Select Committee on European Union Eleventh Report

PART 2: National Parliaments

Scrutiny: the council

5.  There is general agreement that the primary role of national parliaments in the European legislative process is to scrutinise their national governments and hold them to account. National parliaments are not co-legislators in the process of making EU law, as are the European Parliament and the Council of Ministers, nor would we wish national parliaments to have such a role. But it follows from this that national parliaments should influence their Ministers in the Council, and should do so effectively[8]. The Working Group asserted that more openness and transparency in the work of the Council was essential to better achieve this goal [9] and accordingly proposed that the Council should act in public as much as necessary. Gisela Stuart stressed this issue to us but was "realistic" about the possibility of extending reforms already agreed at Seville.[10] She was cautious about proposals for a separate legislative council.[11] We agree with the case for greater openness in the Council when it is legislating, as do the Commons Committee and the UK Government[12].

6.  In addition, the Working Group recommends that records of Council proceedings should be sent, within 10 days, to national parliaments[13]. Gisela Stuart told us that making use of such information would be "quite a challenge" for national parliaments, although the problems giving rise to the Group's recommendations did not arise in the United Kingdom[14]. We accordingly support the provision in the proposed protocol on national parliaments for the direct transmission of Council Agendas and outcomes to national parliaments. The protocol should make clear that this transmission must be prompt. Council Agendas should be transmitted in advance and as soon as available, to allow for effective national parliamentary scrutiny.

national parliaments

7.  The Convention's National Parliaments Working Group, the Commons Committee and our Committee are all agreed that national parliaments have a distinct role to play in the EU, and that enhancing their material involvement would help to strengthen the democratic legitimacy of the Union. The Commons has argued that national parliaments are closer to the citizens than any EU institution, including the European Parliament[15]. In this sense, enhancing their role can help remedy the 'disconnection' between the EU and its citizens, a point clearly stressed by the Government in this House during the recent debate on the Convention[16]. The remedy will only be effective as long as national parliaments improve their responsiveness' to their citizens.

8.  The Working Group and Gisela Stuart in her evidence to our Committee acknowledged that the different systems for national parliamentary scrutiny reflected different constitutional relations between governments and national parliaments in various Member States, and that it would not be appropriate to prescribe at European level the best system[17]. In the UK the scrutiny system is based firmly, though not exclusively, on documents, and it is normally a Government Explanatory Memorandum which triggers consideration of a proposal. The Commons Committee's main role is to assess the legal and political importance of each document and to decide which should be debated, but not to concern itself with the merits of documents[18].

9.  Our system is similar to the Commons' but with two important differences. First, the full Committee does not examine every document (the Chairman conducts a sift) and we do examine the merits of proposals[19]. Secondly we have Sub-Committees which examine sectoral policy issues in the European context. While we do not argue that there is any one model of scrutiny that can fit all national parliaments, we have suggested that our system, of involving Members with expertise in policy areas in the work of European scrutiny, could provide a model from which a national parliament wishing to scrutinise European legislation in depth and on the basis of genuine expertise might be able to learn some lessons.[20].

10.  We underline the constitutional importance of national parliamentary scrutiny[21]; and we were pleased to hear Gisela Stuart say that "scrutiny is a process by which at times you can challenge the outcome and change decisions"[22]. We would wish to see the proposed protocol strengthened by more direct reference to the importance of effective scrutiny.

11.  The Convention's Working Group identified a number of basic factors that have an impact on the effectiveness of scrutiny including:

·  The timeliness, scope and quality of information;

·  The possibility for a national parliament to formulate its position with regard to a proposal for an EU legislative measure or action;

·  Regular contacts and hearings with Ministers before and after Council meetings;

·  Active involvement of sectoral/standing committees in the scrutiny process;

·  Regular contacts between national parliamentarians and MEPs;

·  Availability of support staff, including the possibility of a representative office in Brussels.[23]

We agree that these are all important factors and we are working to enhance our own activity in these areas. The Cabinet Office's undertaking that it will press for the electronic transmission of documents from Brussels is accordingly welcome[24].

