European Scrutiny CommitteeWritten evidence submitted by Dr Ariella Huff and Dr Julie Smith, University of Cambridge ESI 06

IN RESPONSE TO THE CALL FOR EVIDENCE FOR AN INQUIRY INTO THE EUROPEAN SCRUTINY SYSTEM IN THE HOUSE OF COMMONS

1. This submission relates primarily to the interaction of the House of Commons European Scrutiny system with departmental select committees and how this might be improved to provide more comprehensive policy scrutiny of EU matters, as well as offering some insights into scrutiny in national parliaments in other EU Member States. Our responses draw inter alia on research we have undertaken as part of the OPAL (Observatory of National Parliaments after the Lisbon Treaty) project, which is co-funded by the ESRC.

Issues Surrounding Scrutiny of EU Matters

2. In recent years the European Union has acquired a wide range of powers following repeated treaty reform dating back to the Single European Act of 1986. In the past this shift came at the expense of national parliaments, whose role in EU decision-making was limited. The Lisbon Treaty sought to redress this balance to some extent by granting national parliaments new rights regarding legislation emanating from the EU, in the form of an “Early Warning System”, notably where the ordinary legislative procedure (OLP) has replaced co-decision. However, parliamentary scrutiny in the UK (as in many other Member States) has not kept up with these changes.

3. “Europe” permeates the political, social and economic life of EU member states, yet it continues to be treated as something “other” or apart in the UK, as something that is imposed from the outside rather than as a process in which UK government and business is actively engaged. This is reflected in the nature of parliamentary scrutiny of EU affairs. Rather than consider the European dimension in sectoral policy areas, as other organisations such as the Institute of Directors have done for the past two decades or more, Europe has not been “mainstreamed” by the House of Commons. It is treated separately by select committees, with the European dimension left to the European Scrutiny Committee. While this may have the advantage of leaving scrutiny to parliamentarians who have developed expertise in European affairs, it has the disadvantage that scrutiny is not joined up, reflecting the sort of departmental silos that are seen in Whitehall. The current system’s focus on legislation arguably comes at the expense of policy scrutiny, leaving little opportunity for MPs to debate the Union’s broader policy priorities and the UK government’s positions on those issues. We are of the opinion that mainstreaming European scrutiny as adopted in some other EU countries would ensure more effective scrutiny. This is especially true in policy areas with a significant European dimension such as energy and agriculture.

4. Departmental select committees (DSCs) currently have no formal role in the scrutiny process. Although the European Scrutiny Committee (ESC) regularly forwards documents to relevant department select committees, there is no requirement for the DSCs to follow up with more intensive scrutiny. Moreover, while the ESC has the power to request opinions from relevant DSCs on particular EU issues, that power is rarely used in practice.1

5. The House of Commons system provides an effective way to sift through legislative proposals from the EU, but it is less effective at situating these proposals in the context of broader UK policy. The Lisbon Treaty considerably expanded the number of areas in which the EU has sole or shared competences. There are thus a huge range of policy areas, from agriculture to climate change to international development, in which departmental select committees should be considering the “European” dimension of their field on a routine and systematic basis. However at present this kind of scrutiny only takes place on an ad hoc basis, so 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. The ad hoc nature of EU scrutiny in DSCs also means that the extent to which this occurs depends on the interests of the individual committee chairs and members. If there is little interest in European Affairs in the DSC, European scrutiny can be easily overlooked. One example of best practice is the Environment, Food and Rural Affairs Committee, which has proven effective at integrating scrutiny of EU policy into its general activities.

6. Moreover, the current scrutiny system is particularly poorly-equipped to scrutinise non-legislative policy areas such as the Common Foreign and Security Policy (CFSP) and Common Security and Defence Policy (CSDP). The ESC is technically only able to scrutinise such fields as and when documents are issued (eg Joint Actions) but many developments in these areas also take place “on the ground” rather than as a result of specific, written decisions. The ESC also lacks the policy expertise to scrutinise such fields as comprehensively as the relevant DSCs can do.

7. This problem is compounded by the fact that, even if DSCs choose to investigate European policy developments as part of their broader inquiries, in practice they often fail to address EU policy developments in a timely manner. Moreover, since such scrutiny is carried out largely on an ad hoc basis, DSCs are not required to investigate specific developments as or just after they take place. For example the Foreign Affairs Committee, although relatively active in examining the EU’s role in counter-piracy operations off the coast of Somalia, did not discuss the significant expansion of Operation Atalanta’s mandate at the time the decision was made in March 2012.

