The
subsidiarity early-warning mechanism
113. Article 6 of the Protocol on the Application
of the Principles of Subsidiarity and Proportionality provides
that:
'Any national Parliament or any chamber of a
national Parliament may, within six weeks from the date of transmission
of a draft European legislative act, send to the Presidents of
the European Parliament, the Council and the Commission a reasoned
opinion stating why it considers that the draft in question does
not comply with the principle of subsidiarity. It will be for
each national Parliament or each chamber of a national Parliament
to consult, where appropriate, regional parliaments with legislative
powers'.
114. The body with which the legislative proposal
originates is required to take account of any opinion received
under that Article. If the number of Parliaments expressing such
an opinion is at least one third of the total (one quarter in
some cases), then the proposal must be reviewed.[116]
115. Since individual chambers of national Parliaments
can act unilaterally, there is no need for a procedure for the
two Houses to reach agreement. The effect of doing so would be
no different from the two Houses reaching the same decision unilaterally.
Where one House believes a proposal breaches the principle of
subsidiarity and the other does not, the House which objects to
the proposal is free to do so without the consent of the other
House. The House therefore needs to devise a procedure which
will do three things:
a) identify proposals which are possibly non-compliant;
b) consult the devolved assemblies, where appropriate;
and
c) decide whether the non-compliance is sufficiently
serious to justify presenting a reasoned opinion.[117]
116. The European Scrutiny Committee suggests that
it is the natural body to undertake the first part of the task
since it is the only body which systematically reviews every EU
document which is deposited before the House. The Committee's
decisions would still need to be endorsed by the House, and it
argues that any procedure for doing so should not take up time
on the floor of the House, or require any endorsement from the
Government, as any objections would then be as much Government
as Parliamentary ones.[118]
The Procedure Committee agreed with this view but argued that
there should be an opportunity for debate in the relevant European
Standing Committee.[119]
117. The Clerk of the House suggested that the six-week
deadline for reasoned opinions to be presented meant that the
system proposed by the two committees would be very difficult
to operate in practice, particularly if the views of the devolved
assemblies were to be sought. It would be impossible to adhere
to the timetable, he argued, if there was a recess during the
six-week period. His view was that the only way the system could
operate in practice to such a tight deadline would be if the power
to offer a reasoned opinion were to be delegated to the European
Scrutiny Committee.[120]
We note that this is in line with the arrangements proposed in
Finland, that the Grand Committee carry out the subsidiarity control.[121]
118. There is a balance to be struck between maximising
opportunity for debate in the House and ensuring that the necessary
processes can reliably be completed before the end of the six-week
deadline specified in the Treaty. The latter consideration is
clearly the more compelling, since an opinion which is lodged
after the deadline falls outside the scope of the Treaty provisions
and therefore has no force. While we sympathise with the Procedure
Committee's proposal for a debate on the Floor of the House, we
are concerned that any opinion resulting from a system which required
time in the Chamber might be seen as being that of the Government—which
would have to make time for the debate—rather than the House.
There is also the more pressing danger that, if time cannot be
found quickly, the time limit might expire.
119. We recommend
that the European Scrutiny Committee should have responsibility
for identifying those proposals which potentially breach the principle
of subsidiarity. The system should work as follows:
a) The
Committee decides that a proposal does not comply with the principle
of subsidiarity and sets out the reasons for this decision in
a Report.
b) The Chairman,
or another member of the Committee acting on behalf of the Committee,
puts a Motion on the Future Business Section C to the effect 'That,
in the opinion of this House, [the proposal] does not comply with
the principle of subsidiarity for the reasons set out in the [First]
Report of the European Scrutiny Committee'.
c) Not less
than five and not more than eight sitting days after notice of
the Motion has been given, the Government puts the Motion on the
Order Paper.
d) The Questions
on the Motion and any Amendment to it which is selected are put
forthwith in the House.
e) If the Motion
is agreed to, the Speaker forwards the text of the Resolution,
together with a copy of the European Scrutiny Committee's Report,
to the relevant EU institution.
The
simplified revision procedure ('passarelle')
120. Article IV-444 (Simplified revision procedure)
of the Treaty also envisages a formal role for national parliaments.
It provides that the Council:
a) may adopt a European decision authorising
it to act by qualified majority voting (QMV) in any area or case
where it was formerly required to act by unanimity; and
b) it may adopt a European decision allowing
it to adopt in accordance with the ordinary legislative procedure
laws and framework laws which it was previously required to adopt
in accordance with a special legislative procedure.
It is required to notify any such decision to every
national parliament and, if any national parliament makes
known its objection within six months then the decision shall
not be adopted.
121. The European Union Bill, currently before the
House of Commons, contains a procedure for obtaining Parliamentary
approval for these decisions in order that they may be recognised
in law. It is as follows:
a) The House of Commons sends a message to the
House of Lords asking for its opinion on whether the House of
Commons should resolve to approve the initiative;
b) Not less than 20 sitting days after the Lords
receives the Message, the House of Commons may approve the initiative
by resolution.
Thus the decision on whether to approve the initiative
or not rests with the House of Commons; the House of Lords has
20 days during which to express an opinion.[122]
122. We endorse
the proposals for Parliament to exercise its veto over the simplified
revision procedure contained in the European Union Bill. If the
Bill is passed and the Treaty is agreed to, we invite the Procedure
Committee to keep the operation of the mechanism under review
115 Treaty establishing a Constitution for Europe,
done at Rome on 29 October 2004, Cm 6429. Back
116
Each Parliament has two votes, one per Chamber in the case of
bicameral Parliaments.It is the number of votes which are counted. Back
117
Ev 7. Back
118
Ibid. Back
119
Ev 24. Back
120
Ev 86-87 and Q 241. Back
121
Improving EU Scrutiny, Report of the Committee to assess
EU scrutiny procedures, Publications of the Parliamentary Office
4/2005 (March 2005), p. 36. Back
122
European Union Bill (Bill 45 of 2004-05), clause 2. Back
