European Scrutiny CommitteeSubmission to the European Scrutiny Committee of the House of Commons for its enquiry into the House of Commons European scrutiny system (ESI 07)

SUBMITTED BY CHRIS HEATON-HARRIS MP AND ROBERT BROADHURST

Chris Heaton-Harris MP is a member of the European Scrutiny Committee and the Public Accounts Committee of the House of Commons, having been elected to the House in 2010. He is also Chairman of the European Research Group (ERG), a group of Members of Parliament that take a keen interest in European affairs. Between 1999 and 2009 Chris was a Member of the European Parliament, representing the East Midlands region of the UK.

Robert Broadhurst is Senior Researcher to the European Research Group, a position he has held for five years. Throughout his time working for the ERG, Robert has supported MPs on the European Scrutiny Committee, developing a detailed insight into the House’s scrutiny system. He was named Conservative Parliamentary Researcher of the Year 2010 in the Dods Parliamentary researcher awards.

Introduction

1. As is widely accepted, the European scrutiny system of the House of Commons needs reform. However, it seems appropriate to begin by pointing out two key strengths of the current system:

(a)The existence of the European Scrutiny Committee, as a body of MPs at the “coal face” of EU scrutiny and well-supported by specialist staff; and

(b)The comprehensive coverage of all types of EU document that may be significant (or at least, the aim of this).

2. A comprehensive scrutiny system in the House of Commons is important because of the wide-ranging effects EU activity can have on the UK and its people. As the elected, representative Chamber, the House of Commons should be able to scrutinise all EU activity and attempt to influence this should the need be felt. This approach is a good complement to the modus operandi of the EU scrutiny system in the House of Lords, which tends to focus on a select number of EU documents each year.

3. A comprehensive system necessitates a “sifting” role for the European Scrutiny Committee. This is because the individual EU documents caught by the system will vary greatly in their importance—though the importance of a document is a subjective judgement that should be exercised by MPs, as elected representatives. Naturally, the more important a document is deemed, the more intensive the scrutiny it should be given in the House.

4. Before embarking on prescriptions for reform, it should be acknowledged that there are two basic features of the EU that will be stacked against a national parliament’s attempts to influence EU actions:

(a)The EU as a legal construct, as set out in the EU treaties, does not accord national parliaments any significant direct role in its processes. The key actors in deciding EU legislation are the European Commission, the Council of the EU and the European Parliament. The Council consists of Member State governments; typically, the best chance a national parliament has of influencing EU decisions is by trying to influence the actions at EU level of its country’s government.

There are some EU decisions, such as on certain forms of treaty change or extensions of EU law in very sensitive policy areas, that require the support of national parliaments, usually after they have been agreed at EU level. These are, however, very limited in number. In the UK, the number of EU decisions that require Parliamentary (and in some cases, direct popular) approval has recently been increased through domestic law, namely the European Union Act 2011. However, the vast bulk of EU decision-making remains outside Parliament’s direct control.

The Lisbon Treaty introduced the “yellow card” and “orange card” procedures, whereby national parliaments can send the EU “reasoned opinions” if they believe certain proposed EU laws violate the EU’s principle of “subsidiarity”. However, even when acting in large numbers (which will always be difficult to organise), under these procedures national parliaments cannot require that an EU proposal be dropped.

(b)The EU has extremely wide-ranging powers and, using these, produces vast quantities of legislation and other commitments. This makes it difficult for national parliamentarians (and, to some extent, for national ministers) to keep track of EU activity.

5. This does not mean we should give up on reform; simply that we should recognise the difficulties for Parliament’s role that are thrown up by the EU’s nature.

Key Problems

6. The House of Commons scrutiny system suffers from three basic deficiencies:

A clear opinion of MPs on an EU proposal is often not produced until the proposal has progressed a considerable way through EU decision-making. This means the influence the House can have on the formation of an EU law or other commitment is much reduced.

