European Scrutiny CommitteeWritten evidence submitted by the Liberal Democrat Parliamentary Party Committee on International Affairs (ESI 08)

Introduction

1. The Liberal Democrat Parliamentary Party Committee on International Affairs is a sub-committee of the Liberal Democrat Parliamentary Party through which Liberal Democrat MPs and Peers with a professional or personal interest in international, defence or international development issues follow policy and political developments, engage with relevant ministers and special advisers, and liaise with experts and experienced individuals across the party. The committee is chaired by Martin Horwood MP with co-chairs Baroness Kishwer Falkner, Lord David Chidgey and Lord David Lee.

2. The Liberal Democrat party are passionate about EU reform. We want a better EU, one that is more effective, efficient, transparent and accountable. While we recognise that much of our reform agenda is oriented at the EU level, we also believe that there is considerable scope for progressive and productive reform at the national level in the UK, no more so than through Parliamentary Scrutiny of EU Affairs.

3. The Liberal Democrats warmly welcomed the announcement by the Minister for Europe over the Government’s intentions, should there by a reciprocal desire in Parliament, to take part in serious reform of the European Scrutiny system. We have welcomed this in the media, written to the Minister for Europe to urge a pro-active posture on this issue and to outline our reform proposals (along with other Lib Dem Parliamentary Party Committees) and raised this in meetings with FCO officials, Special Advisers and the Minister for Europe. For reference, I attach a copy of a letter sent to the Minister for Europe on this subject last year.

4. We therefore welcome this Inquiry. However, in line with our concerns over the deficiencies of the current system (more below), and the fact that this is a matter for the whole House to decide upon, we are somewhat disappointed that the inquiry is being undertaken by a single Committee. Nevertheless, we hope that this inquiry will help to stimulate further and wider discussions across the whole House about concrete measures to reform and modernise the European Scrutiny system.

Overview of our Position

5. I have attached a note as an annex that sets out our views in more detail, but I will provide a short overview of them here. It is our view that, despite the hard work and dedication of the Commons European Scrutiny Committee (ESC), the current system of Scrutiny of European Affairs in the House of Commons in particular, is in need of serious reform. We believe the current system has the following key deficiencies:

(a)There is a European dimension to nearly all areas of policy today making it impossible for a single Committee to cover. For purely practical reasons, this workload must be shared across the whole House far more effectively than is currently the case.

(b)While the ESC undertakes often forensic analysis into the constitutional aspects of EU matters, it is poorly placed to consider the policy details and implications of all EU matters when it covers such a broad spectrum of policy areas. Such a role must be undertaken by parliamentarians who are fully informed of the relevant policy area in question so that they can respond effectively to the key questions of how EU policy interrelates with domestic policy. Ad hoc EU Standing Committees fail to achieve this and establishing permanent Standing Committees will do little to resolve this fundamental problem.

(c)Scrutiny should enable the views of both Houses to inform and influence the thinking in Government and across the EU institutions. This requires a radical shift from a reactive posture, to a timely, pro-active and forward-looking one.

(d)The current system us too rigid and paper-heavy. It is in danger of treating all EU issues, from the technical and non-controversial to the significant and radical, as equally important. It no doubt places considerable strains on Government resources for little obvious gain. The new system should be more proportionate and targeted, focusing in detail on the key proposals and policy initiatives, while allowing for a light touch approach on other matters.

(e)The current scrutiny system could be strengthened to better hold Ministers to account for their actions on behalf of the UK in sectoral Councils. Without a strong political imperative to engage in their briefs, Ministers may not fully engage with the EU dimension of their brief as they do with their domestic responsibilities, and Parliament and the public are deprived of a valuable mechanism to raise the profile of key issues across the House and in the media.

(f)The current system is too hidden from MPs, the mainstream of Parliamentary businesses and the public. As such, it does little to plug the significant gaps in knowledge and awareness of EU matters that are present across the whole House, in the media and the public.

6. Again, the attached note provides more details, but below is a summary of our ideas for our proposed reforms to improve the system of Scrutiny of EU affairs:

(a)Knowledge, awareness and consideration of the European dimension of policy matters, particularly as they relate to domestic policy, must be normalised across the work of the whole House. Departmental Select Committees (DSCs) are clearly the best forum for achieving this. DSCs must be empowered, engaged and obliged to undertake this role in the future in their respective policy areas. This should include holding Ministers to account for their positions before and after relevant sectoral Council meetings.

(b)The new system must strike a balance between demanding more support and resources from Government Departments on important proposals, while at the same adopting a much lighter touch and speedy approach to non-controversial ones.

