European Scrutiny Committee - Minutes of EvidenceHC 109-II

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Oral Evidence

Taken before the European Scrutiny Committee

on Wednesday 12 December 2012

Members present:

Mr William Cash (Chair)

Mr James Clappison

Michael Connarty

Julie Elliott

Chris Kelly

Penny Mordaunt

Jacob ReesMogg

Henry Smith

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Examination of Witnesses

Witnesses: Dr Katrin Auel, Assistant Professor, Institute for Advanced Studies, Vienna, Dr Ariella Huff, Postdoctoral Research Associate, University of Cambridge, and DrJulie Smith, Senior Lecturer, University of Cambridge, gave evidence.

Q113 Chair: It is very nice to see you this afternoon. Thank you very much for coming. We really believe that this is a very important moment or phase in the whole of the European Union, when questions of democratic legitimacy are being brought up the whole time. We had the blueprint from Mr Barroso. I raised the question of democratic legitimacy in the light of the blueprint today, in Prime Minister’s questions, and scrutiny of course lies at the heart of democratic legitimacy so we are extremely grateful to you for the evidence you are giving. If I may say so, Katrin, it is very nice of you to come over from Vienna, which is a great pleasure for us. The whole question of comparative scrutiny is hugely interesting and important because if you are working within the European Union, the nearer you can get to a common framework for looking at the documents, the better. We are extremely grateful to you for the research that you have done, and we look forward to the answers to the questions. If you have got anything further that you want to add afterwards, do feel free to send it in written form because we regard this as a very important opportunity for us to be better acquainted with the views of the experts who have been looking at it.

The first question, which I will put, is that the scrutiny systems are often categorised as being document based or mandating. Do you think this is a valid distinction, and, as a subsidiary to that, if so, what are the advantages and disadvantages of each type of system? Finally, if not, what distinction do you use? If I may start with Katrin, if you would like to start-or if you would prefer Julie to begin, it is up to you entirely.

Dr Auel: No, that is fine, thank you very much. Thank you very much for the invitation. It is a great pleasure to be here. On document-based and mandating systems, I do not really think that this particular distinction is all that helpful, especially as they refer to two different kinds of objects. "Document base" refers to the object of the scrutiny, while mandating seems to refer more to the legally binding character of the parliamentary opinion. I know that this has become sort of the mainstream distinction, and is used by COSAC as well, but I do not find it very helpful. I find it more helpful to look at different aspects of the scrutiny system by considering, first, what is the basis of the scrutiny? What do committees look at? Is it mainly the EU documents that they then form an opinion on, or do they scrutinise mainly the Government position on the document?

A second question which might come up in a later question here is, when and how does the committee get involved? Does it produce written resolutions and reports of its own accord, or does it discuss the Government position or a document with a Minister? Finally there is, of course, the question of the binding character. Document-based systems are usually regarded as being politically binding at best, but there are also document-based systems that have a legally binding character, while the mandating system is as per definition, one where the committee has the ability to influence the Government position very strongly. I think it would make more sense to distinguish between systems along those three different aspects. You will find that most Parliaments have a mixed type between the two.

I think there are a number of advantages and disadvantages to both, and I think the most important is the question of whether European Affairs Committees or standing committees look at documents and form their own opinion. This puts a lot of pressure on them because they have to go through all of the documents and decide on which ones to issue a resolution, and that resolution has to be drawn up by Parliament itself. On the other hand, that means that there is a more in-depth scrutiny of several documents. With the mandating system and oral mandates in the committee, the great advantage is that European Affairs Committees tend not to overlook important issues because in most cases the Minister will come before the committee and report on what is on the agenda in the next Council meeting. The filtering function is, in that case, taken on by the Government. On the other hand, this means that Parliament very often only responds to what Parliament is presented with in the committee, and I think that somewhat limits parliamentary scrutiny in comparison with the documents or so-called document-based systems.

I think if you were to ask me about one very specific advantage of the mandating system, it is not so much that Parliament can legally bind the Government to a very specific position because, as experience shows, most Parliaments refrain from doing that because they know that their Government needs certain room for manoeuvre in the negotiations in Brussels. I think the distinct advantage is that there is a great incentive for Governments to provide all the relevant information in time and in depth to Parliament, otherwise Parliaments with a mandating system can refuse to give the Minister a mandate. We see in Denmark that this is sometimes the case-that the committee refuses to give a Minister a mandate when it feels it has not been properly informed. I think I will leave it at that.

Chair: Julie, would you like to comment on that? Could you be very kind and move to the next seat along because at the moment I am not able to see Katrin because of the seating? Is that all right? Thank you very much. I am sorry about that. Julie, would you like to comment?

Dr Smith: I was sitting behind the water bottles.

Chair: Okay.

Dr Smith: Just to follow up on some of Katrin’s points rather than replicating them, hopefully. I think it is not a question of either/or. There may be an element of mandating that would be desirable, but it needs to start from a documentary base. The starting point for answering the question has to be: what does the committee think scrutiny is about and what does Parliament as a whole think scrutiny is about? Is it about scrutinising draft European legislation that needs to start from a documentary base, or are we really talking about holding the British Government to account in what it does at the European level? Assuming that there is an element of both those things, starting with the documents and looking at what we might want to consider in terms of subsidiarity and yellow cards, the documentary part is hugely important. In terms of looking at where the British Government fits in, bringing Ministers in front of committees, either this Committee or the departmental select committees, has a huge role to play. I think it is one of the areas where departmental committees could potentially become more engaged in the European debate without giving them hugely more work. If a Minister is heading off to a ministerial meeting, maybe they could give evidence, talk about what they are expecting to do ahead of the meeting, and provide a briefing afterwards, so that you have the opportunity for real scrutiny of what Ministers are doing.

I would suggest that the two systems are not necessarily contradictory, but that having something that is as mandating, as binding, as the Danes try would limit flexibility for our Ministers to too great an extent. If we want to engage in the negotiation process, so much of that is about working behind the scenes with colleagues from other Member States, and if you have agreed your negotiating position in public in advance, that limits the scope flexibility and may lead to suboptimal outcomes. Even if it creates a more transparent set of discussions domestically, it does not necessarily lead to the best outcomes for the United Kingdom.

Q114 Chair: Though, of course, if you are asking about whether it is information that is needed, that is one side of the equation. The other is the effect on the daily lives of the people who are voting for the Parliament in question, and what effect is it going to have on them that raises the accountability question. That, to my mind, would seem to be the overriding question. What impact is this going to have on the people for whom the legislature is doing the scrutinising? Maybe we will get on later to whether you feel that there are better systems employed in some countries than in others, because if it effectively turns into a kind of decree operation-and I fear that, in some countries, that is where it has been for a long time-we give a huge amount of attention on the basis of the procedures and standing orders that we have, and we look at all the documents and we have to decide whether it is of political or legal importance. Do you not agree that the impact on the subject or the citizen should be the first priority for a Parliament in terms of the scrutiny process?

Dr Smith: Yes, as representatives of the people, that is exactly what Parliamentarians should be doing. In a sense, calling Ministers in before meetings and discussing issues and expressing the concerns or the objectives that Parliamentarians feel are in the interests of either their own constituents or of the United Kingdom more generally would offer scope for informing the thinking of Government ahead of negotiations rather than waiting and listening to the Prime Minister giving an ex-post exposé of what has happened at a meeting, and that could be done on a sectoral basis as well. So there would be a much greater scope for Parliamentarians to reflect the interests of their constituents in advance.

Q115 Chair: Governments may have their own agenda, which is why it is so important to have an all-party Committee, with people from all sides of the political spectrum, so that the function of the committee in question should be, I hope you would agree, primarily to hold the Government to account and to ask the right questions in the interests of the citizens, and to ensure that that is on an all-party basis so that we are able to act in the national interest. Ariella, have you got some further thoughts on this?

Dr Huff: I do not want to replicate what my colleagues have already said. I agree with them very much, though. I think the distinction between document-based and mandating is a little bit simple. Most systems, even the mandating ones, operate often on the basis of documents-they do not dream things up. The only thing I would add to that is that some systems are perhaps more effective than others at developing a series of strategic priorities, rather than reacting to everything that comes in, as it comes in. I think that is something else that perhaps we need to consider when we think about how best to do European scrutiny. Given the volume of documents that are produced by the European institutions on a yearly basis, even week to week, it is important in many cases for Parliaments to develop a series of priorities-what are the particular dossiers they are interested in, what is more important than other things? The House of Commons can be very effective at that, but there are ways in which it could be done perhaps slightly more effectively.

Q116 Chair: That is an interesting question. My last question in general before we get on to the more detailed matters is, in relation to the other Member States, which I understand the three of you have been looking at on a comparative basis, where do you rank the United Kingdom, for example if you could be as broad based as that, in terms of the quality of the analysis and the effectiveness of the scrutiny system?