Not enough MPs are actively involved in EU scrutiny. This function is too important and laborious to be left solely to members of the European Scrutiny Committee.

The House has insufficient control over what HM Government is doing on behalf of the UK. Given this, there is little interest outside Parliament—including from the media—in the House’s regular scrutiny of often important EU documents. It also means that investing large amounts of time and effort in EU scrutiny is not attractive to many MPs.

A Reformed System

7. A reformed system that addressed these deficiencies could look as follows.

The European Scrutiny Committee

8. The role of the European Scrutiny Committee (ESC) could be formally extended, through a change to its founding Standing Order 143, to make it a full “merits” committee. This would ensure that the Committee could provide its opinion on what the UK’s position should be on any EU document it scrutinised. Sometimes the ESC does this in practice, but sometimes the Committee’s role is only regarded as “sifting” EU documents by determining their level of importance.

9. The aim of this change would be to enable MPs on the ESC to adopt a clear political opinion on the rights and wrongs of EU proposals, at a relatively early stage in the EU decision-making process. When formulating its opinion, the ESC could, as appropriate, make use of its existing power to require a House committee with expertise in the relevant policy area to opine on the EU document. If this power came to be used more often, the House would have to ensure that other committees were able to deal with such requests in a timely way.

10. Especially with more important EU documents, the essence of the ESC’s opinion could be published within a couple of days, to ensure the Committee was keeping up with developments on the EU measure. This opinion could be actively disseminated to journalists, to try and raise the public profile of the Committee’s findings. In this way, the Committee might apply political pressure to the Government to change course in EU negotiations. By the same token, the Committee could sometimes seek to reinforce the Government’s position, by lending its support. The ESC’s views are likely to carry authority as the findings of a specialist, cross-party committee, just as reports of departmental select committees can do.

11. In line with the aim of delivering a Parliamentary opinion as soon as possible, the ESC could also abandon its practice of waiting for the Government to submit an explanatory memorandum on an EU proposal before commencing scrutiny of it. This could apply in particular where a proposal was of special importance and/or ESC members wished to express a view before the memorandum arrived.

12. For some, Denmark offers a model of what the House of Commons system of EU scrutiny should look like. Prior to committing Denmark to an EU proposal of “major significance”, the Danish Government must present its negotiating position to the European Affairs Committee of the Danish Parliament, with a view to securing a negotiating “mandate”. If members of the Committee representing parties that, combined, have a majority in the Danish Parliament are against the Government’s proposed position, the Government has to return to the Committee with an altered negotiating proposal. It is worth noting that it is the Danish Government that determines whether an EU proposal is of “major significance”.

13. Clearly, such a system would give MPs far more control over HM Government’s position in EU decision-making. It would probably also allow MPs to assert their views at an earlier stage in EU deliberations, given the ESC would be empowered to make these decisions, rather than waiting for a subsequent stage of scrutiny in the House.

14. However, on balance we do not think that giving the ESC a power to bind the Government regarding its negotiating position is the way forward, as it would have two significant drawbacks:

(a)It would tend to confine these important decisions to members of the ESC, rather than all MPs having a say.

(b)It would shift most of the practice of EU scrutiny onto the ESC, away from the House as a whole. This is what happens in Denmark.

Both of these effects would militate against efforts to make EU scrutiny a more mainstream business in the House.

15. Instead, as well as seeking better to project its own opinion on EU proposals it deemed significant, the ESC could continue its sifting role, filtering out those EU documents it considered important. Where it believed their importance so warranted, the ESC could continue to refer EU documents for debate in the House.

European Committees

16. Given the quantity of EU proposals, it is clear that not all debates on them could take place in the Chamber without placing excessive pressure on the Chamber’s time. Hence, the continued place for European Committees seems clear, as forums for public debate on EU documents that can be attended by all MPs.

17. However, it is equally clear that European Committees are not currently realising their potential, in terms of holding the Government to account for its position on EU documents. The main cause of this appears to be the ad hoc nature of the Committees’ memberships, with different MPs selected for each debate on an EU document.

