20. Significantly, the
Presidency's introduction to the draft Protocol notes that "it
is accepted that improvements should be made at the level of the
European Union to help national parliaments to do their job more
effectively". We take this as acknowledgement of the failure
of Declaration 13 attached to the Maastricht Treaty[23].
That Declaration committed the Governments of Member States to
"ensure...that national Parliaments receive Commission proposals
for legislation in good time for information or possible examination".
As we demonstrated in our July 1995 Report, this part of the Declaration,
"solemnly agreed
by the Member States, and offering the opportunity of real democratic
involvement at the national level, has been routinely ignored.
It has proved to be a sham, reflecting no credit on those who
agreed it at Maastricht. This experience shows clearly that something
more is required of the 1996 IGC"[24].
21. We therefore welcome
the draft Protocol as offering a substantial improvement over
Declaration 13, and as an acknowledgement that a period of notice
for legislation needs to be entrenched in the Treaty.
22. Despite this general
welcome, we must point out that, as presently drafted, the draft
falls some way short of our recommendations and the UK Government's
formal proposal. This may be the result of compromise in negotiation;
or it may reflect a reluctance on the part of Commission or Council
to accept in full the modest constraints which would be involved.
23. We regard an effective
Protocol as a touchstone of the IGC's regard for the rights of
the citizen. Although it may be couched in terms of the role of
National Parliaments, the Protocol must give those who will be
affected by legislation time to see it in draft and to have an
input into the process, whether through their National Parliaments
or otherwise. Its provisions must not be so circumscribed, or
diluted by exceptions, as to make them merely cosmetic.
Legal status
24. Declaration 13 was
simply an expression of view. A Treaty Protocol - although for
organisational convenience not included in the body of a Treaty
but attached to it - has the binding force of a Treaty provision.
This means that it is justiciable; the validity of Community
acts can be challenged before the European Court of Justice (ECJ)
on the grounds of "infringement of an essential procedural
requirement"[25].
This is a major step forward.
25. Such an action would,
we take it, be brought by a Member State. In the course of the
IGC, some thought has been given to the possibility of a National
Parliament being able to bring an action before the ECJ[26].
This would involve practical problems; many National Parliaments
would not find it procedurally easy to take such steps, and the
technical problems might cloud the main issue. If the terms
of the Protocol were breached in a way which affected national
consideration of a proposal so as to justify the matter being
brought before the ECJ, we think it reasonable to expect the national
Government to bring an action.
Scope
26. In the Dublin draft,
the four week-period applies only to "legislative proposals
as defined in Article 151 of the Treaty establishing the European
Community"[27].
We assume that this would include any draft Council Regulation
or Directive, and any draft Decision of a legislative character.
It is a significant improvement on the suggestion in the report
of the Reflection Group that a notice period would apply to "every
substantial Commission legislative proposal"[28].
27. However, it is
open to the criticism that the proposed addition to Article 151
as at present drafted would leave it to the Council to define
which of its actions should be regarded as legislative. This
is not ideal, and we hope that a more objective test can be devised.
The UK Government proposed wording offers greater clarity and
precision.[29]
Pre-legislative documents
28. It is also a matter
of concern that the notice provisions of the Dublin text would
exclude a large and growing category of pre-legislative
activity. The Commission has made increasing use of Green
and White Papers in recent years. In its report to the Dublin
European Council Better Lawmaking the Commission says that
in 1996 it "devoted much of its activity to stimulating debate".
Eight Green Papers had been published[30];
seven more were in preparation[31];
and three White Papers had been issued[32].
Communications and action plans had set out policy options on
a further range of subjects[33].
We welcome this trend as a contribution to open debate and
greater transparency. However, the process also sets the legislative
agenda. The Council's consideration of such documents will normally
be reflected in the Commission's formal proposals; and amendments
of substance will be that much harder to achieve at the formal
stage.
29. We recommended in
July 1995 that any minimum notice requirement should include pre-legislative
documents[34]
and repeated our recommendation in July 1996[35].
