HOUSE OF LORDS SELECT COMMITTEE ON THE EUROPEAN
UNION SESSION 2002-03: FIRST REPORT
REVIEW OF SCRUTINY OF EUROPEAN LEGISLATION
The Government welcomes this review which was
prompted by the report of the Group on the Working Practices of
the House of Lords, chaired by the Lord Privy Seal and Leader
of the House, Lord Williams of Mostyn. We congratulate the Committee
on its comprehensive survey of the issues surrounding scrutiny
of European legislation. The review is, of course, timely. It
coincides with the Convention on the Future of Europe which is
looking at the role of national parliaments in the EU's decision-making
processes. Moreover, it follows hard on the heels of a parallel
review by the European Scrutiny Committee of the House of Commons
to which the Government responded last October, published by the
Committee as their Second Special Report, 2001-02, HC 1256.
The Government is pleased to acknowledge the
impact that the reports of the Committee have had over the years,
both in helping to shape the Government's own policy positions
and in influencing opinion in Brussels. The Government is keen
to assist the Committee in maintaining the impact of its reports.
Our responses to the Committee's recommendations below are framed
with that objective in mind.
160. National parliamentary scrutiny of EU
legislation has a clear constitutional purpose and to that end
entails (paragraphs 12-13):
The accumulation, presentation and
summary of relevant material, including information, statistics,
explanation and analysis.
The provision of information to the
House and to the public as a contribution to transparency.
Drawing the attention of the House,
the Government, European institutions and the public to significant
matters contained within that information and in particular making
recommendations"focusing the debate".
Contributing to the law-making process
by detailed analysis of draft texts, by exposing difficulties
and proposing amendments.
An examination of the Government
and its role in agreeing European legislation and, as part of
that process, compelling the Government not only to think through
what it is doing or has done but sometimes to account for it.
An examination of the Commission
and the policies it formulates.
The Government agrees that a purposeful and
effective system of parliamentary scrutiny of EU business should
indeed be a process of rigorous examination and analysis with
a view to ensuring that those responsible are accountable to Parliament
for their actions. In particular, it is right that scrutiny should
extend beyond the examination of specific proposals for EU legislation,
to include a consideration of policy development within the EU
at an early stage. Much of this has to do with providing more
explanation, both for Parliament and for the public, and so increasing
awareness of the purpose and likely impact of EU policies and
placing EU legislation within a wider context.
161. Our inquiries can be of value both on
legislative proposals and on early discussion documents but we
endorse the near unanimous view of our witnesses that we should
aim to work at the earliest possible stage in the policy making
cycle (paragraphs 29-30).
162. Contributing to a climate of opinion
forming is a key way in which we can have an impact, by analysing
issues and presenting a range of evidence combined with our own
conclusions on it (paragraph 140).
As we have repeatedly stressed, scrutiny by
the Committee is most effective, and influential, the earlier
it takes place. The Committee will have more influence if it considers
issues as early as possible in the process, and ideally before
opinion formers in Brussels have fully formulated their own ideas.
Upstream examination of eg the Commission's annual legislative
and work programme is just one way of doing this, which is why
the Government deposited it for the first time last year, and
will continue to do so.
Reliance on definitive texts, which by their
nature are often only produced late in the decision-making process,
reduces the practical influence of the Committee and the impact
of its work. The Government has of course given an undertaking
to consider points raised by the Committee at any point in the
negotiating process. But left to the last moment, or wielded as
a delaying device, scrutiny by any national parliament can be
viewed in Brussels more as a procedural requirement than a substantive
contribution to the policy debate.
163. For the scrutiny reserve to be working
"properly", it is first necessary for the Committee
not to 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 (paragraph 63).
164. A mandatory scrutiny system would not work
under UK circumstances (paragraph 70).
The Committee helpfully recalls, and the Government
agrees, that a mandatory system would force the Government to
negotiate for British interests in Europe with one hand tied behind
its back (as many believe the Danish scrutiny system effectively
ties its Government's hands) putting it at a negotiating disadvantage
relative to other Member States in the Council.
As Lord Williams told the Committee on 8 October
2002, the Scrutiny Reserve exercises an important discipline on
the Government. The Government does not override the Reserve lightly.
It devotes considerable resources to ensuring that the override
is used only as a last resort option in exceptional circumstances.
Its record in this respect, though capable of improvement, is
respectable. In 2002, over 1,200 documents were deposited. The
reserve was overridden in 71 cases, 28 of which occurred when
the House was not sitting. Whenever a scrutiny override takes
place, the responsible minister accounts for it to the Committee
or the House, as required by the Scrutiny Reserve Resolution.
Nor are we complacent about the number of overrides. For example,
the European Secretariat of the Cabinet Office now seeks to identify
dossiers that may present timing difficulties, and to help manage
the scrutiny process to minimise the risk of an override.
165. The Government should always 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 (paragraph 31).
The Government will do what it can, principally
by liaising with the Clerks of the Committee. The Committee's
task should also be helped now that the Commission and other institutions
have readily-accessible websites which provide direct access to
information both about what they have done and what they are planning
166. It continues to be essential that the
right documents are deposited by the Government in good time (paragraph
Electronic receipt of documents from the Council
Secretariat has significantly speeded up the process of depositing
documents. We calculate that on average the Committees now receive
documents some two weeks earlier. We are not aware of any cases
where the "right documents" are not being deposited.
Where there is doubt, the decision on whether to deposit is discussed
and agreed with the Clerks.
167. Subject to final agreement with the
Commons (which has made a similar proposal), the following categories
of document need no longer be deposited for scrutiny, although
we would wish to see the same arrangements made to keep us informed
as are proposed by the House of Commons (paragraphs 51-54):
(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) Proposals for legislation concerning
the administration of community tariff quotas.