(c)DSCs must be obliged to set out their priority EU matters that they wish to follow in depth, perhaps soon after and informed by the publication of the Commission’s Annual Work Programme, to which Government Department’s must provide detailed information and support on, as well as early warning of developments so that the DSC is able to consider matters and express it’s opinion in a timely manner.

(d)We envisage the ESC’s role to continue to be the lead Committee when it comes to constitutional and subsidiarity aspects of EU matters, and providing the key role in sifting and sorting dossiers in line with the DSCs expressed priority interests, as well as between other policy issues the ESC believes DSCs should consider in more detail, and other non-priority and non-controversial dossiers. We would scrap the system of EU Standing Committees altogether.

“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);”

7. European Scrutiny should play a number of vital roles:

(a)To scrutinise EU policy developments and proposals for (a) their constitutional implications and (b) their policy implications and how they interrelate with domestic policy, specifically for the UK and UK Government policy.

(b)To hold Ministers to account for their representations on behalf of the UK in the Council of Ministers.

(c)To raise public and Parliamentary understanding and awareness of the EU and EU policy developments.

8. In our view, we believe the UK’s system compares poorly against the systems in some other Member States, especially in Finland.

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

9. In our view, the EU Standing Committee system is a central flaw in the current system. It fails to embed EU matters in the mainstream of Parliamentary business and is too hidden from the media and the public; it does not engage a regular forum in which MPs are well versed in the domestic policy context and thereby how EU matters interrelate with domestic policy; and it is in most cases far too slow in considering EU matters undermining Parliament’s ability to provide timely and influential opinions on proposals and policy developments. We advocate scrapping the EU standing committee system and normalising EU matters within the work of Departmental Select Committees.

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

10. In our view, the scrutiny system is little understood within Parliament, and with it, knowledge of EU matters is unacceptably low, and understanding and awareness of the scrutiny committee’s important work is almost non-existent outside Parliament. We believe the two aspects of our proposed reform package that will help to remedy this situation are (i) normalising consideration of EU matters in what is a well understood and well covered DSC system, and (ii) the holding of Ministers to account ahead of and after sectoral Councils in relevant DSCs.

“Potential changes to the current Standing Orders establishing the Committee and European Committees, and the Scrutiny Reserve resolution, in the light of developments since the Lisbon Treaty; and”

11. In our view, establishing permanent Standing EU Committees will not deliver the desired results in terms of a modern, effective, efficient and powerful EU scrutiny system. Rather, establishing permanent Standing Committees is liable to exacerbate the deficiencies in the current system: scrutiny is separated from and decoupled from the mainstream work of Parliamentarians which occurs within Departmental Select Committees, it therefore fails to engage Parliamentarians with relevant expertise in a regularised forum where they can consider the policy implications and direction of the significant and important EU matters, especially how they relate to domestic policy and policy objectives.

“The current system of Government “Explanatory Memoranda” for deposited documents.”

12. In our view, the current system is too slow, bureaucratic and rigid. We believe there is considerable scope for a lighter touch Explanatory Memorandum system as the default setting, except where the ESC or DSC(s) believe there is need for further in-depth scrutiny, or where the ESC or DSC(s) have already indicated that the dossier in questions forms part of a policy area which they see as a priority. This more balanced, targeted and proportionate system would seem to offer the right mix between in-depth scrutiny of matters of policy or constitutional importance, and streamlined and efficient scrutiny of the many other largely technical and non-controversial matters.

13 September 2012

Annex 1

REFORM OF PARLIAMENTARY SCRUTINY OF EU AFFAIRS

The Minister for Europe, David Lidington, announced in a WMS on 20th January 2011, that the Government will review the current system of Parliamentary scrutiny of EU Affairs:

“The Government are committed to strengthening its engagement with Parliament on all European Union business as part of our wider work to reduce the democratic deficit over EU matters. It will review the arrangements for engagement on EU issues in consultation with Parliament, and make a further announcement in due course.”

Four Key Flaws in the Commons Scrutiny System

1. No Systematic Scrutiny of EU Policy: There is no systematic scrutiny of EU policy in the Commons. The European Scrutiny Committee (ESC) rightly focuses primarily on constitutional/legal aspects but is not designed to be specialist in any specific and certainly not all policy areas. This set up runs the obvious risk of “ghettoising” European scrutiny in just one committee. While some Departmental Select Committees (DSCs) undertake inquiries in to EU matters, this is on an entirely ad hoc basis. As a result, most MPs are largely unaware of the many important and substantive policy decisions and initiatives at the EU level which directly or indirectly affect their constituents. Moreover, given the sheer scale of EU measures that impact upon the UK and UK domestic policy, it is fundamentally incoherent for the Commons as a whole not to consider EU policy and policy development in as systematic a way as we consider domestic policy.

