highlighted in successive Commission publications and the prospect of an EU in/out referendum in or before 2017 there is evidently an urgent need for the House and its Committees to address our conclusions and recommendations. (Paragraph 281)

68.  We ask the Government to ensure that it responds to our Report within the customary two-month deadline, and the Procedure Committee and the Liaison Committee to consider those recommendations relevant to them, alongside the Government's response, so that this matter is brought to the floor of the House no later than Easter 2014. (Paragraph 282)



 
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