This article was originally published on 20th July 2007, when the author, now Home Secretary, was Shadow Leader of the House of Commons. We reproduce it today in full. To be fair to the Government, they have implemented some of the changes listed below. However, one might ask how the central criticism of “Westminster’s broken system of scrutiny for European legislation” is consistent with this week tabling a flawed, unamendable motion. 

Last week, I examined Gordon Brown’s claim that he wants to make Parliament the “crucible” of our political life.  This week, I want to examine one of the gaps in his proposals: Westminster’s broken system of scrutiny for European legislation.  This was the subject of my speech to Politeia on Monday (the full version of which can be found here).

It is estimated that between fifty and seventy per cent of UK laws originate in the European Union.  The EU produces four pieces of secondary legislation each week.  And every year, more than 1,000 European documents are deposited in Parliament.  But Parliament’s system for scrutinising these documents is broken.

This is because the House of Commons’ European Scrutiny Committee is overwhelmed by the volume of its work and lacks real teeth.  By contrast, the equivalent committee in the House of Lords does its job well.  But that job is to produce fewer, more detailed reports, and not to scrutinise the thousands of European laws passed by Parliament.  That is why my proposals focus on the House of Commons.

The EU’s democratic deficit has long been a cause for concern.  The existence of supranational organisations like the European Commission and ‘qualified majority voting’ in the Council of Ministers has made it difficult for national parliaments to hold ministers to account for their actions in Europe.

For some, the European Parliament is the answer.  And certainly, measures such as the co-operation and co-decision procedures have added some democratic legitimacy to the EU’s processes.  But the European Parliament cannot be the sole answer, because the EU is an association of nation states, so its democratic legitimacy must come from national parliamentary democracy.

With no formal role in EU policymaking, national parliaments remain reliant on their powers vis-à-vis their own national ministers.  But as I said earlier, our system of scrutiny is broken, and needs fixing.  So here’s what I propose.

Problem One: The Government can override the objections of Parliament, because the “scrutiny reserve” (the convention that ministers must gain prior approval of Parliament before agreeing a decision in the Council of Ministers) is too weak.  Since figures were first collected in 2001, ministers have overridden the reserve 346 times.

Solution One: The scrutiny reserve must be put on a statutory basis, so that ministers must gain Parliamentary approval before negotiating in the Council of Ministers – accepting the need, where appropriate, for ministers to be given flexibility in negotiations.

Problem Two: The European Scrutiny Committee receives meaningful information far too late for it to have any significant impact on the legislation itself.  By the time the Committee receives proposals in full, they are already too well-developed for its recommendations to carry any weight.

Solution Two: There must be a fixed timetable for the Government to notify the European Scrutiny Committee of new proposals.  This timetable must come between the original publication of the proposals in their earliest form, and their agreement in the Council of Ministers.  Undoubtedly, some will argue that this scrutiny will slow down the European legislative process.  But proper scrutiny takes time, and that is a price worth paying for democratic oversight.

Problem Three: The Government can ignore amendments made by the European committees.  Many European documents are therefore passed without any proper debate, and often without anybody knowing about the scrutinising committees’ amendments or concerns.

Solution Three: The European Scrutiny Committee should have the power to force a debate and vote, in the House of Commons, when it disagrees with the Government’s motion.

Problem Four: The European Scrutiny Committee deliberates in private.  It takes evidence in public but always deliberates in private.

Solution Four: The Scrutiny Committee should deliberate in public, although it makes sense to ensure that ministers’ negotiating positions remain private until after the subsequent meeting of the Council of Ministers.

Problem Five: The Government has an in-built majority on the European Scrutiny Committee and sometimes uses this to force through decisions.

Solution Five: Of course, the governing party should retain its majority.  Other measures that give the Committee more muscle should ensure that the majority is not abused.  However, if there is strong feeling that the Government’s majority has been abused, there should be an escape valve.  There should be a procedure for an appropriate number of MPs to table a motion challenging the Committee’s decision and forcing a vote on the Floor of the House.  The procedure should be a last resort and be limited to serious issues that are in the national interest.  The threshold should therefore be high (for example, 150 MPs).

Problem Six: The European standing committees, which debate documents referred to them by the Scrutiny Committee, are weak.  They are poorly attended and lack expertise.

Solution Six: The standing committees should be abolished.  Instead, the European Scrutiny Committee should have the power to require the relevant departmental select committee, or a small, specialist sub-group of the committee, to scrutinise the detail of a particular piece of legislation.

Problem seven: There is little time for European issues to be debated on the Floor of the House.  In an average year, the Committee considers about 1,000 European documents.  It finds about 500 to be of political or legal importance, and reports substantively upon them. It recommends about fifty documents for debate in European standing committees, and about six for debate on the Floor of the House.

Solution seven: Given the significance of European legislation on life in Britain, it is odd that European issues are debated so rarely on the Floor of the House.  The Minister for Europe is only called to account during Questions to the Foreign Secretary.  It would therefore add to the scrutiny process if Questions to the Minister for Europe were introduced.

Problem eight: The Scrutiny Committee meets only when Parliament is sitting, but the European Commission is only out of office during August.  So for twelve weeks each year, the EU can produce proposals that cannot be scrutinised by Parliament.

Solution eight: In domestic policy, it would be unthinkable that the Government should pass law without consulting Parliament; so should it be in European legislation.  The European Scrutiny Committee must therefore sit whenever EU institutions are in session.

Problem nine: The European Scrutiny Committee can only call British ministers as witnesses.  But there is no arrangement for the Committee to call European politicians or officials to give evidence.

Solution nine: While there is nothing in the European treaties that allows for European politicians or officials to be held accountable by national parliaments, there is no reason why the Committee should not be able to invite them.  Indeed, the Government might push for this to be made explicit in future treaties.

Problem ten: There is no formal process in place for Parliament to scrutinise new European treaties.

Solution ten: There should be a new process for intergovernmental negotiations and new European treaties: a committee for new treaties, Prime Ministerial statements before as well as after IGCs, and referendums on treaties that transfer further powers from Britain to the EU.

These proposals would provide proper scrutiny of the thousand documents processed by Parliament every year.  They would provide proper scrutiny of ministerial action in the Council of Ministers, proper scrutiny of ongoing European issues through regular questions to ministers, and proper scrutiny of government negotiations for new treaties.

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