Select Committee on European Union First Report


At what stage in the European policy-making and legislative cycle is input from a national parliamentary scrutiny committee such as ours most effective?

24. The Leader's Group called for a review of "the appropriate balance between the scrutiny of general policy and that of specific legislative proposals". This is an interesting distinction and one of which the Committee and the six Sub-Committees, which conduct most of the substantive scrutiny work, are always aware.

25. The question can perhaps be better posed as: at what stage in the cycle of European policy-making and legislation can scrutiny committees have most impact on those formulating policy? Should we aim to comment on general policy "upstream" at an early stage of formulation (e.g. Green and White Papers) or at a later stage when specific legislative texts are being proposed and subsequently negotiated, or both? In addition, should we consider policy areas where there are as yet no documents?

26. Most of our witnesses advanced the view that we can have most impact at an early stage in the process[13]. The Leader of the House, Lord Williams of Mostyn, suggested we should intervene at a very early stage, before decisions were set in stone and while sufficient time was available. There would then be "an opportunity for a genuine dialogue" between Parliament and the Government at a time when "the dynamic…is almost qualitatively different" (QQ 5-8). Lord Howell of Guildford urged more scrutiny before texts started being formed, as well as at the implementation stage (Q 56). Jimmy Hood MP, Chairman of the Commons European Scrutiny Committee, put it succinctly: "The earlier you can get in, the better" (Q 133).

27. Commissioner Michel Barnier (Commissioner with particularly responsibility for relations with national parliaments) said he saw "an enhanced opportunity" for our input at the stage of consultation in policy development, i.e. at the pre-legislative consultation stage of Green and White Papers and communications, of which the Commission was intending to make greater use. The European Policy Centre (EPC) too urged us to work at pre-adoption stage, while Professor Neil MacCormick MEP suggested our work should take place "as early as possible", i.e. at Green Paper stage when Commission proposals first come forward (p 62).

28. Dr Cygan thought it the "strength" of our scrutiny process that we were able to conduct diverse inquiries on all aspects of EU law and policy, which avoided the Committee merely undertaking the "mechanical scrutiny of legislation". This in turn allowed us to be proactive as well as reactive. He too accordingly argued that we should always move up-stream in the legislative process, both to counter the limitations of the Scrutiny Reserve (on which we say more in paragraphs 64-74 below) and to help us to avoid problems of timing. Our familiarity with policy issues would provide the Government with important questions to raise in Council (p 52). Baroness Williams of Crosby drew parallels with pre-legislative scrutiny and thought a legislature most effective when conveying views before the Government's "pride" committed them to a particular position (Q 160).

29. The issue identified here is whether we should aim to report more on legislative proposals or on early discussion documents. We have always believed that inquiries of both kinds can be of value. The practice of our Sub-Committees has varied according to the subjects involved but there are advantages in choosing as the subjects for our major inquiries proposals at an early stage, not least because the opportunity for significant influence on policy is reduced once proposals come close to final decision and governments are therefore less likely to be persuaded to change their minds. This is particularly important for Sub-Committee C in dealing with Second Pillar matters (Foreign Policy and Defence), on which there are very few texts but much inter-governmental discussion.

30. We accordingly endorse the near unanimous view of our witnesses that we should aim to work at the earliest possible stage in the policy-making cycle. It is then that we stand the best chance of influencing policy. One particular method by which we can look upstream is by examination of the Commission's Annual Work Programme, on which we have this year begun to report[14]. Commissioner Barnier noted this development (p 49) and we are pleased that the Convention is actively discussing scrutiny of the Programme. The Commons European Scrutiny Committee is also pressing for the Council's strategic plan to be submitted by governments to national parliaments for consultation[15]. We will consider the suggestion for national parliamentary scrutiny of the Council's strategic agenda. We also propose (paragraphs 77-82 below) the scrutiny of the EC Budget at an early stage.

31. Lord Howell of Guildford called for the Commission and Council to make more information directly available to national parliaments, and in better time (Q 57). We welcome this suggestion and also call on the Government to undertake always to draw to the Committee's attention any matters under discussion or consideration by the Commission which might merit detailed scrutiny when a proposal comes forward. Such an early warning system would greatly assist us.


32. Under the co-decision procedure, after the Commission has adopted a proposal it is examined by the European Parliament (EP) and the Council of Ministers (the Council). If they both agree on its content, the proposal is accepted. If they do not reach agreement, the Council will adopt a common position. The EP then has three months to approve, amend, reject or take no action on the common position. If the EP approves or takes no action on the common position, the Council can adopt it as a legislative act. If the EP rejects the common position by an absolute majority, the proposal falls. If the EP amends the common position by an absolute majority, the Council has three months to examine the amendments (the Commission too gives an opinion on the amendments). If it agrees with them, the proposal is adopted. If the Council does not approve all the EP's amendments, a Conciliation Committee is convened. The Committee is made up of 15 members of the Council or their representatives, and 15 representatives from the EP. The Committee has six weeks to draw up a 'joint text'. If the joint text is approved by the EP and the Council, the measure is adopted. If the Conciliation Committee cannot reach agreement, or if their joint text is not approved by the EP or the Council, the act is deemed not to have been adopted.