8. Given the ad hoc and unsystematic nature of DSC involvement in scrutinising EU policy, DSCs currently have little incentive to work together to ensure effective oversight of policies that may be relevant to more than one committee (eg environmental policy or CSDP). In this way, DSCs and the ESC effectively work in silos with little formal and institutionalised communication (although at staff level, many informal links have been maintaining at least a minimal flow of information). This can result in duplication and wasted resources, with parallel inquiries that hamper the development of comprehensive approaches to scrutiny.

9. In addition, DSCs’ relative lack of involvement in scrutinising EU policy hinders their ability to participate in interparliamentary “conferences” on specific topics, as envisioned by Art. 10 of the Lisbon Treaty’s Protocol A on the role of national parliaments in the EU. Interparliamentary scrutiny constitutes a critical, if as yet underdeveloped, aspect of European scrutiny, particularly given the provisions of the “early warning system”. The Foreign Affairs Committee’s heavy involvement in the recent debate over how to construct an interparliamentary scrutiny mechanism for European foreign and security policy, in light of the closure of the Western European Union Assembly, provides an excellent example of the leading roles that House of Commons DSCs can play in shaping these new mechanisms. However, in order to be effective leaders in this field, the DSCs must have sufficient EU expertise, as well as a keen understanding of the broad contours of European policy as well as legislation.

Good Practice from other EU Member States

10. In recent years a number of European parliaments—eg the Dutch Tweede Kamer and Eerste Kamer—have “mainstreamed” the European scrutiny process, giving departmental select committees direct responsibility for scrutinising EU affairs in their policy area (with the EU committees playing a coordinative, overseeing role). In the Netherlands, this system developed in part as a response to the “no” vote in the 2005 referendum on the Constitutional Treaty, as parliamentarians perceived that voters were demanding more effective scrutiny of EU policies. The Lisbon Treaty’s new provisions have added further momentum to the reforms, which are seen within the chambers as very effective in facilitating debate over EU policy both before and after legislative proposals are made.

11. In the German Bundestag, the European Affairs Committee plays a coordinating role while sectoral committees are responsible for scrutinising EU policies relevant to their areas. The EAC retains responsibility for constitutional questions like Treaty reform and accession of new Member States. Since the Lisbon Treaty, the EAC is also responsible for the final decision to submit reasoned opinions on potential breaches of subsidiarity (as part of the Early Warning System), although sectoral committees are also involved in these discussions and are responsible for initially proposing reasoned opinions. In addition to enabling scrutiny of EU policy by sectoral committee experts, this system also gives sectoral committee chairs the expertise needed to consult with their counterparts in other countries on EU affairs (an aspect of cooperation that has become highly salient in the context of the financial crisis).

Recommendations

12. We recommend the following changes to the EU scrutiny system:

(i)European matters should be mainstreamed, ie dealt with by departmental select committees, not left purely to the ESC. This should involve DSCs taking direct responsibility for scrutinising aspects of EU policy relevant to their areas of interest, in a systematic and timely—rather than ad hoc—manner that takes account of both legislative proposals and policy developments as they occur. This will enable the House to connect policies at the European level to those of HMG, and will facilitate better scrutiny of the Government’s role in shaping those policies in the Council of Ministers. To this end, Departmental Ministers should be directly accountable to their respective sectoral committees for positions taken and decisions made in the Council both before and after Council meetings;

(ii)The ESC should take on a more strategic role, assessing the constitutional implications of changes in the Union, whether through accession of new Members, formal Treaty reform or informal practices that nonetheless impact on Member States;

(iii)The ESC could take a larger role in scrutinising the Government’s (iethe Prime Minister’s) actions within the European Council. In particular, we would recommend that the Prime Minister be called to make a statement to the ESC outlining his positions on agenda items before European Council meetings and that such sessions should, were practicable, be held “on the record”, with minutes available in the public domain;

(iv)DSCs should develop and enhance communication links with one another on European issues, as many policy areas fall within the responsibility of more than one committee (eg the Common Foreign and Security Policy, or the financial crisis). This could be achieved with the involvement of clerk advisors with expertise on European affairs; and

(v)DSCs should also develop closer links with the House of Commons representative in Brussels, in order to stay abreast of developments in the European institutions. This will also provide DSCs with a point of contact for exchanging views and information with other national parliaments, which constitutes a key aspect of effective use of the Early Warning System’s “yellow card” provision.

August 2012