Select Committee on European Scrutiny Minutes of Evidence

Memorandum submitted by Andrew Duff MEP, Spokesman on Constitutional Affairs for the European Liberal, Democrat and Reform Party (ELDR), and Graham Watson MEP, Leader of the Liberal Democrat European Parliamentary Party (LDEPP)

  European Liberal Democrats argue for a stronger, enlarged and more democratic European Union. We support the ratification of the Treaty of Nice despite its fairly obvious shortcomings, and we welcome the admission by the heads of state and government that a wider debate on the future of the Union is now necessary leading to a more profound reform.[1] Indeed, for many years European Liberal Democrats have been impatient for reform along constitutional lines so that citizens could get to know who does what in Europe, and why.

  Now that the scale of integration is broad and its scope increases at a fast pace, the European Union must develop and entrench a more legitimate system of government if it is to continue to be a viable democracy. This means, among other things, more clarity and openness, better policy and regulation, and a stronger voice in world affairs. The need for such reform is accentuated by the imminence of enlargement. To those ends, we congratulate the European Commission on its White Paper on Governance, whose recommendations we broadly support.[2]

  The result of the Irish referendum on 7 June has jeopardised the Treaty of Nice. The event signalled a failure of both the Irish and the European political systems, and reinforces the point that Europe cannot be built on a false prospectus. It is essential to tell the truth about the European Union, which is that its members are no longer, in the classical sense, independent sovereign states. EU member states are interdependent with each other and are all dependent upon making a success of the Union. They are obliged by treaty to seek and pursue common interests and to "abstain from any measure which could jeopardise the attainment of the objectives" of the Union as laid down fully, if none too elegantly, in the treaties.[3] In addition to those formal objectives, the Union has also embraced as a central goal the upholding of democracy and fundamental rights, the most advanced statement of which takes the form of the Charter of Fundamental Rights.[4]

  All this has been accomplished not by some ex machina federalist plot, but by member states who, through their various constitutional processes, have collaborated in the growth of a supranational system of government that is beyond the control of national governments, either individually or collectively. National states are far from being redundant, but their government and judiciary are coordinate with the European Union institutions in all matters where power has been shared and sovereignty pooled, and they are clearly subordinate to them in certain important areas of principal competence.


  At the centre of the Union's political system lies the leadership role of the European Council. No reform of the Union will be credible unless this body begins to work wholly within constitutional constraints. Ad hoc summit meetings which meet in closed session and arrogate power to themselves endanger the good governance of the Union. If and when the heads of government intervene in the legislative or budgetary processes of the Union they must abide by the same disciplines that are imposed on the other institutions. Parliamentary scrutiny must be enhanced. National parliaments, especially, should do more to hold their prime ministers to account for their performance in the European Council.

  Above all, the arbitrary power of the European Council to change the constitutional treaties must be curbed.[5] At present, the treaties are altered at will and sometimes, as at Nice, fairly capriciously by heads of government, subject only to ratification according to national constitutional requirements — which are in most cases, as in the UK, fairly formalistic. The specific legitimacy of the European Parliament to participate in the constitutional development of the Union must now be recognised, not as a substitute for but as a supplement to the role of national parliaments.


  Too many national parliaments persist in regarding the European Union as an aspect of foreign affairs — an international organisation rather than a political system. That is why we have from some quarters, notably the UK prime minister, the proposal to resurrect, as a "second chamber" of the European Parliament, a gathering of appointed national MPs after the manner of the Council of Europe Assembly.

  Although national parliaments have a mainly interrogative role in European Union affairs rather than a legislative function, they should not underestimate their formal duties under the existing treaties — all of which the European Parliament, quite rightly, envies.[6] In addition to exploiting their current powers to the full, national parliaments should do more to help to transmit something of the reality of the growing European dimension to their domestic, and often nationalistic, press and public. COSAC, which twice a year engages national parliaments in an official dialogue, can continue to play a useful role as long as it is not dumped with quasi-legislative duties (in which case it would quickly become the poodle of governments).