The Government supported our view, saying that "this requirement
should apply to all documents submitted to the Council by the
Commission that envisage the possibility of a legislative proposal"[36].
We note that the Conference of European Affairs Committees took
a similar line, recommending the inclusion of "all proposals
of relevance to the legislative process"[37].
30. The importance of
such documents is recognised in the Dublin Outline: paragraph
1 of the draft Protocol provides that "All Commission consultation
documents (Green and White Papers) shall be promptly forwarded
to national parliaments of the Member States". Unfortunately
such a provision as drafted is of very limited value: the minimum
notice period does not apply to it; it is in any case not in terms
which would be enforceable; and it would exclude documents, other
than Green and White Papers, which foreshadow or sketch out future
legislation.
31. It is therefore
our view that the scope of the draft Protocol should be widened
to apply the minimum notice period to pre-legislative documents.
This need not be a burdensome requirement; because such papers
are designed to stimulate debate, they will normally be available
many weeks or even months before the Council comes to consider
them. It nevertheless occasionally happens that the period between
publication and consideration is much shorter; and it is right
that there should be a safety mechanism to prevent the principles
of future legislation being decided (or silence being taken for
assent) at short notice.
32. The Government's
proposed Treaty amendment[38]
is limited to legislative proposals. In view of its earlier endorsement
of our recommendation, we were a little disappointed at this;
but the reappearance of pre-legislative documents in the Dublin
text provides an opportunity to re-open the question. We think
that a suitable Treaty definition might be "a programme,
plan, or recommendation for legislation"[39].
This would include the majority of Green and White Papers as
well as Communications, action plans (and draft Council Resolutions
falling into this category).
33. This change would
require a consequential amendment to the draft Protocol, because
such papers do not come to the Council for formal decision.
Perhaps in this case four weeks should elapse before "substantive
consideration" by the Council[40].
Co-decision and revised proposals
34. If the legal base
for a proposal specifies the hideously complicated co-decision
procedure (which seems likely to remain over-complex despite IGC
proposals for its simplification)[41]z,
the Protocol would apply to the original proposal[42].
However, if the Council rejects at Second Reading any of the
European Parliament's amendments to the Common Position, then
the proposal goes into the conciliation procedure between the
Council and the Parliament. The Conciliation Committee can agree
a substantially amended text[43],
which in that form has not been subject to any other scrutiny
(and which must be accepted without further amendment by the Council
and the Parliament if the proposal is not to fall). Although
National Parliaments will no doubt continue to press their Ministers
for timely information in the later stages of the co-decision
procedure, we conclude that there is little point in seeking an
extension of the notice requirement to these later stages.
35. If, following
the European Parliament's amendments or otherwise, the Commission
produces a revised proposal, then we think, on the basis of the
Dublin draft, that this will be formally subject to the notice
requirement[44].
If there are only minor differences between the original and
the revised proposal, then a further four-week notice period might
well be inappropriate. But if the revised proposal introduces
a new element, the principle of adequate notice must clearly be
preserved. In our July 1995 Report we suggested that an additional
- possibly shorter - period of notice might meet the case[45].
This is a point which needs to be addressed.
The Second and Third Pillars
36. We believe that
there is a strong democratic case for applying minimum notice
requirements to the inter-governmental Pillars[46]
of the Union, and particularly to the Third Pillar (Justice and
Home Affairs) in view of the potential importance to the citizen
of action in this area.
We have made detailed proposals for bringing some inter-governmental
actions within the systematic Parliamentary Scrutiny of this House[47].
However, so far as Treaty amendment is concerned, we think matters
are best taken forward in the context of IGC discussion about
the operation of the Second and Third Pillars.
The operation of the notice period
37. The Dublin text reads:
"A four-week
period shall elapse between a legislative proposal, as defined
in Article 151 of the Treaty establishing the European Community,
being made available in all languages to the European Parliament
and the Council by the Commission and the date when it is
placed on a Council agenda for decision either for the adoption
of an act or for adoption of a common position pursuant to Article
189b or 189c, subject to exceptions on the grounds of urgency."
