European Scrutiny CommitteeWritten evidence from the Foreign & Commonwealth Office, on behalf of the Government (ESI 05)


1. The Government welcomes your Committee’s decision to hold an inquiry on European Scrutiny in the House of Commons. We value the excellent work of the European Scrutiny Committee, as well as other Committees including those in the Lords, in scrutinizing EU legislation.

2. The FCO is keen to raise awareness of EU issues in the House to improve transparency and accountability. This builds on the Government’s programme of enhancing democratic accountability and Parliamentary oversight of EU matters, having passed the EU Act 2011, enhanced the arrangements for scrutiny of JHA proposals, and more recently launched a Review of the Balance of Competences. That Review aims to deepen understanding of the nature of our EU membership and to provide a constructive and serious contribution to the wider European debate about modernising, reforming and improving the EU. This Inquiry can do likewise.


The purpose of, and background to, the current scrutiny system in the House of Commons (and how it compares to systems across the European Union)

3. The purpose of scrutiny is to ensure that the subject matter of EU legislation and policy is properly debated in Parliament in order to hold the Government to account for the position it takes within the EU, and to ensure that EU policy enters the political and media debate. This is vital to our democracy and values, and if we are to improve trust in the decision-making process between citizens, Parliament and Government. In the Government’s view, in considering scrutiny, the key question to answer is: Does the current scrutiny process provide the proper platform for this to happen?

4. The Government strongly believes in greater public and parliamentary accountability in the way that Government operates, including on European issues. The European Scrutiny Committee (ESC) and the EU Select Committee in the Lords do a comprehensive and thorough job of considering the political and legal implications of documents arising from Brussels.

5. The Government considers that parliamentarians have a valuable contribution to make to policy while it is being formulated, and it welcomes the expertise and views expressed from all corners of the House during the negotiating process which can serve to better inform its negotiating stance on proposed EU legislation/initiatives.

House of Lords

6. It is perhaps briefly worth alluding to the scrutiny systems in the Commons and the Lords. The Government recognises that scrutiny in both Houses has many—often complementary—strengths, including the often more detailed scrutiny of issues in the Lords through the inquiry process and comprehensive document-based scrutiny in the Commons. It is important to maintain the strengths of the different approaches used.

7. The Government would very much encourage the ESC to seek evidence for this Inquiry from the Lords EU Select Committee. From a Government perspective, we see strengths in the Lords’ system of sifting documents by the Chairman and consequent consideration by the six Sub-Committees (of 1976 Explanatory Memoranda considered during the 2010–12 Session for example, 735 were sifted to sub-committees for examination. As reported by the EU Select Committee in their First Report 2012–13, HL Paper 13). The Lords Committee also accepts oral briefings from officials for background purposes. This has helped clarify issues without the extra workload of formal evidence gathering and also helped to reduce the number of scrutiny overrides. Feedback suggests that these informal officials’ evidence sessions are regarded by the Lords as helpful, especially where the issues are sensitive or complex.

8. It is not straightforward to comment on the scrutiny models of other EU member states. Details of the different systems across Europe can be found on the COSAC website (Conférence des organs spécialises dans les affaires communautaire—

9. However, we would draw the main themes out of the different systems of scrutiny across the EU as follows:

(a)Most national parliaments form a position during the working group stage; with fewer leaving formal adoption of a position until just prior to the Council meeting which is set to adopt the proposal;

(b)Some national parliaments seek to influence decisions during the pre-legislative phase in the Institutions, through Green and White papers, communications and other consultation documents. The UK’s Explanatory Memoranda system is generally considered amongst the most comprehensive of documents;

(c)Some Member States combine scrutiny and mandating systems; and

(d)Most Parliaments have an EU specific committee, with a growing trend of thematic select committees taking a greater role in scrutiny of EU business.