Dr Auel: I think that brings us back to the point that Julie raised. I would not want to draw up one ranking and put the UK Parliament on it somewhere. When it comes to the analysis of documents, the filter function of the European Scrutiny Committee or the function of holding the Government accountable ex-post, I would rank the House of Commons quite highly compared with other systems. I would also rank it quite highly, or very highly, on the transparency of its proceedings in the Committee and the European committees. When it comes to influencing the Government position, I would probably put it somewhere in the middle because obviously the in-depth analysis of the European Scrutiny Committee raises important points that will be taken up and considered by the Government, but I think that here we will find that other Parliaments have more influence, especially when it comes to the immediate impact regarding European Council meetings.

Another issue where I would rank it slightly lower than some other Parliaments is when it comes to-and I think we might want to raise the topic later-engagement with the public. There have been slightly more plenary debates on the floor of the House in the last two years, which has a lot to do with the referendum, the EU Bill and of course the crisis. Before that, I had conducted a small analysis, a comparative analysis, into debates on the floor of the Houses of different Parliaments, and the House of Commons was ranked quite low on that compared, for example, with the French Assemblée Nationale or the German Bundestag, which discuss European issues far more frequently on the floor, and not only the big topics, but policy issues, so the EU issue is more out there in the public domain.

Q117 Chair: Do you have any written material on this which you are able to provide us with by way of a comparison?

Dr Auel: On the study we do?

Chair: Yes.

Dr Auel: We are still working on the OPAL project.

Chair: Good, by the time we have finished our inquiry, perhaps we could have the benefit of your thoughts because we are scrutinising ourselves, which is, we hope, going to prove useful.

Q118 Mr Clappison: Thank you very much. If I may say, I tend to agree with the analysis that you made on the amount of influence we have. I think you have perhaps been slightly diplomatic. Of course the point you make, quite rightly, about the amount of attention we can get through our work and the amount that is discussed at public forum depends also on the attitude of the media. We are trying to get the BBC here, among others, to give evidence to us but they are showing themselves slightly reluctant to come and give evidence at all and that perhaps tells us something. Can I ask you more formally what are the different stages during the formation and implementation of a European Union proposal on which scrutiny systems can exert control or influence on national Governments? If you could break it down a bit more. Perhaps I could begin with Julie this time.

Dr Smith: If I could just very briefly follow up on the wider issue of how the UK does, particularly the media issue and so on. We have a particular problem in this country about the nature of the debate and the depth of ignorance rather than the depth of interest. The whole nature of the public debate seems to be much more grounded on do we want to be in Europe or not in Europe, and a general sense of is Europe a good thing or a bad thing, not the substance of policy. It does not really matter what the European policy might be, the debate seems to degenerate and the print media do not help, either. I think that in the UK we have a particular problem, but we are not unique in that. The media in many other European countries can be superficial in their following of European affairs as well, but I think we have a particular problem here that, as Katrin says, there a relatively few plenary debates on Europe, and the plenary debates are the ones that the media are much more likely to pick up on. If they degenerate into grandstanding about a more Eurosceptic rhetoric rather than the substance, that does not necessarily help. I know Mr Cash does not necessarily like the word "Eurosceptic".

Chair: We prefer the word "Eurorealist", which I invented, by the way.

Dr Smith: And is a very good one. But last year when we had the Back-Bench debate on a referendum, almost every Conservative stood up and said, "I am a Eurosceptic", so that is what shaped the debate and what gets picked up rather than necessarily the substance of the debate.

Mr Clappison: It was thought at the time to be a rather good debate.

Dr Smith: It got picked up on by the media, but the work of scrutiny committees very rarely gets picked up in the same way and I think that is one question. The other is when do you want to become engaged because I know David Lidington has used the phrase "upstreaming", and the Foreign Office are quite keen on the idea of upstreaming, of getting involved in the process earlier. There is a question about whether scrutiny is really only looking at documents that already exist or whether the committee and Parliament as a whole-and clearly there is a difference between a scrutiny committee and the role of Parliament as a whole-want to influence the process because the earlier you engage, the more you work with the European Commission before legislation is drafted, the greater your ability to influence. That is something that, 20 years ago, lobbyists had already been able to realise. Why are so many of them in Brussels? Because they want to shape the agenda.

At the outset, the Commission was to draft its legislation as it saw fit and then increasingly it realised that, if it just put in proposals, the Council and/or the European Parliament would increasingly seek to amend it and change it, so there is scope for getting in early but some of that is about knowing what is going on in Brussels. I know some of the written evidence that has been given has suggested working more closely with-

Q119 Mr Clappison: The system just seems to be very much designed for the benefit of lobbyists. It is a boon for them but it is very difficult for ordinary people to be heard.

Dr Smith: I think that is right and again that is where there is hopefully scope for national parliamentarians to have a role representing the interests of their citizens, but it needs to be done in a coordinated way in that one MP probably is not able to shape the debate but the Committee may be able to do so. The national Parliament representatives, the representatives of the Lords and the Commons in Brussels, are incredibly well informed and spend a lot of time talking to their opposite numbers representing national Parliaments from the other Member States. I think trying to find a mechanism for working closely with them and looking at things ahead of time would enable the Committee, in terms of scrutiny, to be able to say, "We know what is coming up. We can engage in a work plan at an earlier stage", but it also may offer the opportunity of looking at areas where the Commission is proposing legislation and talking then to UKREP to put in a national parliamentary position before the Commission has got to its drafting stage. Working with the national Parliament officers in Brussels and then with UKREP would give the potential of greater influence for the representatives of the people.

Q120 Mr Clappison: We have our scrutiny reserve systems, and I am sure you are very familiar with it and how it works. How effective do you think it is in moderating the behaviour of Ministers? Anybody can have a go at that one.

Dr Auel: We have conducted a little study into scrutiny reserve, so I shall answer this. I think it depends on-again, I am sorry that I always have to make that qualification-what you want to have an impact on. We need to distinguish between an impact on the negotiations and agreements at European level and an impact on the behaviour of the Government in the capital towards its Parliament. With regard to the former, the UK’s scrutiny reserve system is one of the-if not the-most effective of the nonmandating systems. There is one particular reason for this and it is that this Committee follows up on breaches. You keep a very, very close eye on it.

We have looked at other Member States that have similar scrutiny reserve systems that have often used the UK system as a blueprint, but we find that that is fairly ineffective because MPs do not follow up. I think that, at home, it is quite effective as it is a constant reminder of parliamentary responsibility for the scrutiny system and of the need to keep Parliament involved and to give Parliament time to scrutinise documents before agreeing to something in Brussels.

That brings me to the second aspect. We have also conducted interviews with the General Secretariat and with people working for COREPER, for the Mertens and the Antici Group. Sadly, the truth is that the scrutiny reserve does not matter much. If the Government wants to agree to a measure at the European level, it will do so either by informally indicating that it will, and just waiting for the scrutiny reserve to be lifted, or by breaching the scrutiny reserve.

I do not think that it is a very effective instrument and I am not sure how you could make it more effective beyond a proper legally binding mandate.

Q121 Chair: Could I just come in at that point? I can think of three Ministers who, subsequent to their having failed to perform properly in relation to European scrutiny issues, surprise, surprise, have lost their jobs, three of them in the last four years, and the manner in which we go about it, certainly from a domestic point of view, is to put their feet to the fire if they fail to perform as they should. The problem we have, of course, is that once we have done our job, it is then a matter for them in the Council of Ministers to decide how they are going to go about it. I make that point because on a number of occasions I think Ministers have become aware that they are at risk in terms of their remaining in post.

Dr Auel: Again, as I said, I think that the greatest asset of the scrutiny reserve here in the UK is that the European Scrutiny Committee actually does follow up on breaches and invites the Ministers to give evidence on that, so it makes the situation very uncomfortable.

Chair: I wonder if I could just follow that up. The Minister may have lost his or her job, but the legislation still went through. That is the problem but that is not our fault, if I can put it that way round. We have done our side of the equation. The question is, have the other functionaries decided that they think that their opinions are more important than Parliament’s? That is a very dangerous situation to get into.

Dr Auel: I think you will find that, when you look at the Council regulations and so on, you will not find any formal rules, on any kind of reserve-and you know that there are other reserves that Governments can enter, linguistic reserves, general reserves-on how to deal with them. If there is ample time in the legislative process and Government puts down a parliamentary reserve, all the other Government representatives will be sympathetic because they also have their own scrutiny systems at home to go through. Very often the Presidency will try to delay the issue but if that cannot be accommodated and if it is clear that there is a majority for a legislative proposal anyway, from what we have learned, the scrutiny reserve seems to have rather little impact.

