House of Commons European Scrutiny Committee Reforming the European Scrutiny System in the House of Commons Twenty-fourth Report of Session 2013-14 Volume I Volume I: Report, together with formal minutes Volume II: Oral evidence Written evidence is contained in Volume III, available on the Committee website at www.parliament.uk/escom Ordered by the House of Commons to be printed 20 November 2013 HC 109-I Published on 28 November 2013 by authority of the House of Commons London: The Stationery Office Limited £17.50 The European Scrutiny Committee The European Scrutiny Committee is appointed under Standing Order No. 143 to examine European Union documents. Current membership Mr William Cash MP (Conservative, Stone) (Chair) Andrew Bingham MP (Conservative, High Peak) Mr James Clappison MP (Conservative, Hertsmere) Michael Connarty MP (Labour, Linlithgow and East Falkirk) Geraint Davies MP (Labour/Cooperative, Swansea West) Julie Elliott MP (Labour, Sunderland Central) Tim Farron MP (Liberal Democrat, Westmorland and Lonsdale) Nia Griffith MP (Labour, Llanelli) Chris Heaton-Harris MP (Conservative, Daventry) Kelvin Hopkins MP (Labour, Luton North) Chris Kelly MP (Conservative, Dudley South) Stephen Phillips MP (Conservative, Sleaford and North Hykeham) Jacob Rees-Mogg MP (Conservative, North East Somerset) Mrs Linda Riordan MP (Labour/Cooperative, Halifax) Henry Smith MP (Conservative, Crawley) Ian Swales MP (Liberal Democrat, Redcar) The following members were also members of the committee during the parliament: Sandra Osborne MP (Labour, Ayr, Carrick and Cumnock) Jim Dobbin MP (Labour/Co-op, Heywood and Middleton) Penny Mordaunt MP (Conservative, Portsmouth North) Mr Joe Benton MP (Labour, Bootle) Powers The committee’s powers are set out in House of Commons Standing Order No 143. The scrutiny reserve resolution, passed by the House, provides that Ministers should not give agreement to EU proposals which have not been cleared by the European Scrutiny Committee, or on which, when they have been recommended by the Committee for debate, the House has not yet agreed a resolution. The scrutiny reserve resolution is printed with the House’s Standing Orders, which are available at www.parliament.uk. Committee staff The staff of the Committee are Sarah Davies (Clerk), David Griffiths (Clerk Adviser), Terry Byrne (Clerk Adviser), Leigh Gibson (Clerk Adviser), Peter Harborne (Clerk Adviser), Paul Hardy (Legal Adviser) (Counsel for European Legislation), Joanne Dee (Assistant Legal Adviser) (Assistant Counsel for European Legislation), Hannah Finer (Assistant to the Clerk), Julie Evans (Senior Committee Assistant), Jane Lauder (Committee Assistant), Beatrice Woods (Committee Assistant), John Graddon (Committee Assistant), and Paula Saunderson (Office Support Assistant). Contacts All correspondence should be addressed to the Clerk of the European Scrutiny Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is (020) 7219 3292/5465. The Committee’s email address is [email protected] Reforming the European Scrutiny System in the House of Commons 1 Contents Report Page Summary 5 1 Introduction 7 The importance of European scrutiny and the reasons for this Inquiry 7 Discussions on scrutiny since 2005 8 Discussions since the 2010 General Election 9 How the House of Commons scrutiny process works 11 The House of Lords European Union Committee 13 Comparisons across the European Union 14 The National Parliament Office 15 2 The role of the European Scrutiny Committee: examining merits? 17 3 The role of the European Scrutiny Committee: stages of scrutiny 19 Introduction 19 Committee consideration of documents 20 Explanatory Memoranda 20 The sift 21 The scope of document deposit 23 The early stages of policy formulation 24 Non-papers 24 Scrutiny and legislative development 25 UKRep, Coreper and decision-making in the Council 28 Limité documents 30 The future of limité status 32 Council meetings 33 Transposition 34 Conclusion 36 Non-legislative acts: challenges for document definition following the Treaty of Lisbon 38 Legislative and non-legislative acts 38 Common Foreign and Security Policy and Common Defence and Security Policy proposals 39 Delegated and implementing acts 42 Proposed new definition of European document for Standing Order No. 14344 4 The importance of the scrutiny reserve 45 Draft European scrutiny reserve resolution 48 Draft Resolution on Title V opt-in and Schengen opt-out scrutiny 50 5 European Union business on the floor of the House 51 Debates on EU Documents on the floor of the House 51 Conclusion 52 A national veto and disapplication of EU law 54 2 Reforming the European Scrutiny System in the House of Commons European Council meetings 57 Post-European Council statements 58 Oral Questions on EU matters 58 Commission Work Programme 60 Draft revised Standing Order and resolution relating to business on the floor of the House 61 6 Departmental Select Committees 63 Liaison between the European Scrutiny Committee and Departmental