The European Scrutiny Committee’s sifting role and its place in the wider context of House of Commons (and parliamentary) scrutiny, for example in relation to Select Committees, Delegated Legislation Committees (transposition of Directives into UK law), debates and questions on the floor of the House and primary legislation

10. In addition to the valuable work of the ESC, the Government values the work of the Select Committees (SCs) in EU policy matters. The EU deals with policy areas across all Government Departments and, as the ESC has recognised, there are issues with asking the European Scrutiny Committees alone to cover the wide range of EU activity beyond scrutiny documentation. The Government is open to exploring with the House what changes are needed given (i) increasing workloads as evidenced by the increase in numbers of Explanatory Memoranda (please refer to para 32) and (ii) the changing nature of the EU.

11. An ideal system of scrutiny would harness existing expertise including the technical and policy expertise within the DSCs. Mainstreaming and good linkages with the DSCs increases upstream scrutiny by the House on policy formulation. This enables Government to be better informed of Parliamentarians’ views early on in its policy development. In turn, timely engagement with Parliament encourages Government to formulate its position early to influence better the EU process. The Government also notes the increased use by the ESC in seeking opinions from the SCs on matters under scrutiny.

12. There are many examples where SC input has benefited the UK’s negotiating position. For instance, in its report on Sulphur emissions by ships, the Transport Select Committee’s firm line on negotiating robustly in the EU to fend off any gold-plating of the revised MARPOL Annex VI strengthened the UK’s hand in taking a strong negotiating position in discussions on a proposed Directive on the sulphur content of marine fuels. In particular, the report emphasised the need for the Government to prioritise its efforts and secure two key outcomes, and to do this by forging alliances with other EU Member States.

13. The role of the National Parliamentary Office (NPO) in Brussels is also vital in this context. Good relations with the EU institutions and the UK Permanent Representation to the EU (UKRep), with an ability to identify and anticipate upcoming EU issues are vital for Parliament to be in a good position to scrutinise the Government and develop its own position before Government needs to make a decision in Brussels. We are pleased that the NPO has ever improving relations with UKRep. We are looking at ways to strengthen linkages between parliamentarians and the EU. For example, we are encouraging and supporting visits by parliamentarians to Brussels, European Institutions and key European capitals, and have also promoted briefings by UK Ambassadors to All Party Parliamentary Groups on EU and other key issues.

14. We welcome the proposals from the various Committees, including the ESC, for timely discussion of the Commission Work Programme. If the Committees were minded to facilitate an early debate, this could also help identify areas of policy concern for both Parliament and Government.

15. It has been the Government’s practice for Departments to write to the Scrutiny Committees at the start of each Presidency (copied to the relevant Select Committees) to flag up the priorities of the forthcoming EU Presidencies as soon as they are known. It would be extremely helpful to know as soon as practicable what topics are of particular interest to the Committees to enable early engagement and exchange of views to take place.


16. The Government recognises that scrutiny during Parliamentary recesses presents special challenges given that the Brussels and Westminster timetables are quite different. Recess is a particular problem for foreign policy and other areas that require immediate action, as opposed to those areas that are shaped for example by the ordinary legislative procedure. As the ESC has recognised, CSDP and CFSP decisions (eg imposition of restrictive measures or sanctions) often need to be taken quickly to be effective. Recess, especially in summer, also presents challenges as regards Parliamentary scrutiny of JHA opt-in decisions, which have to be taken within a strict three-month window.

17. Reforming arrangements for carrying out scrutiny in recess, particularly the long summer recess remains critical in our view for effective parliamentary scrutiny. It is important for both Parliament (to minimise important legislation being enacted without proper scrutiny and debate if necessary) and for Government (so Ministers do not expend valuable political capital in Brussels by insisting on delays). We continue to urge the European External Action Service in particular to ensure that the role of national parliaments, as set out in the Lisbon Treaty, is factored into the decision-making making timeline on CFSP/CSDP related measures. At the same time, the Committees may wish to examine what flexibility they could introduce into the system during recess periods. Procedure allows for a sub-Committee to be formed which might allow for a system of sift similar to that of the Lords, during recess periods. We have welcomed the decision of the Lords to hold three sift meetings in August/September 2012—and note that the ESC will meet twice during September when the House of Commons returns.