Chair: I think James had in mind a question on bicameral legislature. Just before that, because where I think where we are going on this is interesting, you know about the blueprint that has just been published by Barroso in relation to the proposals for fiscal, banking and political union. I raised that this afternoon with the Prime Minister. That document, under the heading at paragraph 4, "Political union, democratic legitimacy and accountability" states: "The European Parliament and only it, is that Parliament for the EU and hence for the Euro ensuring democratic legitimacy for EU institutions’ decisions". That reflects the attitude.

I am not going to ask you to go into every detail here but you will understand the words "and only it" raises some very big questions about scrutiny as well as policy making. I would just like to put that on the table. You might like to reflect on that because I think this document demonstrates the line of route that is now being followed, which is substantially a shifting of gears towards downgrading the national Parliaments although it does go on to say, "At the same time the role of national Parliaments will always remain crucial"-I am glad they make that point-"in ensuring legitimacy of member states’ actions in the European Council and the Council". When we are considering the question, they say it is crucial, but it is a secondary and subsidiary role, certainly as far as the European Commission is concerned in this document. I will leave it at that because otherwise we would spend the whole of this afternoon on that issue alone.

Q122 Mr Clappison: On the bicameral points, we have our system, the House of Lords has a system as well. How do other bicameral Parliaments operate scrutiny? Ariella?

Dr Huff: I am sure the others will have things to say about this as well, but there are obviously a range of different approaches. I think that quite a few bicameral parliaments have systems that are similar, in the sense that each House is effectively responsible for its own system and the particular priorities it has. They tend to work on the whole, perhaps Katrin may want to jump in on this, in parallel rather than necessarily in tandem, as it were. There is one exception that is worth thinking about, which is the Irish one where they have a joint committee in which both Houses are together but that is very typical of the Oireachtas system. Most of them come into the joint committee except when financial issues are being discussed, so all these issues are closely related to the broader context of the ways in which these Parliaments operate. There tends to be, at least our research has suggested, some co-operation at staff level between the two Houses in most countries. Certainly this is the case in the Netherlands where there is co-operation at staff level but not formal co-operation at MP level. Basically it is the same in Germany as well and there has been some co-operation in parties in Germany-Katrin, again, knows more about this-and there did tend to be different parties in charge in the Bundesrat from in the Bundestag, but co-operation tends to happen there. We have also found that there tends to be quite a bit of co-operation in Brussels between the two representatives, if there are two representatives. They keep one another informed, share documents sometimes, and share documents with other Parliaments as well that are not coming in quickly enough through the official routes. It is important to remember that, obviously both Houses are sovereign in the sense that they decide what they want to look at and they decide what their own procedures should be, but in general the trend is for administrative staff co-operation rather than a formal process of co-operation.

Dr Auel: If I can add to that, we find to my knowledge only two Parliaments where we have such a joint committee. The Spanish Congreso also has a joint committee. The Dutch Eerste en Tweede Kamer used to have one but they dissolved it again because one of the problems is that a second chamber represents different interests. Of course this is particularly the case in Germany where the second chamber represent Länder interests, which also means that it is difficult for the two Houses to co-ordinate their interests in the usually very short time. You will find this in particular with regard to the subsidiarity issue where two Houses in a bicameral system hardly ever work together because they cannot do that within the eight weeks. It also would mean not having the kind of division of labour that you often have between two Houses where they look at scrutiny in different ways, as I know is also the case in Parliament here.

If I could just add one more point to what you were asking earlier about the timing, you will find that most Parliaments see this as the greatest problem. How early can they come in and when should they send their official opinion and how should they amend it afterwards? You will find that the most powerful Parliaments in terms of those that are considered the most influential have now shifted the scrutiny to a very early stage. For example, in Denmark, at least on paper, the Government now has to get a mandate before the Government position is officially formed, i.e. before negotiations start in the working groups and it has to keep Parliament consistently informed of any changes that come about in the negotiation process. Finland is the same. One thing that I find interesting is the Dutch Parliament has developed a stringent procedure of looking at the annual legislative work programme of the Commission very early on and deciding which of the documents it wants to scrutinise in more detail so that it can prepare early and ask the Government very early for information on these topics coming up over the next year.

Q123 Julie Elliott: Thank you. The OPAL project has being mentioned, which I think you are all involved in. What is the timescale and purpose of this work and what gaps in knowledge is it seeking to fill?

Dr Smith: This is a project that is funded by the four national research councils of the UK, France, Germany and the Netherlands, so the ESRC funds the British bit. The idea is to look at the role of national Parliaments since the Lisbon Treaty. Obviously there needs to be a comparative perspective in looking at what was going on earlier so we are not just starting at year zero being the introduction of the Lisbon Treaty, but trying to understand what role national Parliaments are playing in the European integration process, what role they are able to play on a comparative basis. We are doing an element of quantitative data collection looking at all 27 Member States, 28 next year including Croatia, and some more in-depth analysis on a range of policy areas looking at eight national Parliaments including the UK in order to get a real sense of, is there best practice, are there ways that Parliaments could work more effectively? It is filling in the academic literature but we very much hope as well that it will feed into practice. One of the things that the team can do is look comparatively and feed into evidence sessions like this one, and also talk not just to parliamentarians, but to clerks so that there is an element of looking at what the representatives of the people are doing but also looking at what administrators are doing, and what scope there is for inter-parliamentary co-operation. So there are a range of issues that have been looked at through this whole process of scrutiny initiated by the European Scrutiny Committee in the UK.

Other Parliaments have looked at their scrutiny processes as well so the Dutch case in particular seems to suggest some elements of best practice that we would hope to feed back into the policy process. Some of it is entirely academic, some of it is intended to feed into policy making. There is also an element of looking at relations with the European Parliament so it fits with other research that I have been doing in particular, looking at inter-institutional co-operation in the European Union. One of the areas that we are keen to look at more closely is vertical and horizontal communications between national Parliaments and the European Parliament both formally through the institution but also informally with links between members of the national Parliament and members of the European Parliament. Some of that could be committee based, some of it may have party links, and all of it can facilitate better scrutiny overall. I do not agree with the Commission President; I think the role of national Parliaments is hugely important and one of the things that Lisbon was precisely devised to recognise was that national Parliaments kept losing out through the integration process; that their role was not officially recognised, and that it is important for the European Parliament and national Parliaments to acknowledge what each does and to try to work together to have scrutiny that is more effective overall, rather than simply saying, "Right, European Parliament does European stuff and national Parliaments can stay at home and mind their own business." The whole nature of the integration process does not work like that anymore. The project is due to end on 31 May 2014. We are hoping to have various outputs before then so there are a range of different publications and opportunities to discuss the project.

Q124 Chair: Important as what you are saying is, are you not also in a situation where, by virtue of the different roles that national Parliaments may see themselves performing on behalf of their citizens, you are running up against something of a granite wall, which is that, if you go to the European Parliament everything is predicated on the assumption that it is a federal arrangement and that that is the direction in which they seem to wish to promote it? In terms of the national Parliaments, we are approaching it from a domestic point of view and yet under the European Communities Act in respect of the United Kingdom, under Section 2, we are under a voluntary obligation to accept the legislation which comes out of the process, so, for example, if you have a qualified majority voting system in the operation, the effect on the scrutiny could be to override the decisions that are taken by the individual Parliaments who are saying, "Well we think you should take special note of this", or, "You think that we should take a hard line on that". When it comes to a qualified majority vote, the decision either by consensus or by actual vote goes against those views, however well you have scrutinised the arrangements. Does that present you with a kind of dilemma and a problem, which it certainly presents to us, which is, rather as Mr Barroso has said in his blueprint, the European Parliament should prevail because that is the bottom line that he is putting forward.

Dr Smith: I do not think it presents us as academics with a particular problem. It gives us something to study.

Chair: It gives us a real headache.

Dr Smith: That is straightforward. But there is clearly a whole debate about what is the role of the European Parliament versus the national Parliaments, and the debate that pops up periodically about should we not have a third chamber, one that brings in representatives of the national Parliament to be another parliamentary level. That is particularly problematic because if you look at the European Parliament before 1979 when it comprised representatives of national Parliaments, it has some strength that the current European Parliament does not have, whereby representatives of national Parliaments would discuss things with their European colleagues, come back and be part of the British Parliament, or their own national Parliament, so there was probably greater engagement of the national parliamentarians with the European process. Equally, they could not do a particularly effective job of scrutinising European legislation as a whole so I think a directly elected European Parliament has a role to play. Another chamber of national parliamentarians acting as a new institution could be problematic, but having some degree of national parliamentarians working on a collaborative basis, going beyond COSAC could be useful because at the moment, you are absolutely right, when there is QMV. It does not matter how wonderful the mandate is, it does not matter how wonderful the scrutiny process is, if a national government is outvoted, that is the end of the story. However, in terms of becoming involved at an earlier stage, finding out what the proposals are likely to be, working with colleagues from other national Parliaments and then either thinking of scrutiny reserve at an earlier stage, getting a yellow card at an earlier stage, greater cooperation would actually empower national Parliaments, but it needs to be done on the basis of understanding, trust and developing relationships, whether between clerks initially or parliamentarians. COSAC may be part of the way there but it does not meet sufficiently frequently to enable the relationships that you might need in order to think, "Yes we will pick up the phone to our Spanish colleagues and our Dutch colleagues because we think on this one we are going to be able to work effectively together".