168. We support the consolidation of all
transfers of appropriations into a single report (paragraph 50).
We are grateful for these changes, and the Government
will of course provide the Committee with quarterly consolidated
lists. But in a situation where the Committees are already stretched
by examining over 1,200 deposited documents each year, the Committee
might also look at a list system for dealing with routine documents
which do not impact on UK policy or legislation (eg those on anti-dumping
measures and on derogation requests from other Member States under
the Sixth VAT Directive or from customs duties). On many of these,
the Committee has hardly, if ever, expressed an interest. If quarterly
consolidated lists are not acceptable to the Committee, the Government
will want to consider other mechanisms given that the standard
EM template is poorly suited for these sorts of documents. The
Government hopes that the Lords and Commons Committees will take
urgent steps to reach a common view on which categories of document
are to be deposited and how.
Separately, we have been in touch with both
Committees about the handling of a range of JHA documents including
recommendations, resolutions and various Europol documents; we
hope to reach agreement soon on their handling.
We welcome the Committee's initiative in asking
for the reporting of all budget transfers including amounts over
25 million to be brought together in a single quarterly
169. The Government should 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. The Government should also quickly update 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 (paragraphs 80, 82).
We likewise welcome proposals for further streamlining
the flow of budget documents, building on improvements already
implemented by agreement with the Committees. We have on occasion
provided an EM on the Commission's overview document and are happy
to provide this annually as a matter of course. We shall also
be pleased to build on existing practice for Ministers to write
to the Committees to report on budget developments by extending
these arrangements to cover the outcome of the European Parliament's
170. 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 therefore 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
171. 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 (paragraph 47).
As Lord Williams wrote to the Committee on 18
November 2002, the Government will give as much indication of
how it intends to transpose legislation as it is possible to do
at the time of sending an EM. But it is not possible to provide
a definitive description. We can only provide our best assessment
on the basis of the proposal as it stands at the time.
172. EMs should give fuller information on
the devolution implications of a proposal; on any proposed creation
or extension of the powers of a Comitology committee; and a fuller
account of the policy implications for the UK. There should also
be a section on any potential human rights issues and the Government
should consider whether the Minister signing the EM should make
a statement of compatibility with the Human Rights Act 1998, as
happens with primary legislation (paragraph 48).
By noting the responsibility of one or more
Ministers from the devolved administrations for the subject matter
covered by the document, an EM indicates that responsibility for
transposing the measure falls to those devolved administrations
in their respective regions. Draft EMs on matters that are devolved
are always prepared in consultation with the relevant Devolved
It is a principle of good governance that those
who are to be required to implement legislation should be consulted
on its content. In the EU context, the Government and the Devolved
Administrations have argued in the Convention that the European
Commission should consult implementing authorities at the pre-legislative
phase. The Government believes this should include direct consultation
with regional and local authorities on relevant policies, as the
Subsidiarity working group has recommended.
We shall of course draw attention to the proposed
creation or extension of the remit of a comitology committee.
We refer the Committee to our response at paragraph 203.
Where human rights issues arise, the EM will
of course draw attention to them in the section on legal implications.
The Government will in future offer a preliminary view on the
compatibility of the proposal with the 1998 Human Rights Act.
The EU is in any case, by virtue of Article 6(2) of the TEU, committed
to respect fundamental rights as guaranteed by the European Convention
on Human Rights.
173. All EMswhich are the Minister's
evidence to Parliamentshould 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
The Government appreciates that the Committee
wishes to be reassured that a Government Minister has read and
approved the terms of any EM. Equally, the Committee will understand
that Ministers take responsibility for all the actions of their
Departments. If, in the interests of speed and efficiency, a Department
wishes to communicate with the Committee by means of a private
secretary's signature on behalf of his/her Minister or by an unsigned
EM where no policy implications need to be recorded, then the
Government hopes this will satisfy the Committee. Ministers accept
that they remain answerable to the Committee for the content of
any EM. Such is the volume of documents, now passed electronically
from Brussels, and the number of recipients of EMs (some 80 at
present), that the Government intends to move without delay to
a system of electronic distribution of both EU documents and EMs.
174. 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 (paragraph
We have been in correspondence with the Commons
Scrutiny Committee on this issue and were awaiting the present
report to see whether the Lords Committee had further proposals
of its own to make. We believe improvements can be made to the
procedures for scrutinising proposals subject to co-decision,
facilitating more effective and timely scrutiny by the Committees.
Given, however, that the timetable for handling dossiers under
co-decision is not in the government's gift, we hope the Committees
will accept that less formal means of bringing them up to date
with developments will need to be employed. It makes no sense,
for example, for the Committee to continue their reliance on the
Commission's opinions on amendments proposed by the European Parliament
since these, despite being a treaty obligation, serve no practical
purpose. Waiting for them merely results in unnecessary delay.
The Government will come forward with considered proposals.
175. There should be 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 reasons why. This information should be reported to Parliament
The reasons for any override will of course
be set out in a letter from the relevant Minister, and the Government
readily accepts the Committee's right to investigate the circumstances
surrounding each occasion, including by calling on the responsible
Minister to account in person to the Committee. The Government
is happy to provide the Committees every six months with a list
of occasions when the scrutiny reserve has been overridden during
the previous period.
176. The Government should review the importance
of EU subsidiary legislation, and what its significance is in
practice. The Government should inform the Committee on a regular
basis of any significant proposals (paragraph 90).