12.  In its final report, the Convention's Working Group on Subsidiarity recommends greater direct involvement of national parliaments in the scrutiny of the application of subsidiarity. These proposals are dealt with in Part 3 below.

the scrutiny reserve

13.  Possibly the most potent weapon in the armoury of the UK's scrutiny committees is the scrutiny reserve. This constrains Ministers from agreeing in Council to legislative proposals if the Committees have not completed scrutiny of them. Exceptions are provided for special reasons. The protocol annexed to the Amsterdam Treaty allows a minimum of six weeks for such national parliamentary scrutiny.

14.  The Commons Committee has advocated a toughening up of the scrutiny reserve by either incorporating it into EU procedures or building in more time in the legislative procedure[25]. Peter Hain has told the House of Commons that the Government endorsed the proposal that the scrutiny reserve be given a clearer status in the Council's Rules of Procedure; and he looked for guidance on how that should be carried through[26]. The Commons Committee intend normally to call a Minister to give evidence when a scrutiny reserve has been overridden without good cause[27]. We have recommended that, in those cases where a Minister overrides a reserve, the Minster should come to Parliament and give an explanation by way of Ministerial Statement. We have also recommended the creation of a new procedure (which would be used exceptionally) requiring a positive resolution of the House before the lifting of a scrutiny reserve[28]. We have also urged the Convention to consider a revision of the co-decision procedure to allow a greater opportunity for national parliamentary scrutiny[29].

15.  One great threat to the effectiveness of the scrutiny reserve is the tendency of Ministers to make 'preliminary agreements' or adopt 'general approaches' at Council before the scrutiny reserve has been lifted. The National Parliaments Working Group does not believe such agreements should be reached in the six-week period between a legislative proposal being made public and it being placed on a Council agenda for decision[30]. For Gisela Stuart, this would provide an opportunity for all national parliaments to conduct effective and challenging scrutiny.[31] There was a "common consensus" in the Convention that such agreements should not happen.[32]

16.  Our Committee has argued that the reserve should be 'sacred' for the six weeks, and that the House's Scrutiny Reserve Resolution be amended to make clear that the Government should not participate in any form of agreement during that period[33]. We have pursued this matter in a previous report and in the House[34]. We continue to recommend that no form of agreement should be reached in Council during the six week period allowed for parliamentary scrutiny.

17.  We note that the proposed protocol in effect repeats the existing provisions in the Protocol annexed to the Amsterdam Treaty. Although arrangements under this provision currently work reasonably well, problems do continue to arise and we are currently uncertain whether the six week period is meaningful for all national parliaments. All national parliaments should endeavour to operate a strong and effective scrutiny system. We also recommend that the Treaty should formally recognise the status of scrutiny reserves in the Council.

Scrutiny at an Early Stage

18.  The Working Group was in agreement with our Committee when it concluded that national parliaments needed to conduct pre-legislative scrutiny. This includes scrutiny of the Commission's Annual Work Programme, Annual Policy Strategy and Green and White papers. The Group recommended that such consultative documents be sent directly to national parliaments[35]. We have stressed that scrutiny at such an early stage is essential, and this year started reporting on the Commission's Annual Work Programme[36]. We are considering national parliamentary scrutiny of the Council's strategic agenda. Gisela Stuart said she would support such scrutiny and would even wish to see it extended by regular sessions with Commissioners or "European weeks" in national parliaments across the EU.[37] In order for such 'upstream' scrutiny to be effective, we have called 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 - a sort of 'early warning system'[38]. We recommend that the proposed protocol on national parliaments be amended to stress the importance of national parliamentary scrutiny at an early stage, including at the stage of the Council's Strategic Agenda and the Commission's Annual Work Programme; and before the formation of legislation proposals.


19.  The Working Group believed that national parliaments needed a greater exchange of information, both with other parliaments and with MEPs[39]. This would help strengthen the link with citizens and improve scrutiny of European proposals. Gisela Stuart too argued forcefully for greater cooperation between national parliaments and the European Parliament[40]. The Working Group suggested more ad hoc contact between national parliamentarians and MEPs, to complement regular contacts[41]. The Commons has suggested joint meetings to scrutinise the Commission and its annual programmes, officials and expert witnesses, and to debate issues[42]. The first such meeting has been held. We have undertaken to ensure that relevant UK MEPs have the opportunity to give evidence to our inquiries[43]. We will be pursuing these recommendations in the coming months. We welcome the proposed protocol's emphasis on joint working between national parliaments and the European Parliament to improve inter-parliamentary co-operation.