Select Committees 65 Upstream engagement 66 Conclusion 67 A greater sense of coherence and prioritisation — Commission Work Programme 67 European Reporters 69 7 European Committees 71 History 71 Conclusions 74 Membership 74 Nomenclature 74 Chairs and procedures 75 Motions in European Committee 75 Guidance and advice 76 Draft revised form of Standing Order No. 119 77 8 The visibility of scrutiny and the media 79 The role of the media 79 Reform of European Scrutiny Committee working practices 84 Documents and reports 84 Engagement with the European Parliament 84 The Committee’s informal meetings 85 Transparency 85 Pre-appointment hearings 86 9 Conclusion 88 Conclusions and recommendations 90 Annex 1: Glossary 105 Acquis 105 Codecision procedure/ordinary legislative procedure 105 Common Foreign and Security Policy (CFSP) 105 Common Security and Defence Policy (CSDP) 105 Coreper 106 Council of the EU 106 Court of Justice of the EU 107 Delegating and Implementing Acts 107 European Commission 108 Reforming the European Scrutiny System in the House of Commons 3 European Council 108 European External Action Service 108 European Parliament 109 Explanatory Memorandum 109 Green Paper 109 High Representative of the Union for Foreign Affairs and Security Policy 109 Presidency of the Council of the EU 110 Qualified Majority 110 Subsidiarity 111 White Paper 111 Annex 2 112 Formal minutes 129 Witnesses 130 List of written evidence 131 Reforming the European Scrutiny System in the House of Commons 5 Summary The depth and pace of EU integration, now accelerating with demands for fiscal and political union and economic governance, has demonstrated the need for effective democratic parliamentary scrutiny and accountability of Government at Westminster— all of which affects the UK electorate. Since the UK joined the EEC, and the passing of the European Communities Act 1972, we and our predecessor Committees have been established under the Standing Orders of the House of Commons with the central task of prioritising EU proposals for scrutiny according to their political and legal importance. This is the first major inquiry into the European scrutiny system in the House of Commons for eight years. We have examined each aspect of our current powers, and also scrutinised the effectiveness of the other components of the system: Departmental Select Committees, European Committees and debates on the floor of the House. We set out full conclusions in Chapter 9. There is a need for essential reform to make the existing system more coherent and co- ordinated. Our sifting role is valued across the House. But there is more that we could do to look at the impact of new proposals on the electors of the United Kingdom, and our Standing Orders require an urgent update. The evidence we took showed how important it is to ensure that the policy expertise of Departmental Select Committees is applied to these complex questions; we propose that there should be a new requirement to appoint ‘Reporters’ to take the lead within Committees on EU issues, as well as a more co- ordinated approach to the Commission Work Programme. We were told that the existing European Committee system should be scrapped; we do not agree. The system must be enhanced. The problems with European Committees as currently constituted arise from the fact that new Members are appointed for each document. We argue forcefully for a return to the permanent membership system, new powers and a change of name to reflect the Committees’ core purpose: EU Document Debate Committees. Given the vital primacy of the United Kingdom Parliament, we also examined how EU business is taken on the floor of the House, and the procedures which apply to it. We set out a series of recommendations about the way debates are scheduled and conducted and put the case for a new session of ‘EU Questions’. In Chapter 8 of the Report we review our own working practices and the visibility of the House’s scrutiny of the EU in the media. It was disappointing that in the final stages of our inquiry we were thwarted in our efforts to hold two final key evidence sessions: one with the prospective Head of the UK Permanent Representation to the EU (UKRep), Ivan Rogers, and the second with the Chairman of the BBC Trust, Lord Patten of Barnes. In earlier evidence from the BBC, it was clear to us that serious questions need to be answered about how EU issues in general and scrutiny in particular are covered and explained, given the fundamental importance of this scrutiny to the workings of our parliamentary and legislative systems. We will take this forward over the coming months. As important as all these recommendations are it is now time also to take more radical 6 Reforming the European Scrutiny System in the House of Commons steps. Throughout this Report we allude to the fundamental role of national Parliaments – which has been emphasised in speeches this year by the Prime Minister, the Foreign Secretary and the Minister for Europe.