33. The co-decision procedure is significant because a number of major legislative initiatives are adopted under it. Mr Larsen-Jensen suggested his Committee faced problems in the time allowed for these procedures—there was not enough "space for the involvement of the democratic process". There ought to be greater co-operation with the EP at first reading stage (QQ 95, 110). There are clearly practical difficulties in carrying out scrutiny when conciliation is engaged. We have accordingly considered how our Parliament might perform scrutiny when conciliation is underway, and how effective that scrutiny might be.

34. Dr Cygan told us that there was no time built into the co-decision procedure for national parliamentary scrutiny and that the final text agreed after the co-decision procedure can often differ from that submitted for national parliamentary scrutiny at the start of the legislative process. Ministers can invoke a parliamentary scrutiny reserve but, in his view, would often be reluctant to discuss changes, particularly at the end of a Presidency (p 52). Professor Neil MacCormick MEP noted that it would be possible for national parliaments to make representations to their national ministers on the basis of scrutiny carried out on earlier versions of the text (pp 62-63). Dr Caroline Jackson MEP wanted to see more documents made public so that scrutiny would be enhanced (p 61).

35. Our ability to perform effective scrutiny during the co-decision and conciliation process is clearly affected by timetables which are outside the control of national parliaments. The speed with which proposals can move, the limited number of people involved, and the fact that negotiations often take place behind closed doors all complicate the process from our point of view. The substantial number of proposals going to conciliation is a strong argument for extra scrutiny. We accordingly urge the Convention to consider a revision of the co-decision procedure to allow a greater opportunity for national parliamentary scrutiny. Our proposal for the Convention's consideration is that, when conciliation is triggered, the relevant documents (from the Commission, Parliament and the Council) should be issued publicly and submitted to national parliaments, which would have four weeks to consider them before the Conciliation Committee can meet. We make this proposal in the spirit of better informing those directly involved in the co-decision process. We do not intend that the procedures are delayed or that national parliaments play a direct role in the passage of the legislation which is being negotiated by others. In the meantime, we would welcome proposals from our Government to ensure better provision of information on matters subject to the co-decision procedure at its various stages.

Is sufficient time allowed for national parliamentary scrutiny?

36. Under Protocol IX to the Amsterdam Treaty national parliaments have six weeks to scrutinise proposed legislation. The text of the Protocol states:

37. In the United Kingdom, the first stage in the scrutiny process is the deposit of the document in Parliament by the Government, followed by the Explanatory Memorandum originating from the relevant government department.

38. Effective scrutiny depends to a large extent on the right documents being deposited at the right time. The pace of the legislative process in the Union has accelerated and can sometimes be extremely fast. There have even been occasions when the government departments on whom we rely to furnish EMs on documents have been caught out by the speed of events, particularly towards the end of the six month rolling presidency. We accordingly watch closely for any lapses by the Government or the Council secretariat. Problems of delay are now much less frequent and much less severe than they once were and we compliment all those who continue to work hard to this end. The electronic transmission of documents from Brussels to the FCO in London has helped enormously (see Q 12).

39. Where the Select Committee or one of its Sub-Committees thinks it necessary to do so, we do have the flexibility in our procedures to pursue proposals at speed, and at short notice. This is particularly true where we are following up previous scrutiny, or an earlier report. The recent consideration, both by the Select Committee and by Sub-Committee E, of the European Arrest Warrant[16] is a case in point. The Select Committee discussed the matter on a Tuesday: the Sub-Committee heard from the Minister the next day and wrote a letter the following day. The transcripts of the evidence and the letter were published the following week as a report which was debated on the Monday of the week after that. Speedy scrutiny was much assisted by the willingness of Ministers to make themselves available.

40. The Convention's Working Group on National Parliaments is nevertheless considering proposals[17] for even greater efficiency including:

  • Ensuring greater openness in the Council;
  • The avoidance by the Council and its Working Groups of any form of preliminary agreement on a proposal during the six week period;
  • The simultaneous transmission to national parliaments as well as national governments of both legislative documents and Commission proposals;
  • Reviewing the time limits in the Protocol.

We will consider the output of the Working Group in a separate report.

41. Baroness Williams of Crosby thought greater openness in the Council was an essential element of scrutiny because without it, a scrutiny committee could not be sure that Ministers had acted on their conclusions (Q 158). We have previously endorsed greater openness in the Council[18] and note that this will facilitate faster scrutiny by national parliaments. We note that abolishing the six monthly cycle of presidencies could help scrutiny by avoiding an "end of term" rush to decision, provided that other artificial deadlines are not built in.

42. To assist efficient scrutiny we will, where a proposal is moving quickly through the legislative cycle, more regularly ask government officials to be available at short notice to assist the Committee in matters of explanation and elucidation. This should help to avoid the unnecessary maintenance of a scrutiny reserve just because of a lack of basic information.

The Scrutiny Process

43. This section of the report considers the process by which documents are deposited, sifted and examined and concludes by reviewing the Scrutiny Reserve Resolution under which we operate.


44. The Government's Explanatory Memoranda (EMs) are central to effective scrutiny. We have considered whether they are in the appropriate form.

