European Scrutiny CommitteeImproving Scrutiny and UK Influence in Brussels submitted by the Fresh Start Project (ESI 01)

1. There are a number of steps the UK can take of its own accord that could improve the scrutiny of EU legislation in Westminster and increase UK influence in Brussels. In particular, the UK could be better at influencing the legislative process in Brussels at an earlier stage than it often currently does. Some options in this area include:

(a)The Government could subject all significant EU proposals to a robust subsidiarity test. In their evaluation of EU proposals, the UK Government’s impact assessments do in theory assess whether the subsidiarity principle has been met, but in practice this almost always amounts to a box-ticking exercise. These could be more rigorously applied, and if a proposal does not pass this test, the Government should notify Parliament (and potentially other European parliaments and governments)—and both could object to the proposal.

(b)The UK could pursue measures to strengthen the co-operation between national parliaments across the EU on enforcing the principle of subsidiarity. The Lisbon Treaty includes provision for national parliaments to send a “yellow card” or “orange card” to the Commission, if sufficient numbers say that proposed EU legislation breaches the principle of subsidiarity. Under the yellow card, the Commission is obliged to review a proposal if one third of the votes allocated to national parliaments (at least 18 out of 54) are against it. However, it can present the proposal again unchanged. The yellow card was most recently triggered by the so-called ‘Monti II’ Regulation, designed to clarify the balance between a worker’s right to strike and the freedom of companies to provide services across the EU.1

(c)The UK Parliament could introduce European Questions to the Foreign Secretary or Minister for Europe in the House of Commons on a regular basis. There could additionally be an annual one week long debate on upcoming proposals from the Commission to coincide with the publication of the Commission’s Annual Policy Strategies/five-year strategic aims. The aim of this would be to influence the Commission’s Legislative and Work Programme (so it would need to be co-ordinated with effective lobbying), and it could specifically test whether Commission proposals met the principle of subsidiarity.

(d)The Government could make it easier for the House of Commons and House of Lords to make submissions to the EU institutions on breaches of subsidiarity, by lending expertise and official capacity, or even supplying draft submissions. The Government has taken some positive steps by giving the House of Commons EU Scrutiny Committee more time to assess individual proposals, but more could be done.

(e)The European Scrutiny Committee (ESC) terms of reference could be widened to ensure it can act as a full ‘merits’ committee, able to express a clear opinion of its own on what the UK’s stance should be on EU proposals (currently the ESC only makes a judgement on the “legal and political importance” of EU documents).

(f)The ESC could make more use of its existing power to ask departmental select committees to provide their opinion on the impact of EU proposals in their area of expertise—and those committees could be supported to do such analysis.

(g)Departmental select committees could be more proactive at assessing and influencing EU legislation, particularly at an early stage in the process. For example, one session each month could be devoted to examining EU issues.

(h)The European Committees A, B and C (which debate EU documents deemed sufficiently important by the ESC), could be given permanent memberships, selected for a Parliament at a time to allow Committee members to build up knowledge of an area, both in terms of EU and domestic policy. Currently European Committee members are selected on an ad hoc basis, for a debate at a time. The number of European Committees could be increased, so that being a member of one did not place excessive burdens on an MP’s time.

(i)At present the ESC cannot require a debate to take place in the Chamber of the House of Commons on the most important EU documents. There could be a minimum number of debates in the Chamber that the ESC could require each year. In some years the Committee might not use all of these slots, in others it might request more debates. This could be complemented by a right for 90 or more backbench MPs, including at least 40 from the largest party in the House, to require a debate in the Chamber, in Government time, on an EU document that has not yet been finally agreed at EU level. This reflects the fact that scrutiny of EU matters can and should also be carried out by MPs not on the ESC.

(j)These committees could work more closely with their counterparts in the Lords and in the European Parliament to take advantage of their expertise.

(k)MEPs could be more effectively engaged in the UK Parliament’s scrutiny process and provide early notice of proposed EU legislation, as well as effectively influencing legislation as itis being formulated in Brussels. MEPs could be invited to European Questions in the House, and joint committees of MPs, Lords and MEPs could be convened to explore particular aspects of EU legislation.

(l)Parliament could ‘mandate’ the UK negotiating position on particularly important EU proposals before Ministers cast the national vote in the Council of Ministers. Currently, Parliament often examines post facto what ministers have been doing in Brussels. This could involve approval being granted from the House of Commons, or perhaps the ESC, for a negotiating position. A number of other EU countries, notably Denmark and Finland, currently have a similar system.

(m)The House of Commons or ESC could be given the power to approve or reject the UK appointment to the EU’s Court of Justice. Respect for subsidiarity could be made a pre-condition for approval.

(n)The UK could improve its staffing of UKREP, the UK’s permanent representation in Brussels, and the Commission to a level and grade comparable to those of other EU countries. The UK has less than half the EU staff you would expect given its population. UKREP staff could be increasingly drawn from across Whitehall to improve its policy area expertise.

July 2012

1 See EUobserver, “National parliaments show “yellow card” to EU law on strikes”, 29 May 2012; http://euobserver.com/851/116405; The threshold is a quarter in the case of draft proposals on policing or criminal justice. As part of its review, the Commission has to decide to maintain, amend or withdraw the act, and explain its decision. The orange card requires at least a simple majority of the total votes allocated to national parliaments (i.e. at least 27 out of 54 votes), but is restricted to proposals subject to co-decision between national governments and MEPs. If the orange card is invoked and the Commission decides to stick to its original proposal, either 55% of national governments in the Council or a majority in the European Parliament can decide that the draft law violates the subsidiarity principle, in which case the proposal is scrapped. However, this threshold in the Council is higher than the usual threshold for blocking a proposal under co-decision. See http://ec.europa.eu/codecision/stepbystep/text/index_en.htm

Prepared 28th November 2013