House of Commons - European Scrutiny

Select Committee on European Scrutiny Twenty-Fourth Report

The Commission and national parliaments

28. In its White Paper on European governance, the Commission called for a 'reinforced culture of consultation and dialogue', and expressed the view that 'the involvement of national parliaments and their specialised European affairs committees ... could ... be encouraged'.[23] The following proposed addition to the Protocol on the role of national parliaments builds on the Commission's words:

'The Commission shall respond promptly to requests for information and questions from national parliaments of the Member States or their committees about its proposals.'

Subsidiarity and proportionality

29. In our previous Report we emphasised that national parliamentarians should have a role in determining questions of subsidiarity, given that the EU institutions are not in practice keen on applying the principle and that national parliaments do not have an inherent, institutional interest in transferring powers to the EU level.[24] Working group I (on subsidiarity) and WG IV proposed that national parliaments be given a formal role in the EU's legislative process in monitoring application of the principle of subsidiarity.[25] Their proposal for an early-warning mechanism is incorporated in the Praesidium's draft Protocol on application of the principles of subsidiarity and proportionality, which provides that, if a third of national parliaments send reasoned opinions to the Commission indicating that a legislative proposal does not comply with the principle of subsidiarity, the Commission shall review its proposal.[26]

30. The Protocol is important in that for the first time national parliaments would have a formal role in the EU's legislative process. However, we regard the proposal as inadequate because objections by the specified proportion of national parliaments could simply be overridden by the Commission.

31. We would strengthen the Protocol in four ways. First, we would extend it to cover the closely-related principle of proportionality. The Praesidium has rejected this on the grounds of 'the essentially legal nature of the principle of proportionality (the use of one legal instrument or of another)'.[27] However, the principle of proportionality is that 'any action by the Community shall not go beyond what is necessary to achieve the objectives of the Treaty.'[28] This is not just a matter of what sort of legal instrument is used but also concerns the extent of the action taken by the Community. Although the question of proportionality is capable of analysis by a court, it also has a substantial element of political judgment, and should therefore be covered by the early-warning mechanism.

32. Secondly, we would re-word the duty placed on the Commission to give reasons for deciding to amend or maintain its proposal, by requiring it to give 'detailed reasons for its decision, relating these to the reasoned opinions submitted by national parliaments'.

33. Thirdly, as some members of WG I proposed,[29] we would provide for national parliaments to make reasoned opinions following the convening of a Conciliation Committee in respect of the compliance of the Council's common position or the European Parliament's amendments with the principles of subsidiarity or proportionality, and for such reasoned opinions to be taken into account.

34. Fourthly, we support Gisela Stuart's proposal that if two-thirds of national parliaments or their chambers present reasoned opinions objecting to a Commission legislative proposal on grounds of subsidiarity the Commission shall be required to withdraw its proposal.[30] Though such a provision would be used only very rarely, since there will hardly ever (if ever) be enough national parliaments taking the same view, it would have important symbolic value, indicating that the views of national parliaments have to be taken seriously.

35. The subsidiarity early-warning mechanism could be applied to measures put forward under the proposed 'flexibility clause' (draft Article I-17).[31] For proposals made under that article it is especially important that the early-warning mechanism is an effective one, since such proposals potentially extend EU competence.

Collective activity by national parliaments

36. In our previous Report we called for joint meetings of national parliamentarians and MEPs, jointly organised, to consider matters such as the Commission's annual policy strategy and work programme and to question Commissioners on it.[32] We believe that giving national parliamentarians the opportunity not only to confer but also to engage directly with and question those making policy at European level is essential to raise the level of interest in EU matters in national parliaments, to improve the quality of European scrutiny at national level and to enable national parliaments to act as a bridge between citizens and EU institutions. Examples would be members of foreign affairs committees questioning the High Representative on the annual report on the Common Foreign Security Policy or COSAC's proposed annual session with Commissioners on the Commission's annual legislative and work programme. We emphasise that the aim is to increase the ability of national parliaments and the European Parliament to carry out their own tasks rather than for one to interfere in the work of the other.

37. European Parliament committees already invite members of national parliaments to some of their meetings, and Commissioners and Commission staff sometimes appear before committees of national parliaments. However, national parliaments are rarely if ever consulted in advance about the European Parliament's meetings and their purposes, subjects and formats, and, as for Commissioners, it would be difficult for any Commissioner regularly to visit all 15 national parliaments, let alone 25 following enlargement.

38. A grand inter-parliamentary structure such as the Congress proposed by the Praesidium raises fears of a new institution such as a second or third chamber, and would meet very infrequently (probably only once a year),[33] though we note the usefulness of the WEU Assembly (a body established by treaty) in the defence field. The co-operation we advocate, especially meetings bringing together sectoral or departmental committees, could be achieved informally, without treaty articles.

39. We emphasise that meetings involving national parliamentarians and MEPs should be jointly organised, rather than the former simply being asked to attend ad hoc European Parliament meetings. We believe the national parliament input to such joint organisation could best be provided through COSAC. This would be consistent with WG IV's recommendation that COSAC become 'a stronger network for exchange between parliaments'.[34]

COSAC

40. In our previous Report we sought to redefine COSAC's main role as 'assisting national parliaments to improve their scrutiny of government activities in the EU, by sharing best practice and information and acting as a strategic body on behalf of national parliaments'.[35] Some progress has been made, though with difficulty because of differing views about what COSAC is for and because of the requirement of unanimity for rule changes. In particular, COSAC's rules now provide that 'The principal business on every draft agenda shall be derived from COSAC's role as a body for enhancing national parliamentary scrutiny by exchanging information, in particular on the practical aspects of parliamentary scrutiny', and agreement has been reached that a secretariat should be established, though the details remain to be worked out.[36]

41. We welcome the wording added to the latest draft of the Protocol on the role of national parliaments stating that COSAC 'shall in addition promote the exchange of information and best practice between Member States' Parliaments and the European Parliament, including their special committees'.