45. A standard EM will include information on the following:

46. Jimmy Hood MP thought that the Government could give more details of information they had received from the Commission and which lay behind their own policy views (Q 145).We questioned the Government on whether there could be more information on the devolution implications; on the Government's implementation strategy; and on the potential cost of a proposal. Mr Michael Roberts, Head of Division, European Secretariat, Cabinet Office, told us that the Government was pressing the Commission to make greater use of fiches d'impact (cost assessments). He offered us further information on what could be added on the Government's implementation strategy but thought that the initial EM might be at too early a stage, not least given the need to consult the devolved executives, although he suggested we might write to pursue particular cases (QQ 12-17).

47. In a subsequent letter (printed on p 9 below) the Leader of the House argued that the Government could not do more to set out in detail in an EM whether primary or secondary legislation was intended for implementation in a particular case. In spite of this explanation, and the Leader's emphasis on the Government's willingness to provide more information, we find it disappointing that Ministers might be prepared to agree laws in Council without having determined how they are to be implemented in the UK. We note the Leader of the House's intention to provide the Government's best assessment of their implementation strategy. We nevertheless recommend that the Government's proposals to implement a particular piece of legislation be set out in more detail in the initial EM. The fullest possible explanation needs to be given on the implementation of EU legislation on matters concerned with Justice and Home Affairs. More generally, the EM should as a matter of course state whether primary or secondary legislation is envisaged and if the latter, under which power. An indication should be given of the factors which lay behind the decision. Furthermore, where the powers in section 2(2) of the European Communities Act 1972 are intended to be used, the Government should indicate whether the affirmative or negative procedure is envisaged and the reasons why.

48. We also recommend that EMs give fuller information on the devolution implications of a proposal; on any proposed creation or extension of the powers of a comitology committee[19]; and a fuller account of the policy implications for the UK. There should also be a section on any potential human rights issues. The Government should consider making a formal statement as is now issued on primary legislation, that, in the view of the Minister signing the EM, a proposal is compatible with the provisions of the Human Rights Act 1998.

49. We are also concerned that some categories of document can be accompanied by a short-form EM without a ministerial signature ("unsigned EMs"). Requiring a ministerial signature is at least a minimum guarantee that a Minister will read the material, or perhaps ask for clarification. Without that, proposals can come forward seen only by officials, which weakens democratic accountability. We accordingly expect all Ems—which are after all the Minister's evidence to Parliament—to be signed. Those categories of document currently subject to an unsigned EM should instead be accompanied by a short form EM, as at present, but with a signature.


50. Over a thousand documents are deposited before Parliament each year. Categories of proposal which are to be subject to scrutiny are governed primarily by the terms of the Scrutiny Reserve Resolution[20]. The Committee and the Government on occasion also agree on what is expected of the Government, for example by the making and acceptance of recommendations in a report such as this. The two Houses aim to keep in step in ensuring that the Government deposits the right documents for scrutiny. The Commons Committee has noted that there are some categories of documents which are rarely or never thought to be of legal or political importance and as a consequence their Committee has for some years agreed, for example, that transfers between budget lines need not be the subject of a formal deposit and explanatory memorandum. The Treasury instead sends a consolidated list of these documents, under the cover of a single EM, every quarter. We support the consolidation of all transfers of appropriations into a single consolidated report.

51. The Commons Committee has now proposed[21] to streamline further the deposit of documents by no longer requiring the deposit of certain categories of documents provided that regular lists of such documents are produced and that Ministers keep the Committee informed of any broader issues or general developments arising so that the Committee can require the deposit of any individual document at any time. The categories of document for which the House of Commons Committee has proposed this new procedure are:

1) Community positions on rules of procedure for various Councils and Committees, including those established under Association Agreements;

    2) Proposals to extend Common Positions imposing sanctions (without making substantive changes) in pursuance of UN Security Council resolutions;

    3) Proposals for making minor changes to lists of people or organisations subject to restrictive provisions in existing measures;

    4) Draft Council decisions relating to decisions already made in Association Councils or Committees;

    5) Reappointment of members to EU organisations;

    6) Documents on anti-dumping measures.

52. The Commons Committee has invited us to consider agreeing that these documents be no longer deposited. We agree that documents in the categories 1-5 set out in the preceding paragraph need not be deposited, although we would wish to see the same arrangements made to keep us informed as are proposed by the House of Commons. In this context, we note that the Leader of the House floated the idea of an Annual Review by the Government on the operation of such a new system (Q 12). We would, however, wish to see anti-dumping documents still deposited as they may have implications for UK industry.

53. The Leader of the House also suggested (Q 18) that three further categories of document be no longer deposited. These are:

  • Proposals for legislation concerning the administration of Community tariff quotas;
  • Requests for derogations from customs duties, under the 6th VAT Directive;
  • Commission opinions on EP second reading amendments.

54. Lord Williams suggested that these represented about sixty documents per year. We agree with the Leader of the House that the first of these categories of documents, because they almost never raise matters of significance, need no longer be deposited, subject to the same provisions for review. We would accordingly invite our sister Committee in the Commons to agree that these documents be added to their list of documents that do not need to be deposited. The second category, however, are matters on which we do pursue issues; and the third relates to our recommendation on co-decision (see paragraph 35 above), so as a consequence of that recommendation we wish them still to be deposited.