The Convention is considering the issue of implementing
legislation. The Government is accordingly reviewing its approach
on the basis of the ideas put forward in the report of the Simplification
working group. The Government committed itself in 1998 to enabling
the Scrutiny Committees to examine particularly significant proposals
such as those referred to the Council or of such political or
practical significance that they might cause Ministers to be concerned
if they were to learn of them first in the newspapers. Departments
have since been reminded of this and the Committee Clerks have
on occasion been asked for guidance on whether a proposed measure
might be of interest to the Committees. A particular difficulty
arises from the fact that proposed measures are generally not
made available to member states more than a few days before the
relevant comitology committee meets to consider them (and never
more than 14 days). The Commission's habit is to change its proposals
right up to and during the committee meeting. Moreover, the role
of member states in comitology committees is not to decide but
to give advice on the merits of the proposed measure. These factors
present obvious difficulties for scrutiny by national parliaments.
That is why the Government is open to the suggestion, put forward
by the Convention working group on simplification, to give the
European Parliament a formal right of oversight of the most contentious
measures. We refer the Committee also to our response at paragraph
177. Where a proposal is moving quickly through
the legislative cycle we will more regularly ask government officials
to be available at short notice to assist the Committee in matters
of explanation and elucidation (paragraph 42).
The Government is happy for the Committee to
invite officials to be available to provide technical help and
informal advice on the meaning and purpose of proposals.
178. We will expect responses from Ministers
within ten working days to letters sent by our chairman on behalf
of the Committee and its Sub-Committees and we will where necessary
follow up delays by way of Questions for Written Answer (paragraph
The Government agrees that it is unacceptable
for letters to go unanswered for long periods. We shall strive
to respond to letters from the chairman within ten working days.
However, responding to complex matters may take longer. In that
case, we shall send a holding reply.
179. Our reports should receive a Government
response within six weeks of publication (paragraph 150).
The Government acknowledges the importance of
responding in a timely fashion. This will be within two months
of publication of the report if possiblea demanding timescale
that compares favourably with the 6-month deadline for responding
to reports from other Committees of the House.
180. Greater openness in the Council will
facilitate faster scrutiny by national parliaments. Abolishing
the six monthly cycle of presidencies could help too by avoiding
the "end of term" rush to decision, provided that other
artificial deadlines are not built in (paragraph 41).
The Government supports the Committee's recommendations.
The UK was instrumental in securing the reforms agreed at the
Seville European Council to bring greater transparency to the
work of the Council of Ministers when it is legislating. We continue
to press our partners for further moves to make the Council more
open and transparent. The Government welcomes the recognition
by the Committee that the six monthly rotating Presidency will
be unsustainable in an enlarged EU. That is why the Government
is amongst those looking at ways of reforming the current system
to make it more coherent and effective. We believe that this would
help to minimise the "end of term" rush. One possibility
might be "Team Presidencies" lasting, say, two and a
half years. But we are open to other proposals that would achieve
the same objective.
181. The Convention should consider a revision
of the co-decision procedure to allow a greater opportunity for
national parliamentary scrutiny. 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 (paragraph 35).
The Government notes that the Convention working
group on simplification concluded that codecision works well in
general. Moreover, the Convention working group on the role of
national parliaments made no reference to the need to increase
the time available for scrutiny of codecided dossiers approaching
conciliation. The conciliation phase is intended to encourage
the two sides of the legislature, Council and European Parliament,
to reach agreement rather than to introduce issues that have not
already been explored at first or second reading stage. That is
why the treaty requires the Conciliation Committee to be convened
within six weeks. The Government is happy to facilitate the provision
of relevant documents to the Committees in Westminster prior to
the convening of the Conciliation Committee. As the Committee
notes, this would not be designed to permit national parliaments
to play a direct role in the passage of legislation or to delay
procedures. Accordingly, it would not be appropriate to deposit
such documents formally.
182. The Convention should consider whether
the European Parliament's procedures could be strengthened by
setting up an equivalent of our committees which scrutinise (or
will scrutinise) 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 (paragraph 91).
The Government is attracted to these ideas for
strengthening the European Parliament's procedures for scrutinising
implementing measures adopted under comitology. The Convention
is examining the issue of comitology. However, reform in this
areawhich is for the European Parliament itself to initiate
and implementwill naturally depend on the extent to which
the Parliament is accorded formal powers under the treaty to scrutinise
183. Scrutiny of the impact of legislation
would be greatly enhanced if the European Parliament was obliged
to produce 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 (paragraph 95).
The Government agrees that the European Parliament
and Council should carry out impact assessments of their amendments.
So we welcome the current draft of an Inter-Institutional Agreement
on better regulation which commits the institutions to making
impact assessments of all significant amendments introduced at
first reading and in conciliation. It also commits them to elaborating
a common methodology for such assessments. We are working to encourage
rapid agreement on this so that assessments start flowing as soon
as possible. We think it sufficient for such commitments to be
underpinned by the rules of procedure of each institution.
184. To maintain effective parliamentary
scrutiny of EU legislation, our Committee, acting on a recommendation
from one of our Sub-Committees, should 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 being maintained
by our Committee because of significant outstanding policy concerns.
We do not envisage this power being exercised other than exceptionally
The Government disagrees with this recommendation
which it believes to be incompatible with the purpose of scrutiny
set out in paragraph 13 of the Committee's report. As paragraph
19 of the report says, "our system does not require the Government
to agree with our views before the Reserve is lifted: the requirement
is merely that the process of scrutiny is complete." Scrutiny
is not intended to be a device to force the Government, or even
the Council as a whole, to agree with the Committee and so to
modify its policy (paragraph 60). That is what an obligation to
secure a positive resolution from the House as a whole, providing
the opportunity for the House to block for an indefinite period,
would amount to. It would be in practice not far removed from
a mandatory scrutiny reserve.
