Theresa May: Proper scrutiny. Real accountability. Healthy democracy.

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. 

Comments

[John Strafford]

These are excellent proposals from Theresa May, and we should support them. However, the fundamental problem with the European Union is that is undemocratic. The Tory Party must address this problem and come up with a solution. If no solution can be found, then there is only one answer!

[Dontmakemelaugh]

You can "scrutiny" as much as you like but if we no longer have the power of veto over the proposal, then it is goodbye and goodnight.
Let us get back to governing ourselves and make our own arrangements - what about a European Common Market? Has anyone given it a thought?

[Frank Upton]

I hadn't seen this in the media at all but at last, some policy. It all sounds a bit turgid, but this sounds like it would make a real difference if it's ever implemented.

Brown has a terrible record when it comes to parliament - we need to nail his lies about this.

[Lee Rotherham]

Excellent news. Many of these suggestions are ones that have long been called for, as in this policy proposal that went to Shadow Cabinet members before the last GE:

http://www.brugesgroup.com/news.live?article=3968&keyword=16

Monitoring of EU legislation has long been a sham in Parliament, despite the efforts of a handful of people in scrutiny committees in both Houses. The fact that Labour wanted the Commons cttee to sit in private tells you all you need to know.

[Lindsay Jenkins]

Mrs May’s comments seem to have generated total silence so far – not usual for ConservativeHome!

Could this be because most people want a simple equation – go to polls, mark X for Jo Blogs with simple first past post system, Blogs votes in parliament on electors’ behalf and within 5 years stands again to receive voters’ support or otherwise.

The weak linkages between the voter, Strasbourg and what comes back in excruciating legislative packages lead to a total turn off by 99 per cent of UK electors.

We just don’t want to know.

And if the answer to the question is the ten complex May proposals then that confirms it.

Perhaps Mrs May should draw the obvious conclusion that we would be Better Off Out.

[Tapestry]

Lot to take in for the average blog reader like me here. It seems that power must be returned to parliament for this much scrutiny to take place. How will we achieve the return of power to Westminster. Would the USER agree to this? Or would we be forced to put up a bit of determined resistance to the USER?

What about the ECJ, the fines they can raise if we don't comply. How would we get around the USER power infrastructure to be able to establish proper scrutiny?

Theresa May's proposals seem to be intelligently thought out. I am concerned that it's all just an attempt to avoid the real decision that needs to be taken - to withdraw from the USER, and reestablish democratic accountability the simple way.

Should we really be a part of the UNION OF SUBSERVIENT EUROPEAN REGIONS in the first place?

[Ken Stevens]

A good analysis of the situation - but the root problem arises from being in the EU, in its current format, in the first place. You mention referenda on treaties that transfer power. We first need a referendum on membership overall.Otherwise it's a bit like mugging me and then politely asking me in sequence whether I would like to hand over my wristwatch, then my ipod (whatever that is), my wallet, etc.

It seems that your proposals for scrutiny of laws passed down will require far more parliamentary manpower. Does that mean that parliamentary resources will increase in inverse proportion to parliamentary sovereignty?

You say "...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...".

It begs the question of why there is a European parliament at all, since it does not seem to have the same relationship to the Eurogovernment as applies in UK. For example, could it vote down proposed legislation? Could it mount a vote of no confidence, resulting in demise of the Eurogovernment and new elections?
I do not regard the EU as having any democratic legitimacy, in the absence of a referendum result that supported overall membership beyond that of trade. We have representative democracy in England (I deliberately haven't said UK, given the WLQ) but that does not extend to my democratic representatives ceding their powers to an extra-territorial body.

Btw, would a Europhile please explain to my simple intellect how we can have a European president, whilst retaining a monarchy. I suspect a post-Elizabethan plot towards a de facto republic!

I'm quite a lily-livered liberal (small "l") in most things but on EU and WLQ, I'm a swivel-eyed nutter.