2. Too-Rigid and Behind the Curve: The number one rule in public affairs is that the earlier you seek to influence the policy-making process, the greater the prospect of success. On this basis, the current scrutiny system is too often far too rigid, slow and late to have a significant impact on either Government or EU policy-making. There are numerous opportunities for Parliament to discuss, debate and feed into the EU and Government policy-making process early using Green Papers, Commission Consultations, Annual Commission or Presidency Work Programmes etc… It is rare, however, for the views of Parliament (whether articulated by the ESC or a Departmental Select Committee) to be known until very late in the policy-making process by which point it is all too late.

3. Too Paper-Based and No Formal Mechanism for MPs to hold Ministers to account on EU matters: The sheer quantity of EU activities today means that the ESC is bombarded in Explanatory Memorandums (EMs), the majority of which are technical, minor or uncontroversial matters. The quality and depth of scrutiny on important matters can only suffer. This bureaucratic, paper-based and untargeted system is inefficient and ineffective. At the same time, the Council of Ministers is split into policy themes and hold regular meetings to discuss policy and legislation with the respective Ministers from each of the 27 member states. But there is no regularised and formal mechanism for MPs to hold UK Ministers to account when they are attending Council meetings in Brussels on behalf of the UK. This has the unwelcome consequence of removing any strong political imperative for ministers to fully engage in the European dimension of their briefs. This only weakens our voice in Brussels and our ability to pursue the interests of the UK.

4. EU matters Hidden from Parliament and the Public: As a result of the above two flaws, EU matters remain far too hidden from public view. This accentuates the disconnect between the EU, UK Parliament and the British public. It further weakens the incentives for ministers and MPs to focus on European matters and to ensure the UK’s voice in Brussels is as strong as it can be.

Case Study: Commission 2012 Annual Work Programme

The Commission 2012 Work Programme is the European equivalent of the Queen’s Speech, setting out the stock of proposed legislative and non-legislative measures the Commission proposed to introduce over the coming year. The Queen’s Speech is the subject of consideration debate and scrutiny in the UK both on the floor of the Commons and Lords, and in Departmental Select Committees. It sets the framework for and guides the bulk of Parliament’s work over the short/medium-term in seeking to influence, scrutinise and hold Government to account.

By contrast, the EU’s 2012 Work Programme was published in November 2011. However, it was not until June 2012 that an ad hoc EU Standing Committee debated the Work Programme after it had gone through the ESC process and been referred to them, By this stage, at least a third of the Work Programme was already published as legislation/ non-legislative dossiers, and much of the rest was well advanced in the policy-making process.

The ad hoc Standing Committee were a group of MPs drawn across Parliament who clearly had little idea of the substance, had never sat together before and held a 45 minute debate on the entire stock of proposed EU legislation for that year. The session was not televised, held in a small Committee Room away from the main work of Parliament and received no media attention whatsoever. No Department Select Committees appeared to have used the Work Programme as a means to guide their future inquiries, reports, questions to Ministers or requests for further information from Departments.

Key Elements of Reform of the Commons Scrutiny System

5. Normalising Scrutiny of EU Policy Development across Departmental Select Committees:

(a)The ESC should retain its role as a sorter and sifter of EU proposals and its focus in the constitutional/subsidiarity aspects of EU proposals.

(b)However, the scrutiny of EU policy substance and policy development, as opposed to scrutinising the legal and constitutional aspects of EU proposals, must be properly mainstreamed and normalised across Departmental Select Committees so that they see this as an integral component of their work.

(c)Departmental Select Committees have the existing policy expertise and grasp of relevant UK domestic policy to be able to effectively and constructively scrutinise EU policy development, see the implications and links to domestic policy and to influence Government, Commission and European Parliament thinking. They are therefore best placed to take on the policy scrutiny role of European scrutiny leaving the ESC to continue to focus its work on the constitutional and legal aspects of EU matters.

(d)This should be accompanied by the provision of sufficient training, resources and access to Government material, officials and Ministers to make this a success. In addition, Departmental Select Committees should be encouraged to consider a wide range of European views when considering EU matters, from the three main EU institutions, as well as other experts and expert bodies across the Union.

6. Prioritisation, Forward-Looking and Early Warning:

(a)In order to effectively influence Government, Commission and European Parliament thinking, the Parliament must be much more forward looking and on the front foot, rather than waiting to see proposals once they are published by which point it is much harder to influence.