Where a unanimous vote in the Council was required
under treaty, it would allow one part of a national parliament
in one Member State to bring EU decision-making to a halt. Where
qualified majority voting applied, it would leave the UK powerless
to act in the national interest in the Council. It would also
give inappropriate power to the Committee. One effect might be,
as the Committee acknowledges in paragraph 70, to encourage greater
Government interest in the composition of the Committee.
No such power has been sought in the Commons.
Indeed, the Commons European Scrutiny Committee explicitly rejected
a statutory reserve. The Commons Committee asked only for evidence
from a Minister to the Committee when an override appeared unjustified.
We have accepted this recommendation. (Commons European Scrutiny
Committee Thirtieth Report 2001-02 paragraph 53-4, and Second
Special Report paragraph 17)
The purpose of the scrutiny reserve is to give
the Committee enough time to do its work. Significant outstanding
policy concerns should be expressed in the Committee's report,
not by a refusal to lift the reserve. The Government therefore
looks forward to the Committee's thinking on the practical proposals
contained in the report of the Convention working group on the
role of national parliaments.
185. In those cases where a Minister overrides
a reserve the Minister should come to Parliament and give an explanation
by way of Ministerial Statement (paragraph 74).
The Scrutiny Reserve Resolution provides that
a Minister responsible for an override
"should explain his reasons
(a) in every such case, to the European
Union Committee at the first opportunity after reaching his decision;
(b) in the case of a proposal awaiting
debate in the House, to the House at the opening of the debate
on the Committee's Report."
In cases therefore when a debate is pending,
what the Committee seeks is already provided for. In other cases,
reasons are currently given by letter from the Minister to the
Chairman of the Committee. In the spirit of the recommendation,
the Government will give its reasons by Written Answer if this
is felt to be a better discipline on Ministers (by making them
more visible to the House and to the public) than correspondence
with the Committee. This would require amendment of the Resolution,
which of course is a matter for the Procedure Committee. Ministers
are also, of course, prepared to give evidence to the Committee.
But we cannot accept that every override should
trigger a mandatory oral Ministerial Statement to the House. It
would have the perverse effect of devoting prime parliamentary
time to items of EU legislation which have already been agreed.
It is open to any member to raise a particular override on the
Floor of the House by any of the usual means (Starred Question,
Topical Question, Unstarred Question etc); yet we have no record
that this has ever happened.
186. The Scrutiny Reserve Resolution needs
to be amended to take account of all forms of agreement, including
provisional agreements, in the Council (paragraph 75).
The Government has done its utmost to assuage
the Committee's concerns on this point. In particular, we have
sought in the Council to clear up the use of terms such as provisional
agreement, although we are often at the mercy of the Presidency
in this respect.
The Convention working group on national parliaments
considered this issue in its report last October. It concluded,
inter alia, that:
"the six week period currently applicable
[for scrutiny of original proposals but not subsequent amendments]
was sufficient as a general rule for parliaments to be able to
make their views known to governments, provided that they receive
"no preliminary agreements should be acknowledged
in the Council, working groups and Coreper, in the course of this
"a reserve put forward by a member state
in the Council that has its origin in the position or the awaited
position of the national parliament concerned, should prevent
the said member state from taking part in an agreement on the
proposal within the Council. This would not prevent a decision
in the Council when decisions are taken by qualified majority,
if that is reached without the member state concerned.";
"the working group recognises the need to
maintain a provision regarding exceptions on the grounds of urgency";
"parliamentary scrutiny reserves should
be given a clearer status within the Council's rules of procedure.
Such reserves should furthermore have a specified time limit,
so as not to unnecessarily block the decision procedure;"
"the Council's rules of procedure [should]
provide for a clear week to elapse between a legislative item
being considered at Coreper and the Council."
Against this background, the Government sees
little purpose in amending the Resolution. The Government has
given a commitment that it will not override the scrutiny reserve
lightly, and that it will abide equally by the spirit of the reserve.
If a Presidency, basing itself on the principles outlined above,
is determined to record some measure of agreement in the Council,
and the Government judges that the national interest is best served
by its taking a decisive stance in favour of or against that agreement,
then the Government will be forced to override the reserve.
The Government disagrees with the conclusion
in paragraph 75 of the report that the term "agreement"
be defined to include a "general approach". As the Government
has explained, most recently in the debate on Provisional Agreement
in the House of Lords on 14 October 2002, a "general approach"
does not equate to an agreement since it does not mark the end
of a negotiation. The Government has made clear to its EU partners
that in reaching a general approach it reserves the right to reopen
the substance of the text at a future date. However, the ability
to reach a general approach is a vital negotiating tool, allowing
the Government to reserve the UK's position without having to
block the progress of negotiations in the Council.
187. Scrutiny of secondary legislation implementing
EU legislation is weak and needs to be strengthened. In addition
to the work already undertaken by the Delegated Powers and Regulatory
Reform Committee in scrutinising the delegation of powers, the
scrutiny of delegated legislation implementing EU law should be
a key task of the House's proposed new committee on Statutory
Instruments. We will do all we can to assist the new committee,
including making Sub-Committee Chairmen available to give evidence
where necessary (paragraphs 96-97).
This is a matter for the Liaison Committee,
when it considers the new Committee's remit and resources, and
for the new Committee itself.
188. Subject to the availability of a sufficient
number of Members with the relevant expertise, we see a prima
facie case for increasing the number of our sub-committees (even
if that means smaller Sub-Committees or Members serving on more
than one Sub-Committee). We do not wish to see a change to the
rotation rule but would welcome a wider pool of names coming forward
This is a matter for the Liaison Committee.