38. The passage we
have italicised is open to criticism on two grounds. First,
we think that the concept of "being made available"
is unnecessarily vague. Is it the moment of formal transmission;
the date on the letter forwarding a proposal to the Council and
the Parliament? Or is it the date on which the Council and the
Parliament might reasonably first have had access to a text in
the last official language to appear? It does not matter that
the two might frequently be identical; this is a matter in which
there must be legal certainty.
39. Second,
and more important, we are concerned about the effect of such
a provision on the effective length of notice. Delays
in transmission of documents have been a major problem for National
Parliaments. There are four main points at which delay may occur:
-- within
the Commission, after agreement by the College of Commissioners
but before forwarding to the Council;
-- in
transmission from Commission to Council;
-- within
the Council Secretariat after receipt from the Commission but
before forwarding to the Permanent Representations of Member States;
and
-- in
transmission from Permanent Representations to their Governments
and onwards for deposit in Parliaments.
National Parliaments can do something
about minimising delays in the last category, but the others are
beyond their control.
40. In our July 1996
Report we noted that delays in the second and third categories
were attributable to the "rather quaint" working methods
of Commission and the Council Secretariat:
"When the advance
copies (usually in three languages, including English) of a proposal
arrived from the Commission, they were all put on hold until the
'stock' - the number of copies required in each language - had
been photocopied and forwarded to the Council. Additional delays
resulted from the translation of the courtesy covering letter
from the Commission, usually French original, and of no great
import. As may be imagined, this all took some time, and in the
meanwhile official texts of a proposal that the Commission regarded
as having been formally transmitted to the Council were unavailable.
"We are pleased
to say that, as a result of pressure from ourselves and from the
Foreign and Commonwealth Office, the Council Secretariat has now
proposed that one copy should be made available to each Permanent
Representation in the appropriate language, with the covering
letter in the original language, immediately upon arrival. This
would serve for formal transmission to Member Governments and
Parliaments. The remainder of the stock would catch up as soon
as possible thereafter"[48].
41. In its Reply to that
Report, the Government recorded the progress that had been made
in speeding up transmission, and reported a new development:
"The Government
is pleased to inform the Committee that the Council Working Group[49]
has now agreed a new procedure whereby: the covering note will
be reduced wherever possible to a formality (so allowing rapid
translation); if the Council Secretariat have not received a full
set of translated documents from the Commission within five days
of the receipt of the covering letter, they will send advance
copies of the documents to Member States' Missions in Brussels,
with full sets to be distributed subsequently"[50].
There has been some improvement,
which is welcome, but the situation is by no means perfect; unacceptable
delays still occur. To select only two examples before us at
the moment: A Commission proposal for a Council Regulation
establishing a European Monitoring Centre for Racism and Xenophobia[51],
dated 27 November 1996, was received by the Council on 10 January
1997. The Council letter[52]
forwarding it to Permanent Representations was dated 16 January.
We received it on 27 January. The Commission's Green Paper
on the protection of minors and human dignity in audiovisual and
information services, dated 11 November 1996[53],
was forwarded by the Secretary-General of the Commission to the
Council on 12 November. The Council circulated it to Permanent
Representatives on 22 November, but we received it on 29 January,
immediately after it came into the hands of the Department of
National Heritage in London for the first time.
42. We have rehearsed
the problem of transmission in order to demonstrate that documentary
delays may reduce or consume much of the notional four weeks.
The draft provides that the notice period should begin when a
proposal has been made available in all languages. At least
the convoy stays together at the speed of the slowest ship; but
this of course means that documentary delays bear still more unfairly
on those languages in which documents take longer to appear in
translation.
43. We also see a
constitutional objection to the use of the Commission's release
of a document as the starting point for the notice period. The
Commission is not responsible directly to Governments; still less
is it answerable to National Parliaments.