  Otherwise, radical innovation is needed at Westminster. The sharing of best practice across the Union suggests that the House of Commons would do well to create a new, large and powerful Europe Committee with the power to scrutinise all draft EU legislation, to hold enquiries and to summon any minister both before and after meetings of the Council or European Council. The Europe Committee should combine the functions of the standing and select committee, and ideally should be a joint committee with the House of Lords, whose own existing European committee does good work but lacks standing. MEPs should participate in the work of this Europe Committee, and should also be able to table written questions to UK government ministers.

  While the Europe Committee will tend to feature MPs who are well-informed generalists in EU politics, sectoral policy committees should also be encouraged to become more involved in the EU dimension. To encourage the mainstreaming of the EU affairs into national politics, occasional inter-parliamentary conferences of specialist MPs should be convened by the national parliament of the member state whose government is the president-in-office of the Council in order to examine dossiers of special relevance (such as reform of the CAP or EU enlargement). In the field of defence policy, a joint standing committee of MPs and MEPs should be established in order to reflect member state prerogatives and to develop European Parliamentary expertise in this area.

  We are strongly opposed to the insertion of a second chamber of the European Parliament made up of appointed MPs with different mandates, parliamentary timetables and enthusiasms. Such a throwback to the past would over-burden the legislative processes of the Union, weaken the European Parliament and confuse the public. In any case, the EU already has a bicameral legislative and budgetary authority, made up of the European Parliament, with its popular mandate from the European citizen, and of the Council, representing the governments of the member states (which are, supposedly, accountable to national parliaments). As far as the application of the principle of subsidiarity is concerned, this is better achieved by the detailed work of policy specialists in the Commission, Council and European Parliament than by a random collection of national MPs on occasional day-trips to Brussels.[7]

  Collaboration between the European and national parliaments will be further consolidated inside occasional constitutional conventions for which the drafting of the Charter of Fundamental Rights was a precedent. ELDR fully supports the setting up of a second such convention to draft proposals for the next round of treaty reform.

  As far as national or regional parliaments are concerned, it must be up to MPs to decide whether to make the case for their inclusion as observers in ministerial delegations to the Council. The danger, of course, is that the parliamentarians would be taken hostage by governments.


  As far as reform of the Council is concerned, first and foremost is the question of transparency. It is unacceptable that ministers should meet to pass laws in private. The occasional public session and the carefully-honed press release are all very well, but they are not an adequate response to the essential requirement of a democratic regime that legislation should be made beneath the public gaze.[8] We therefore propose that a special configuration of the Council be created called the Law Council in which all formal decisions, and where necessary votes, should be taken. This would apply as much as to the preliminary readings of draft laws as to the final acts. The proceedings would be open to the press and public, and a verbatim report would be published.

  In order to personalise law-making, and to suppress the present problem of absenteeism, the Law Council should be composed of a new cadre of senior Ministers of Europe. These ministers would be responsible for coordinating different national ministries in the various formations of the Council, a job that the General Affairs Council, made up of foreign ministers, continues to fail to accomplish.[9] Where the new Ministers of Europe sit in their national capitals would be a matter for domestic decision, but as one of their most important roles would be to prepare the meetings of the European Council, it would be logical for them to sit in the prime minister's department or cabinet office rather than within the ministries of foreign affairs. Ministers of Foreign Affairs, for their part, would then be freed up to concentrate on what they do best, namely foreign and security policy.

  The transparency achieved by the creation of the Law Council would transform the working of the co-decision procedure with the European Parliament, establishing a more equal relationship between the two arms of the budgetary and legislative authority.[10]

  As one of the main motivations behind the constitutional conference of 2004 is to rectify the errors of Nice, we would take the opportunity to scrap the Byzantine system of qualified majority voting, with its triple criteria and contentious voting weights. In its place, we would establish the threshold for a qualified majority vote (QMV) as a simple majority of member states representing a majority of the population of the Union. That dual majority system combines the merits of simplicity, transparency and objectivity.


