Mr Cash discussed Parliament's relationship with Europe, particularly the role and work of the Committee in scrutinising draft EU legislation on behalf of the House of Commons.
The lecture was recorded by BBC Parliament.
In the second Parliament and Europe themed Open Lecture on Tuesday 19 March 2013, Mary Honeyball, MEP for London, will give an insight into her role and experiences as an MEP in the European Parliament.
Bill Cash MP
Bill Cash MP is the Member of Parliament for Stone. He has been a member of the European Scrutiny Committee since 1998, and the Committee Chair since 2010. He is also the Founder and Chair of the European Foundation.
Bill Cash MP, Chair of the House of Commons European Scrutiny Committee: Thank you very much indeed.It’s a great pleasure to be here to give you an opportunity to hear something of the work of the European Scrutiny Committee, to look at the question of the impact of European legislation on the daily lives of the people of this country, to examine how the information that is made available is transmitted, and the extent to which there are various interests reflected by it, including, of course, the electorate as a whole.
It may come as a surprise to some people, but Europe is not another dimension. We are part of the European Union - and therefore the legislation that comes from it - and the impact that it has on the daily lives of the people of this country is much greater than many people, I think, appreciate.
I would just start by referring to an answer that was given in 2006 - which I think is probably slightly out of date now - with respect to the estimate of the impact of European Legislation on the United Kingdom.
The answer that was given by the then Government was:
"Many EU regulations have a temporary or technical effect, but we estimate that around 50 per cent of UK legislation with a significant economic impact has its origins in EU legislation."
I think I would say that it was somewhat more than that, but it does give some indication of the impact that it has in the minds of those in Government who have been looking at it.
I’ll just start by saying that I’ve been on the European Scrutiny Committee now for 28 years – that’s quite a long time. And I was elected as the chairman of that committee two years ago.
One of the things that I was extremely concerned about, over that 28 years, was the impact that it was having on the daily lives of the United Kingdom electorate, but also the extent to which the information about it was being disseminated. And the method whereby we, in the European Scrutiny Committee, examine that legislation – which I shall be going on to in a minute - but also the extent to which people are aware of the scrutiny process.
So, what I’ve done most recently is to set up - through my committee - a European Scrutiny Inquiry into European Scrutiny. Because it seemed to me that it was very important that we examined, not only what we were doing, but also to provide an opportunity for other people to form an assessment and to give evidence to the committee.
And we’ve been holding a series of sessions from various people: we’ve had the various politicians who’ve been involved; we’re making comparisons with other European Scrutiny systems, and we’ve most recently had the BBC in to look at the manner in which they provide the information to the public, at large, under their Royal Charter.
In the same context, we ought to just look at how European Legislation comes about, in terms of its process through the United Kingdom Parliament as a whole.
For those of you who are not entirely familiar with it, I’ll just mention this, because it’s absolutely crucial to an understanding of the whole process: the reason that European Legislation has the effect that it does on the UK is by virtue of the European Communities Act 1972. I would strongly recommend you to have a look at that Act if you have an opportunity to do so; it’s only a few pages long but it’s very comprehensive.
What it says, in a nutshell, is that all legislation which emanates from the European Union institutional processes - once it has been voted on in the Council of Ministers or has been made by the European Commission as a regulation - automatically has the effect of law in the UK. The whole range of European legislation automatically has that effect.
In 1971, there was a White Paper which preceded the passing of that Act in 1972 and it was clearly stated in that White Paper that, when the Act went through, the effect of it would be qualified by the continuation of the Veto. And, what it said in the White Paper was, that it was in our vital national interests that the Veto should be retained and that to do otherwise would not only have a significant impact on our own national interest, but would also endanger the very fabric of the European Community itself.
So, there was a recognition, in 1971 - on which the 1972 Act was passed - of the importance of being able to say ‘No’ in our own Parliament. Now, time has moved on – various treaties have been made since then – and the net result is that more and more majority voting has been brought in which has overridden the original description that was given in the White Paper of 1971.
But of course this does have a very powerful impact on our democracy and also on businesses and on people’s daily lives.
Indeed, there are many, many bills that are based on European legislation, and I think it would be fair to say that the processes, which I shall describe in a minute, are capable of being construed as being somewhat in need of improvement. My committee will consider all this when it comes to its conclusions in relation to the European Scrutiny process. My own view is that improvements can - and should - be made. The European Scrutiny inquiry which has been set up deals with the following sort of question: the mechanism by which the committee refers documents to European Committees.
