A triumph for European Parliamentary scrutiny?

As the only directly elected component of the EU machine, taxpayers and citizens have a right to expect that MEPs will stand up for their interests in Brussels, scrutinising the decisions and spending of the other EU institutions.

In recent months, the parliament’s budgetary control committee, marshalled by Monica Macovei MEP, the former Romanian Justice Minister, has been very critical of three EU agencies in particular – the European Environment Agency (EEA), the European Food Safety Agency (FSA) and the European Medicines Agency (EMA) – for “using public money for questionable purposes and for tolerating conflicts of interest in top management”, an an issue we also highlighted in our recent short report on this topic.

Consequently, the Parliament voted to postpone the discharge of the agencies’ 2010 budgets, a strong signal of disapproval by EP standards. However, as the Parliament magazine reported yesterday, German socialist MEP Jutta Haug, the parliament's rapporteur on the EU agencies in the committee - the very person who should be taking the lead on this issue - wrote to the agencies telling them they did not need to co-operate any further with MEPs. In the letter to Catherine Geslain-Lanéelle, director of the FSA, she wrote that:

"I am of the opinion that during the during the 2010 agencies' discharge procedure, the committee has exceeded by far its competences… Consequently, I should like to invite the FSA not to reply to inquiries beyond the comments voted in plenary." 

Could you imagine a UK MP undermining their colleagues by writing to the head of a public body urging them not to co-operate further with a parliamentary investigation into how they spend taxpayers' money?
  
Undermining even this much welcome, even if relatively modest, attempt by MEPs to inject greater scrutiny and transparency into EU spending will surely only further exacerbate the disconnect between what is happening in the real world and the EP bubble.

Burying parliamentary scrutiny?

The picture on the left is not some random shot to illustrate excessive bureaucracy, it's literally the document setting out the details of the second Greek bailout package, which German MPs just voted on.

Not exactly bed time reading.

As expected, the Bundestag voted to approve the package, by 496 votes in favour compared with 90 against and 5 abstentions. We'll provide a breakdown of the votes alongside some further analysis in due course.

While approving the deal, many MPs were unhappy (Die Linke's Kathrin Vogler specifically raised the issue) about having had only a few days to read through, digest and then analyse a document which came to no less than 726 pages, including hugely complicated issues such as explaining different options for bond swaps, how the swap would work and the impact on Greece's debt sustainability (and therefore the risk to German taxpayers).

The agreement was only reached in the early hours of Tuesday morning, and the Bundestag's budgetary committee only looked into the details on Friday, meaning ordinary MPs only got hold of the documentation over the weekend.

This begs the question, how in the world are MPs supposed to fulfil their role scrutinising the decisions reached by governments. The bailout took eight months to organise, now MPs were expected to approve it with a weekend's notice (at least with respect to the details). Given the number of unanswered questions and heroic assumptions on which the agreement shakily rests, this is a pretty scary situation.

In fact, if this is the future of parliamentary/constitutional democracy in the eurozone, you'd forgive national parliaments for believing that is a price not worth paying for keeping the eurozone intact.

Two vetoes for the price of one

In Parliament this afternoon, David Cameron gave his statement on last week's EU summit, followed by questions from MPs. The debate was a bit all over the place if we're to be perfectly honest, with the 2.9% increase to the EU's 2011 budget dominating.

The most talked about intervention came from Ed Miliband who said in response to Cameron's alleged cave-in on the EU budget freeze for 2011: “He wished he could come back and say No, No No, but in his case it's a bit more like No, Maybe, Oh go on then.” (apparently a phrase Miliband didn't quite come up with himself).

On actual substance, Chris Heaton-Harris made the most astute observation. He noted that the PM now has two separate vetoes at his disposal: one over Treaty change and one over the EU budget post-2013. Heaton-Harris asked whether Cameron would use the two vetoes independently to achieve EU reform. As we’ve argued before, a twin-track approach to EU negotiations is by far the smartest way to achieve reform in Europe and the restoration of some democratic control over key EU powers.

If the two vetoes are used in parallel but for seperate issues - one for repatriation of powers and the other for concessions on the CAP for instance - we bet anyone (eurosceptics and federalists alike) that the Coalition government will get at least one game-changing concession in return.