55. As explained above (paragraph 16), our Chairman conducts a sift of the documents deposited. Jimmy Hood MP, albeit talking of his own Committee's processes and not ours, said pithily: "you have to be selective to be effective" (Q 142). Dr Cygan noted that when our Committee was established it had been envisaged about 5 per cent of documents being sifted for examination but in recent years the figure had been 15-25 per cent. His view was, however, that the sift process generally worked well and that it was difficult to envisage a viable substitute. He stressed, however, that the provision of the EM was crucial to the process. He thought that Sub-Committee Chairmen might provide a second filter (pp 51-52). Lord Pearson of Rannoch, on the other hand, argued that the Committee itself should review the sift each week (p 63).

56. In conducting the sift, the Chairman receives advice from both the Clerks and the Legal Adviser. This advice is designed to ensure both that new documents of significance are sifted to the relevant Sub-Committee; and that documents where the Sub-Committees have had a past interest, or have a continuing interest, in a subject are also sifted. Hence, the Sub-Committees are already involved in the process.

57. It is our view that the sift process generally works well. The purpose of the sift is to ensure that the time of members of the Sub-Committees is spent on those issues which merit their attention and to which they can add value. There is very little point in summoning a group of Members to the House merely to endorse a list of those documents on which they would have nothing to say. We note that previous reviews of our work [22] have reinforced the importance of the sift process and that a Sub-Committee is not precluded from examining a document cleared on the sift.

58. The sift system also allows some documents to be cleared from scrutiny even at times, such as the Recess, when it is not normally convenient for Committees to meet[23]. We stress, however, that the provision of proper Explanatory Memoranda is absolutely essential to the effective functioning of the sift system and we have made suggestions for improvements in this area (see paragraphs 47-49 above).

59. Further to our recommendations on co-decision (paragraph 35 above), we will examine the criteria currently used for sifting documents to Sub-Committees at late stages in the legislative cycle.


60. The Scrutiny Reserve Resolution is set out in full in Appendix 3. In summary, the purpose of the Reserve is to ensure that Ministers do not agree to EU legislation in Council unless we have completed scrutiny (including by way of a debate in the House where that is required). It is important to stress here that the Reserve is not a device requiring Ministers to agree with the Committee. Hence a proposal which we have considered, to which we have strong objections, but on which we have completed scrutiny, would not be subject to a reserve. Any proposal which we are still considering, however, even if we have no objection to it, remains subject to a reserve.

61. Dr Cygan thought that the Resolution provided both our House and the Commons "with a minimum guarantee that they could carry out the terms of their standing orders and influence the Minister". He nevertheless recognised that "while domestic parliamentary scrutiny remains outside the legislative loop there will always be occasions when the Scrutiny Reserve Resolution will not fulfil its objectives". There was a need for a balanced operation of the reserve and a recognition that scrutiny does not stop when the reserve itself is lifted. He called for parliamentary scrutiny reserves to be expressly covered within the Treaties (pp 52, 54-55).

62. The Leader of the House noted that the scrutiny reserve provided a structural and extremely important internal discipline on the Government. He compared the Reserve with the work of the Delegated Powers and Regulatory Reform Committee: that Committee had no power to bind the Government to amend domestic United Kingdom legislation but the Government would be very reluctant to ignore its views. He noted that there had only been 80 cases where the Government overridden a United Kingdom scrutiny reserve out of 1300 documents deposited in 2001: 56 of these had been because of the parliamentary recess (QQ 9-11) [24].

63. For the scrutiny reserve to be working "properly", the Committee should not maintain the reserve unnecessarily: to do so would weaken the Government's negotiating position and devalue the Reserve. But it is also essential that the Government does not override it without good cause. It is accordingly essential that HMG ensure that documents are deposited in good time. We take this extremely seriously and regularly follow up delays with Ministers. We can then ensure that our procedures of sift and examination operate efficiently.

Strengthening the Scrutiny Reserve


64. Dr Cygan argued that the Government's responsibility to the House and to the Committee to provide documents on time should be formalised within the Scrutiny Reserve Resolution to ensure that the Council could not agree something until the Committee had had at least a minimum time to consider it (p 54).

65. There are, however, those who argue more strongly that the present reserve is inadequate. Lord Stoddart of Swindon told us that parliamentary scrutiny would not be effective unless ministers' actions were expressly authorised by a vote (p 64). Lord Howell of Guildford, Conservative front bench spokesman in the Lords on Foreign Affairs, has called for European scrutiny to be made "mandatory and legal"[25]. In evidence, he explained that this was part of a broader initiative to reassert the influence of Parliament. As part of that, Parliament should set an example of involvement in EU decisions and mandate or bind Ministers "except in the most rigidly defined circumstances". He stressed that there would always be exclusions and exceptions but they should be "very narrow and…most assiduously agreed" (Q44). While legislation might well be required to achieve this, he hoped that a committee operating under such a system would remain independent of Government control (QQ46-7).