Now, I’d like to describe exactly what happens when European legislation comes through our system: in the first place, the documents are considered in working groups within the European legislative system as a whole, which includes, of course, civil servants from the various member states who are looking at it all. And then eventually it makes its way through the Council of Ministers to the point where the voting actually takes place.
Now, our system is ‘document-based’ and, under our Standing Orders, it is stated that any proposal under the Community Treaties for legislation by the Council, or the Council acting jointly with the European Parliament, has to come to our committee. This includes drafts of regulations that are directly applicable to member states, which are binding as to the result to be achieved. Furthermore, the system also catches later legislation: for example, any amendments that are made.
And it is said that any document which is published for submission to the European Council, the Council, or the European Central Bank has to come to us. Furthermore, it also includes any proposal for a Common Strategy, a Joint Action, or what’s known as a Common Position under the treaties – that’s Title 5 – which is prepared for submission to the Council or to the European Council.
The net result of this is that there are about a thousand documents a year which fall within these various categories. Each has to be formally deposited in Parliament within two working days of its arrival in the Foreign and Commonwealth Office – a deposit means that it is available in the House of Commons Vote Office and is submitted to the European Scrutiny Committee. So we actually examine all 1000 of those documents.
It’s also important to note that most proposals are examined, not on the basis of a single document, but at several different points as it continues to go through. And scrutiny begins at a relatively early stage because these documents include Commission consultation papers and Green and White Papers which come from the Commission.
The Commission’s own legislation, on its own authority, is dealt with by regulations. In addition to that, there is also included, in the documents that come to us, an Explanatory Memorandum which has to be provided by the Government.
Now, it is sometimes said that a lot of this legislation is very complex. Well, so is all legislation, actually. The real point is that I don’t think that the impact on the lives of the people in this country, as the legislation passes through the process, has been given the degree of attention that it really deserves.
When the Government is required to submit an Explanatory Memorandum - which is in relation to every document – a great deal of the complexity is effectively taken out of it because it’s put into much simpler language as the Explanatory Memorandum is put before the committee.
There are rules relating to these Explanatory Memoranda and they go like this: The Memorandum must cover a description of the subject, together with:
- the scrutiny history – that’s ‘how it came about'
- where the ministerial responsibility lies
- the legal basis on which it’s being made
because, as you’ll gather from what I said earlier, you can’t just invent European legislation: it has to come from what’s called the ‘legal base’, which means the authority from the European Treaties which enables that legislation to be made through the European system .
Then the Explanatory Memorandum has to describe the procedure which will be followed: whether or not, for example, it will be by Qualified Majority voting or whether it will be Unanimous – in other words, can the Government just simply say: “No we’re not going to do that” – which is where the Unanimity rule applies. But, of course, so much is now done by Qualified Majority vote that more and more of it goes through by decisions that have been taken by the Member States sitting in the Council of Ministers as a whole. Or, alternatively, if they decide that they don’t want to have a vote - and that often is the case - they then do it by way of consensus.
Then the Explanatory Memorandum also has to describe the impact on UK law.
It also has to describe whether or not the principle of Subsidiarity – this is the kind of jargon we do find occasionally, I have to say: ‘Subsidiarity’ effectively means: "Should this matter have been dealt with better at a domestic national level or should it have been dealt with at the European level?"
That’s the simple way of describing Subsidiarity. But that has to be described in this Explanatory Memorandum as well.
Furthermore, the Government also has to set out what its view is of the document’s policy and what its implications are.
There’s also a Regulatory Impact Assessment - I mean, for example, will it have an impact on burdens on Business? Although we talk, in general terms, about impact on daily lives, the full range and extent of the legislation is really absolutely huge and the impact on the economy of the country - and on the businesses - and the question of whether there is, or is not, overregulation is all part of that.
I don't believe that there is sufficient attention given to the moments when this is going through the European Scrutiny process, as far as Business is concerned. I really do think that it is important for Business to become much more engaged in the process. Because, although there is a great deal of other legislation which is going through the House of Commons, the economic impact to the businesses of this country is very considerable. I believe that that they should take an even greater interest than they do already, and I'd say, at the moment, it is not as good as it should be in relation to what is going on in the European Scrutiny Committee itself.
Furthermore, there has to be, under the Explanatory Memorandum, a Risk Assessment, and, when necessary, a scientific justification - and what consultation has taken place in the UK or in the EU as a whole.
And then it goes on, that they're also required to explain the financial implications - for the EU and the UK - and of course, also, the likely timetable.