Scrutiny of the European Security and Defence Policy

42. When the Western European Union (WEU) existed, its activities were scrutinised by the Assembly of the Western European Union, whose proceedings helped to inform the work of national parliaments and their committees. The WEU's responsibilities and institutions have since been transferred to the EU, though the WEU Assembly continues to exist. There is however no clear arrangement for collective scrutiny of the European Security and Defence Policy (or common security and defence policy as it is described in the draft constitutional treaty). The UK Government has argued, correctly, that the primary scrutiny role should rest with national parliaments, who should carry out that scrutiny both individually and collectively, but, while regarding the WEU Assembly as inappropriate for that task, it has failed to propose any alternative form of collective scrutiny.[37]

43. A consequence of that failure is that the draft constitutional treaty seeks to entrust the scrutiny role entirely to the European Parliament, which has no responsibility for any military forces.[38] We consider it essential that there be regular meetings of members of the defence, foreign affairs and European affairs committees of national parliaments to scrutinise the ESDP. It could be modelled on the WEU Assembly but with fewer members. We do not regard the addition to the draft Protocol on the role of national parliaments providing for COSAC to organise inter-parliamentary conferences on the common security and defence policy[39] as an adequate substitute, since such conferences are likely to be ad hoc and ill-resourced, and COSAC does not itself include members of defence committees. We therefore propose the following draft article:

'There shall be an assembly of national parliamentarians meeting at least three times a year to scrutinise the European Security and Defence Policy. Numbers entitled to attend from each national parliament shall be proportionate to the representation of Member States in the European Parliament. The assembly shall be serviced by a permanent secretariat. The cost of the assembly shall be borne by the governments of the Member States.'

Scrutiny of Europol

44. A new role for national parliaments in scrutinizing the work of Europol is proposed in the draft articles on the 'area of freedom, security and justice'.[40] We will discuss this in our forthcoming Report on those draft articles.

Election of the Commission President

45. In our previous Report we opposed election of the Commission President because it would weaken the Commission's ability to rise above sectional interests, which is its raison d'être, and would significantly change the balance between the European institutions, while not necessarily doing much to reconnect citizens and EU decision-making. Of the different options, we were least attracted by that of election by the European Parliament.[41] We still believe that election of the Commission President by the European Parliament would do little or nothing to increase interest in European Parliament elections or to reconnect citizens and EU decision-making.

46. At present, draft Article I-26 provides for the President of the Commission to be 'elected' by the European Parliament, but the European Parliament would simply vote for or against a single candidate put to it by the European Council. Mr Hain told us that the Government was 'willing to look at, with certain very big safeguards, electing the Commission President through some method, provided that does not involve being hostage to a particular faction and provided that the outcome is one that the Council can accept', and indicated that it might be agreed as a trade-off for creation of an elected President of the European Council.[42] However, if the Convention does decide on election of the Commission President, we believe that national parliamentarians as well as MEPs should have voting rights. The voting could take place within each parliament rather than an electoral college being assembled in a particular place. Splitting those rights equally between MEPs and national parliamentarians would mean that debate on the merits of the candidates would take place in national parliaments, bringing the issues closer to citizens, and that the Commission President would not be beholden to a majority in the European Parliament.

General statement on the role of national parliaments

47. WG IV recommended that the constitutional treaty contain wording acknowledging 'the importance of the active involvement of national parliaments in the activities of the European Union, in particular by ensuring the scrutiny of governments' actions in the Council, including the monitoring of the respect of the principles of subsidiarity and proportionality'.[43] Words about the importance of national parliaments have not always led to appropriate actions, but we nevertheless believe that inclusion of such wording in the constitutional treaty would be worthwhile. We therefore propose that the second paragraph of the Protocol on the role of national parliaments be amended to read as follows:

'ACKNOWLEDGING, however, the importance of the active involvement of national parliaments in the activities of the European Union, particularly in scrutinising governments' actions in the Council and monitoring respect for the principles of subsidiarity and proportionality, and the need for them to be able to obtain information and express views on legislative and other proposals before decisions are made.'

23 European governance: a White Paper, July 2001, pp. 16-17. Back

24 HC 152-xxxiii, 2001-02, para. 113. Back

25 CONV 286/02; CONV 353/02, para. 26. Back

26 The threshold would be one quarter in the case of proposals relating to the area of freedom, security and justice under Article III-160. Back

27 CONV 724/03, annex 2, p. 145. Back

28 Treaty of Amsterdam, Protocol on the application of the principles of subsidiarity and proportionality. Back

29 CONV 286/02, p. 7. Back

30 CONV 540/03. Back

31 See para. 56 below. Back

32 HC 152-xxxiii, 2001-02, para. 140. Back

33 CONV 724/1/03 REV 1, p. 38, Article X. Back

34 CONV 353/02, para. 36. Back