Chair: Julie, I know you have to go at 3.15pm. You are going at 3.15pm, are you not?

Julie Elliott: I am going. Unless Julie is going at 3.15pm.

Dr Smith: I am staying until I am sent away.

Chair: I was told by the Clerk that it was Julie who was leaving. Julie, would you like to take the next question? Sorry.

Q125 Julie Elliott: Yes. It is even more confusing because my original name was Julie Smith, so when I look at that I get confused. Julie and Ariella, your memorandum states that parliamentary scrutiny in the UK, as in many of the Member States, has not kept up with the new rights for national Parliaments introduced by the Lisbon Treaty. Can you explain the reasoning for this statement?

Dr Smith: Is that something you wrote or did I write it?

Chair: You are trying to work out who wrote it, are you?

Dr Smith: Yes. Which paragraph were we? I have got the evidence in front of us.

Chair: I am glad it is giving you food for thought.

Dr Smith: Looking at the bit that I know I wrote I think part of the issue is not so much just whether it is taking on board what has gone on in Lisbon but the whole change to the European Union over the years. It goes back to the point about QMV, that if you think about the 1972 Act, it was predicated on the basis effectively of unanimity that although the founding treaty talked about the move to QMV, by the time we joined, essentially the decision making was on the basis of unanimity and so agreeing to implement everything that had been agreed by unanimity was one thing, scrutinising European legislation when we have QMV is clearly different. The other thing is the extent to which European policy now permeates so many areas of domestic policy that, if you start off with coal and steel, it is a very specific area and the more it is engaged in environmental policy, agriculture, economic policy, the idea that we need sectoral committees, departmental select committees, to work in the European integration issues becomes increasingly important. A European scrutiny committee can play an important role, but most of the other departments and most of the other parliamentary committees also need to be thinking about Europe. It does not matter whether you call it mainstreaming or decentralising or devolving to the select committees, it is important that, to the extent that Europe has become pervasive in a lot of areas, the scrutiny process needs to reflect that, and not just this Committee but the sectoral committees that are doing it. If they view Europe as being done somewhere else, it means that domestically we are not looking at all the aspects of our own policy making, but just looking at what is emanating from Government proposals does not do justice to scrutiny, so we need to think about that a lot more.

Chair: Could I just follow that up by asking another question relating to what you have just said? You see the White Paper in 1971, which I am sure you are familiar with, was the basis on which the 1972 Act was passed and it was only passed by a very small majority, I think it was six, on what was purported to be a free vote. The question is what did it say in the White Paper about this issue? What it says is, we will guarantee to preserve a veto in our own vital national interest and to do otherwise would imperil not only our vital national interest but also imperil the very fabric of the community itself. When the 1972 Act was passed, which you just referred to, that was the basis on which it was put forward.

Q126 Mr Clappison: I remember my first ever election was the referendum and getting my Government information leaflet through the post that told me that decision making in the European Union was by unanimity and we did not need to worry about having laws thrust upon us that we did not want. On that subject were you are saying about the extent of European influence over policy and law-because we have arguments about this-do you have a very broadbrush estimate of the amount of law which comes from Europe; the amount of our law that has come from Europe?

Dr Auel: That depends on what policy area you look at, and on what you include when you talk about European law. I have not done research on this myself but colleagues have.

Mr Clappison: We had this debate during the Treaty of Lisbon debate.

Dr Auel: The 80% Delors’ myth has now been proven to be a myth. It is far less. In some areas, such as energy and environment, it used to be up to 70% in some countries. In other areas it is up to 20% or 15%. It depends very much on the policy area and it depends on whether you include all European impulses, including those areas that are difficult to quantify where Parliament can no longer legislate because of the European regulation.

Dr Smith: The Delors’ myth, as Katrin put it, is that he said in a speech that, "In future up to 80% of social and economic legislation will come from Europe" and that 80% got into public thinking and into elite thinking as well and there is not a system that looks at what sort of legislation there is, but clearly education and health are predominantly still very much domestic, but there are influences from Europe in a whole set of things. The Working Time directive has an impact, regardless of which sector of society we are talking about. There are all sorts of areas where European policy may have an impact and then there is the question of how you transpose the legislation, so that you can go to different Member States and find very different policies being implemented and practised.

Q127 Michael Connarty: Thank you very much. I am sorry that you were disappointed when I was Chair that we did not enough debates on the floor of the House. I was Chair before the present Chairman took over. But the Committee did receive an award that was called "Inquisitor of the Year" as the best select committee over the Lisbon Treaty, so we must have done something right. I think we did in fact come to the conclusion across the benches that it was just a constitution with a new name, less flags and symbols but still the same outcome. Before I move on to the question I want to ask, on this question of new rights for national Parliaments, in reality what new rights since the so-called subsidiarity clauses have never been effectively used? There has never been an opinion across the 27 states that stopped anything, so what is the point of it all? All this talking about debates and having more people involved-my point, and I made it again and again, was that the Lisbon Treaty was tipping point, it tipped the power into Europe and out of national Parliaments’ hands so you had the Council and the Commission and then you had the EU Parliament, and we were somewhere hanging on to the shirt tails of those. What new rights did we have to influence anything?

Dr Smith: I was thinking about this the other day when I was trying to commit something in writing to the Hansard Society and it struck me that if I was being asked to justify what I was about to write I would be struggling because I was about to say the Lisbon Treaty is seen as giving new powers to Parliaments and then I thought no self-respecting national parliamentarian is going to say, "These are new powers to us" because our Parliament is sovereign. There are real questions about what the treaty claims to do and whether as a national parliamentarian you would want to accept that it was giving you powers at all. There is a question of what are we doing and what we are seeking to do. What was clear from treaty change after treaty change from the Single European Act onwards was that the European Parliament got more and more powers. What was also clear was that in the Amsterdam Treaty, the Luxembourg compromise and the whole idea of a veto in terms of national interest was enshrined, yet on the idea of the UK claiming a national interest and blocking something, it is difficult to conceive what areas we can do that in. So it is a very limited field. In terms of the Lisbon Treaty, the formality is to say, "Well, national Parliaments have a new role to hold back the integration process". In practice, it is only going to work if groups of national Parliaments really feel able to work together. It is quite limited in its scope and I am not going to try and justify the Lisbon Treaty. I think there are all sorts of things in it that may well look like a constitution and they are all sorts of things that maybe could have been done very differently, but we are only talking about scrutiny today so I do not want to get into the others.

Q128 Michael Connarty: I want to move on. Sorry. We could have had a complete session just on this question, but please come in, Katrin.

Dr Auel: I think you find that most academics working on the so-called Lisbon rights are not very enamoured with them. Very often you will find the argument that during the constitutional process, during the treaty revision process they had two problems. One of them was we need to solve the subsidiarity issue and one of them was we need to give national Parliaments something to do and so there were two problems and somehow the two were joined. Monti II and the recent yellow card have not convinced me otherwise. I do not think it is a very fruitful exercise when it comes to influencing the European legislative process because precisely as Monti II shows this will work if Governments do not want a directive or a regulation, and if the Commission already anticipates a lot of opposition in the Council. Otherwise, I do not think it will work. I do not think we will see another yellow card against the Governments of the participating Parliaments. On the other hand what I do see is that it has generated a kind of discourse around the importance of Parliaments and the importance of involving Parliaments. I think this is where we do see an impact because the Lisbon Treaty with all its hoorah about being the parliamentary treaty has led to Parliaments having a very close look at their own scrutiny systems, overhauling the systems, trying to make them more effective to meet the eight week deadline, and while that might not be all that helpful with regard to the early warning system or influencing things at the European level that has been quite a desirable outcome, as has been at least attempts to intensify into parliamentary co-operation.

Dr Huff: Just to add to that, I think when we began this project we started by asking MPs in a number of countries, "What effect has Lisbon on your arrangements?" and most of the time, what we heard has been, "Lisbon has not made me more interested in Europe but the crisis has", and that has then been folded into all the discussions of the new powers, so-called new powers, that Lisbon has given. For example a colleague has said, "I spoke to a German MP and they said ‘My constituents are asking me questions about the EU now and this is feeding back into things that normally I would have thought were quite separate from my work on the EU’". That is because of the crisis and so I think that these things have fed into one another. As Katrin pointed out, and she is absolutely right, it has in some respects caused a rethink but there have also been domestic causes of that relating to the crisis and different Governments’ roles, particularly in countries that have been either on the giving or receiving end of financial assistance.