  An essential companion to the reform of the Council is the introduction of a hierarchy of acts that would draw a clear distinction between primary and secondary legislation on the one hand and between legislative and executive acts on the other. Such a reform would simplify decision-making, help democratic scrutiny, improve the quality of drafting, and reduce the temptation to legislate in excessive detail. It might also streamline the decisions, recommendations, opinions, guidelines, declarations, resolutions and statements which flow from the institutions.

  Top of the tree would be organic laws of quasi-constitutional significance, such as the EU's system of own resources.[11] Next in the hierarchy of hard law would be the Regulation, binding in its entirety and directly applicable across the Union. Third, the framework law or Directive would establish merely the purpose, obligations and conditions of the proposed measure, leaving their implementation to the Commission and its agencies, which include member state governments. At the time of the passing of the Directive, member states should be obliged to state (publicly) how and when they intended to transpose the act into national law. Peer pressure would mitigate the woeful national habit of ornamenting EU law and offending thereby the important principles of proportionality and legal economy.[12]

  As far as secondary legislation is concerned, the norm should be that the Commission is made responsible for giving effect to the rules established by the primary Regulation or Directive. This means that the Council will have to concede more executive power to the Commission, thereby allowing the over-complicated system of management, advisory and regulatory committees, or comitology, to be substantially reduced.[13] A call-back procedure should be devised to enable either the Council or Parliament to force a review of executive acts delegated to the Commission.

  The hierarchy of acts should also define the role of soft law, such as co-regulation with the social partners as provided for in the area of labour policy, as well as setting out rules of engagement for "open coordination", self-regulatory codes of conduct or "benchmarking". These practices are only really suited for policy areas where the competency of the Union is subsidiary to that of the member states, such as social security, public health, education and culture, and where harmonisation of policy at the EU level is explicitly excluded. Open coordination should not be used as a pretext for inaction or ill-discipline at the Union level in matters that affect the core acquis communautaire.

  The Commission should be obliged to consult the Economic and Social Committee and the Committee of the Regions at the pre-legislative stage, as it draws up a proposal. These consultative organs should also do more to monitor how EU legislation works in practice on the ground. The usefulness and viability of these Committees would be enhanced by this reform. The representative capability of the Commission would also be strengthened, bringing horizontal consistency to what is at present only a partial consultation with fragmented sectoral interests.

  Without compromising the Commission's right of initiative, we want to reform the legislative cycle. The development of the codecision procedure makes it necessary for the Council and Parliament to play a greater role in the elaboration of the annual work programme, and for national MPs also to be offered the chance to shape events through improved collaboration with the European Parliament.


  We want the European Commission to become a stronger and more effective executive, and we fully support the current programme of internal administrative reform, as well as President Prodi's commitment to building a close working partnership with the Parliament.

  The Commission must decentralise its management of many aspects of the common policies to national, regional and local government. Due to the dissimilar administrative and political structures between member states, delegation is difficult. But regions, especially, are bound to play a bigger political role in the future in connecting the enlarging EU dimension to local communities, particularly within the eurozone, where competitiveness between regional economies is already much tougher. Constitutional regions enjoying significant administrative and legislative capacity should be given privileged access to the Court of Justice in protection of their constitutional prerogatives under EU law.[14]

  As far as the appointment of the Commission is concerned, the political parties should promote their candidates during the electoral campaign (June) preceding the Council's nominations (July). This would add some sparkle to the election and force the Council to weigh its outcome. Parliament should also have the right to block individual nominations, rather than as at present, just to approve the President and then the college as a whole.[15] A more radical option would be to reverse the process by giving Parliament the role now played by member states to nominate Commissioners. This would ensure that the shape of the college reflects a parliamentary majority. Because we wish to develop the Union as a parliamentary democracy, we are not in favour of the direct election of the President of the Commission.