44. In our view, the
four-week period of notice should begin when the Council transmits
the last language version of a document to the Permanent Representation
of the Member State concerned. This would place responsibility
for initiating the process upon a body directly answerable to
Member Governments[54]
who are themselves responsible to their National Parliaments.
The fact of transmission would then be registered by the Secretariat
responsible for the compilation of the Council's agenda as well
as by the Permanent Representation. If there were delay after
deposit with the Permanent Representation, then it would be for
an individual National Parliament to take that up with its own
Government. This arrangement would also ensure that no delay within
the Institutions reduced the notice period[55].
45. For the last two
years we have pressed for the introduction of electronic document
transmission as a means of minimising delay, and also as a method
of doing business more in keeping with the approach of the Millennium[56].
We are glad to note the progress being made[57]
but it seems that the Union is still some way from a universal,
multi-lingual document transmission system.
46. The introduction
of a full electronic system will mark a great step forward. However,
we expect that, because it will be part of a legal requirement,
the communication of a document subject to notice will still be
in hard copy form. We see no difficulty in this; and the
earlier availability of electronic text will be a bonus for all
concerned. The use of hard copy for formal transmission will also
be insurance against a failure of the electronic system which
would reduce the effective notice period; the extent and timing
of which might be difficult to prove after the event; and which
might well go unnoticed at the time.
47. The Governments and
Parliaments of Member States will need to know when the notice
period starts for any particular document. No doubt this could
be posted and updated on an electronic bulletin board by the Council
Secretariat.
48. We note in passing
that the present draft allows of an interpretation which could
make the notice period longer than four weeks. The end of the
notice period is specified as "the date when it is placed
on the Council agenda for decision", and so could apply to
the finalisation of an agenda prior to a Council meeting. We think
the natural interpretation is "the date for which
it is placed on the Council agenda" and the agenda is provisional
until the Council agrees to adopt it[58].
In any event, latitude of interpretation would make the four weeks
longer rather than shorter, so the point is not one of concern.
The length of the notice period
49. We welcome the
fact that the length of the proposed notice period has remained
as we originally recommended, at four weeks. We believe that
four weeks is the absolute minimum for National Parliamentary
consideration - and indeed were originally tempted to recommend
longer. In the Scrutiny system in this House, the time must
allow for the deposit of a document in Parliament (after transmission
from the UK Permanent Representation); the preparation of analysis
and briefing for us, our consideration of the document and our
Report to the House; further evidence from the responsible Government
Department if necessary, and a further Report to the House; then
debate in European Standing Committees followed by consideration
on the Floor of the House. Many documents will not require that
time, but a period of notice must not have the result that only
the less important documents can be disposed of within
it.
50. It is therefore
essential that the four week period is not reduced. A reduction
of even a week could make the provisions largely ineffective in
practice[59].
Conversely, any increase in the four week period would allow
more effective Scrutiny. We note with approval the French proposal
that the notice period should be two months[60].
Exceptions on grounds of urgency
51. This is a crucial
part of the draft protocol. When there is a genuine need for urgent
action, the Community as a whole may be disadvantaged if a Treaty
notice period would prevent that action. Equally, there must be
safeguards against urgency becoming the norm, or its being invoked
merely because of some failure by the Commission or the Council
in bringing a proposal forward for decision at the right time.
52. The terms of an urgency
exception have been the subject of exchanges between the Government
and ourselves since we first put forward our minimum notice proposal
in July 1995[61];
and we welcome the Government's constructive and helpful approach.
53. There seems no point
in redeploying the detailed arguments here. The essence of the
problem is: how do you make the test of urgency sufficiently exacting
without opening it to abuse by one or two Member States, who could
block genuinely urgent proposals, or could extract unwelcome concessions
by the threat of a block? Our responsibilities for Parliamentary
Scrutiny have disposed us towards a more demanding urgency requirement;
the Government, with an eye on the realpolitik of Council
negotiation, has been more cautious.