Q129 Michael Connarty: Thank you for that. In fact, if you took the trouble to read what I said at the time, I did say with the change there was a different resolution of forces required. I used to use an analogy that, instead of a triangle, we were in fact now a trapezium and we were the bit that was sticking out at the end and we had to find our way back in to influence the resolution of forces. The point we make is that I do not think our Parliament has done so in that way. I did note a Minister in one of our debates say that they had been to see Members of the European Parliament from this country to get them to get an amendment through the European Parliament to something they could not get in Council. We have not created a mechanism whereby parliamentarians can engage. We are far more distant from our European parliamentary colleagues than we have ever been so you had some very sage words to say earlier.

Moving back to what we do, because we have to think about the scrutiny and its effect on what happens in the Council because we can influence our Government in Council but we have not yet looked at mechanisms on how to influence the overall process in the Parliament. Over 1,000 European Union documents are deposited in the UK Parliament each year for scrutiny. How does this compare with other systems because I have the impression in the past that it was much more of a cell activity or even, in fact, a limited amount of engagement on a limited number of topics but a lot more depth on the debate side?

Chair: I am terribly sorry one of our members has had to leave the room for a few minutes so if you do not mind, Michael, we will have to suspend the session here.

Michael Connarty: I had noticed, but I did not think it would call for a quorum count.

Chair: He has just nipped out for a moment so he will be back in a second.

Michael Connarty: Okay, the question is asked. You will have to wait to give me an answer.

The Committee suspended for one minute.

Chair: The extent to which you have looked at this has come as something of a revelation. I did not think anybody was looking at any of this and now I find there are three of you and maybe others as well who are actually giving it the most incredibly intelligent analysis because it has been troubling me for a very long time. I can only say that it is greatly welcome to know that there is all this intellectual firepower that is being brought to bear on, for me, the simple question of what the people who are receiving the legislation are actually experiencing, what they can do about it and what could be done about it. We are grateful to you-I will have to put that on the record later. Now, James, thank you very much indeed. We are now resuming.

Michael Connarty: Yes, the question has been asked, I am sure they have the answers.

Dr Auel: There used to be a greater distinction between different countries with regard to the extent of documents that they received and all that discussion has become, at least when it comes to public documents and legislative proposals, somewhat moot with the Lisbon Treaty because now Parliaments receive everything from the European institutions directly. So that has been a levelling process. One of the questions is what kind of information do they receive in addition from the Government, how good is that information and also what kinds of documents do they receive beyond the public ones? What I find interesting is that COSAC has made an investigation into this in the questionnaires to its 17th report. From the answers from national Parliaments, we can see that the UK Parliament is among a few who do not have regular access to limité/restricted; some Parliaments even have access to confidential documents. I think by now there are a number of Parliaments who have greater access to documents than the UK Parliament does. This is also true when it comes to COREPER and Council working group documents that I have learned the UK Houses of Parliaments are not automatically sent but which most other Parliaments will receive automatically. I think that would be very instructive to have a look at.

Q130 Michael Connarty: But having them and having them in some way formally recorded and available to the public in the way that we do all our Explanatory Memoranda and so on, everything the Government gives us is available-in terms of volume, how would we compare with others in terms of the number of documents that we process and end up in our reports, with every new document being a new chapter?

Dr Auel: Unfortunately I do not have precise numbers on this.

Q131 Michael Connarty: In terms of more, less, a lot less?

Dr Auel: Some receive less, but most receive about as many because they receive all of the documents, the public documents, they receive limité/restricted documents plus COREPER and Working Group documents, and then it very much depends on whether, in the numbers they give, they count Government documents. For example on its website the European Affairs Committee of the Danish Folketing says that it receives annually 1,500 documents and Government memoranda and it is not clear what the percentage of each is.

Q132 Michael Connarty: Every one of our documents comes with a memorandum from the Government, every single one. So when we talk about a document, it has got a Government memorandum attached.

Dr Auel: Indeed, but I do not know whether the 1,500 documents and memoranda in the Danish Parliament means 750 plus 750 or whether they get more documents so it is very difficult to be more precise on this. The 17th report also simply asked Parliaments whether they were getting less than 500 or over 500 and most of them get over 500 so it is difficult to be more precise.

Dr Smith: The short answer is we do not have a precise answer. However, given that we have colleagues in various states and we are doing some quantitative analysis of all the Member States, we can certainly go and try and find out. We certainly have eight member states where we are doing in-depth analysis and we ought to be able to get answers. We can try and get it for the whole 27 because our colleagues in Cologne are co-ordinating a handbook on national Parliaments in Europe. We have done interim reports already and the handbook should be coming out 2014, but we could ask the handbook contributors to find answers to this.

Q133 Chair: How is this working? It looks to me as if we are not getting it. Is it because the Government does not really want us to have it? Is it because the European Commission does not like the idea of us seeing it? Or is it just that we are not asking for it, although we would not know what it was unless we knew it was there. What is it that is enabling other Member States to get documents that we are told, being limité, are strictly confidential? I have received documents in the past and I have only on one occasion felt it necessary to go to the Speaker to ask for an urgent question, which I did get on that occasion because it was so important. This is not a small matter. It appears that some Member States, by hook or by crook, are getting hold of documents. If it is not being supplied to them by the European Commission as a kind of favour or privilege-you tell me it is not, I will accept that you say it is not-how do they get hold of them? Should it not be a completely level playing field and was it the purpose of making them limité anyway?

Dr Auel: It seems to be a question of how willing the respective Government is to forward the documents to Parliament and we find that there are some Parliaments who are regularly forwarded these documents, sometimes upon request and sometimes automatically. There are also quite a number, when it comes to limité documents for example, of Parliaments that have access to the governmental database, which means they can automatically access almost everything that the Government can access.

Q134 Chair: What you are really saying is if you are going to point the finger anywhere, it would be at the British Government?

Dr Auel: Yes.

Chair: Yes. I am glad we have put that on record.

Q135 Michael Connarty: The Chairman dives in on everyone’s questions, you will notice, because he is so intense about these things. Everyone seems to compare us on a spectrum that starts with us and heads towards Sweden, Denmark and Finland but in reality when we have met people, colleagues in other countries-I will not name them here because they may be embarrassed-they have said that their scrutiny process is a shambles. They do not do very much serious discussion in their so-called European Committee on European matters compared with us. They tell us all the time that we are well ahead, we are the gold standard of using those huge documents as a basis and trying to use the scrutiny reserve process as a process rather than mandating. I do not know if that is because their other committees take up the issues on a mainstreaming basis but they have complained in a number of cases when I have been in other Parliaments that we are well ahead and people always seem to compare us with the mandating countries. Is it true, in a sad way, that people have as much debate and influence and information as they claim? Because it is not what I find when I talk to my colleagues, and I have been talking to them now for 14 years-not as long as the Chairman-and I always get the impression that maybe they have come up to the mark post Lisbon. They certainly were not, I do not think, as good at scrutinising documents or having documents, although there were clearly mechanisms whereby some Parliaments had access to limité documents in the way that we did not and published them.

Dr Auel: That refers to what I said earlier about the advantages of both document based and mandating systems, but also to my comments when I was asked to rank the UK Parliament. When it comes to the analysis of documents and to the filtering function, the European Scrutiny Committee does a tremendous job and it also makes the process a lot more effective in Parliament in the UK than it does elsewhere where documents are just dumped on European Affairs Committees who then somehow try to deal with the information overload. I do not think we would in any way want to criticise that part of the process. I think when it comes to having influence the Finnish Parliament, because it gets in very early in the legislative process, because it involves the standing committees in a very stringent way, it does have greater influence on the negotiation position of the Government, but that comes at a cost, and the cost is that the committee meetings take place in private where they can discuss issues with the Government in a very frank way. Whether that translates into having influence at the European level with a multitude of actors being involved, both formally and informally, in the legislative process is again a different matter. As powerful as they might be, neither the Finnish Parliament nor the Danish Parliament make European policy.

Q136 Michael Connarty: Do Julie or Ariella want to add anything? You could also comment, because you already touched on it, Katrin, that, in the Explanatory Memorandum system that you seem to commend, what comes to us is much more analysed and focused than just dumping documents onto a committee. How does Julie or Ariella believe that the system works compared with other systems?

