A question of scrutiny

The issue of parliamentary scrutiny of EU legislation has been much rehearsed in this Blog, most notably when we reported on Digby Jones complaining that MPs were "asleep on the job".

We ourselves have remarked on the fragility of the scrutiny process, in one of our "myths", noting that even where Parliament has asked to but has not yet scrutinised EU proposals, or has even rejected them, ministers can and do go ahead and vote for them in their respective Councils – examples of which we have given in this Blog.

Outrageous though these examples are, they are the exceptions. What is less dramatic, but equally outrageous is the way the routine system of parliamentary scrutiny fails completely to limit the flood of often quite damaging EU proposals.

One such example was the debate on the Community Fisheries Control Agency in European Standing Committee A (ESCA) last Wednesday, which we highlighted in an earlier Blog, but now the Hansard account is available, it is worth revisiting this debate, to see in a little more detail what went on.

By way of background, the ESCA debate was the end of a process which started in the Westminster Parliament on April 2004. Then, the Commons European Scrutiny Committee (ESC) was first asked to look at the proposal, going by the title of "Draft Council Regulation establishing a Community Fisheries Control Agency and amending Regulation EC No. 2847/93 establishing a control system applicable to the Common Fisheries Policy".

The ESC did its stuff, and reported that the proposal was "politically important" and therefor should be debated by the Standing Committee A.

Prior to the debate, a bundle of documents was made available to the MPs who were to take part in it, including a report on the proposal from the ESC, the draft regulation itself, and explanatory memorandum from the fisheries minister, Ben Bradshaw.

Crucially, however, a key document was missing from the bundle, the original Commission proposal, COM(2003) final, addressed to the Council and the European parliament. This set out the arguments for the agency, and its intended powers and responsibilities. It was published on 21 March 2003 and formed the basis of what was approved by the European Council on 3 December 2003, when it nominated Vigo in Spain as the site of the agency.

And so to the debate. Ben Bradshaw led, stating that governments, industry and non-governmental organisations shared a common belief that the quality and consistency of fisheries enforcement throughout the European Union was seriously flawed. The British government, therefore, supported any move to improve the quality of fisheries enforcement and to create a level playing field – even though he had considerable concerns about some of the details of the proposal for the agency.

But the substantive issue was one that developed between Bradshaw and his opposite number in the Conservative opposition, Owen Paterson. He referred to the Minister's explanatory memorandum, which stated that the UK would be "seeking to ensure that the role of the Agency does not undermine the responsibilities of individual Member States for control and enforcement".

Matthew Green, the Lib-Dem from Ludlow, noted that the claim made for the role of the agency would be one of "co-ordination and fostering co-operation between Member States". The agency would "not change the existing responsibilities of Member States for control and enforcement within the scope of the CFP".

And indeed, that is true. Member states will still be responsible for providing the inspectors, the assets such as ships and aircraft, and for dealing with infractions. But that was not the point. Paterson referred not to the Minister's briefing but to COM(2003) 130 final, in which the Commission stated that the agency would "assume leadership in the deployment of means of inspection and surveillance". "Surely", he asked, "that means that the new agency will ultimately be the top decision-making body?"

It was here that the system failed completely. Despite the crucial nature of this document, Bradshaw denied knowledge of it, later dismissing it as "some communication from the Commission to the European Parliament that I have not seen". Unaware of the precise Commission proposals, therefore, Bradshaw was "satisfied that the proposals do not go further than we would like".

Paterson persevered, pointing out that, if the proposal was approved, it gave the Commission power, "of its own accord and by its own means, initiate and carry out audits, inquiries, verifications and inspections concerning the application of the rules". Did that not suggest, he asked, that the ultimate authority will be the agency, acting on behalf of the Commission, and that it will ultimately be able to override national institutions and the new regional ones?

He got nowhere with Bradshaw on this either, other than him saying that "inspections by the Commission are not made in this country without permission. We allow them", neglecting to say that permission could not be refused. Still Paterson kept on, noting that in the actual proposal, the Commission itself described the agency as "controller of the controllers", again confirming that it would be the ultimate authority.

Bradshaw ignored this as well and relied on the mantra that "the agency will not change the responsibility of member states for control and enforcement, within the scope of the CFP". All he would concede was that "that language is slightly unfortunate, and I have asked my officials to take it up with the Commission".

Dogged to the last, in his closing speech, Paterson referred back to the "leadership" question, "meaning that the agency will be the top dog and the ultimate executive power, with the ability to overrule member states' authorities and agencies". In other words, this is a power grab by the Commission and a precursor to the establishment of a centralised EU fisheries inspectorate, with the power even to direct Royal Navy ships. "I am sure that leadership means control", he concluded.

Bradshaw wasn't having it. "This proposal is part of the radical and rapid reform that the European Union wants for the common fisheries policy. There is potential for the agency to have a positive role. The Government have concerns about some details..." but "I am satisfied that we have nothing significant to worry about in these documents".

The payroll vote trooped in, the motion was agreed and the minister was on his way to tell the Commission it could have its agency. That, dear readers, was parliamentary scrutiny.