  Happily, the future of the Union's foreign, security and defence policy does not depend on the ratification of the Treaty of Nice. It is in fact the European Council that holds the key to developments, and in particular to the evolution of the powers of the Union to organise its common defence.[16] In institutional terms, we want to see the progressive advancement of Community competence in this area, not least because of the important budgetary control responsibilities falling to the European Parliament.

  ELDR strongly supports the creation of the Rapid Reaction Force and hopes that its success will engender further progress towards a common defence policy, including the formalisation of a EU Council of defence ministers. In the 2004 constitutional reform we want a Protocol to be added to the treaty containing the Article 5 provisions of WEU committing those who choose to adhere to it to mutual defence.

  We also advocate the acquisition by the European Union of full legal personality under international public law. This would enable the EU to become an official participant in the United Nations, IMF, WTO and World Bank, and thereby to promote itself worldwide as a model of regional integration. It would also position the Union to be able to sign up, as all its member states must do, to the European Convention on Human Rights.


  The draft Treaty of Nice ignores the repeated claim of the European Parliament to be granted full powers of codecision with the Council whenever the ministers act by QMV. There is no one reform of the European Union more vital than this.

  In the new Convention we will be making a coherent set of detailed proposals for the widespread extension of Parliament's powers. We have already drawn attention to the need for an enhanced participation of the Parliament in the matters of Treaty revision, the appointment of the Commission and in the scrutiny of secondary legislation. We also regret that the Parliament was not given the power of assent in trade policy under Article 133 TEC; and we resent its effective exclusion from the decision-making over reinforced cooperation among a smaller group of member states in certain policy areas.[17] We deplore the Parliament's marginalisation over the control of the major part of EU expenditure, despite its constitutional function as the second arm of the budgetary authority.[18]

  We are, moreover, strong advocates of internal Parliamentary reform, notably in respect of the Statute of Political Parties and the Statute of Members. We want clear and accountable methods of funding political campaigning on a European basis, and the introduction of the best employment practices for MEPs and their staff.

  Once these vital reforms have taken place, Parliament will be in a good position to control its own affairs, including the question of its seat. The issue of its eventual size after enlargement should also be re-opened. A Parliament of many more than 700 Members will become unmanageable, especially once the current level of absenteeism is lowered on the suppression of the practice of dual mandate that still pertains in certain member states (including the UK). It will also be desirable to introduce transnational lists to elect a small number of MEPs. Such an innovation would encourage the development of truly European political parties without which the Parliament will always find it difficult to connect with the public.


  The powers of the Union, having grown up over the years somewhat haphazardly, are articulated not so much as explicitly delegated competencies but as intended political objectives. The actual distribution of powers within the Union is notoriously difficult to grasp. Competencies are dispersed within the Union in a fairly wide but shallow way, many having originated as improvisations. That is why Article 308 has been — and still is — invaluable. Yet it should not be misconstrued: it is not and was never intended to be a power of general competence; it can only be used if the Council is unanimous that it should be (on a proposal of the Commission), and then only in the sphere of the common market.

  Most of the Union's authority is exercised through different types of more or less practicable collaboration between member state governments and the Commission, with the connivance of the Court of Justice. Strictly speaking, the treaties allow for only six truly common policies — coal and steel, agriculture, fisheries, commerce, transport, and, more recently, monetary policy. The rest has proceeded via cooperation programmes, coordination measures, contributions, common guidelines, positions and strategies, and, occasionally, joint action.