18. Instead, European Committees should have members selected for a Parliament (which was the case until 2005). This would allow Committee members to build up knowledge of an area, in terms of EU and domestic policy, enabling them to hold the Government to account more effectively. It would also ensure that each Committee had a core of regular members who were familiar with the Committee’s procedure. As now, any other MP should be entitled to attend, speak and move motions in the Committee, but not to vote.

19. A key criticism the previous Government levelled at European Committees with standing memberships was that it was difficult to persuade MPs to serve on them. When Leader of the House of Commons, Peter Hain MP said of the Committees: “Their proceedings have a ritualistic quality, and are largely devoid of much political interest; yet they consume a lot of time and effort.”1

20. Currently there are three European Committees, each dealing with a very large range of subject areas. European Committee B, for instance, deals with EU documents that come under the remit of any of the following Government departments: HM Treasury, the Department for Work and Pensions, the Foreign and Commonwealth Office, the Department for International Development, the Home Office and the Ministry of Justice.

21. As well as reverting to standing memberships of European Committees, the number of these Committees could at least be doubled. This would enable the workload of each Committee to be cut radically, helping to ensure that the time of members was not overburdened. When the former Modernisation Committee enquired into possible reforms of EU scrutiny in the House, it found that attendance by European Committee members (when standing membership was in place) was much better in the Committee that met less frequently.2 Increasing the number of Committees would also draw more MPs into their membership, helping to make EU scrutiny more mainstream in the House, and would enable each Committee to focus better on narrower policy fields.

22. In terms of European Committee proceedings being “devoid of much political interest”, this cannot be down to the subject matter, which typically has major implications for the UK. Aside from the problem of transient membership, it is likely to be caused by the fact that European Committee debates can seem to have little purpose, in terms of determining the Government’s position. This could be tackled by reforms we suggest below.

Debates in the Chamber

23. Before that, though, is the issue of debates on EU documents in the Chamber of the House. Some EU proposals are sufficiently important to warrant such a debate, with the public and Parliamentary profile it brings. However, the House’s Standing Orders do not currently recognise a right for the ESC to require a debate in the Chamber, rather than in European Committee. Even though the current Government seems to have a good record at granting Chamber debates when requested by the ESC, this system does not follow the logic of the ESC being the House’s main means of determining the importance of EU documents, independently of the Government.

24. To remedy this, the Standing Orders could allocate an adequate minimum number of debates in the Chamber that the ESC could require on EU documents each year. In some years the Committee might not use all of these slots, in others it might request more debates.

25. This could be complemented by a right for 70 or more backbench MPs, including at least 30 from the largest party in the House, to require a debate in the Chamber, in Government time, on an EU document that had not yet been finally agreed at EU level. This would reflect the fact that scrutiny of EU matters can and should also be carried out by MPs not on the ESC, and that the ESC might not always pick up on a document that was of importance to other Members of the House.

Procedure for resolutions of the House

26. Debates on EU documents in the Chamber culminate in a resolution of the House on the matter concerned. European Committees also adopt a resolution after a Committee debate. However, while the current scrutiny system requires a resolution of the House before many EU documents debated in European Committee clear scrutiny, the Standing Orders do not require that the resolution agreed in European Committee be the one that is put to the House for its agreement (which is decided without debate). Instead, the Government can put any motion before the House in these circumstances. This seems illogical and undermines the purpose of European Committees. The Standing Orders could be revised so that the European Committee’s resolution was always put to the House. The Government could also put its own view to the House where this differed from that of the European Committee, possibly in the form of an amendment.

27. Any MP is entitled to table an amendment to the motion before the House that follows a European Committee debate. However, these motions usually appear, and are put to the House for decision, the day after the European Committee deliberations, leaving MPs with next to no time to table an amendment if they believe it necessary. The Standing Orders could require a minimum of a sitting day between the days a European Committee debate occurs and when the relevant motion is put to the House. If the motion was always that agreed by the European Committee, as proposed above, it would be clear what motion was going to go before the House.