The mechanism by which the Committee refers documents to the European Committees; and the composition and performance of European Committees

18. Debates in committee or on the floor serve to crystallize and highlight Parliament’s concerns on important issues. Given the importance of EU legislation and regulation and its impact on the UK (which the Balance of Competences exercise will further clarify), the Government is keen to encourage as many parliamentarians as possible to participate in such debates and welcomes the fact that meetings of the European Committees are open to all. The Government notes, however, that some debates have been sparsely attended or have been concluded very quickly. It is perhaps worth noting that of the 11 European Committee debates in the current Session:

19. On four occasions no other Members other than those appointed to serve on the Committee attended the debate; on seven occasions just one Member other than those appointed to the Committee attended, and on one occasion there were two additional Members who attended the debate.

20. On one occasion the debate lasted just 13 minutes (the 22 May debate on EU criminal justice and detention issues) and the longest debate lasted one hour and 58 minutes (18 June debate on the European External Action Service). The average length of debates this Session has been 52 minutes.

Expectations, understanding and coverage of the scrutiny process within and outside Westminster

21. The Government agrees that the scrutiny process should be as accessible to as many parties as possible, and that the accessibility of the scrutiny process is enhanced through processes which are transparent and easy to understand.

22. Transparency is important. Currently Explanatory Memoranda are not available on Parliament’s website, though excerpts are available when quoted in the Committee reports. Could this practice be encouraged? The Standing Committees might also consider for instance designating themselves by names that clearly indicate their functional ambit, rather than letters. The use of names rather than letters would help to make the committee more accessible to the media and others. The European Committee for Transport is clearer than the likely business of European Committee A, for example. We recognise however that it is difficult to come up with a generic name for the three committees given the range of departments covered.

23. The Government believes there may sometimes be an issue about where the boundary of responsibility should lie between the ESC and the various other SCs. While the ESC does an excellent job within its prescribed terms of reference, which are confined to looking at documents as they come from EU institutions, there is a powerful case for more upstream engagement by the House in examining the strategic direction of European policy before it takes the form of specific pieces of European legislation.

24. There is an active network of departmental scrutiny coordinators within Government that meets regularly to discuss scrutiny issues (including those raised by Scrutiny Committees) and to share best practice. This group has developed a suite of separate free-standing guidance products for all departments to draw upon in addressing some of the key elements of the scrutiny process including i. a table of key Government undertakings to Parliament, ii. an annotated Explanatory Memorandum template, iii. the sharing of Limité texts with the Committees and iv. a new approach to submitting impact assessments to the Committees.

25. Key commitments and other messages about undertakings to Parliament are reinforced at regular meetings of the scrutiny coordinators’ network (chaired jointly by the FCO and Cabinet Office). In order to enhance further understanding of scrutiny within Whitehall and to share and embed best practice, all Departments have been encouraged to hold scrutiny awareness raising events. Several Departments have held events and others are planned. The Government welcomes the support from parliamentarians and Scrutiny Committee officials in supporting these events. The Government also welcomed a networking event for officials hosted by the two Committees in July 2012. The Government will continue to make the importance of successful scrutiny commitments clear to its officials.

26. The need for timely responses to Committee reports was reinforced by the Cabinet Office in January 2012 following a review carried out by the Lords EU Select Committee last year.

27. The Government accepts it is important that the retrospective records of override occurrences during each six month period should be compiled more quickly so that when the list is published the information is more current than has been the case with previous reports. The Government also considers that the statistics held by Departments and published by the Committees should be reconciled more quickly. The Cabinet Office is discussing how best to achieve this with the relevant Committees.

Potential Changes to the current standing orders establishing the committee and the European Committees, and the scrutiny reserve resolution, in the light of developments since the Lisbon Treaty

28. The Government believes there is a need to consider existing systems however in the light of changes brought about by the Lisbon Treaty. For instance, it has agreed—subject to any further views from the ESC—to consider how delegated and implementing Acts should be considered under scrutiny.