66. The Leader of the House, however, suggested that a binding scrutiny reserve resolution would be too rigid. It would not allow sufficient flexibility to Ministers in negotiations and could on occasion preclude them from securing a deal in the United Kingdom's best interest. He suggested that any mandatory reserve would always in fact be subject to caveats and in his view the present system, properly observed, was almost that (Q10).

67. In the Commons, the European Scrutiny Committee has the power to recommend a debate in a Standing Committee or on the floor of the House. Jimmy Hood MP told us that a negative vote in Standing Committee would not prevent the Government acting but a negative vote on the floor would be "very difficult" for the Government (QQ 123-127).


68. The Danish Parliament's European Affairs Committee has the power to mandate Ministers before they go to Council (see paragraph 22 above). Some of our witnesses, however, questioned the effectiveness of the Danish model. Dr Caroline Jackson MEP noted that the Danish Parliament could not bind MEPs, who played an important part in the conciliation procedure (p 61). Lord Inglewood MEP did not think that a mandated system would work in the United Kingdom. There was a danger that the national negotiating position would be given away and there would be complications if the two Houses could not agree (p 59). Dr Cygan also questioned whether a mandatory system would work in the United Kingdom, where accountability of ministers always resided in the Chamber and not the Committee; where scrutiny was usually conducted post facto; and where, under the devolution settlement, accountability was split (p 52). Jimmy Hood MP noted that the Danes had coalition governments whereas the United Kingdom had majority governments; and if a committee had power over a government, that government would have power over the committee—which would mean the executive taking control of the scrutiny process (Q 134).

69. We have considered the Danish model and can see its superficial attraction. The idea that Ministers cannot negotiate on behalf of the United Kingdom without a specific mandate from our Committee is attractive. We can see also merits in the argument that a Minister going forward to negotiation supported by our Committee is in a much stronger position to take the national view. We can also see that a cynic might doubt how a system based on scrutiny rather than control could effectively guarantee parliamentary democracy. A mandatory system would appear to remove the comfort of the safety zone which the Government currently enjoys in their freedom to negotiate after our scrutiny.

70. We have nevertheless concluded that a mandatory scrutiny system would not work under UK circumstances. The Danish political environment is very different from ours, with almost permanent coalition governments. We agree with the arguments set out in paragraph 68 above: there are dangers in giving so much power to our Committee or indeed to its Chairman. This could lead to the Government wishing to secure both the majority on the Committee, and that the chair was filled by somebody amenable. There are also dangers in taking power away from the House as a whole. Furthermore, a mandatory system would only work if a new mechanism were found to allow all the relevant UK parliamentary bodies to come to a single view. Overall, in a system such as the European Union, requiring agreement in negotiation between representatives of the Member States, there must always be flexibility and room for manoeuvre.

Alternative ways of strengthening the Reserve


71. Baroness Williams of Crosby thought the scrutiny reserve should be "sacred" during the six week period provided by the Amsterdam Protocol[26] and capable of being overridden only by a positive vote of the House. After the six weeks any overrides should be explained to the House (QQ 178-9). We agree. To this end we propose a modification to the scrutiny reserve procedure modelled on the system which operates in France[27]. We propose that, in order to maintain effective parliamentary scrutiny of EU legislation, our Committee have the right to require that the Government secure a positive resolution from the House as a whole in order to lift a scrutiny reserve which is being maintained by our Committee because of significant outstanding policy concerns. We do not envisage this power being exercised other than exceptionally.

72. We note that Jimmy Hood MP supported such a procedure (Q 137). We also note the suggestion from the Leader of the House that any procedure of this kind would be less inconvenient for the Government where it has a majority (Q 10). We nevertheless consider that such a power would be a useful addition to the scrutiny system in a House such as ours, where the present Government (and indeed the present Conservative opposition) do not have a majority and the two main parties are therefore required to seek a broad consensus in securing victory in a division. We also propose that this new procedure, as an ultimate weapon of last resort, could only be used when triggered by a decision of the Select Committee acting on a recommendation from one of the policy Sub-Committees.

73. There are new procedures within Government to flag dossiers where an override might be triggered (Q 13). Under present practice Ministers must, whenever the scrutiny reserve is overridden, send an immediate and full explanation to the Committee in writing. This provides a very public and pressing obligation on Ministers to explain themselves if the reserve is overridden. Ministers are expected, where possible, to write in advance of overriding scrutiny but in any event must do so within two days of the relevant Council. Our practice will be that any such ministerial letter will be considered by the relevant Sub-Committee who need to take a formal decision to clear the document from scrutiny. It is particularly important for documents where the Minister warns in advance that the reserve might be overridden to be sifted to the relevant Sub-Committee, both to examine the validity of the reasons given and to allow scrutiny in case the reserve is not in the event overridden.

74. As an enhancement of the scrutiny process, however, we recommend that, in those cases where a Minister has overriden a reserve, the Minister should come to Parliament and give an explanation by way of Ministerial Statement.