Dr Smith: I suspect that one of the problems is whichever system you are in, it can feel like a shambles. When I writing my doctoral thesis, which is on the European Parliament but I had a comparative chapter on the role of Parliaments, it was quite clear going back to the 19th century that people always harped back to a golden age of Parliaments and I suspect that there is always a sense of maybe it is done better somewhere else, maybe it does not feel quite right and if you are in the process it could be better. I think the two chambers that traditionally were seen as exemplars of very different types were the House of Lords and the Danish Parliament. The Danes in terms of mandating. So strong and influential in one way but obviously binding the hands of Government in a way that maybe did not help the Danish interests in the long run. The House of Lords, in terms of the very in-depth studies they do. The advantage of the UK system is precisely that you have the depth of the Lords scrutiny and the breadth of the House of Commons system. The work that is done here is very effective and efficient. The question is then how influential can it be and how far does our parliamentary system enable committees to impact on what the Government is going to do, and that is the bit that becomes much harder. I think there is a trade-off, not between mandating versus documentary, but the more you try to mandate, you can say Parliament’s effective and maybe influences Government but that may not help the long term negotiating outcomes. So there is a balance that needs to be struck. I also think the issue of whether decisions and discussions are in private or in public does matter. Going back to the other question of how we get documents, or that some of the Nordic countries are just much keener on transparency so governments are happier to divulge documents and so on. One of the things that seems to happen at the Brussels level is that national Parliament representatives are saying, "We sometimes give documents to our colleagues from other national Parliaments and they give documents to us". It may not be that somehow this Committee is not pressing the British Government hard enough, it may be just that overall there are different ways of getting documents and some of it is done on an ad hoc basis in Brussels, which is not something as an academic I would be promoting as an idea but in terms of how it works in practice, it is all messy, but it means that there is scope for maybe infiltration a bit further that way.

Dr Huff: With respect to the point about Explanatory Memoranda-Katrin knows more about this-I think terms of the overall trends, there does seem to be a common complaint about timeliness. Something that even the Danes have complained about is getting information from the Government in time to do something about it, whether through the yellow card procedure or in any other way. That is something that is cited almost across the board as a problem, including here. It is just how long it takes for departments or the Government in general to get information to a Parliament and I think the UK is not unique in having that problem.

Q137 Michael Connarty: Moving on to one of my pet subjects, seeing as both Dr Huff and Dr Smith comment on the fact, you say, "The memorandum states that the current scrutiny system is particularly poorly equipped to scrutinise non-legislative policy areas such as common form security policy and common security and defence policy." Can you explain your view in more detail and suggest some potential solutions to that problem?

Dr Huff: I think first we need to talk about the CSDP scrutiny. It is important to see it in the context of foreign and defence policy scrutiny more generally, because of course this is an area in which many Parliaments have traditionally been held somewhat at arm’s length from Government, and Westminster especially I think, compared to some other European Parliaments, does not have that many legal means to oversee Government action in this area. There might be increasingly perhaps a political requirement to consult Parliament. For example in a lot of other countries-Germany, Italy, Ireland-Parliament must be consulted before any troops are sent abroad, even in very small numbers. That is not the case here. There is no requirement for example for Government to come and ask for Parliament’s approval to send 20 people on a mission to Africa. So those legal aspects are not there in general in common security and defence policy and that places a great strain on the ability to scrutinise the CFSP and CSDP. All that being said, the key here is that non-legislative policies in general raise some questions about how a document-based system like this one can scrutinise areas where documents come in a variety of guises, in many cases non-typical guises-everything from Green Papers to Action Plans. Reading some of the previous evidence that has been given I understand that, for example, you get some Action Plans and not others and I think something about the Caribbean strategy versus Central Asia, one of them was deposited and the other one was not. Things that come from Council conclusions are often not deposited. So there is an ad hoc nature to this scrutiny that makes it very difficult to do because you are not looking at legislation. This to me is quite closely linked to the point that Katrin made earlier about the relative lack of access to things like limité documents. It is very hard to get it at an early stage and timeliness is something that comes up again and again. When we talk about CFSP, for example, I know that most of the scrutiny overrides come from the Foreign Office and most of those come during the recess. Having said that, it is a little bit of a cop out to say these decisions have to be made very quickly. In some cases they do, things like the Arab Spring, but in others when it comes to things like the renewal of mandates for CSDP missions these are on the cards months in advance. The mandate expires.

The discussion might come down to the wire in terms of understanding what the British Government’s position is and being able to ask questions like, is the EU approach to this area policy wise broadly in line with British interests? Is value being added in some way? These are things that perhaps the House of Commons could be a little bit better at doing. Frankly I think empowering the Foreign Affairs Committee to do that in a more systemic way-they do, of course, do some scrutiny on this issue but it is very much up to whatever the interests of the members are. They are, as far as I know, undertaking an inquiry into the future of the EU. The Development Committee did one at the end of the last session on EU development policy, but it is very ad hoc and part of the problem is that this is all linked to the discussion of at what point you influence the decisions.

One thing that would make such a massive difference would be simply to have the relevant Minister coming in ahead of the Council meeting, and not only that but on a regular enough basis to inform the committee, whether this one or the Foreign Affairs Committee, what is on the agenda. That is absolutely critical in terms of making sure that Parliament has its voice heard in those sorts of discussions. In many ways the CFSP and CSDP represent the crux of a lot of these issues that we have been talking about and it is a little microcosm of a real weakness in a system that focuses so much on documents.

Chair: Good, thank you very much.

Michael Connarty: I do not know if Dr Smith wants to say anything but I would refer people back, even my academic colleagues, to a session with Geoff Hoon when he was Defence Minister under the previous Chair, before myself, who basically told the Committee it was none of our business, that is not how Government ran things like defence and common security. It was nothing at all to do with us. It seems today now it is all to do with Parliament. At least it has moved on a little from then, not far but it has moved on a little.

Q138 Chair: Moving on to another subject, but just jogging back as well at the same time, I have here the rules that are laid down regarding this question of limité documents. Without going into great detail, under the rules it says, "The Committee cannot publish or comment directly on any limité documents shared with the Committee in a way that puts the detail into the public domain but they will use the information to inform their overall scrutiny of a proposal". There are other rules that you may or may not be aware of. I presume you are, but the question I am interested in is whether in fact the limité restrictions are effectively overridden by the other Member States. Is there any instance that you have where something is described as limité, and they may get it, but do they use it and do they put it into the public domain in other Member States? Because documents that are entirely confidential and are not allowed to be disclosed is one thing. Do the other Member States receive them and publish them?

Dr Auel: I have no systematic empirical data on this. The Danes seem to do so. I know this has been a bone of contention that they do publish them on the website. However, in almost all of the systems where committees meet in public, they have the option of closing part of the committee and meeting in private and I would expect that this is what they do if they discuss limité documents.

Q139 Chair: In a nutshell, the means of using the limité procedure is to keep information in the committee and to prevent it from getting public distribution. But, of course, from a parliamentary committee point of view if something is important to the national interest why should we do what the Government wants? That is part of the question.

Dr Auel: Those are two different issues whether Parliament has access to them or the committee has access to them, or whether the committee then makes that information public in a second step.

Chair: If you would be kind enough, if you have a moment between now and when you publish your report, to get some information on whether limité documents are put in the public domain, even though there is an attempt to impose the limité restriction, that would be very helpful.

Q140 Chris Kelly: I want to move on to this Committee’s relationship with departmental select committees and also their role in scrutiny. Commons departmental select committees operate with almost complete autonomy, is full mainstreaming therefore ever going to be possible?

Dr Smith: The question is how far you try to insist upon it happening in which case it is not going to be possible if each committee has autonomy versus trying to create a system whereby more of the departmental select committees feel that there is benefit in scrutinising European policy. The one that is regularly cited as engaging in best practice is Environment, Food and Rural Affairs for two reasons. One, because of the nature of the policy areas that have been European competencies or European level decisions for many years and the fact that Anne McIntosh is a former MEP and does have an interest. It is probably not sensible to say every issue has to be mainstreamed, but looking at ways of talking to chairs of departmental select committees and assessing how far they might be willing to take ownership of more policies and think through the European dimension of policies in their own inquiries. If you have policies that are intimately linked with European legislation and where co-operation with other member states and/or with European institutions makes sense then one ought to be able to make a case to the departmental select committees that it does fall within their own remit and that it would enhance what they are doing, and not simply be held above them.

Dr Huff: An example is that the Dutch system is fully decentralised but the Dutch system brings up the question of resources. They have been decentralised since 2006 when they brought in a system in which departmental select committees are autonomous and are fully responsible for deciding their own priorities, for scrutinising European policy in their own areas. But it is very resource intensive and they have had to overhaul the way that their staff operate. They have a cross-cutting EU staff who can deal with all these issues and who ensure there is coherence in the scrutiny system but it is a question of trade-off. The key question is how much the Commons is willing to put into the system and how much they are willing to radically overhaul it.