The Coalition could even get other member states along for the ride if it's confident and strategic enough. After all, Merkel has given us a great example for how to do it.

Unfortunately, in response to Heaton-Harris and also earlier in the debate, Cameron hinted he would pass up his veto over the treaty change, effectively giving EU partners a two-vetoes-for-the-price-of-one deal.

Hopefully this isn't the end of the story though, as there's still much to play for before Treaty changes are agreed. But MPs need to get their line of argument in order or the Coalition might well go for the do-nothing option.

For Cameron to use the twin-vetoes separately but in parallel, is surely what backbenchers in favour of EU refom should be pushing for?

This could be interesting

Do you remember all that talk about how national parliaments would be strenghtened under the Lisbon Treaty (something which the pro-Lisbon camp continuously banged on about, presenting it as a 'fact', when in reality it's anything but)?

We've looked at what post-Lisbon life is like for national parliaments many times before (and it ain't that pretty), but it now appears that national parliaments' "new powers" to challenge proposals from the Commission are being tested for the first time.

The Lisbon Treaty says that, in the event that a third of national parliaments - that's 9 - get together to oppose their governments on a piece of legislation, on the specific grounds of 'subsidiarity', and within an 8-week window, then the legislation would have to be reviewed, following which, it would be open to the institution which originated the proposal to choose whether to maintain, amend or withdraw the proposal.

Hardly practical. But the Swedish Parliament (the Riksdag) is determined to give it a try. The Treasury Committee of the Riksdag has raised objections against the Commission's proposed amendments to the Deposit Guarantee Schemes Directive. Under the amended Directive, deposit guarantee schemes must offer depositors up to €50,000, if their bank collapses. The schemes are to be 75 percent pre-funded from bank contributions, with the remainder coming from other sources. However, the Riksdag's Treasury Committee is opposed to a provision in the Commission's proposal which could see Sweden (or any other member state) being forced to lend money to other member states' funds, if these funds face a shortfall in cash.

The Riksdag, going against the Swedish government, said that such mandatory lending could lead to some member states under-funding their deposit schemes, knowing that someone else would be lender of last resort. It also argued that the provision represents a violation of the EU's subsidiarity principle. The Riksdag will now seek to spread the word amongst other parliaments in a bid to get the Commission to reconsider the proposal.

One tiny problem: many national parliaments around Europe are on recess at the moment - including the UK's. To muster the support of an additional eight will be a difficult task indeed.

This is one to watch.

We are where we are

The phrase "we are where we are" was oft repeated in this evening’s debate in the House of Commons – but sadly for many MPs it seems that ‘where we are’ was anywhere other than the Green benches judging by the numbers in attendance.

While a Hansard transcript is not yet available to link to for those interested in the debate – there are a few worthwhile interventions to take note of.

NB: This was a debate to approve a motion on the EU’s External Action Service – allowing the Government to give its official approval to the launch of the EEAS at the next meeting of EU leaders.

David Lidington made clear that EU Foreign Minister Cathy Ashton and the EEAS may only represent an EU common position where it has been agreed by unanimity among member states ahead of time. Of course while that may work in practice, EU embassies will likely be offering positions before they become official in an informal manner in third countries.

The Europe Minister also said (in what we suspect is a dig at the European Parliament over their refusal to agree to the EEAS blueprint before they got everything they wanted) that those who argued that Lisbon would be an end to the institutional turf wars “were plainly wrong”. He also said that member states had resisted the proposals of the EP that it be able to hold official ‘confirmation’ hearings of the heads of EU delegations, and to bring the entire service under the control of the Commission (and by extension the European Parliament).

Mr Lidington also said that the Government accepted that, despite promises of budget neutrality for the service, the start-up costs and the burden of bringing over national secondees to Brussels would require start-up funding – of which he estimated the UK’s share would be approx £1.1 million (before any reduction for the rebate).

Interestingly, former Europe Minister Chris Bryant suggested that it was “optimistic” to believe that only £1.1mn additional funding would be needed (we share his opinion on this) and that there may be pressures from other member states further down the line for the EU to shoulder some of the cost burden of foreign representation.

Mr Bryant also said that there was no assurance in the agreement that no additional money could be requested in order for the EEAS to provide consular services – something which the UK and other countries are opposed to anyway.