75. We have recently reported[28] on the practice of Ministers seeking to obtain "provisional agreement" in the Council. Our report was debated in the House. The Scrutiny Reserve Resolution needs to be updated to take account of the practice of the Council. We accordingly recommend that the Resolution should be amended to make clear that the term "agreement" (which a Minister must not give before scrutiny is cleared) includes all forms of agreement, including provisional agreements and other similar practices such as the adoption of "a general approach".


76. Monitoring of scrutiny overrides has not been systematically reported to Parliament. It has happened in the past in response to a Written Question but should happen as a matter of routine. We recommend a review, co-ordinated by the Cabinet Office and taking place say every six months, of those cases when the scrutiny reserve has been overridden and giving the reasons why. This information should be reported to Parliament.

Additional Scrutiny


77. Sub-Committee A of our Committee has been examining how we can improve our scrutiny of EU financial affairs (see the memorandum from the Sub-Committee in Appendix 5). The Sub-Committee examined the way in which it scrutinises three elements of European financial affairs. First, the negotiations that formulate the annual Budget of the European Communities; secondly, the multi-annual financial framework that fixes the ceilings for spending in each category within the Budget; and thirdly, the key spending decisions that frequently determine how money is spent up to the ceiling in each category in the annual Budget.

78. The decisions on the total level of EU expenditure are of paramount importance and must remain the focus of concentrated scrutiny. Sub-Committee A will continue to consider in detail any changes to the overarching legal framework within which the annual Budget is set. The major spending decisions will also remain a focus of rigorous scrutiny for all of our Sub-Committees. The Sub-Committees will continue to scrutinise in detail proposals for legislation that have budgetary implications and will follow closely negotiations on such proposals at Council meetings.

79. Scrutiny of the annual Budget can be complicated and time consuming. Sub-Committee A's scrutiny of the Budget should not distract it from other inquiries on topics that have large budgetary implications. The Sub-Committee should focus its efforts on particularly significant stages and developments in the annual Budget process. The key event for the Sub-Committee should be scrutiny of the Commission's Preliminary Draft Budget before the establishment of the Draft Budget by the Budget Council in July, as this meeting sets the main features of the Budget for the following year.

80. Sub-Committee A will therefore take oral evidence from the Government on an annual basis before the first reading of the Budget in the Budget Council and thereafter we will publish a short report. Publication of a report at this juncture in the Budget-making process would also inform the House of negotiations at an early stage and would introduce an element of parliamentary scrutiny where little currently exists in this House. By adopting this focused approach at an appropriate time in the annual Budget process, the Committee would aim to contribute to greater accountability, openness and transparency. We intend that the scrutiny process be constructive for all concerned. To enable the Sub-Committee to conduct a productive evidence session at this early stage in the annual cycle, we call on the Government to submit an EM on the Commission's Overview document of the Preliminary Draft Budget at the earliest possible opportunity, preferably by the middle of May.

81. There is a huge amount of documentation on the annual Budget that has to be deposited in Parliament. The flow of large numbers of documents relating to the annual Budget, together with the accompanying EMs and Ministerial letters, is inefficient and produces a confusing and bureaucratic picture of the Budget-making process and of scrutiny generally. Furthermore, duplication can occur when the Sub-Committee considers each separate stage of the Budgetary making process. There is great scope for streamlining the flow of documents on the annual Budget to Parliament, in order to produce a more efficient procedure that is focused on the key stages where our scrutiny work can have an influence on the Government.

82. Once the Sub-Committee has scrutinised the Preliminary Draft Budget in detail, the important thing is then for the Committee to be informed of the major developments in the fast-moving Budget negotiations as soon as possible. In practice, this would mean the Government quickly updating the Committee by Ministerial letter after the various stages of the annual Budget cycle rather than waiting to draft an EM once they have received the official translated texts. It would be helpful if, after the first reading in Council, the first reading in the European Parliament and after the second readings in the Council and the European Parliament, the Government informed the Committee of developments by Ministerial letter rather than in an EM. Once ready, the documents themselves should still be deposited in Parliament, in order to maintain a complete record of each EC Budget. We have also recommended (see paragraph 50 above) that all transfers of appropriations should be recorded in the consolidated report rather than deposited separately. This reform would streamline the present bureaucratic system of reporting transfers to the Committee and would provide a more efficient procedure so that Members can concentrate their scrutiny on the major financial decisions.


83. The principle of subsidiarity, introduced into the Treaties by the Treaty of Maastricht, is intended to ensure that action takes place at EU level only if the Union is really able to act more effectively than the Member States individually. Subsidiarity is a significant theme in the Convention, which set up a Working Group on the issue. This group has considered proposals for subsidiarity to be better monitored during the legislative process including proposals designed to allow national parliaments to act rapidly and effectively, and perhaps collectively, should they consider that a legislative proposal does not comply with the principle of subsidiarity. At present subsidiarity is only monitored by the Court of Justice after the adoption of legislative acts (and not on any systematic basis). Our own scrutiny of individual proposals, however, does already take account of whether they accord with the principle of subsidiarity.