The effect of a resolution of the House

28. More fundamental is the question of the effect of a resolution of the House regarding an EU document. While in political reality it is not possible for the Government simply to ignore a Commons resolution, ministers are not legally bound to follow one. For instance, the Government has chosen not to abide by the terms of a resolution of the House adopted in June 2011 calling for a ban on wild animals in circuses by July 2012.

29. Such lack of control over the UK’s stance in the EU decision-making process, even where an EU proposal has been deemed particularly important, undermines the House’s scrutiny system. The EU adopts laws that bind this country, often have direct effect in the UK legal system and which can have a profound impact on the lives of British people. It is surely only right that the House of Commons, as the democratically elected and accountable part of the legislature, should be able to exercise control over the UK’s position in negotiating these laws. Otherwise, ministers are helping to legislate without Parliamentary consent.

30. As such, there would seem to be a strong argument for a new Act of Parliament that required the Government to abide by a resolution of the House that instructed it to take a certain stance on an EU document. This would become the UK’s official position on the document (or part of it, depending on the extent of the resolution).

31. To ensure a resolution of the House could be agreed in good time, the Standing Orders might set down time limits between when an EU document was referred for debate by the ESC and when a motion was put to the House for its decision. The House would of course be entitled to change its opinion on an EU document as negotiations progressed, and the Government would always be able to propose a new resolution on the matter.

32. This requirement to abide by a House resolution could come with a caveat that allowed the Government to diverge from the resolution if to do so was necessary (in ministers’ opinion) to uphold an important UK interest, there had been a material change in the EU negotiating context since the resolution was adopted, and it was not possible to come back to the House for its approval of the new position before agreement to the EU proposal had to be given. The new Act could require the minister responsible for such an action to make an oral statement to the House on the need for the divergence from the House’s resolution.

33. This legal regime would be very similar to what is in place in Germany, under the German “Act on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union”. If the Bundestag (the directly elected chamber of the German Parliament) adopts a resolution on an EU proposal, the German Government must use this as the basis for its negotiating position.

A legal requirement to deposit EU documents and explanatory memoranda

34. Introducing such an Act would also provide an opportunity to put the wider scrutiny system of the House (and perhaps that of the House of Lords) on a sounder footing.

35. There is currently no legal requirement for the Government to deposit EU documents in the House for scrutiny. The EU documents that are expected to be deposited are identified in Standing Order 143 of the House. While, overall, the deposit of documents seems to work fairly well, there are times when the Government omits to deposit something or provides it long after it was produced by the EU. The Government can also be tardy in submitting its explanatory memoranda on EU documents. This delays effective scrutiny by the House and therefore diminishes its chance of influencing EU decision-making.

36. A new Act of Parliament on EU scrutiny could put the current practice of Government deposit of EU documents onto a firm legal basis. The Government would be obliged to deposit the documents identified in the Act within two working days of its receipt of them, unless this was not possible in particular cases. In these cases, the document would need to be deposited as soon as possible, with an explanation of why it was not deposited within the usual timeframe. The Government would also be obliged to submit an explanatory memorandum on each EU document deposited, within 10 working days of its deposit, unless this was not possible in particular cases. Again, in these cases a memorandum would have to be submitted to Parliament as soon as possible, with an explanation for the delay. The new EU scrutiny Act could stipulate the matters that explanatory memoranda would have to cover.

37. Placing the Government under a legal obligation to deposit EU documents and explanatory memoranda in a timely way would make Government departments less likely to overlook their responsibilities to the House.