20.  The Convention's Working Group concluded that a greater exchange of information between national parliaments about methods and experiences of scrutiny would be beneficial, and that this was the primary role of COSAC[44]. The Working Group saw merit in clarifying the mandate of COSAC; in strengthening its role as an inter-parliamentary consultative mechanism; and in making it more efficient and focused[45]. The Group believed that the role of COSAC should be expanded, though it should be used primarily as a forum for bringing together national parliamentarians[46].

21.  We have been arguing for some time that COSAC needs to be reformed. We have called for COSAC to re-focus on the primary question of how national parliamentary scrutiny is conducted. Our Committee and the Commons Committee are at one in pressing for COSAC's main role to be redefined. COSAC should assist national parliamentarians to improve their scrutiny of government activities in the EU, by sharing best practice and information and acting as a strategic body on behalf of national parliaments[47]. We are working in particularly close operation with our colleagues in the Commons and with our Danish colleagues to reform COSAC in order to achieve a better exchange of information between national parliaments[48]. Recent attempts by COSAC to reform itself, however, are not wholly encouraging. The possibility remains that a new structure may need to be considered by the IGC in order to meet the objectives which COSAC should, in our view, be achieving.

8   Working Group IV Report, para. 6. Back

9   Working Group IV Report, para. 8. Back

10   Q 12. Back

11   Q 14. This proposal has been floated by Working Group IX on simplification in its report (CONV 424/02) p 22 "To reinforce clarity, it is not sufficient to simplify procedures or instruments; the institutions must sit in public when they are exercising legislative functions, ie when they are defining the fundamental policy choices of the Union's actions." Back

12   33rd Report, 2001-02, para. 23. See also our own report on article 25(3) (12th Report, 11 March 2003, HL Paper 71, paragraph 24). The Government's case was set out in a joint letter with the German Government (25 February 2002 reported in the Guardian on 26 February 2002). The Prime Minister has also said "Councils should vote on and declare national positions on legislation in the open", (speech in Cardiff 28 November 2002). (  Back

13   Working Group IV Report, para. 7. Back

14   Q 17. Back

15   33rd Report, 2001-02, para. 3. Back

16   Baroness Symons of Vernham Dean HL Deb. 7 Jan 2003, col 980. Back

17   Working Group IV Report, para. 9, see also Q 19. Back

18   30th Report, 2001-02, paras. 8, 9 and 33. Back

19   1st Report, 2002-03, para. 16. Back

20   1st Report, 2002-03, para. 103. Back

21   1st Report, 2002-03, para. 12. Back

22   Q 19. Back

23   Working Group IV Report, para 10. Back

24   House of Commons Committee, 30th Report, 2001-02, para. 45. Back

25   33rd Report, 2001-02, para. 47. Back

26   Evidence to the European Scrutiny Committee, 20 November 2002, HC 103-I Q 42. Back

27   30th Report, 2001-02, para. 53. Back

28   1st Report, 2002-03, paras. 71-74. Back

29   1st Report, 2002-03, para. 35. Back

30   Working Group IV Report, para. 17. Back

31   Q 19. Back

32   Q 28. Back

33   1st Report, 2002-03, para. 71. Back

34   23rd report Session 2001-02, (HL Paper 135); HL Deb 14 October 2002, Col 672. Back

35   Working Group IV Report, para. 14. Back

36   1st Report, 2002-03, para. 30. Back

37   Q 22. Back

38   1st Report, 2002-03, para. 31. Back

39   Working Group IV Report, para. 29. Back

40   Q4. Back

41   Working Group IV Report, para. 34. Back

42   33rd Report, 2001-02, paras. 140 and 141. Back

43   1st Report, 2002-03, para. 132. Back

44   Working Group IV Report, para. 11. Back

45   Working Group IV Report, para. 30. Back

46   Working Group IV Report, para. 31. Back

47   33rd Report, 2001-02, para. 150. Back

48   1st Report, 2002-03, para. 133. Back

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