And finally Richard Ottaway, new Chair of the Foreign Affairs Committee in Parliament, said that he thought the increased role for the new EU delegations – the fact that they represent the EU as a whole rather than the Commission – was potentially “one of the most significant changes” introduced under the Lisbon Treaty.

Update: The results of the division were 321 in favour of the motion, 12 against. Parliament stamps its approval on the EEAS.

Left waiting

It seems that the lack of scrutiny for Parliament since the Lisbon Treaty came into effect is not restricted to the SWIFT agreement.

Documents from the European Scrutiny Committee point that three additional measures have been limited to only four weeks scrutiny time because of the failure of Ministers to deposit the relevant documents with the Committee.

Two different agreements on the sharing of passenger-name records (with the US and Australia), and an extradition agreement between the EU and Iceland and Norway have both seen their scrutiny time cut short in January.

The Committee points out that this "contravenes the undertaking in Baroness Ashton's statement on JHA opt-ins that the Government will place an Explanatory Memorandum before Parliament 'as swiftly as possible and no later than ten working days after the publication of the proposal.'"

Maybe the relevant department took a holiday on 17 December, when the Memorandum was due to be deposited, but that doesn't explain why they failed to do so until 19 and 20 January respectively. While these measures are not as controversial as SWIFT, it would be nice to see the Government adhering on all these proposals to the assurances it made on Parliamentary scrutiny when it was ramming the Lisbon Treaty through.

This is important stuff, as it strikes at the very heart of national democracy and scrutiny in the wake of the Lisbon Treaty (which, on the whole, reduces the role of national parliaments in EU decision making).

A shame so few people are paying attention.

Ignorance is not bliss for Chris Bryant

The controversial EU-US anti-terrorism data-sharing deal, named the Swift agreement, came under further attack yesterday as an almighty row broke out in the Commons. Labour’s very own Michael Connarty accused the government of treating Parliament with "disdain and contempt" by choosing to bypass the standard eight-week period given to the European Scrutiny Committee to examine such agreements, with Treasury Minister Sarah McCarthy-Fry asked to justify the Government's decision.

The Swift agreement allows the US authorities to access EU citizens’ bank transactions under the name of anti-terrorism. But whilst the Government claims the agreement will protect us from the threat of terrorist attacks we are left wondering, who is protecting us, the citizens, against attacks on our civil liberties?

The Lisbon Treaty was sold with the promise that it would strengthen national parliaments' ability to scrutinse EU legislation. This is a particular concern for matters concerning justice and home affairs where the UK can decide to 'opt in' to a proposal or not. Let us not forget, the negotiated 'opt in' was used by the Government to justify its decision to abandon the promised referendum on the Treaty.

PA report that Connarty, the Chairman of the European Scrutiny Committee, said he had been assured by ministers, including Prime Minister Gordon Brown, that opt-ins would be subject to proper scrutiny. Connarty said that the SWIFT agreement was the first test of the Lisbon Treaty assurance and this was a "very bad start to the new process.”

But it's getting even worse.

In a public lecture at the LSE yesterday evening we asked Chris Bryant, the UK's Europe Minister, to comment on the day's debate in the Commons. And yet, to our surprise (and his), he wasn't even aware that the Commons debate had happened, remarking:

"What on earth does this have to do with Sarah McCarthy-Fry, I don't think this is right". Then calling to an assistant, he asked "Did Sarah McCarthy-Fry answer a question today?". He continued "I'm really perplexed about it because if anyone would be answering EU [questions] it should be me...I don't know if I can say much more."

With the Government so quick to ignore due Parliamentry process and the Minister for Europe totally unaware of what's going on, it’s sure time to recognise that democracy has not been strengthened by the Lisbon Treaty.

Luckily enough we have the episode on the dictaphone, so click here for a listen. Chris does sound very confused...

The Lisbon Treaty and national parliaments: In practice

The true effect of Lisbon, the practice not the theory, is beginning to come to light and, as some of us warned, it is far from pretty.

The House of Commons' European Scrutiny Committee, the body charged with sifting through EU legislation and holding the Government to account, has published its annual report today and has some quite interesting things to say about the Lisbon Treaty's impact on Parliamentary scrutiny of EU proposals - a largely unexciting process but, if it can be effective, one that is key to maintaining a link between our national representatives and the Brussels legislative machine.