Extending the range of EU documents deposited for scrutiny

38. A new EU scrutiny Act would also be a chance to adjust the range of EU documents that should be deposited for the House’s scrutiny, to reflect the current reality of EU decision-making:

(a)Some of the terms used by Standing Order 143 for EU documents have been out of date since the Lisbon Treaty entered force in December 2009. For instance, the term “Community Treaties” is now redundant, as are the references to legal acts under Title VI of the Treaty on European Union, which used to be the EU’s distinct “Third Pillar” for policing and criminal justice laws, but which the Lisbon Treaty collapsed into more supranational decision-making.

(b)Standing Order 143 does not recognise that the European Council can now adopt EU legal acts.

(c)Where proposed EU laws are not at issue, Standing Order 143 only tends to cover EU documents that are published. This omits some potentially very important EU documents that Member State governments sometimes agree, such as draft European Council and Council conclusions. Draft conclusions are not published and are given a confidential classification by the EU. Adopted European Council and Council conclusions are not legally binding on Member States, but represent a political commitment, sometimes to future EU legislation. They can therefore create important consequences, as the European Scrutiny Committee has noted.3

(d)Standing Order 143 is not clear that it treats amended proposals for EU legislation as documents to be deposited in their own right, separate from the previous version of the proposal. Sometimes a proposal is cleared from the House’s scrutiny, but then alters significantly, and is not treated by the Government as being subject to scrutiny afresh. This, of course, leads to a bypass of the House’s scrutiny of EU legislation.

39. A new EU scrutiny Act could capture a wider range of EU documents under its obligation on the Government to deposit such documents in the House.

40. When it came to amended proposals for EU legislation (and perhaps amended draft European Council and Council conclusions), the Act could require the deposit of any proposal that was significantly different, in the opinion of ministers, from the version already submitted for scrutiny—though the ESC could also require any particular amended version to be deposited in the House. The aim would be to prevent the ESC being deluged with new documents that contained only minor alterations generated through the EU negotiation process.

41. Official confidentiality of an EU document should be no reason for denying the ESC the opportunity to scrutinise it. For example, under the “Act on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union”, the German Government is obliged to provide certain confidential documents to the Bundestag, such as EU negotiating mandates for international agreements. Indeed, the Bundestag must be granted access to the EU’s document databases, where these are accessible to the German Government. By the same token, the Bundestag is required to respect the confidentiality of classified EU documents.

42. A new EU scrutiny Act could require draft European Council and Council conclusions to be deposited in the House. However, the ESC would not be able to refer these for debate or publish them. Nevertheless, the ESC could examine such documents and correspond with ministers about them. If and when such conclusions were adopted (and made public), the ESC could publish any opinion it had on them, making clear if this opinion had been communicated to ministers in the negotiating phase.

Putting the scrutiny reserve on a statutory footing

43. A new EU scrutiny Act could give the provisions of the Scrutiny Reserve Resolution of the House legally binding status. The Scrutiny Reserve Resolution underpins the House’s scrutiny of EU documents by stating that ministers should not give agreement in the Council or European Council to EU legislation that is still being scrutinised by the House. The aim is to give the House opportunity to examine EU proposals and make representations about them to the Government before they become faits accomplis.

44. However, the resolution allows the Government to “override” the House’s scrutiny (that is, give agreement to an EU proposal that is still subject to scrutiny) in the following circumstances:

(a)The minister responsible considers that the proposal is “confidential, routine or trivial or is substantially the same as a proposal on which scrutiny has been completed”.

(b)The minister responsible decides that “for special reasons” agreement should be given. In this case, the minister should “explain his reasons” to the ESC “at the first opportunity after reaching his decision”, and if the proposal has been referred for debate but has not yet been considered by the House, the minister should also explain his reasons to the House “at the first opportunity after giving agreement”.

45. Scrutiny overrides are not especially rare, though in some cases the ESC agrees that the use of the override by ministers was reasonable.

46. As a vital rule of the House’s scrutiny system, it would seem only sensible to place the scrutiny reserve on a statutory basis, so that Government departments had no choice but to abide by it. It might be noted that at the 2010 General Election it was the policy of the Conservative Party to place the scrutiny reserve on a statutory footing.