[Andrew Lilico]

An interesting set of ideas. Nice piece.

[Dick Wishart]

Common sense reigns!

[Deputy Editor]

Sorry Lindsay, we had comment moderation on temporarily and didn't get a chance to approve them until now.

[Bill Brinsmead]

Theresa May’s analysis and proposals are sound and sensible but she is too lenient on MPs – ‘volume of work’ ‘Committee lacks teeth’. They are failing us in their systemic failure to properly scrutinise the works of the European Commission. There are no excuses that stand up to examination.

The Lord’s European Union Committee – and its sub committees – does an excellent job in scrutinising European Commission proposals and policy pronouncements. The Common’s Scrutiny Committee’s efforts are pitiful.

A key task is to scrutinise proposals generated by the European Commission – the Lord’s Committee does this, it meets in public and calls witness from the Commission. By the time proposals are turned into laws and regulations it is by definition too late. Theresa May’s Problem 2 rightly diagnoses the problem ‘The timing of scrutiny’ - her solution is weak. Another option is a Joint Lords and Commons Committee

[John Campbell]

This is the first time I've heard a serious politician address in detail the appalling lack of scrutiny of EU legislation. It's a major reason why British politicians are held in low esteem - because they are effectively powerless, having given our sovereignty (and hence their power) away to the EU or to Qangos.

So, really good so far. But:
(1) Why not say that no EU legislation will get through UNTIL it's been properly scrutinised by the processes outlined? Why the apparent eagerness in the proposed processes to match throughput to the Brussels firehose? It could only do good to slow it up anyway, and a lot more good if most of it had to be put to Parliament. Now *that* would certainly slow it up! And a good thing too.

(2) These proposals are common sense - one would say a no-brainer. Why has it taken so long for the problem to be recognised by *any* serious policitician? Have they been asleep on the job since Maastricht?

(3) Alas, like all common sense no-brainer policies, it is very unlikely that it will be taken up by any of the main political parties. Pity, but there it is.

[farnboro]

Bill Brinsmead - you are mighty critical, have you actually read any of the reports produced by the Commons European Scrutiny Committee?

As for "early warning", perhaps you ought to examine the Committee's report on the Commission's Annual Policy Strategy, published last week.

A substantial problem with the present system is that the Commons Committee is, by the terms of its standing order, able only to report on whether a Green Paper, White Paper or legislative proposal from the Commission is "legally or politically important". (Incidentally, any Commons departmental select committee could examine any of these documents and would be under no such constraints). having decided that it is politically and/or legally important, it recommends it for debate.

This is where the system should activate, alarm bells ring and political debate should kick off. Lobby groups should contact opposition spokesmen, encourage them to turn up in Standing Committee, ask the Government tough questions.

But it doesn't seem to happen. The Scrutiny Committee gives the House all the tools it needs to do its job of scrutiny, but when the matter is left to the opposition parties to organise, it just doesn't happen. Front benchers turn up in Committee poorly briefed and with little real knowledge of what they are debating, and are often woefully unable to put Ministers under any real pressure. When was the last time the Opposition tabled a motion to amend a Government resolution in Standing Committee?

By the way, could we have a few more details about this "European Research Group" which claims to have examined the European Scrutiny Committee's output? perhaps a link to the research which Mrs May has quoted?

[farnboro]

And, by the way, is Mrs May aware that the week before she delivered her speech the European Scrutiny Committee had Commissioner Wallstrom in for a grilling, in public?

Or did she not clear her speech with Mark Francois?

[farnboro]

Lee Rotherham - name one other Commons select committee which deliberates in public (as opposed to taking evidence, which the European Scrutiny Committee always does in public).

[Gerry Lloyd]

Some cursory scrutiny of a certain "plea and sentencing agreement" in South Africa might have saved a Brit from four years of hell, and a lifetime of suspicion.: http://mbolombotongo.blogspot.co.uk/