Dr Auel: It is not just a question of how much standing committees are willing to invest. There is again very little empirical data on this but to give you examples from the Finnish Eduskunta where the standing committees are also very involved, in the committees of commerce or environment EU issues take up 60% to 70% of committee time. In others, like administration, legal affairs or transport and communications, between 40% and 50%, so they get very invested in EU affairs. You can get a similar level of engagement either by formally making committees responsible for European affairs such as the German Bundestag has done and in the Finnish Eduskunta, they are constitutionally obliged to provide an opinion on European documents to the European Affairs Committee, or you raise the attractiveness of engaging in EU affairs for standing committees, i.e. you give them ownership. Simply investing a lot of work to then give an advisory opinion to the European Affairs Committee is probably not very attractive, which is why in a number of Parliaments where the standing committees are very involved they will have the option of drafting resolutions, as their own responsibility in their area, which is then voted on in the plenary. They have ownership over the issues and they do not just report to or help the European Affairs Committee.

Another way that Parliaments have now tried to raise the awareness of standing committees for EU issues is by decentralising the subsidiarity question, the early warning system, so it is now standing committees that go through all of the documents in their area and check them for subsidiarity and proportionality issues, which, as I have explained earlier, I do not find very effective with regard to influencing the European legislative process but which is a mechanism of making standing committees more aware of the documents that are coming in.

Chair: Could I just come in on that and say in the last 24 hours I have had the Chairman of the select committee say to me, "Oh, we got your request for an opinion on the specific subject", which by the way is of extreme importance to the UK’s own Parliament and he did in fact arrange for an opinion to be devised. He looked at it and said, "The advice I have got isn’t good enough", and he sent it back again. Of course by that time with the consequence of delay it may well turn out that we get it in a month’s time and it will be far too late and everything will have happened. There are serious problems in relation to giving departmental select committees complete control over it because they have so many other things to do.

Q141 Chris Kelly: Looking north of the border, is the Scottish Parliament rapporteur system a potential compromise and what are the potential advantages and disadvantages of that approach?

Dr Huff: None of us are experts on the Scottish system but we work with people who are. It is perceived as having been fairly successful in encouraging more interest in European affairs. It is important to note that that is seen to have been part of the discourse in Scottish Parliament from the very beginning or that there were quite a few people who were very interested in ensuring that Scotland had a close link and was very good in areas in which it particularly interested, like fisheries and things like that. The current situation in Scotland aside, it is perceived as having been reasonably successful.

Part of the problem with a rapporteur system though is that it is effectively dumping a whole load of extra responsibilities on one or two MPs that is a very difficult sell. It is hard to then generate interest for the rest of the committee. This is also something that they have tried in Ireland and they have had some problems with attempting to generate more interest from other people in the committee, in various committees. It needs to be accompanied by a fairly effective system of development of strategic priorities. I know that in conversations with the Irish they have said part of the problem is effectively all this stuff gets dumped on the rapporteurs and then we wind up scrutinising things that the rest of the committee are not that interested in. There is no way of streamlining it to ensure that we are getting information on particular dossiers, or issues that the committee might have some enthusiasm for. It is a compromise and it is something that is not particularly resource intensive but I am not sure how effective it would be in the absence of more widespread interest and enthusiasm for European scrutiny.

Chair: Could I just add to that that the Liaison Committee has considered this and has given a report on it? They have indicated that it would regard it as a good move if rapporteurs were appointed because it means that at least there is a proper contact between the select committee and our Committee and that will enhance their role because it is quite clear that they cannot monitor everything, but we do and we do it comprehensively by examination of documents. They then can be alerted. Even if there are difficulties in giving them that opinion within the time scale that we would hope for, there certainly is every opportunity for a rapporteur to be able to press the committee and the Chairman of that committee to have a good look at this because it would otherwise have quite an adverse effect on the working of that select committee.

Michael Connarty: If I interpret what Ariella was saying correctly, the idea of giving it to one person is to sidetrack it in a sense to one individual rather than to a much broader group of people in Europe. I know the Scottish system quite well and certainly agree with their enthusiasm for Europe, but I do not think they would ever say that they have made much of a fist of it in reality.

Q142 Chair: Moving on, regarding European committees, how effective do you think the Commons European committees are at involving the wider membership of the House in debate on the most important European documents? Do you believe that it would be more effective if European Commons committees had a permanent membership to develop members’ familiarity with the subject matter? Finally, which approaches across Europe are, in your opinion, most successful in involving the widest cross-section of members in the scrutiny process?

Dr Auel: It depends again on what the rationale for the debate in the European committees is. If it is discussing the Government motion, i.e. the Government’s negotiation position on a particular document, then I would guess that the ad hoc committees would serve, involving a larger number of MPs in the process. However, if it is more about an in-depth debate of European documents and the Government’s position then I would probably argue that a permanent membership where members are able to develop expert knowledge on specific European areas would, I guess, be the better choice. I might not be the best judge on the question of how to involve a wider membership-I wonder how the current system involves a broader part of the membership of the House because they get to serve on one committee. I do not know how often.

Chair: Can I tell you they are put on by the Whips and they may not have the slightest interest in the subject?

Dr Auel: Which would suggest that the current system is not all that helpful in involving a broader part of a membership. This takes us back to the importance of involving the standing committees, the departmental select committees. That is the way forward, either in conjunction with the European committees or possibly instead of the European committees.

Chair: That is raising an enormous question-

Dr Auel: I know.

Chair: -if you thought that it would be preferable, or even a matter for consideration, as to whether or not the departmental select committees could deal with the whole range of matters that are within the framework of the European legislation. On its basis of experience and from what we are hearing from other Members of Parliament, it would be way beyond the capacity of the departmental select committees and could become quite dangerous because it would mean that matters would simply not be properly considered.

Michael Connarty: There is maybe the completely different view that they would-

Chair: I am asking the question rhetorically.

Michael Connarty: When they see the important matters that are in those committee’s remits that have a European dimension they might realise that they have been wasting a lot of the time dealing with things that are not as important. That is one of the problems, that there is already a certain blinkered view that Europe is somebody else’s business.

Q143 Chair: I agree with that very much, but the question of how they would be able to cope with it within the timeframe of their own interests and their own decisions to discuss certain questions-because they are not confined to European documents by a very long way yet-the impact of the European legislation on the work of that committee is enormous, which is why, as a way of dealing with it, the idea of the rapporteur appears to be gaining some traction.

Dr Smith: If I could just come back on the question of rapporteurs and also taking your other three questions almost in reverse order, the system that seems recently to have been best at engaging the most members has been the Dutch system. They call it decentralisation. The buzz word in the UK seems to be mainstreaming, actively trying to get all of the sectoral committees to be looking at the European dimension. That followed the no vote in the constitutional treaty referendum in 2005. It did not just come after Lisbon. There was a sense of, "Hang on, we appear to be disengaged from the people. We were all pushing for a yes vote. What went wrong?" The nature of the debate in the Netherlands changed but you have a sense that decentralisation has worked because it has been picked up by the committees and they were willing to do that. As Katrin said earlier, you need to find a way of making select committees feel there is a reason for looking at Europe. It is not another job imposed from the top but something that could make a difference. There are many things linked with Europe that the departmental select committees could be looking at-they might be more useful than what they are looking at. There needs to be a two way process so it is not simply saying, "Right, the European Scrutiny Committee will devolve lots of stuff to the select committees". There needs to be a process, working probably through the Liaison Committee, of looking at areas that could be picked up by the departmental select committees. My sense from what I have heard is that the European committees are not terribly helpful and having people stuck on because the Whips want them to be there is not necessarily going to lead to useful scrutiny or terribly productive engagement. Having institutionalised European committees for the time of a Parliament could be beneficial in terms of generating and developing expertise, but as a half way house I would agree that a rapporteur system might be the most effective way of trying to link in the select committees and the European Scrutiny Committee.

Q144 Chair: Are you merely suggesting that it is something that you would recommend us recommending but at the same time as a temporary approach so that we find out whether it works or not?

Dr Smith: In an ideal world I would have a completely decentralised system for much of European scrutiny to the extent that something is about European foreign policy or agricultural policy it ought to be in the select committees, giving a more strategic role to this committee, in particular thinking about issues like the future of Europe. Constitutional debates and so on could be here but mainstream much of the rest of the scrutiny. However, given the point earlier about the autonomy of select committees and the fact they already have large agendas I do not think that is realistic in the short term, at least probably not in the medium term, so a rapporteur system would appear to give the benefits of a degree of decentralisation also with co-ordination of this committee. It might not be my first choice in a perfect world but we are not in a perfect world and it would at least mean there would be some European expertise developed in each of the select committees. On balance, I would go with that.