The Government would observe only that more sub-committees will
mean more reports, and more demands for time for debate. We consider
the Committee's recommendations concerning debates below, and
we suggest ways to make more parliamentary time available for
them. If the number of debates is to rise, then it will become
more important to explore these possibilities.
189. We will propose to the Liaison Committee
a plan for restructuring our Sub-Committees' work. This will be
based on a practical assessment of the requirements for scrutiny
in different policy areas. We note that our Sub-Committee structure
would need to be expanded to nine to match more closely the formations
of the Council of Ministers. Such an arrangement would, however,
not cover the areas of Law and Institutions currently covered
by Sub-Committee E which we would not wish to lose. In the meantime,
Sub-Committee C will take on External Affairs (currently with
A) and international development (paragraph 106).
This is a matter for the Liaison Committee.
190. The House should hold a general debate
on European affairs within one month of every European Council
The Government welcomes debate on EU matters,
and the recent record of the House of Lords in this respect is
good. In this Session so far, the House has held three debates
on reports of the EU Committee, plus a debate on the Convention
on the Future of Europe on a Government motion, all in "prime
We note that the Procedure Committee, in its
5th Report in July 2002, called for more debates on select committee
reports and general topics to be held in "prime time",
and has written this call into the Companion to Standing Orders.
Within the constraints of parliamentary time, we are making every
effort to meet this objective.
The procedural changes in the House of Lords
are however still very new, and it is too early to judge their
full impact, or to make further commitments as to the allocation
of time on the Floor of the House. We also have to have regard
to the other competing demands for parliamentary time.
We note however the suggestion, floated by the
recent House of Lords Group on Working Practices, chaired by the
Leader of the House, and not ruled out by the Procedure Committee,
that the House of Lords might consider holding debates on general
topics in Grand Committee. This might be a way forward for the
debates which the Committee has in mind. We note also the possibility
of holding such a debate in the form of a 90-minute Unstarred
Question at the end of business.
Holding such a debate in Grand Committee would
require procedural changes which would have to come through the
Procedure Committee. Holding it in "Unstarred Question"
time would require no special measures.
191. Our reports should be debated within
eight weeks of publication although on occasion a longer or shorter
timeframe may be required (paragraph 150).
The Government noted in its response to the
recommendation in paragraph 179 that we would respond to reports
within two months, if possible. We would support the suggestion
that reports be debated within two weeks of the publication of
the Government's response, so far as it lies with us, provided
that, as suggested above, debates take place either in Grand Committee,
or in the 90 minutes sometimes available for an Unstarred Question
at the end of business.
This position is consistent with that taken
by the Procedure Committee (HL Paper 148 2001-02 paragraph 25):
"We recognise that other reports, in particular European
Union Committee reports on documents subject to a scrutiny reserve,
might still have to be debated outside prime time because they
might need to take place urgently at short notice in order that
the reserve can be lifted."
We note that the Committee consider a "dinner
break Unstarred Question", limited to one hour, too short
in most cases. We accept this, though we note as they do that
there are exceptions.
As noted above, holding such debates in Grand
Committee would be a matter for the Procedure Committee. Holding
them in "Unstarred Question" time would require no special
This recommendation, and the previous one, raise
issues for the usual channels. We have set out here our own preliminary
views, and we will listen to the debate. In the light of the debate,
we undertake to initiate discussions through the usual channels
to see whether changes can be made.
192. We urge better planning of our debates,
and more advance notice. The lack of a clear timetable announced
in advance hampers the Government at the negotiating table: not
knowing when the scrutiny reserve will be lifted by debate is
a disadvantage for UK Ministers in the Council (paragraph 151).
The Government agrees that better planning and
more advance notice are desirable. If debates take place either
in Grand Committee, or in the 90 minutes sometimes available for
an Unstarred Question at the end of business, then better planning
and more advance notice will be possible.
If the Committee insist on "prime time"
in the Chamber, then they must accept the two to three week horizon
to which such time is allocated.
193. The opportunities provided by the new
pattern of sittings (and by the greater use of Grand Committees
on bills) should be explored and exploited to ensure better time
for our debates (paragraph 153).
The Government accepts that, as part of the
package of reforms to its working practices agreed in July 2002,
the House expects more debates on select committee reports and
general topics in prime time (Procedure Committee 5th Report 2001-02
paragraph 25). It is too early to see whether this aspect of the
package is working as intended. We note that reports of the European
Union Committee are not the only contenders for any "prime
194. The House should review the current
Wednesday debates: does having two balloted debates rather than
just one really make the best use of prime time? Consideration
should be given to a regular time-limited slot for our debates
on Thursday mornings (paragraph 153).
The Government is open to the possibility of
reorganising Wednesdays so as to make time to debate Committee
reports. This is a matter for the usual channels, unless it affects
the arrangements for Balloted Debates, which are a matter for
the Procedure Committee.
The House is currently getting used to the new
shape of Thursdays. In our view it is too early to put additional
pressure on the new system by ear-marking certain Thursday mornings
for one particular class of business.
195. We are pleased to note the suggestion
from the Leader of the House that vigorous and powerful revision
and scrutiny require the House to "will the means" over
the coming months. We expect the House to deliver the resources
required to fulfil this commitment (paragraph 135).
The Government notes that this is a matter in
the first instance for the Liaison Committee (which allocates
resources among Committees) and the House Committee (which allocates
the House's budget).
The House is not cash-limited. If a case is
made for additional resources, HM Treasury will consider it on
its merits and in the context of the public expenditure situation
at the time.