Lisbon Treaty advocates have always argued, which we have refuted here, that it would improve national parliaments' scrutiny of new legislation and even increase their powers to enforce subsidiarity - the principle that actions should only be taken at the EU level if they cannot be achieved at the local, regional or member state level.

However, as politicians, the public and the media are starting to realise, the Lisbon Treaty is desperately failing the Ronseal test.

The Committee notes that under the Lisbon Treaty's so-called yellow and orange card procedures, which in theory give member states' national parliaments the right to ask the Commission to withdraw a proposal on the grounds that it infringes subsidiarity, "the legislative decision on subsidiarity would continue to rest with the EU institutions." I.e. the Commission is still free to ignore the views of national parliaments (for more on this see here).

The Committee therefore concludes:

There is, in our view, less to the provisions on subsidiarity than meets the eye. In our experience it has been rare for the entirety of a proposal for legislation to be inconsistent with the principle of subsidiarity. We do not therefore expect frequent use to be made of the yellow and orange cards. Indeed it would be surprising if the mere existence of such provisions gave rise to a growth in the number of well-founded subsidiarity cases.

The point is that subsidiarity is a politically subjective concept and that for as long as the Commission makes the decisions they are only likely to go one way. The European Commission will always find a way to justify EU action if it wants to and, needless to say, it usually does.

These are the challenges facing the Conservatives in their pledge to introduce a Sovereignty Bill which could give the Government the teeth to actually say No when it believes the EU is over-interfering.

The Committee's report raises two more important points. The first is the Government's increased overriding of the Committee's scrutiny reserve. Among other things, the scrutiny reserve obliges ministers to provide the Committee with requested information before they sign up to EU proposals. Between July and December 2008 there were 23 overrides compared with 12 during the corresponding period in 2007. If scrutiny is to be effective, MPs must curb the Government's willingness to circumvent Parliament.

Secondly, the report suggests that the growing use of 'first reading deals', often negotiated in confidentiality between the Council, the European Parliament and the Commission, make it "well nigh impossible" for national parliaments to scrutinise any amendments made to an original Commission proposal in the process. With the Lisbon Treaty now in place this is only going to become more problematic as it has dramatically increased the number of policy areas to which co-decision between the Council and the EP applies.

Stay tuned for more of what they failed to tell you about the implications of the Lisbon Treaty in practice.

Why the source of regulation matters

The European Court of Justice yesterday delivered a controversial ruling on the EU's Data Retention Directive, which went largely unnoticed in the British media. The law requires telecoms operators across the EU to keep phone and internet data for up to two years, for the purpose of fighting terrorism and crime.

The UK, alongside Ireland, France and Sweden, tabled the proposal back in 2004. However, the Commission changed the legal base of the directive - from justice and home affairs to the single market. In EU law, single market issues can be agreed in the Council of Ministers by qualified majority voting, while issues relating to justice and home affairs must be subject to unanimity.

The proposal was therefore agreed in the Council by majority voting, contrary to what the countries tabling the proposal had envisioned.

Ireland was particularly unhappy about this and asked the ECJ to rule that the decision had been made on the wrong legal base.

To little avail, it turns out. The ECJ essentially said in its verdict yesterday that differing rules between member states on data retention would distort the single market, and in the Court's mind it followed that the directive must be an issue for the single market.

Why is this shift important?

Well, we came across this issue when combing through 2,000 impact assessments, for our latest publication on EU regulation.

The impact assessment for the proposal noted that, although proposing the Directive, the UK government did not know what legal base the Directive rested on by the time it was transposed into UK law.

In other words, up til yesterday the Govenrment had no idea whether it in future could be outvoted in the EU on such a fundamental issue as data retention. This is curious, not least given the fundamental importance of the issue vis-a-vis individual liberty.

The Irish government is not happy, neither is the Swedish. As Svenska Dagbladet puts it, "The ruling means that the Swedish government will end up with a law which it doesn't really want" - despite originally tabling the proposal.

Examples like these are unhelpful for those who say that most laws now sourced to the EU would have been introduced anyway - such as Michael Connarty did on the Politics Show in reponse to our report showing that 72% of the regulatory cost in Britain is EU-sourced.

"Probably 90%", he said, of all regulations now attributed to the EU would have existed in the UK anyway, critisising us for including "everything that may at any time have touched a desk in the Commission".