  Paradoxically, as integration has proceeded the clarity and self-assurance of the early years have rather been lost. The plethora of derogations and qualifications are testimony to the fact that the Union has often developed by dint of a crisis, and all too seldom as a result of cool rationality. The Treaty of Maastricht introduced extra complication by adding two "pillars" in the fields of "common" foreign and security policy and "cooperation" in justice and home affairs. Clearly, the Union is not a concrete settlement enjoying a sense of finality. A classical catalogue of competencies is therefore not appropriate. It would certainly be very difficult to draft, as earlier long-camouflaged disputes would be resurrected. The variable geometry of the EU with respect to national structures and state cultures would also be accentuated.

  Our preference is for another constitutional approach in which relatively few but important powers would be finally settled on the European Union at the federal level. These principal competencies must be well chosen and clearly defined, without which the operation and even existence of the Union would be impaired. They might include:

    —  commercial policy

    —  the internal market

    —  monetary and currency policy

    —  expenditure not in excess of x per cent of GDP

    —  asylum and immigration

    —  environmental matters of concern to more than one member state

    —  cross border crime.

  The Union would have the main responsibility to make laws in these specified policy areas, and national governments and parliaments would be subsidiary. In most other matters the different levels of government would share competence, thereby allowing the Union to continue to make a valuable contribution to public policy across a wide field.

  The constitution would also set out the values and goals of the Union, and enshrine its code of fundamental rights in the form of the Charter. It should insist that the actions of the European Union should not go beyond what was necessary to achieve its objectives. Its decisions would be taken as closely as possible to the citizen without impairing the effective operation of the Union. The existing EU treaties and all laws enacted under them would be laws of the Union save where they were inconsistent with the new constitution. The constitutions and laws of the member states would apply save where they were inconsistent with the constitution of the Union.

  The Charter of Fundamental Rights is an essential prerequisite for a constitutional Europe. It serves to define a European federal society, made up of mutually respectful minorities, tolerant of dissent, and confident of fair treatment. The elevation of EU citizenship implicit in the Charter presages another timely constitutional reform, the opening up of access by the individual to the Court of Justice. To date, Article 230 TEC has limited the circumstances in which a non-privileged litigant can challenge the EU institutions, and the Court of Justice has been strict in its interpretation of that clause. A very significant change to the quality of the jurisdiction of the Court would be to allow the citizen and, by inference, non-governmental organisations to seek judicial review directly. Not only would this consolidate human rights protection at the EU level, but it would also increase the means of redress available to civil and economic society against EU acts in any field.

  We also insist that the Court acquires full powers of judicial supervision over the second and third pillars of the Union, many aspects of which comprise issues of great sensitivity to the individual, such as asylum and immigration or the actions of police and customs officers.[19]


  The four items specified for inclusion in the agenda of the 2004 conference add up to a fully fledged constitutional agenda. The UK government and parliament should welcome the constitutional approach and should not seek refuge in a non-statutory code or charter of competencies to supplement the present pile of treaties. It would be a far from straightforward task to draft an overtly political document which, although officially non-binding, would be bound to be used by the courts as a reference point in case law, just as they do now with the Charter of Fundamental Rights. Like the Charter, a new code of competencies "solemnly proclaimed" but supposedly optional would be unsettling, and could only be an unsatisfactory staging post to a decent constitutional settlement.

  It would be better to get the constitutionalisation process under way, in the Convention, as soon as possible after Laeken, and to complete it with an EU wide electoral endorsement on the same day as the European Parliamentary elections in June 2004. Laeken is therefore a historic point of decision for Europe. It offers a clear path towards a constitutional future for post-national democratic government and, for those unwilling to accept that option, a time to depart elsewhere. It is certain that neither the UK nor any other member state, old or new, will be able to stop this evolution. More of the same is no longer an option for the whole of the European Union. There is a core group of member states, including Germany, that is willing and ready to go forward towards the building of a more federal Europe. It is to be expected that that choice will be put clearly by the Belgian presidency at Laeken. Moreover, the ensuing Convention is more than likely to include in its large agenda the drafting of a clause that would allow a member state to negotiate its own secession from the Union.