196. We will consider further what support
we can offer to, and expect from, the valuable National Parliament
Office in Brussels, currently staffed by the House of Commons
The Government notes the Committee's intention.
197. The House should equip a Committee Room
for video-conferencing by Lords Committees (paragraph 111).
This is a matter for the Administration and
198. We have begun to scrutinise the Commission's
Annual Work Programme. We will consider further the suggestion
for national parliamentary scrutiny of the Council's strategic
agenda (paragraph 30).
The Government is pleased that the Committee
has begun to scrutinise the Commission's annual legislative and
work programme. The Government welcomes the Committee's interest
in scrutinising the Council's strategic agenda.
199. We will enhance our scrutiny of the
EC Budget by concentrating our efforts at an early stage in the
budgetary cycle. Sub-Committee A will continue to consider in
detail any changes to the overarching legal framework within which
the annual Budget is set. 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. 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 (paragraphs
The Government agrees that in order to make
scrutiny of the EC budget relevant and timely, it is appropriate
to shift the focus of scrutiny to the most important financial
issues for the EU. We stand ready to provide oral evidence.
200. We continue to monitor the work of the
Convention on the Future of Europe, and the output of its Working
Groups. We propose to examine in a separate report proposals on
the role of national parliaments and on subsidiarity emerging
from the Convention. The Convention's conclusions on subsidiarity
may lead to new tasks for national parliaments. We are willing
to take on additional work in these and other areas (paragraphs
4, 40, 85, 106).
The Government is, of course, pleased that the
Committee expresses its willingness to take on the additional
work that would arise out of the proposals from the Convention
working groups on subsidiarity and national parliaments. We have,
for example, pushed hard in the Convention for national parliaments
to be able to convey early on in the legislative process their
views on the compliance of a legislative proposal with the principle
of subsidiarity. We hope that the Committee will appreciate the
efforts we have made to secure this advance, overcoming significant
201. We reinforce the importance of the sift
process, which we consider works well provided that proper EMs
are deposited. A Sub-Committee is not precluded from examining
a document cleared on the sift. We will examine the criteria used
for sifting documents at the later stages of the legislative cycle
(paragraphs 35, 57-59).
The Government welcomes this recommendation.
We too appreciate the sift process as an efficient system for
clearing from scrutiny those routine and uncontentious documents
that are most unlikely to interest the Committee. While mindful
that the sift process depends on the provision of proper EMs,
and that clearance in the sift does not preclude subsequent examination
of a document, we find this a useful mechanism particularly for
managing fast moving Council business through the scrutiny process.
We are grateful to the Chairman of the Committee for conducting
a sift at times when the House is in Recess.
However, from our perspective, some of the advantages
of the sift are dissipated by the uncertainty surrounding the
handling of documents that are sifted for examination. The Sub-Committees
do not routinely meet on a weekly basis; indeed, their schedule
of meetings may not permit examination of a particular document
for several weeks. Of course, the volume of business may not justify
each Sub-Committee meeting on a strict weekly basis. So the Government
would like to suggest that the Committee consider introducing
a fast-track procedure permitting the early scrutiny of documents
on which, for objective reasons beyond the Government's control,
we need to take a clear, decisive and early position in the Council
of Ministers. It would be for the Committee to decide how to do
this. And no doubt safeguards would be required to ensure the
procedure was used only exceptionally and for genuinely deserving
cases. But we feel strongly that, for the UK to maintain credibility
with our partners in the Council, a procedure is required to enable
scrutiny of politically important documents to take place and
be concluded within days rather than weeks.
202. We will ensure that every report takes
into account an analysis of the cost 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 (paragraph 95).
The Government shares the Committee's concern
to enhance the rigour of cost and impact assessments of proposed
legislation. That is why we are putting pressure on the Commission
to deliver on the commitments it has made in its Better Regulation
Action Plan, with respect to providing credible impact assessments
when proposals are tabled. We are also applying pressure on the
Commission to consult with those responsible for implementing
proposed legislation. This issue is being debated in the Convention.
Moreover, an Inter-institutional Agreement on better regulation
is being negotiated which we hope will improve the care paid by
both Council and European Parliament to the regulatory aspects
of their amendments. The Government's own procedures require a
regulatory impact assessment to be produced when inter-departmental
clearance of a policy stance on an EU proposal is sought. And
the Government is committed to attaching an impact assessment
to its EMs.
We are convinced that the more consultation
and effort goes into producing decent impact assessments on the
part of all involved, the better EU legislation will become. That
said, we are sure that the Committee will accept the inherent
difficulty in producing a domestic impact assessment of someone
else's proposal, particularly before the precise intent of a proposal
has been exposed during the negotiating process. Differences of
assessment, say, as between the Commission's expectation of future
costs and our own, are in practice very hard to reconcile.
203. We will examine most keenly any proposal
to delegate power under the comitology procedure (paragraph 89).
The Government refers the Committee to its response
above at paragraph 172. We welcome the Committee's intention to
scrutinise any proposal to delegate power under the comitology
procedure. The Commission reports that 3,490 draft decisions were
put to comitology committees for an opinion in 2001. Of these,
10 were referred to the Council and none were found to be of interest
by the European Parliament. This suggests, in broad terms, that
the comitology procedures work well. The vast majority of implementing
measures are not politically controversial. There is a legitimate
issue concerning the degree of scrutiny they ought to be subject
to by the Council and EP, and this is being examined in the Convention.
But most practitioners anticipate that an enlarged European Union
will require more framework legislation and more delegation of
detailed implementing measures. For our own part, we welcome this,
not least for the flexibility it will allow in implementation.