54. The Government's
own IGC proposal contains the provision it suggested in reply
to our July 1996 Report; that "...decisions to override the
minimum scrutiny period should be taken by the same voting procedures
as are required for the measure concerned. So on a measure which
required unanimity for adoption, unanimity would be required to
override the minimum period. On a measure which required a qualified
majority vote for adoption, a qualified majority would be required
to override the minimum period"[62].
55. The Government acknowledges
that this is less onerous than our highest bid (unanimity less
one); but, as an additional safeguard, it has proposed that the
Council would have to state its reasons for invoking urgency.
This is a sensible suggestion which we readily endorse. It
should increase accountability; it should discourage vague excuses;
and the prospect of having to state reasons for overriding the
notice period should have a salutary effect on the timely organisation
of business.
Treaty or Rules of Procedure?
56. The draft Protocol
contains no specific provision for overriding the notice period,
save for the general qualification "subject to exceptions
on grounds of urgency". We assume that the assumption
in drafting the Protocol was that the detailed operation of the
urgency procedure would be specified in the Council's Rules of
Procedure.
57. We have no objection
of principle to this; the Council's Rules of Procedure are binding
upon it, and breaches of those Rules may be taken into account
by the ECJ in deciding a question before it[63].
Our concern is a practical one. If the two key elements of
the urgency exception - the voting procedure and the vital requirement
to make a public statement of reasons - are specified in the Rules
of Procedure, they become second-order questions. They may well
be decided separately from the IGC process; they could be watered
down; and they could be changed in the future by the Council on
its own initiative.
Informal agreement and informal proposals
58. But if these provisions
are in the Protocol, and so part of the Treaty, not only are they
part of the package; they are an explicit assurance at the time
of negotiation that the minimum notice requirement cannot be routinely
set aside.
59. There is a possibility,
of course, that informal (but in practice final) agreement will
be reached at a Council before the expiry of the four-week period,
leaving the item to adopted as an "A" point[64]
at a subsequent Council - possibly on a different subject area.
This would in practice evade the notice requirement.
We think that it rests with National Parliaments to be vigilant
for such circumstances; a formal provision is unlikely to be effective.
We also note that informal proposals by the Commission will circumvent
the notice requirement, because there will be no document to be
transmitted formally to Member States. We have been critical
of the use by the Commission of informal proposals, on the grounds
that they put National Parliaments at a disadvantage[65].
National Parliaments mentioned
in the Treaty
60. The view is occasionally
expressed that it is improper to mention National Parliaments
in the Treaty; that their constitutionally independent position
may be prejudiced by the Treaty making any provision which appears
to affect them[66].
This is a legitimate concern, although we adopt a more pragmatic
approach, which is not to worry unless the Treaty purports to
place some duty or restriction upon National Parliaments. In the
case of the notice period, any concern is easily circumvented;
the requirement for four weeks to elapse can be stated without
any mention of National Parliaments - provided of course that
the Protocol unambiguously specifies what National Parliaments
require.