29. The Government recognises that a large amount of legislation from Brussels is in the form of delegated and implementing acts, which is not usually subject to Parliamentary scrutiny. Under current arrangements, proposals for delegated and implementing acts are depositable, but in practice most of these concern minor technical issues and systematic scrutiny of them would over-burden the Scrutiny Committees. Therefore they are only deposited if the content of the decision is considered sufficiently legally or politically important to need reporting. This decision is taken in consultation with the clerks of the Committees.

30. The Government is supportive of the role of both Houses in monitoring and ensuring compliance by the Institutions with the principle of subsidiarity through the mechanism introduced by the Lisbon Treaty and set out in Protocol 2 to the EU Treaties. This is an important mechanism since it allows national parliaments to directly express a view, in the form of a reasoned opinion, on whether the EU institutions are correctly applying Article 5(3) of the Treaty of the European Union and the Government is grateful for work undertaken so far by the ESC and the Lords’ EU Committee in identifying legislative proposals that may not be consistent with this principle.

31. The Government is keen for the House to continue to be able to fulfil its role in this regard, on the basis of reports from the ESC, and within the timetable laid down under the Lisbon Treaty. Indeed, the Government believes that the decision on whether to submit a reasoned opinion should be a matter for the House, informed by the work of the ESC, not for the Government. In debates that have already taken place on motions for reasoned opinions, Ministers have made it clear that they will not stand in the way of the House coming to a reasoned opinion. In this context, the main concern of Government has been to facilitate the House in coming to such an opinion.

32. The Government is also determined to ensure that the House has the opportunity to offer views on the decision on whether the UK should participate in measures that attract the JHA opt-in or the Schengen opt-out. The Government remains committed to enhanced scrutiny procedures for these decisions and two debates under those arrangements have already taken place.

33. Work is continuing on the Code of Practice which will set out clearly the Government’s commitments to the operation of enhanced scrutiny of the opt-in and opt-out in Justice and home Affairs matters.

The current system of Explanatory Memoranda for deposited documents

34. The number of documents that the Committees scrutinize has increased over the past couple of years. The FCO, for example, deposited 133 Explanatory Memoranda (EMs) in 2010, and 167 in 2011, an increase of 25%. This increase in workload is most acute in the run up to the summer Recess and in the lead up to Christmas and New Year. Across Government, records show that in 2010, 980 EMs were submitted and in 2011 there were 1128 representing a 15% increase in volume across all departments. The increased workload, and the additional peaks caused by the three recess periods, has meant that the Committees have not always been able to consider EMs before decisions need to be considered at Council. Regrettably, this contributed, most recently, to the need to override scrutiny on the EU Human Rights Strategy (in July 2012) and the EU’s Accession to the Treaty of Amity and Cooperation in Southeast Asia (April 2012). The decision to override Parliamentary scrutiny is not one that the Government takes lightly.

35. The Government would welcome a practice of regular reviews of the EM system to ensure that the right documents are being scrutinized and the House is getting the information it needs in the most intelligible format for both it and a non-expert audience. In particular, Government and the two Scrutiny Committees might look at what scope there is to streamline existing processes to reduce the burdens whilst still meeting its objectives of better scrutiny, accountability and transparency. For example, we might consider:

(a)the classes of document for which EMs are provided, to make sure they are still appropriate;

(b)whether a simplified form of EM might be appropriate for certain classes of document, whilst still preserving the right of committees to call for more information; and

(c)Whether EMs are structured and written in an accessible way, and whether they could be made—as part of the overall scrutiny system—more intelligible and accessible to parliamentarians outside the committees, the media and public. For instance, rather than refer to “subsidiarity” could the question be “should the EU take action rather than Member States?” and perhaps there should be more focus in the EM on the “impact on the citizen”?

36. For reasons of efficiency and effectiveness, the Government would welcome a light touch approach, increasing day-to-day contact between committee staff and parliamentarians with officials, to accompany and complement the formal system of scrutiny.

September 2012

Prepared 28th November 2013