(b)It must also avoid getting bogged down in every single EU measure or idea, but focus on the most important for the UK.

(c)This will inevitably require mechanisms for the DSCs to signal their interest in specific priority dossiers/policy issues on the understanding that they will be granted greater Governmental resources and Ministerial time in scrutinising these matters. In return, Department’s should able to reduce the bureaucratic burden of the ESC process by producing simpler and shorter EMs on non-priority areas.

(d)There are various mechanisms for Departmental Select Committees to facilitate this including:

(i)Reviewing the Commission’s and Presidency Annual Work Programme (set of expected new proposals that year) to identify the priority areas of policy development they wish to focus on. It would then become the responsibility of the ESC to keep each DSC alerted and informed quickly and early of any new proposals that fit under the EU priority list.

(ii)Using Commission Green Papers, White Papers and Consultations as a means to influence Government and Commission thinking in a certain policy area early, before any legislative proposals are finalised. Again, this could be used by DSCs to signal their priority interests to the ESC.

(iii)Task the two National Parliament Representative, UKREP officials (FCO office in Brussels) and/or Departmental officials with the job of (i) acting as an early warning for each the ESC and DSCs to identify priority or significant policy development early, and (ii) helping Departmental Select Committees in pursuing the priority areas identified by them for scrutiny.

7. Democratic Scrutiny over Ministers heading to EU Councils:

(a)Oblige all Government Departments to offer to make a Minister available to Departmental Select Committees ahead of the sectoral Councils that they attend, and afterwards.

(b)This would provide a vital source of democratic accountability over Ministers attending sectoral Councils, creating a political imperative for them to fully engage in the European dimension of their briefs and to consider the views of the Departmental Select Committees.

(c)Other northern EU member states operate some form of system along these lines, such as in Finland.

Annex 2

Letter to the Minister for Europe

RE: Reform of Parliamentary Scrutiny of European Affairs

1. I am writing to you on behalf of the Liberal Democrat Parliamentary Party Committee on International Affairs to register our strong interest in reforming and strengthening parliamentary scrutiny of EU Affairs.

2. The review of parliamentary scrutiny of EU matters is a very welcome and long overdue initiative. We would welcome an update on the FCO’s progress since your Written Ministerial Statement in January.

3. While we recognise and value the thorough work of the Commons Scrutiny Committee in assessing the constitutional and subsidiarity aspects of EU matters, we believe that, in a post-Lisbon age, the system of scrutiny in the Commons is out of date and in urgent need of reform.

4. First, there is no systematic scrutiny of EU policy in the Commons. While some select committees undertake inquiries into EU matters, this is on an entirely ad hoc basis. The European Scrutiny Committee obviously does concentrate on European matters but is not specialist in any policy area and runs the obvious risk of “ghettoising” European scrutiny in just one committee. As a result, most MPs are largely unaware of the many important and substantive policy decisions and initiatives at the EU level which directly or indirectly affect their constituents.

5. Second, there is no formalised mechanism by which MPs can hold ministers to account when they are attending sectoral council meetings on behalf of the UK. This could have the unwelcome consequence of removing any strong political imperative for ministers to fully engage in the European dimension of their briefs and focus almost exclusively on their domestic agenda. As one of the big three member states in the EU, this only undermines our positive and active engagement with European colleagues and weakens the UK’s voice.

6. Third, and related to the above, EU matters are far too hidden from public view. This compounds the disconnect between the EU and Parliament and the public. It further weakens the incentives for ministers and MPs to focus on European matters and ensure the UK’s voice in Brussels is as strong as it can be. Raising the profile of EU affairs in Parliament will therefore be a powerful complement to the EU Act 2011 which is designed to start to reconnect the public and Parliament with the EU.

7. Fourthly and finally, there are other European voices which should be heard in the debate of EU matters in Parliament. There are a wide variety of individuals that should be regularly consulted in order to enrich and strengthen Parliament’s understanding of both the politics and policy at the EU level, whether they are Commissioners, institutional officials, MEPs, Council figures or other European policy experts.

8. While there will be many different ways of rectifying this situation, the following ideas should be considered as central planks of any reform package:

(a)Placing the scrutiny of EU policy clearly with the Commons Select Committees so that they see this as a mainstream component of their work.

(b)Empowering Commons select committees to scrutinise ministers representing the UK at sectoral Council meetings and to hold them to account for their actions.

(c)Exploring new ways to raise the profile of EU matters for the media and public through Parliament and through public service broadcasters.

(d)Ensuring that select committees are given the resources and access to relevant individuals and experts across Europe to enable them to undertake the EU policy scrutiny to best effect.

September 2012