Moreover, the issue of how powers are to be delegated and how
those powers are to be governed (ie which type of comitology procedure
is to be used) has frequently been the most difficult issue to
resolve as between the Council and the European Parliament in
legislation adopted under the co-decision procedure. It would
be unfortunate were the Committee to seek to limit the Government's
negotiating flexibility on this issue.
204. We will hold more regular scrutiny with
Ministers on the general issues coming before Council. In particular,
Sub-Committee C will in future invite Ministerial evidence on
the outcome of every General Affairs Council. We will make greater
use of techniques such as videoconferencing to get round some
of the practical problems of hearing busy witnesses (paragraph
The Government notes this recommendation. We
have already taken steps to provide a Ministerial letter reporting
the outcome of meetings of the GAERC.
205. Questioning of witnesses must be based
on the best possible use of information and make the best use
of the time we spend with them. Where necessary, at least the
relevant Government officials need to be examined during scrutiny
of individual legislative items, even if these are not the subject
of a full inquiry. Sub-Committees need to limit the amount of
time spent on oral evidence and cross-examining witnesses, to
ensure that adequate time is made available for other work (paragraphs
The Government notes this recommendation, and
recalls the value of informal advice which officials are able
to provide to the Committee, as suggested in response to paragraph
206. 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 (paragraph 86).
The Government notes this recommendation.
207. The suggestion for general review of
European legislation is not one we can usefully undertake, without
a major disruption of our scrutiny work (paragraph 86).
The Government notes this recommendation.
208. The integration of substantive policy
into European scrutiny is a strength of our Sub-Committee system,
which must be maintained (paragraph 102).
The Government agrees.
209. While European scrutiny is enhanced
by the involvement of those with a range of policy specialism
and expertise, we are not complacent about the expertise of our
Members. Many members of the House have been appointed because
of their expertise in particular areas but that expertise needs
to be kept up to date. We accordingly consider that it is of positive
benefit to those conducting scrutiny of specific legislative items
that they have also conducted in depth inquiries into general
policy (paragraphs 102-3, 113).
The Government notes this view.
210. We believe that our Sub-Committees,
which examine sectoral policy issues in the European context,
provide a model for a national parliament wishing to scrutinise
European legislation in depth and on the basis of genuine expertise.
There is, in our view, a weakness in any system which confines
"European scrutiny" to a small group of specialists.
There is a danger that scrutiny is conducted in a purely mechanistic
way with Members not having the time to do more than draw attention
to matters which they think are important (paragraph 103).
The Government notes this view.
211. In order to ensure that the Sub-Committees
continue to operate in the most effective way possible, they will
continue to take into account cross-cutting scrutiny undertaken
by the Select Committee. This will in turn help the Select Committee
to inform the planning of the work by the Sub-Committees (paragraph
As noted in its response to paragraphs 201 and
212, the Government hopes that the Committee might look again
at how the timetables and agendas are set for its Sub-Committees
so that these mesh with and can be adapted to suit the ever-changing
flow of business in the Council. Alternatively, the Committee
might consider establishing a fast-track procedure for handling
documents that are moving quickly through the Council.
212. We are confident that the revised the
sitting times of the House will not adversely affect our scrutiny
The revised sitting times of the House will
undoubtedly help with scrutiny of issues that come to the Council
in September and October, a period where in the past the Government
has been forced to override the scrutiny reserve. However they
may cause problems for scrutiny of business coming to the Council
in July. The month of July, of course, marks the start of a new
Council Presidency, and Presidencies do not necessarily indicate
how they intend to timetable their business until they assume
In order to ensure that national parliamentary
scrutiny is effective and taken seriously by all those involved
in adopting legislation in Brussels, it would be helpful if the
Committee were able to convene and give its opinions at any time
that the Council of Ministers is convened, that is in every month
except August. It is unhelpful in Council negotiations to have
to place a scrutiny reserve on a dossier because the relevant
Committee has not met to consider it. To a large extent, this
problem is manageable through forward planning, but not completely
so. In our view, this reinforces the need for something on the
lines of the fast-track mechanism suggested in response to paragraph
213. We will consider further the opportunities
for greater openness in our meetings (paragraph 116).
The Government notes this recommendation.
214. On balance the arguments advanced do
not persuade us of the need for a joint European scrutiny committee
of the Lords and Commons. The different scrutiny systems in the
two Houses complement each other and should continue (paragraphs
215. We nevertheless make recommendations
for more joint working and warmly welcome Jimmy Hood's commitment
to collaboration and working together. We will take up with the
Commons Committee the question whether the balance of work between
the two Committees is appropriate. We will also examine ways by
which we can use and build on their scrutiny work in conducting
our own. We will, in particular, consider with the Commons the
case for a joint meeting after each European Council to allow
the two Committees to exchange views on the future planning of
work on the basis of the agenda set by the European Council. We
will also consider practical means for joint dissemination of
our views, where they coincide, to increase our impact (paragraphs
The Government is grateful to the Committee
for giving some thought to the idea, floated by the Leader of
the House of Lords among others, of establishing a single European
Committee of the two Houses. There would undoubtedly be difficulties
in fusing the work of the two existing Committees, as the Commons
European Scrutiny Committee concluded in their own recent review
of the scrutiny system (30th Report, HC 152-xxx). These might
be overcome in a way that preserved the complementarity that current
arrangements allow and which we commended in our response to that
report (HC 1256). Experience of the Standing Committee established
to oversee the work of the Convention on the Future of Europe
highlights, for example, the advantages that would accrue from
jointly taking evidence before or after European Councils (or
indeed other formations of the Council of Ministers). It also
points to the value of Westminster being able to feed a single
view into ongoing discussions in Brussels. If the Convention and
subsequent IGC result in national parliaments having a right to
opine on whether proposed legislation meets the subsidiarity principle,
new arrangements will need to be devised.