This Explanatory Memorandum, you'll notice, covers an enormous amount of information in relation to every single one of those 1000 documents. So, for practical purposes, the Explanatory Memorandum is a very important document. And as it goes through the process, clearly it would be of great importance for people to be looking at it as it makes its way - bearing in mind that the original proposal can in fact be changed as it goes through the process.
As the matter is considered by the European Scrutiny Committee, we make our recommendations. To give you an example: in relation to the recent Unified Patent law which is being set up - which has huge implications for matters relating to intellectual property and the whole of the patenting system which is so important to Research and Development - there was an enormous exchange. There was a tremendous amount of interaction with patent specialists. And, as the process went through, the arguments that were presented to us were then relayed back to the Government and also to Government ministers.
We examined the Government minister in question, and we then put forward other proposals as a result of our consideration of all this. And I can say, with certainty, that it had an enormous impact on the way in which the Unified Patent was ultimately put into legislation.
We also hold inquiries: so we have this document-based system which we're going through the whole time - which itself can lead to amendments and interaction with the Government - but at the same time we also hold inquiries on major issues.
One of first things I did, when I became chairman, was to propose that we had a full inquiry into the interaction between the EU and the sovereignty of the Westminster Parliament - for reasons which will be obvious to you. Because, if you've got this huge impact of what is going on and people are elected at General Elections to be MPs, and the legislation goes through Westminster, it's extremely important that when the European Scrutiny process is taking place – indeed, when the whole question of the democratic basis on which people are elected to Parliament is considered in this context - it's very important for us to work out what the impact of this European Legislation actually is on the people of this country, through our voluntary enactment of the European Communities Act 1972.
We also, subsequently, in 2011, passed an Act called the European Union Act 2011 - and that dealt with the whole question of the Referendum in relation to the transfer of future powers. I won't go into all the details but you can understand how important that was - so we took evidence on that as well.
And we've also, as I've said, recently set up this other inquiry into scrutiny too.
We take evidence in public, examining ministers - as we did, for example, on the Lisbon Treaty in the previous Government. We go into all the ins-and-outs of the Treaty that is proposed. Or we will have a report on a specific subject, like sovereignty or referendums.
But when we consider each of these 1000 documents I've referred to - that have come through the Council of Ministers or are passing through that Council of Ministers - there is also a requirement, under our Standing Orders, for us to consider whether a particular document is, or is not, of ‘legal and/or political importance’. If we come to the conclusion, having looked at them, that it is of legal and/or political importance, we will then recommend it for debate in the House of Commons. That is what is laid down under our Standing Orders.
What then happens is that the documents are either debated in a European Standing Committee or on the floor of the House. There are 3 Standing Committees and they deal with different subject matters, more or less in line with departmental select committee functions. We decide whether or not a particular document should be debated in the European Standing Committee or on the floor of the House.
Now, obviously, we can't have everything debated on the floor of the House, so we're much more selective about urging the Government to put a particular document on the floor of the House as compared to the European Standing Committee. But I’ll give you some recent examples of matters that have been referred to the floor of the House:
- the freezing and confiscation of proceeds of crime in the European Union
- Insider Dealing and market manipulation
- the Draft Budget
- the Charter of Fundamental Rights
- the question of supervision of Credit Institutions, and so on.
So, where we consider it as being of that kind of significance, we will then refer it to the floor of the House. The Government can decide not to do so but, these days, are very reluctant to disagree with our recommendations.
In addition to that, documents can go to European Standing Committees. Now these are committees composed of Members of Parliament on both sides of the House - and bear in mind our committee is all-party: it's not a Conservative committee. It's made up of other parties as well.
So the European Standing Committee is where documents go that don't warrant perhaps the same degree of debate as the ones I've mentioned. But those have included, for example, recently:
- Risks and Safety Assessments of Nuclear Power Plants in the European Union
- arguments relating to the fight against Fraud
- EU Justice Legislation in the field of Detention
- a Commission White Paper on adequate, safe, and sustainable pensions
- credit agreements relating to residential properties
- financial support for police cooperation,
- preventing and combating crime and crisis management, and so on.
The list is very extensive, as you can imagine, from a thousand documents. We can't send them all to the floor of the House. But the question is: what happens when it gets to the Standing Committee?
We took evidence from another Member of Parliament the other day, Gisele Stuart. She was the Government's representative at the proposals for the European Constitution some years ago and she gave some very interesting evidence indeed, because she said that when a minister has to appear before a European Standing Committee it can be very daunting - in fact she used an even stronger word than that.