84. The Working Group submitted its conclusions to the Convention's plenary session on 3 and 4 October 2002[29]. The Group proposed four main reforms for improving the monitoring and application of subsidiarity:

i) an early warning system should be set up to enable national parliaments to consider whether Commission legislative proposals conform to the principle of subsidiarity;

ii) national parliaments should have the right to appeal to the European Court of Justice after the adoption of legislative acts in cases of violation of the principle of subsidiarity:

iii) the Committee of the Regions may appeal to the European Court of Justice, on the same grounds, in areas of its competence; and

iv) the Commission should be obliged to attach a 'subsidiarity sheet' to its legislative proposals to provide a clearer assessment of the application of the principle of subsidiarity.

85. We have considered whether we should monitor subsidiarity issues more closely, in addition to the work we already undertake. We note that the House of Commons European Scrutiny Committee has called for a mechanism to allow national parliaments to register concerns[30]. We also note that any role for national parliaments in the area would require specialist expertise—which in our case is provided by our Sub-Committees. We propose to examine in more detail in a separate report the proposals on subsidiarity emerging from the Convention.


86. Dr Caroline Jackson MEP suggested that we needed to spend more time on hard-hitting follow-up reports, especially where initial legislative proposals had changed during the later stages such as conciliation. She particularly drew attention to the need for scrutiny where costs had been incurred following amendments agreed with the European Parliament (p 61). Lord Stoddart of Swindon suggested a more general review of items of European legislation, to see whether it was still required (p 64). Baroness Williams suggested that follow-up work should be published both six months and a year after each of our reports to assess their impact (Q 164). We will seek to devote the necessary time and resources to following up our previous work. This could take the form of periodic reviews of our recommendations before proposals are implemented. The suggestion for a general review of European legislation, however, is not one we can usefully undertake, without a major disruption of our scrutiny work. Our Sub-Committees do, however, consider existing law when examining new proposals.


87. Our Committee deals only exceptionally with legislation made under the comitology procedure, although we have considered the comitology process itself in some detail in a previous report[31] which our Government has described as very valuable (Q39). Under the general heading of comitology we refer to subsidiary legislation made, normally by the European Commission after consulting the Member States or other interested parties, in regulatory, management or advisory committees.

88. The European Policy Centre has suggested that it is time for these issues to be revisited (p 51). Mr Larsen-Jensen noted that there was no overview of what was going on under the comitology procedure (Q 105). Baroness Williams of Crosby suggested each of our Sub-Committees should look at one comitology issue each month after a sifting process by the Chairman (Q 163). While we note that the Government is doing more to ensure proper parliamentary scrutiny of these kinds of legislation (Q 39), we consider that a more in depth review will be required as the Convention continues its work. The legislation passed under comitology procedures may or may not be good legislation but the fact that so much can be made in such a way, unseen and unscrutinised, clearly in our view contributes to a lack of accountability in the European Union.

89. We already perform two important functions in scrutinising comitology decisions. First, a few such documents are deposited for scrutiny in the normal way, on those occasions when they are referred back to the Council. Secondly, in examining new proposals for EU legislation we can examine whether they appropriately delegate legislative power, and we undertake to do so most keenly.

90. Neither of these functions, however, tackles the argument that there is a lack of scrutiny of a vast amount of existing comitology legislation. Following our 1998 report, the Government agreed to submit to Parliament comitology legislation that was politically or practically important. We are surprised that they have not done so on any occasion. We accordingly propose that the Government review the importance of EU subsidiary legislation, and what its significance is in practice, and inform the Committee on a regular basis of any significant proposals. We need to be satisfied that the Government will in fact submit significant texts for scrutiny before discussion in comitology committee.

91. We also propose that the Convention considers whether the European Parliament's procedures in this area could be strengthened by setting up an equivalent of our committees which scrutinise Statutory Instruments, including both the Joint Committee on Statutory Instruments and the proposed new committee on the merits of Statutory Instruments; by strengthening the work of their existing committees in scrutinising comitology legislation; and by giving consideration to a procedure analogous to our negative and affirmative resolution procedure. This would supplement the Parliament's existing power to express a view on comitology legislation arising out of legislative instruments adopted under the co-decision procedure.


92. Our scrutiny work does not cover directly the implementation of EU law. We have accordingly considered whether scrutiny of implementation is work that we should undertake, and if so what are the implications for our other work. We also considered how else the House might be able to scrutinise these matters. Lord Howell of Guildford urged greater scrutiny at implementation stage (Q 56). The European Policy Centre too suggested that we should look at the implementation of EU law, not least to ensure that there was not gold-plating[32] (p 51). Lord Inglewood MEP supported greater examination of transposition of EU law (p 58).

93. Dr Caroline Jackson MEP was critical of our efforts in examining the potential costs and practical problems of implementation of EU law and cited specific examples of where our reports could have been more hard-hitting, and could have sounded a louder alarm on how prepared local government was for implementation and the costs that would follow. She noted that the Government was bringing forward cost impact assessments and that the Commission was obliged to do so too. She suggested that our Committees should question the Commission when these estimates varied (p 61). Mr Larsen-Jensen noted that the French did spend time scrutinising how EU legislation was implemented in France but in his parliament that was a matter for specialised committees making legislation (Q 104). Baroness Williams of Crosby suggested that we should monitor "gold-plating" in one or two specific areas (Q 166).