The Government welcomes the Committee's readiness
to envisage more joint working with the Commons Scrutiny Committee,
including through formal concurrent meetings to take evidence.
The Committee and the House may wish to revisit the issue of a
single committee once the outcome of the Convention is known.
216. The question whether MEPs should have
further rights of access to our Parliament is not one that we
are qualified to address. This would be a matter for the House
itself. We undertake to ensure that relevant UK MEPs have the
opportunity to give evidence to our inquiries, and that the outputs
of our work are communicated directly to them (paragraph 132).
The Convention working group on the role of
national parliaments noted the usefulness of networking and regular
contacts between national parliaments and the European Parliament
to help foster a greater understanding and involvement of national
parliaments in the activities of the EU. It also suggested a more
systematic approach to cooperation between national parliamentary
committees and European Parliament committees. It proposed a common
window for debates in national parliaments involving MEPs, Commissioners
and Government Ministers. We look forward to the Committee's comments
on these ideas.
The Government is strongly of the view that
it would be beneficial to enhance day-to-day links between Westminster
and UK Members of the European Parliament. These are not as close
as they could or should be, to the detriment of our national debate
about and the UK's influence in the EU. The Government recognises
that formal joint meetings between the Committees of the UK Parliament
and those of the European Parliament, or indeed any other parliament,
would be a radical departure and might throw up some problems,
not least in respect of the extent to which proceedings of such
meetings would attract parliamentary privilege. Nevertheless,
the Government hopes that the House authorities will examine whether
these problems can be overcome since the advantages would be considerable.
We also believe that the Committee should in any case give serious
and early consideration to more and closer joint working including
informal meetings to discuss matters of mutual interest. It would
only enhance the effectiveness of our national scrutiny arrangements
and of Westminster's ability to help shape EU legislation if the
Committee were to draw on the EU expertise of MEPs. Other Select
Committees, not just those dealing directly with EU affairs, might
also seek power to invite EP Committees to meet jointly with them
when inquiring into matters that have an EU bearing. At the same
time, and while recognising the pressures on the Parliamentary
estate, the Government believes improved access to Westminster
for UK MEPs visiting in a scrutiny capacity should be secured.
217. We are happy to share our experience
with any other parallel national parliamentary body among the
current Member States or the incoming countries. We will take
evidence from a number of national parliaments (including bicameral
parliaments) whose scrutiny systems are well developed, to see
what we can learn from their work (paragraph 133).
The Government encourages the Committee in its
wish to develop links and share experiences, best practice and
information with its counterpart committees in other national
parliaments. As the Convention working group on the role of national
parliaments has noted, existing mechanisms for exchange are not
used to their full potential.
218. We urge all our members to make more
use of unstarred questions, Question Time (and the new topical
questions) to raise matters of concern on the floor (paragraph
The Government notes this recommendation.
219. We endorse the practice whereby all
our letters are signed by the Chairman of the Select Committee,
regardless of which Sub-Committee has been considering the issue.
This provides a single focus for our work (paragraph 108).
The Government notes this recommendation.
220. We work on the assumption that letters,
once sent, are presumed to be public and can therefore be released
to the press and interested parties (paragraph 146).
The Government notes this recommendation.
221. We will ensure quicker and more regular
publication of significant correspondence (using the internet)
in addition to the twice-yearly published volume (paragraph 146).
The Government notes this recommendation.
222. We will make more use of letters to
follow up scrutiny issues raised by proposals which come forward
after a major inquiry (paragraph 146).
The Government notes this recommendation.
223. We will increase efforts to foster a
culture of respect for scrutiny in Whitehall, including the holding
of regular sessions of evidence from senior civil servants responsible
for European policy (paragraph 146).
The Government notes this recommendation. Formal
appearances before the Committee by senior officials will continue
to be subject to the approval of Ministers.
224. We propose that regular digests of significant
scrutiny by correspondence be made freely and publicly available
The Government notes this recommendation.
225. Our reports should be presented to have
the most impact. There is no necessary correlation between the
shortness of a report and its focus. Internal improvements to
the layout and presentation of reports are underway. We have nevertheless
considered how in practice a focused and readable report can actually
be produced. To this end we will aim to ensure that all our substantive
reports accord with standards set out in this report (paragraphs
The Government notes and welcomes this recommendation.
226. We will produce an annual report from
the Committee, giving an account of our activity, drawing attention
to any problems in the scrutiny process and outlining key emerging
issues in a short and punchy document produced in time for the
debate on the Queen's Speech (paragraph 155).
The Government notes this recommendation.
227. We will look at administrative questions
such as finding ways to improve the availability and accessibility
of our work by means that Members of the House actually notice,
namely through their party whips, the Crossbench notices and the
Forthcoming Business document (paragraph 156).
The Government notes this recommendation.
228. We will discuss further the public provision
of information including via the redesigned website (www.parliament.uk)
The Government notes this recommendation.
229. We will consider with the Information
Officer for Select Committees how publicity and information provisions
on our work may be enhanced. In addition we would wish to see
copies of our reports made as freely and easily available as possible
by the House (paragraph 159).
The Government notes this recommendation.
230. This report raises many issues requiring
further work to implement recommendations over the coming year.
We will review and follow up the responses given to our recommendations.
We will ensure that we continue to scrutinise the work of the
Convention and relevant developments arising in that forum. In
the meantime we make this Report to the House for debate.