And the reason for that is this: when a minister has to appear before a Standing Committee - which is all-party - the cross-examination takes about an hour and is on every aspect of that document, the subject matter of which I’ve just described. And then it is followed by a debate on that document as well. So you can imagine why it is that ministers regard this process as pretty daunting.
And the idea that somehow it's incomprehensible, I think, is just simply not correct. The language that is used in some of these documents does leave something to be desired. I personally think that it would be easier if it were more user-friendly.
But I'll give you an example: we all know at the moment what's going on in Mali. Now, I think it would be fair to say that there weren't that many people who could predict what would happen in Mali, but the proposal came before our committee and we decided it was extremely important it was debated.
So, well ahead of the curve, we were examining the implications of this proposal for sending troops to Mali - through the European Standing Committee - with an hour's examination of the minister, followed by a debate. That is just one example of the kind of thing that is done in those European Standing Committees.
There is also the whole question of the extent to which this is put out into the public arena.
We had the BBC in the other day, and we've asked them a lot of questions in relation to their Charter. The transcript is available on the website - it's not finalised yet but it is out there for anyone who wants to look at it. Of course it does also apply to the other Television and Broadcasting media and we shall be having ITV along, and SKY, to ask them questions about all this as well.
I think it’s fair to say that the extent to which the information has been made available to the public at large could be improved – let’s put it that way.
I've got here the transcript as it stands at the moment, and the question arose:
"How often has the BBC reported on the 90 recent European Scrutiny Committee reports?"
The gentleman in question, Peter Knowles, said: "..the simple answer in numbers is: in the last 2 years we have shown four of the hearings of this Committee."
This is an ongoing process, and we're all on a learning curve, but we are hoping that consideration of all this will ultimately lead to a greater degree of interest taken and more time given to the process of scrutiny.
And not only to the process but more particularly to the content: because if, in these European Standing Committees - and indeed, on the floor of the House - matters of such importance are being discussed all the time, right the way through the parliamentary year, then one might hope that more attention could be given.
I know there are other competing issues and I know there are questions about whether or not there is a proportionality that can be given to one subject as compared to another, but there is a huge amount of this legislation - which does have a direct impact on the United Kingdom - that really does deserve to be out there. So that people who're watching the BBC, or watching ITV or SKY - or reading the newspapers - are made aware of the impact that this European legislation is having on their own lives and on their businesses.
So, what else is there that I could refer to?
In particular, we have other Select Committees of the House of Commons, in addition to ours. There are three scrutiny committees: one is the Public Accounts Committee, which looks at the whole question of public expenditure; then there is the European Scrutiny Committee that looks at all the European matters; and then there is also a Statutory Instruments Committee.
But there are also other Select Committees - every Department has its own Select Committee. And one of the things that we're looking at in our inquiry is this: Select Committees don't look at legislation specifically - they look at policy areas, and they cross-examine ministers on the whole raft of policies - everything that you can think of that applies to policy making in Government - and its impact on the electorate: Health, Education, Transport, Foreign Affairs - the list is endless.
But there is this continuing European dimension in relation to all those areas as well. So, one of the things we're considering is having a ‘Rapporteur’ - in other words, a specialist, in relation to the European dimension - on each of those Select Committees.
So that whenever a Select Committee is examining a policy area – let’s say its High Speed 2, that's going up from London to Birmingham and from Birmingham to Manchester and onwards - because there are European dimensions to this, it would be important for the Select Committee on Transport to have a specialist on the European dimension of this examining it with the other members of the committee.
So that you can get a better interaction between the domestic implications for those affected by High Speed Rail - blight, compensation etc - and the European dimension at the same time.
We haven't come to any conclusion yet – but we are looking at whether it would be a good idea to have a Rapporteur on each of those Select Committees. I could also mention that the Liaison Committee - which are the chairs of the Select Committees, sitting in one committee - have themselves also been looking at this, and, indeed, so have some of the devolved assemblies.
So, that would be one way of getting greater interaction between the European dimension and the domestic.
So far as the information we receive is concerned, in the European Scrutiny Committee, there is a body called the National Parliament Office - the NPO. These are the ‘eyes and ears’ of the European Scrutiny Committee in relation to European matters in the European Institutions. We also receive a report every week, from our staff who are in the European Institutions, of what they see going on over there as well.