94. We agree that there is a need to be more alert to the potential implications of the implementation of EU law in this country. We have accordingly called for the Government to do more to tell Parliament what their strategy will be for implementing EU law. We have also called on the Government to explain more fully its reasons when deciding whether to implement by primary or secondary legislation (see paragraphs 47-48 above).

95. As for our own scrutiny, we will ensure that every report takes into account an analysis of the cost and impact assessments, based on scrutiny of figures from the Government and the Commission when they are available and giving a clear statement when they are not. This will, however, require us to commission additional advice, as it is not work we ourselves could undertake without detracting from our existing scrutiny. Such work would be greatly enhanced if the European Parliament was obliged to produce such a cost analysis of the effect of its own proposed amendments to EU law and we call on those responsible for Treaty amendment to ensure that such a procedure is introduced. We will also continue on occasion to examine the working of extant EU legislation, for example in anticipation of reviews required under the Directives themselves[33].

96. As far as the House itself is concerned, we would not wish to call on the Government to introduce more European legislation by primary rather than secondary legislation. Instead we would hope that the UK Parliament would do more to scrutinise the delegated legislation by which European law is implemented. We note that, where EU legislation is implemented by primary legislation, the full Parliamentary scrutiny process comes into play. This will include not only consideration by the two Houses but also by specialised committees such as the Joint Committee on Human Rights. Scrutiny of secondary legislation implementing EU legislation, however, is weak and needs to be strengthened.

97. To this end, we first note that the Delegated Powers and Regulatory Reform Committee does where appropriate consider, in assessing whether the delegation of power is appropriate, whether that power could be used to implement EU law[34]. We recommend that, in addition, the scrutiny of delegated legislation implementing EU law be a key task of the House's proposed new committee on Statutory Instruments. We would hope that the new committee would, wherever possible, analyse implementing instruments against concerns expressed during our own consideration of the European instrument. We will do all we can to assist the new committee, including making Sub-Committee Chairmen available to give evidence where necessary. The new committee could also, as suggested by Lord Howell of Guildford, invite the views of MEPs on whether any gold-plating had taken place (Q 73). We draw the new Committee's attention to the evidence we received from the Corporation of London concerning the need for better scrutiny of secondary legislation implementing EU law, especially in the field of financial services (p 49-50).

13   Maybray-King (see n 10 above) came to a similar conclusion (1st Report (paper 67, 8 March 1973) paragraph 2). Back

14   Report cited in n.3 above. Back

15   Report as cited in n.11 above (152-xxxiii) paragraphs 65, 139-140. Back

16   See our Report - 16th Report Session 2001-02, HL Paper 89. Back

17   See n.4 above. Back

18   See our report on the Convention cited in n.3 above. Back

19   For more details on the comitology procedure see paragraph 87-91 below. Back

20   The full text of the resolution as agreed on 6 December 1999 is printed in Appendix 3. Before that date, the Commons Resolution (dating from 1980) had been held to apply to this House. The Government in its relations with the Committee at that time operated as if a provision applied in this House similar to that which applied in the House of Commons (see our Special Report cited in n.3 above). Back

21   In their report on Scrutiny (see n.11 above) paragraph 111.  Back

22   For example, the Report from the Select Committee on the Committee Work of the House, chaired by Earl Jellicoe (HL Paper 35, Session 1991-92, paragraph. 140). Back

23   During the last summer recess, for example, our then Chairman conducted two sifts.  Back

24   A number of these cases, however, would have been documents such as Commission reports, or would have been amended versions of proposals already cleared, or would have been when only the Commons Committee maintained a reserve. Back

25   See n.12 above. Back

26   Under Protocol IX to the Amsterdam Treaty, national parliaments have six weeks for scrutiny between the adoption of a proposal by the Commission and its agreement in the Council.  Back

27   See Appendix 4. Back

28   See n.3 above. Back

29   Working Group I on Subsidiarity (Final Report CONV 286/02). See n. 4 above. Back

30   See n.11 above (HC 152 - xxx iii - I, paragraphs 131-135).  Back

31   See n. 3 above. Back

32   Gold-plating is a term used when the Government, in implementing an EU law, is thought to be imposing obligations greater than those actually required in order to implement that EU law. Back

33   For example, in November 1989 the European Communities Committee reported on the draft of Directive 90/313/EEC on Freedom of Access to Information on the Environment (ECC 1st Report, 1989-90, HL Paper 2); in 1996 the then Sub-Committee C (Environment, Public Health and Education) decided to revisit the subject and to report on experience with the Directive, to inform the report which the UK Government (along with other Member States) was required to submit to the Commission by the end of 1996 under Article 8 of the Directive (ECC 1st Report, 1996-97, Freedom of Access to Information on the Environment, HL Paper 9). Subsequently the Committee scrutinised the Commission's proposals for amendment of the Directive in the light of the reviews by Member States and was content to clear them, having been satisfied that they substantially met the recommendations of its 1996 Report. Back

34   See for example that Committee's 7th report session 2001-02 on the Anti-Terrorism, Crime and Security Bill (HL paper 45 paragraphs 4-13). Back

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