Q145 Chair: Would you believe that one of the difficulties in distinguishing between the provision of information and sifting documents on the one hand and the fact that decisions can yet be taken in the Council of Ministers whatever a committee recommends by way of provision of information raises another question, which the present Home Secretary addressed, with some prompting from some others, a few years ago. It was the idea that where there was a sufficient quorum in the House of Commons, and it would have to be quite substantial, to say we believe that this issue is so important-it has to be recommended by the European Scrutiny Committee for debate as being a matter of importance-the Government takes a view that it should go through but we are not sure about this and therefore put it to the floor of the House. Then to devise a procedure whereby if, for example, I have seen a figure of something like 100 members or 150 members who said they thought in a motion that was put down that that matter should then be subjected to a free vote and the House of Commons should decide whether that matter goes through, that that is something worthy of consideration. At the back of a lot of people’s minds, in relation to permanent membership of committees and the whole role of Europe in the context of our national Parliament, is the sense that, yes we scrutinise it, yes we do a lot of sifting, yes we have debates, yes we go on the floor of the House, but what is the end result? And do we have a decision which is taken by the national Parliament irrespective of what the Government wants to do itself? In other words, who is controlling the legislation and does Section 2 mean that you have to accept whatever it is that is decided, whether or not your Parliament likes it or not? What do you think?

Dr Smith: This is putting on a more theoretical or abstract political science hat, if one wants to foster a strong Parliament that stands up to the Government then, yes, bringing it on to the floor of the House if there is sufficient weight of opinion would be absolutely the right thing to do. In response to Katrin’s point earlier about, "Well there’s not really very much going on in terms of plenary session", the three that are the most memorable have been the Backbench Committee vote on the referendum last October-

Chair: For which I did the draft of the resolution you will be glad to know.

Dr Smith: I am delighted to hear it. The EU budget debate last month and then the emergency debate that you brought before the European Council on the Fiscal Compact Treaty so there are ways in which bringing things to the floor of House, apart from anything else, bring the issue under much greater public scrutiny and bring it to the attention of a far wider group of people than just looking at things in committee whether it is a departmental or a European Scrutiny Committee.

Q146 Michael Connarty: I just want to go back slightly, how important in the-whatever you call it-centralisation, decentralisation or mainstreaming is the ability of the committee to have a resolution that it can then put down? If it is a talking shop and nothing ends up in another forum like the floor of the House that it has to be debated and either supported or negated by the Government, which they still have the ability to do, at least the Committee would appear to have some teeth if the committees have an ability to have a resolution. Maybe that has been attractive to select committees if they are not just going to produce a report, they are able to produce formal resolutions on the topic that have to be taken to the floor of the House.

Dr Auel: I would make that point very generally. I cannot think of another scrutiny system where the opinion by Parliament is not formulated by Parliament. Where it is the Government who puts down the motion in the committee and then can at least in theory complete disregard that debate and put down a different motion on the floor of the House where it is usually voted on without any further debate. Whether it is the European committees or the departmental select committees that would be a very important first step but I also know that this has been on the agenda a few times and that this is not an easy topic for the Government. For me, that would be the most important and that would give whatever committee, whether it is the European committees or the departmental select committees, a greater ownership and also make attendance and membership more attractive if they had the feeling that they were having an impact.

Dr Huff: Linked to this as well is the issue of having Ministers, whether to this committee or ideally to departmental select committees before Council meetings, come and explain what is on the agenda and what Britain’s position is. Most Parliaments do have it, even non-mandated ones just as a matter of course but Britain much less so. It is much more ad hoc, if at all.

Michael Connarty: There is debate afterwards.

Dr Huff: Yes, there is debate afterwards but even most non-mandated Parliaments have this as a matter of course. The Ministers have to come, talk about the agenda and not only that but explain what Britain’s negotiating position is.

Q147 Chair: I am sure you will appreciate that the whipping system is extremely important in this context because people may feel that there is something that should be resolved by Parliament as compared to Government, but if Government says that it wants to insist on its position and then whips people accordingly then the question is are people going to rebel or not. It is interesting, Julie, that when you mentioned the three instances each one of those was effectively a rebellion because both on the referendum of the 81, on the budget itself and subsequently on the urgent question it was simply because I, and/or others, had decided that we were going to take a stand and that is what happened. The reality is that whipping systems do ultimately have a huge impact.

Dr Smith: I was going to come back to something quite similar that there is a question of how strong the Government is versus Parliament in practical terms as opposed to formal terms, that a single party Government with a large majority can put up with Back-Bench rebellion then it probably does not matter, a Coalition Government is obviously in a somewhat different position. The scope for influencing the outcomes differs very much policy to policy according to whether it is typically a coalition system or not. The UK until May 2010 made it quite difficult to see how Parliament could stand up to the Government and say, "We’re not doing what we’re meant to be doing as the payroll vote". There is a bit more scope for it with a coalition but it obviously depends how much is enshrined in a Coalition Agreement and therefore is rebelling versus a whole set of things that maybe have not been put into the Coalition Agreement and therefore there is a little bit more flexibility for MPs to vote as they feel is appropriate.

Chair: I am sure we can discuss this much more but, James, would you like to ask what is likely to be the last question?

Q148 Mr Clappison: It is a follow-up question to a lot of what we have been talking about. What role do you think the Government, Parliament and the media should play in improving the quality of public debate on Europe?

Dr Auel: This comes back to what you said at the very beginning because there is only so much Parliament can do to reach citizens or the general public directly. There are a number of issues here. First of all, when you do address the public directly, what kind of public are we talking about? Are we talking about the general public or very specific expert publics? With regard to both there are changes one could not possibly make to the information provided on the website depending on who one wants to address. But in the end most citizens and the general public do not get its information on politics from the parliamentary website and streaming committee meetings is all well and good but most people do not have the time to watch them. Citizens experience politics through the media and so the question is, how does one, firstly, interest the media in European issues and also in European policy issues not just the old pro/con integration debate, and secondly, how does one interest the media in parliamentary activities on debates? Unfortunately I do not have a very nice catalogue of how to do that "yet", hopefully, because I have just started a research project on where we want to investigate how the media report on Parliament and what makes Parliament newsworthy.

Mr Clappison: Perhaps I could throw it open to your colleagues and ask them if they think of anything that this committee could do to improve.

Dr Smith: If you could educate some of your colleagues that would help enormously, because one of the frustrating things about watching plenary debates about European issues is the level of generality and also the level of misunderstanding that is put forward. Here we have a committee of people who are genuinely interested in European questions and are willing to take the time to understand how the European Union works and how that links back to this Parliament but it is too easy for parliamentarians to say, "The media don’t like Europe, I don’t think my constituents like it very much". Is it Peter Bone who talks about people down at the Dog and Duck and what are they talking about and they want to pull out of Europe? There is a danger that there is a level of generality of discussion that is almost lowest common denominator politics rather than parliamentarians saying, "Europe matters and here is why it matters", and engaging in informed debate that could help educate the public and be picked up by the media because it is taking the debate forward rather than speaking at the level of generality. Why is it the level of generality? Because that is what so much of the print media, in particular, have picked up on. One of the things that was coming through in the evidence of the Leveson Inquiry was the idea of editorialisation. How difficult it is if you pick up a newspaper now to distinguish between the editorial, the particular biases of journalists and factual information.

Q149 Mr Clappison: To be fair to Peter Bone I happen to know that he is an MP who is extremely conscientious about knocking on his constituents’ doors and finding out what they are concerned about. I am now sure how often some of our Members of the European Parliament carry out that activity. I do not know. He is an extremely good Member of Parliament. I am very independent-minded.

Dr Smith: It is not a question of whether or not he talks to the constituents so much. There is a real danger that the whole level of debate is dumbed down in part not because Peter Bone does or does not talk to his constituents or any of the Members of this Committee talk to their constituents so much as the media do not give useful insights into what is going on. So much of it depends on the views of journalists rather than hard facts. If we engaged in discussions that were based a little bit more on hard facts and then debated the merits and demerits of the law or the economic situation rather than impressions and perceptions which-

Mr Clappison: We tried very hard. I took part-I did not always get called-in every debate, attended every debate on the Lisbon Treaty on every clause and the way in which it was structured was an attempt to try and suppress detailed debate of the Bill. But to take, for example, our main broadcaster, the BBC, it showed a pitiful interest in it. I will put that to the BBC-

Chair: We are trying to get the BBC to come to this inquiry and it is an interesting reflection on the BBC that we are still having to have discussions about who would come and how they would do it because there are some difficult questions that they are going to have to answer. It is the attitude and who they put on, how they arrange the programmes and the extent of the interest that they take in a matter, which you are indicating from your interest in this subject, you recognise as being of great importance to the workings of our democracy. We have now covered as much ground as we need to this afternoon. I would in conclusion like to say how grateful we are to you for what has been some very original analysis, quite extraordinarily good. You have come up with some very interesting answers to some very important questions. Thank you very much indeed.

Prepared 27th November 2013