23 Set out in Annex D. Back
24 HC 239-I
(1994-95), paragraph 109. Back
25 Article
173. Back
26 Particularly
in the context of an alleged breach of the principle of subsidiarity. Back
27 Paragraph
3. The Dublin text proposes to add to Article 151(3): "The
Council shall lay down in these Rules the conditions under which
the public shall have access to Council documents. For the purpose
of this paragraph, the Council shall define the cases in which
it is to be regarded as acting in its legislative capacity with
a view to allowing greater access to documents in those cases,
while at the same time preserving the effectiveness of its decision-making
process. In any event, when the Council acts in its legislative
capacity, the results of votes and explanations of vote as well
as statements in the minutes shall be made public." Back
28 As we
noted last Summer, this would have begged the question of who
should decide which proposals were substantial and which were
not. See HC 51-xxviii, paragraph 87. Back
29 Paragraph
1 of proposed Treaty language; see Annex B. It would not, however,
include Decisions, even of a legislative character. Back
30 On:
legal protection for encrypted services in the internal market,
a review of the merger control Regulation, commercial communications,
financial services, living and working in the information society,
the position and liability of the statutory auditor, obstacles
to transnational mobility in education, training and research,
and future noise policy. Back
31 Including:
public procurement, pension funds, numbering in telecommunications
services, energy for the future - renewable sources, commerce
and distribution, the protection of minors and human dignity in
audiovisual and information services, and relations between the
Union and the ACP countries. Back
32 On:
energy policy, air traffic management, and revitalising the railways. Back
33 Including:
taxation in the Union, implementing Community environmental law,
review of the Community's waste management strategy, standardisation
and the global information society, equal opportunities for persons
with disabilities, and the prevention of sexual harassment at
work. Some of those in preparation covered environmental taxes,
integrated groundwater protection and management, and a common
system of VAT. Back
34 HC 239-I
(1994-95), paragraph 67. Back
35 HC 51-xxviii
(1995-96), paragraph 88. Back
36 Cm 3440,
paragraph 18. See also Cm 3051, paragraph 9. Back
37 Dublin
COSAC Conclusions, paragraph 3. See Annex A. Back
38 CONF/3961/96.
See Annex B. Back
39 See
HC 51-xxvii (1995-96), paragraph 164 and Annex D. Back
40 Our
intention is to include any proceeding in which Ministers express
substantive views, on which their National Parliaments would expect
to have an opportunity of influencing them. Back
41 See
the Dublin Outline, Section IV, Chapter 14. Back
42 See
Q14. Back
43 Or,
in theory at least, a completely new text. Back
44 The
Minister of State at the Foreign and Commonwealth Office thought
that revised proposals would not be caught by the provisions
in the UK draft. See Q.14. Back
45 HC 239-I
(1994-95), paragraph 68. Back
46 That
is, to a proposal for a common position or joint action under
Title V of the Treaty on European Union, or for a joint position,
joint action or convention under Title VI. Back
47 See
HC 51-xxvii (1995-96), paragraphs 84-98 and 160, and Annex D. Back
48 HC 51-xxviii,
paragraphs 72 and 73. Back
49 On transmission
of documents, including by electronic means. Back
50 Cm 3440,
paragraph 15. Back
51 COM
(96) 615 final. Back
52 5259/97. Back
53 COM
(96) 483 final/2, replacing COM (96) 483 final of 16 October 1996. Back
54 At least
collectively. Back
55 See
also Q16, and Annex B, paragraphs 1 and 3 of the Treaty amendment. Back
56 See,
for example, HC 239-I (1994-95), paragraphs 72 to 78; and HC 51-xxviii
(1995-96), paragraphs 71 to 74. Back
57 See
Cm 3440, paragraph 14. Back
58 Article
2.5 of the Council's Rules of Procedure. Back
59 And
would certainly lead us to seek a reduction in the time allowed
(at present 10 working days) for the preparation of the Government's
Explanatory Memorandum on each document. Back
60 CONF
3990/96 of 26 November 1996. Back
61 See,
for example, HC 239-I (1994-95), paragraphs 65 and 66; Cm 3051,
paragraph 9; HC 51-xxviii, paragraphs 90 to 92; Cm 3440, paragraphs
20 to 23. Back
62 Cm 3440,
paragraph 21. Back
63 See
Q22. Back
64 Without
debate. Back
65 See
HC 239-I (1994-95), paragraphs 80 and 81. For a recent use of
unofficial proposals in a Commission "non-paper", see
proposals for management rules for the export of processed agricultural
products (originally 5183/96). Back
66 It may
be that the drafters of the Protocol have sought to allay this
concern. National Parliaments are mentioned in the Preamble and
paragraphs 1 and 2, which are largely declaratory. The effective
paragraph 3 does not mention them. Back
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