Apart from it being somewhat strange that the Chairman of the European Scrutiny Committee is criticising us for scrutinising EU legislation, his claim is worryingly arbitrary. First, our estimates are based on what the Government's own impact assessments told us about the source - and no IA we came across said anything about commission desks.

Secondly, as the Data Retention Directive shows, once tabled, an EU proposal can take on a life of its own. Legal bases and objectives can change, or worse, governments can be outvoted or subject to complicated backroom deals, with the final product bearing little resemblence to the original proposal.

Fact is, the changed legal base of the Data Retention Directive means that the UK Government has lost siginficant control over its own proposal.

And that's why knowing the source matters.

Dubious double-booking

We've just stumbled across an interesting, and frankly rather worrying, snippet from a Commons debate last month on the handling of the EU budget.

It reveals that members of the European Scrutiny Committee - the handful of experts charged with filtering through the mountains of EU legislation on behalf of all MPs - have often been double-booked for European debates in the Commons. These debates happen only very occasionally - about three times a year - with only the very most important EU issues being discussed.

Michael Connarty, the Chairman of said Committee, told the House (Column 664):

"European debates are a bit like buses--we wait for one for ages, then three come along at the same time. For the first time, we are holding the debates on a Tuesday--they normally happen on a Wednesday to ensure that many members of the European Scrutiny Committee have to choose between its Committee meetings and the debates in the Chamber... I am pleased to be here, given that, as Chair of the European Scrutiny Committee, I would not normally get to debate the subject on a Wednesday."

Blimey. What possible justification can there be for holding a rare debate on the floor of the House on important EU issues and then making sure that the only EU experts in the whole place are not able to take part?

It's bad enough that less than 5% of the thousand or so pieces of EU legislation the Committee sees every year is actually subject to debate - especially given that EU legislation is responsible for 72% of the cost of regulations in the UK. It's also pretty bad that there are only 16 MPs who regularly track all this stuff. But now, we find out that on those rare occasions when there is a debate among MPs, the only EU experts in the place regularly cannot attend.

Oh and guess what - it is the Government that's in charge of the scheduling.

Hmm.

Going backwards

Finnish MEP and former prime minister Anneli Jäätteenmäki is tackling the EU Commission over a proposal to make the EU's transparency problem even worse.

Current rules state that any “content…concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility” is open to the possibility of public scrutiny. But the new rules would mean that only the final, transmitted version of documents will be listed on the public register, which, Jäätteenmäki says, "will encourage policymakers to share information informally so that it will not be subject to public scrutiny."

She said:

“In all European countries the legislative procedure is open, but not here in the EU... European citizens must know what is behind the decisions that are made and what the opinions of the different nations are in the council. I could understand it if we lived maybe 50 years ago, but now that the EU is an internal market and we have common values, why don’t we release the different opinions of the member states on legislation?”

Good question.

MPs slam Lisbon Treaty's provisions for parliaments

A new, but belated, report on the Lisbon Treaty's provisions for national parliaments from the cross-party EU Scrutiny Committee makes for very interesting reading.

Just to pull out some of the best bits, the committee concludes: "we doubt whether the Lisbon Treaty's new subsidiarity provisions about the role of national parliaments would make much practical difference to the influence presently enjoyed by the UK Parliament", and says, "we doubt the significance of the 'greater opportunities' for national parliaments to be involved in any meaningful manner in the workings of the EU."

The Committee notes that "if national parliaments trigger the yellow or orange card procedures, the decision on whether a proposal is compatible with subsidiarity will continue to rest with the EU institutions." It also notes that, "There may in future be proposals where it might be difficult to deny that collective action by the EU would be the most effective way to achieve a Treaty objective, but where a national parliament would strenuously object to the proposal because it infringes national sovereignty. If a proposal were objectionable on grounds of sovereignty alone, neither the yellow nor the orange card procedures would be available to national parliaments."

The report quotes Andrew Duff MEP, who told the Committee: "there is a danger that, in assessing the Treaty of Lisbon, national parliaments become obsessed by the early warning mechanism on subsidiarity. It was understood by those of us involved in its drafting and, then re-drafting that the mechanism, although a necessary addition to the system of governance of the Union, was not really intended to be used. It is, in Bagehot's terms, more a dignified part of the European constitutional settlement than an efficient one." Richard Corbett MEP also told the Committee: "in practice, I do not think that the 'yellow' and 'orange' card mechanisms will be extensively used."