47. As part of enshrining the scrutiny reserve in legislation, the caveat allowing a minister to override scrutiny because he judges that a proposal is “confidential, routine or trivial or is substantially the same as a proposal on which scrutiny has been completed” could be removed. Apart from confidentiality, these attributes are subjective and the ESC should, as a rule, be the one determining whether a deposited EU document is unimportant or not novel. In addition, as argued above, confidentiality should not in itself deny the ESC the opportunity to scrutinise an EU measure.

48. The only route for a minister to override the scrutiny reserve without the ESC’s consent could be where the minister believed it was, exceptionally, necessary so as to uphold an important UK interest. Where such an override happened, the new EU scrutiny Act could oblige the minister responsible to inform the ESC at the first opportunity after deciding to override scrutiny, explaining his or her reasons for this decision. The minister could also be required to lay a dedicated written ministerial statement before the House within seven sitting days of the decision, and/or, when requested by the ESC, make an oral statement to the House. A requirement for an oral statement could be automatic where the document had been referred for debate by the ESC before the override took place. The minister could also be obliged to appear before the ESC if the Committee called him or her for questioning about a scrutiny override. All of this would ensure accountability of ministers for how they operated under the scrutiny reserve.

49. Another point to note is that the current Scrutiny Reserve Resolution technically does not cover all EU documents that should be deposited for scrutiny; it only covers proposals or plans for EU legislation. This anomaly could be removed in a new EU scrutiny Act. The Act could also ensure that the scrutiny reserve covered any type of agreement given by the Government that in practice committed the UK to a particular EU document, politically or legally. In the past, there have been disagreements between the Government and the ESC as to what sorts of agreement the scrutiny reserve applies to.

The UK’s participation in EU justice and home affairs laws

50. The EU has broad competence to legislate on justice and home affairs (JHA) matters—namely, borders, asylum and immigration, civil and criminal justice, and policing.

51. However, under the EU treaties the UK can typically choose whether or not it takes part in EU laws in these fields. If it decides to become bound by such a law, the UK cannot opt out of it subsequently. If the UK chooses to take part in a proposal for an EU JHA law, before that law is adopted by the EU, it has a vote on the proposal in the Council but will be bound by whatever EU law results. Given that the EU treaties require the UK to decide whether it will be taking part in a proposal within three months of that proposal being presented, it can be difficult to foresee what the final EU law will look like when this decision is made. This is compounded by the fact that qualified majority voting now usually applies in the Council to JHA laws, and that the European Parliament’s agreement to a proposal must usually be obtained.

52. Under existing UK law, it is the Government’s decision whether or not the UK participates in an EU JHA law, with a handful of exceptions regulated by the European Union Act 2011, in which the electorate and/or Parliament have the final say on UK participation.

53. The current Government has undertaken to provide time in the House for a debate on a motion on UK participation in an EU JHA law, in cases where there is “particularly strong Parliamentary interest”.4 The heavy implication of the Government’s undertaking was that such debates would take place in the Chamber.

54. In addition, following undertakings given by the previous Government, the ESC can refer the question of possible UK participation in a JHA law for debate, which will often take place in European Committee. Such debates have resulted in resolutions of the House (decided without debate), mirroring the usual EU scrutiny procedure.

55. The current Government has also reaffirmed the undertaking of the previous Government that ministers will not override the House’s scrutiny of possible UK participation in a JHA law, within 8 weeks of the relevant proposal being published, unless a UK decision to participate is “essential”.

56. The Government seems to be resisting the idea that the ESC should determine whether there is “particularly strong Parliamentary interest” in cases of possible UK participation in a JHA law. However, the ESC, unlike most MPs, will be alert to new JHA proposals as they arise, and on that basis can identify those proposals likely to generate strong Parliamentary interest. Indeed, through its Standing Orders the House has delegated to the ESC the function of determining the legal and political importance of EU documents; this role should be exercised independently of the Government.