  ELDR urges the European Council at Laeken to settle the matter of the composition and mandate of the new Convention as well as a timetable for its work from spring 2002 until autumn 2003. But it should leave up to the Convention itself a choice of working method and procedure. The brief should be specific but flexible, allowing the Convention to introduce alternative constitutional prescriptions if it wishes to do so. The Convention should be encouraged to work by consensus to achieve the maximum refinement of point of view. It must be composed of representatives of the European Council, Commission, Parliament and national parliaments. Accession states should also participate. It must hold all its meetings in public, and create a common platform and agenda for a wider debate on the complex issues involved. It should establish a structured dialogue with a wider forum of civil society.

  The Convention will be a new source of legitimacy for the Union. By entrenching the purpose, powers and principles of the Union in a new constitutional treaty it will succeed in alleviating the worries of those who fear creeping integration towards a centralised superstate. By lightening the decision-making procedures in well-defined areas of public policy, the Convention can help to engage public interest in and identity with the institutions of the Union. European Liberal Democrats urge the House of Commons to help to point the way forward towards a more efficient, legitimate and enlarged European Union.

4 October 2001

1   Declaration No. 23 to the Final Act of the Treaty of Nice. Back

2   COM(01) 428, July 2001. Back

3   Article 10 TEC. The obligation to acknowledge the common interest recurs throughout the Treaty. See for example Article 99 TEC which states that member states "shall regard their economic policies as a matter of common concern"; or Article 11 TEU which says that member states "shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity ..... They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness ...". Back

4   The objectives of the Union are found in general terms in Article 2 TEU; Article 11.1 TEU for common foreign and security policy; Article 29 TEU for police and judicial cooperation in criminal matters; and, by no means least, Article 3 TEC for policies on economic and monetary affairs, commerce, internal market, asylum and immigration, agriculture and fisheries, transport, competition, employment, social cohesion, environment, industry, R&D, communications, public health, education, culture, training, overseas aid and development, consumer protection, energy, civil protection and tourism. Back

5   Article 48 TEU. Back

6   National MPs have formal rights by virtue of the Protocol on the role of national parliaments in the European Union of the Treaty of Amsterdam, and by TEU Articles 48 and 52 (treaty amendment), 49 (enlargement), 17.1 (defence), 24 (international agreements in CFSP), 34.2(d) (conventions in police and judicial cooperation), 42 (passerelle between third and first pillar), and by TEC Articles 22 (development of citizenship), 190.4 (electoral procedure of the European Parliament), and 269 (system of own resources). Back

7   For a fuller statement of why the prime minister's proposal is non-starter, see Andrew Duff's evidence to the House of Lords Select Committee on the European Union. Back

8   Article 207.3 TEC now merely provides that "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

9   Another task of the new style Ministers of Europe would be to strengthen the central coordinating function of COREPER a propos the subsidiary Economic and Financial Committee, Justice and Home Affairs Committee and the Political and Security Committee (Article 207.1). Back

10   We would further sharpen the co-decision procedure by inserting a mandatory timetable within which the Council would have to respond to the initial Commission proposal (Article 251 TEC). We would also abolish the cooperation procedure, in which the Council may overrule the Parliament (Article 252 TEC, at present retained mainly in the field of Economic and Monetary Union). Back

11   Article 269 TEC. At present the financial system is agreed by the Council acting unanimously and then ratified by all member states. The European Parliament is merely consulted. Back

12   Article 5 TEC and the Protocol on the application of the principles of subsidiarity and proportionality. Back

13   Article 202 TEC. Back

14   Articles 5 and 230 TEC. Back

15   Article 214 TEC. Back

16   Article 17 TEU. Back

17   Especially in those first pillar areas where closer cooperation is most likely to be tried first, namely, where unanimity persists in the Council (Article G.2 in Part 1 TEC of the Draft Treaty of Nice). Back

18   Article 272 TEC. Back

19   Articles 35 TEU and 68 TEC. Back

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