It's just a shame this damning opinion on the sham that is the Lisbon Treaty's so-called new provisions for national parliaments wasn't released in time to have an impact on the UK ratification of the Treaty.

Tut tut MacShane

Mark Harper's excellent idea for a Bill has been voted down. As his press release says, somehow, amid all the turmoil on the financial markets , the Government still found time to whip its MPs to oppose the bill to increase the transparency of EU legislation. In a rare break with usual practice, even Government Ministers were told to oppose the Bill.

It really is amazing that our Government is so keen to keep people in the dark about the facts. What are they hiding? But what is arguably more unbelievable, is the speech given by former Europe Minister Denis MacShane in response to the Bill in Parliament today.

Not only did he begin his speech with his usual drivel that anyone who dares suggest any kind of reform of the EU at all is part of the "Better off Out" campaign, poor confused Denis then went on to give a sound argument in favour of the bill - before voting against it.

He launched a long-winded explanation of the various different existing estimates that are out there about the proportion of national legislation that comes from the EU - (atttacking all but his own which suggests 10%) He said there were all sorts of inaccuracies and "lies" being peddled and gave a good account of the endless row over what the figure actually is.

Which is precisely what this Bill sought to resolve. To put an end once and for all to this long and boring row about how much national legislation actually originates in the EU.

It is extraordinary that somebody who accepts that there is so much confusion over the amount of legislation coming from the EU should then oppose efforts to increase transparency.

But that's not all. MacShane also made a song and dance about the 80-odd percent figure which was cited in Mark Harper's speech. He said it was a "lie", from "some anonymous German" and that nobody had ever been able to source it.

He even said the BBC (Mark Mardell in particular) have never been able to find it.

Well it took us about 10 minutes:

Former President Roman Herzog said it here (translation of original article in Welt Am Sonntag, February 14 2007)

The information he was basing his figure on is on page 15 here: (April 29, 2005, in the German Parliamentary Journal 15/5434 of May 6, 2005)

This is State Secretary Parliamentary Undersecretary Alfred Hartenbach Hartenbach saying: From 1998 until 2004 167 EU regulations and 750 directives have been passed. During the same period the German Parliament has in total 1.195 laws (as well as 3055 Rechtsverordnungen) passed.
(“Rechtsverordnungen” are a wide category of binding acts by Parliament, government, administration)

When is an agreement not an agreement?

A mole on the European Scrutiny Committee has just got in touch about a session that took place this afternoon:

"One of the few influences Parliament has on EU matters is operated by the all-party European Scrutiny Committee. Basically if the Committee decides a proposed law is important the Government is not allowed to agree to it in Brussels until the Commons has had a debate. Unfortunately the Government ignore the rules when it feels like it. This became evident to all an sundry this afternoon when Joan Ryan, Home Office Minister, stepped up for a session of the Committee.

Ryan had MPs and journos falling off their chairs in disbelief as she tried to justify the Government's decision to bypass Parliament and sign up to a measure which will allow UK criminals in European prisons to be transferred to UK custody, even if their offences are not recognized by UK law (e.g. homophobia and holocaust denial). Ryan claimed that the reaching of a "general approach" in Brussels on the measure was not the same as an "agreement". She persisted with this hair splitting despite her own admission that all member states were agreed on the substance of the measure. That sounds like an agreement to me...

Even Labour members on the Committee were spitting. Michael Connarty, the Committee chairman, spent most of the session with his mouth wide open, and Chorley MP Lindsay Hoyle told Ryan to her face that she was ridiculous and should apologise to the Committee. Usual champions of Parliamentary supremacy like Bill Cash didn't really need to speak as Ryan's own backbenchers rounded on her. Happy days."

This isn't the first time Joan Ryan has given a below-par performance at the Scrutiny Committee. Watch a session with her and you realise that it takes quite a lot of skill to 'pull a Geoff Hoon' and not actually answer MP's questions for two hours. Her last appearance led Simon Carr to write that she had "a brain like a box of Cheerios". The following week he went even further saying, "It's not just that she's out of her depth, the problem is she can't swim".

Update: Read Simon Carr's description of the proceedings here