57. As such, the Standing Orders could be revised to ensure that when the ESC called for possible UK participation in an EU JHA law to be debated in the Chamber, the debate would take place in that forum, in Government time, unless, exceptionally, it was impossible to organise such a debate before the UK had to decide under the EU treaties whether it was participating in the relevant law. In this case, a debate could instead be held in European Committee.

58. These debates would not count towards the minimum allocation of debates in the Chamber proposed above in relation to general scrutiny of EU documents. They would be considering a special kind of UK decision that should be debated in the Chamber given the seriousness of its implications.

59. A slight variation on this new provision of the Standing Orders could be that if the Government was adamant that the JHA measure in question did not justify a debate in the Chamber, the ESC could require such a debate if 25 or more backbench MPs not on the Committee, including at least 10 from the largest party in the House, signed an “opt in debate motion” supporting the ESC’s call.

60. In addition to the role of the ESC, the Standing Orders could provide that a debate on possible UK participation in an EU JHA measure would be held if 50 or more backbench MPs, including at least 20 from the largest party in the House, signed an “opt in debate motion” calling for such a debate. A debate in the Chamber in Government time would be held if that is what the motion sought (unless, exceptionally, it was impossible to organise such a debate before the UK had to decide under the EU treaties whether it was participating in the relevant law).

61. The ESC has already raised the idea of a right for backbench MPs to trigger debates in the Chamber, independently of the ESC, on UK participation in JHA laws.5

62. The provision of the new EU scrutiny Act proposed above, that the Government should typically be obliged to adhere to a resolution of the House regarding the UK approach to an EU document, should cover a House resolution stating whether the UK should participate in an EU JHA law. A decision for the UK to become bound by such laws is often of major importance, given the irreversibility of this act and the particularly sensitive nature of this policy field. It seems only right that the clear opinion of elected legislators should be decisive in these matters.

63. Analogous to reforms proposed above, Standing Orders could set time limits between when a debate on UK participation in a JHA law was triggered and when a motion was put before the House for its decision.

64. The Scrutiny Reserve Resolution of the House is silent on UK participation in JHA laws; it does not provide that the Government should not commit the UK regarding participation while the House’s scrutiny of this possibility is ongoing.

65. A new EU scrutiny Act could include a binding scrutiny reserve regarding UK decisions to participate in JHA laws. This could allow ministers to override the House’s scrutiny only if it was, exceptionally, necessary to uphold an important UK interest. Where this override of scrutiny took place, the Act could oblige the minister responsible to make an oral statement to the House, within two sitting days of the override.

66. To accommodate the practicalities of arranging debates where these were prompted as part of the scrutiny process, the scrutiny reserve might also only cover a debate on possible UK participation in a JHA proposal where that debate had been prompted within nine weeks of the proposal’s presentation to the Council at EU level. As described, under the EU treaties the UK has three months from a new proposal’s presentation to decide whether or not to take part in the adoption of that measure. Given this constraint, nine weeks (rather than eight) seems like an acceptable timeframe for the House to scrutinise a new proposal with a view to deciding whether to call a debate on possible UK participation in it (especially as the Government usually does not make its decision on participation until very near the end of the three month period). The scrutiny reserve might also not apply after 10 weeks to a JHA proposal that was held under scrutiny without a debate on participation having been called. Such time limits on the scrutiny reserve need not apply to possible UK decisions to participate in JHA laws that have already been adopted by the EU without the UK; the EU treaties set no deadline on when the UK must opt in to these laws if it wishes to participate.

67. House recess would only present a genuine problem with these new scrutiny arrangements for JHA participation in very limited circumstances, such as when a debate on whether to participate in a JHA proposal was prompted just a few days before a recess in which the deadline for UK participation fell. With effective prioritisation on the part of the ESC and sincere commitment from the Government to enable debates where at all possible, unwanted consequences for UK decision-making could be avoided.

September 2012