So, that increases our awareness of things that otherwise might seem to be 'out there in Europe'. Because ‘out there in Europe’ is not ‘out there’ at all: we are Europe - we are within the European Institutions ourselves. Leave aside the arguments of whether or not, under the terms of proposals for a referendum, we would be in or out, we're looking at the position as we see it now, in respect of the law that applies to the United Kingdom. That's why it's important to us to have information from the NPO.
There is also an organisation called ‘UKREP’- that is the United Kingdom Representatives - who are the Government’s representatives in Brussels, whose job it is to assimilate, examine, debate and negotiate with their counterparts in the other 27 Member States.
They are working across the board with the civil servants in their own country -in the UK - but they're also negotiating with the other Member States’ representatives as well.
So, there is an interaction that is going on the whole time between the civil servants, the representatives in Brussels who're appointed to do a lot of the negotiations; there are the ministers themselves, who are of course responsible and accountable to our own parliament for what they are doing in relation to European legislation; and then, on top of that, there is our committee which is looking at all these factors and looking at the impact that it has on the UK.
And, by the way, our scrutiny inquiry is looking at the UKREP process as well. So we will be examining not only the various people that we’ve seen already but also the people from UKREP as well.
Then, of course, there is this question of the European Court of Justice. Because under this European Communities Act which I described at the beginning of my talk - under Section 3 of that Act - we're under an obligation, not only to implement the legislation which comes from Section 2, but to obey all the Court judgements that come from the European Court of Justice as well.
And in addition to that, there is an obligation on the United Kingdom courts to apply the law of the European Union in their own judgements where European law is applicable.
So, you can see the impact of the whole of this European dimension on the United Kingdom - and therefore on every aspect of our lives - which is why I believe that it is so important that we have a proper examination of the scrutiny process.
One of those from the BBC who came to see us described this as a very challenging exercise. In fact I think he thought it was quite impressive that we were examining our own role. But it is very important that we examine the nature and the extent, not only of the effect on the lives of the people of this country, but also of the processes and procedures as well. The impact as well as the process.
There is one other thing I will mention, and that is what is called the ‘European Scrutiny Reserve’ - which is the extent to which our committee is able to put a brake on European legislation as it is going through the system.
In a nutshell, what this really means is that where we have recommended that a particular document is of ‘legal and/or political importance’ it then goes on the Order Paper and can be seen in the Vote Office. Once we have decided that, it is a strong message to - and a requirement on - the Government NOT to make a decision in the Council Of Ministers until a debate has taken place.
We don't have the power to Veto – what we do have the power to do is to require a debate and to say to the minister: "Until this matter has been decided by debate in the House of Commons, you are not allowed except in exceptional circumstances - and there some that are of a very urgent nature sometimes - you are not to allow that legislation to be implemented into UK law".
It's a bit more complicated than that but I don't think I need to go into all the detail: the minister can give an agreement if he considers that the proposal is confidential or routine and there are one or two qualifications to that. But, for practical purposes, the European Scrutiny Reserve acts as a brake until the debate has taken place. That's the position in a nutshell.
All the information I've described to you can also be seen in any of the documents in the Vote Office or on our European Scrutiny Committee website. They say sometimes that ‘the best way to keep a secret is to make a speech in the House of Commons’ - but actually there is no secret about any of this: it is a transparent system.
But it's becoming increasingly obvious to me that insufficient people have the information that they could have if they were to avail themselves of the system that is made available to them. In other words there are documents that are in the Vote Office, and Parliamentary Papers and reports - all produced - but the question is: have people actually got knowledge of them?
Because it's one thing for us, in the Westminster Village, to be examining all these questions and doing it diligently and making representations - and all the interactions I've described between all the forces at work in pursuit of the democratic process – but, if people don't know that that is going on, it becomes ‘paper’ rather than information.
I'm strongly of the opinion that it is very important that we improve the quality of the dissemination, broadcasting and knowledge of this material which has such an impact on the people of this country.
I think I've covered as much as I can in the time that we've got. I'm not advocating a particular course - that's for my committee to decide when we've heard all the evidence. I think it will be an important report because it's about something which is of direct concern to everybody in this country.
And because the PM has now, in his Bloomberg speech, raised the whole question of the Referendum issue, I think a lot of people are thinking about the impact that this legislation has and the manner in which they want it to be dealt with.
Anyone who wishes to give evidence to our committee is more than welcome to do so - in writing and, sometimes, orally - and we shall be continuing the process for several months to come.
So, thank you all very much for coming and I hope that I've thrown some light on the European Scrutiny process: its importance to the people of this country and to our democracy, and also the manner in which it is dealt with and the implications of that for everyone who is affected by it.
Thank you all very much.