Submission from UK National Parliament
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EUROPEAN SCRUTINY SYSTEMS IN EU MEMBER STATE
PARLIAMENTS
INTRODUCTION: THE
OVERALL PICTURE
1. Before the recent enlargement of the
EU, there were 24 chambers from 15 member state national parliaments,
each engaging with European affairs in their own way. There are
now 25 parliaments and 37 chambers in EU member states. Comparative
analyses of the scrutiny of European affairs by national parliaments
all have to acknowledge that there is a great variety of systems,
each reflecting the constitutional and political circumstances
of each member state. Indeed, there is not even any common definition
of the concept or scope of parliamentary scrutiny. This note takes
"scrutiny" to mean the procedural mechanisms adopted
by parliaments in order to influence, control and hold to account
their governments for their legislative activities in the Council
of Ministers. It does not therefore consider the wider opportunities
for questioning, debate and examination of European policy which
are present in all national parliaments.
2. One common factor in nearly all parliamentary
chambers is the presence of a committee on European affairs,[43]
and where recognizable scrutiny takes place these committees usually
play a central role. There are however major differences in:
— the remit of the committees, including
whether they concentrate on examination of documents, as in the
case of the UK, or on scrutiny/control of governmental activity
in the Council of Ministers, as in the Danish and other Nordic
systems. There is also variation in committees' ability to examine
Second and Third Pillar matters;
— the power of the committees, including
their legal and political degree of control over their governments
and their ability to act independently of their chambers;
— the relationship between the committees
and other subject committees of the chamber (in some cases European
affairs committees simply sift legislative proposals on to subject
committees for more detailed consideration, in others they are
the primary forum for scrutiny); and
— the composition of the committees,
with some allowing participation of national MEPs, with or without
voting rights.
3. Particularly when considering committees'
powers, whether or not exercise of those powers requires approval
of the parliamentary chamber as a whole, it is essential to bear
in mind that, in practice, they may rarely if ever be used to
their full extent. This is especially the case in respect of formal
powers to control governmental positions in Council. On paper,
for example, the European affairs committees of the Austrian Nationalrat
and Bundesrat have probably the most extensive powers over
their government of any national parliament: each may issue a
"binding opinion" constituting a negotiating mandate
from which the Austrian Government may not depart in Council.
However the number of such binding opinions has dropped dramatically
since the early days of Austria's membership of the EU, and they
have come to be phrased in such a way as to allow Ministers latitude
to negotiate. Conversely, committees with few formal powers may
exercise some influence in informal ways, though this is more
difficult to demonstrate. In certain cases a general political
consensus in favour of European integration shared between parliament
and government may make parliaments less inclined to scrutinise
or question European legislation or ministerial actions in Council.
The Spanish Parliament could be cited as an example, with its
Joint Committee meeting about once a month, producing few reports
and mainly conducting its business by holding hearings, which
tend to take the form of general debates.
4. Regardless of whether parliaments have
traditionally carried out "strong" or "weak"
scrutiny, over the last few decades there has been a discernible
trend in nearly all parliaments to strengthen their capacity to
scrutinise. Specialised European affairs committees have been
established in parliaments or chambers where they did not previously
exist (eg in the French National Assembly and Senate in 1979;
in the Dutch Senate in 1986; in the Greek Parliament in 1990),
or their scope and remit has been extended, particularly in relation
to Second and Third Pillar documents. At the same time these committees
have sought ways of co-operating with each other, primarily through
the forum of COSAC, established in 1989. It is also noteworthy
that the scrutiny systems recently set up in the new central and
eastern European member states nearly all have a means of mandating
Ministers at their core.
SCRUTINY MODELS
5. It is generally agreed that there are
two basic models for those parliaments attempting to carry out
serious scrutiny: the "document-based" model, as adopted
at Westminster, and the "mandating" model, pioneered
by the Danish Parliament and followed, with modifications, by
certain other parliaments. The former concentrates on the early
stage of legislation, when a Commission draft legislative proposal
is first adopted; the latter focuses on the conclusion of negotiations
in the Council. This is not, however, a hard and fast distinction.
At Westminster scrutiny continues on legislation when significant
amendments are made in the European Parliament and the Council,
Commons resolutions on documents recommended for debate by the
European Scrutiny Committee could be regarded as a rudimentary
and general form of mandate, and the ESC carries out some pre-
and post-Council scrutiny. At the same time, the Danish Parliament
has comprehensive arrangements to obtain draft legislation and
other EU documents when they are produced, together with government
explanatory memoranda, and, since 1996, it has held hearings and
produced opinions on some Commission Green and White Papers. As
the ESC said in its 2002 Report European Scrutiny in the Commons:
"just as we are not exclusively focussed on documents but
also sometimes question Ministers before or after Council meetings,
our Danish counterparts are not exclusively focussed on Ministers
and Council meetings; however, no Committee is likely to have
time to cover both documents and Councils systematically".
Document-based systems
6. Effective document-based scrutiny depends
upon comprehensive and timely transmission of EU documents and
information to parliaments. It also depends upon an obligation
for governments to transmit agreed categories of documents, such
as those set out in Standing Order No. 143 of the House of Commons.
For some parliaments transmission of EU documents depends largely
on the discretion of the government, especially under the Second
and Third Pillars. Even under the First Pillar there is a great
variety in the number and type of documents submitted to parliaments,
although draft Commission legislative proposals are received by
most. In most cases EU documents are accompanied by government
explanatory memoranda. These memoranda vary greatly in quality,
and those supplied by the UK Government are generally considered
to be among the most informative. Whereas the Commons ESC receives
about 1,100 documents in total for scrutiny each year, the Austrian
Parliament receives a vastly greater number, including agendas
of meetings. During its XXth Legislative Period, from January
1996 to October 1999, the Austrian Parliament received a total
of 75,958 EU documents. Only 155 of these were placed on the agenda
of the Nationalrat's EU Main Committee. Excess of information
can be as discouraging to effective document-based scrutiny as
lack of information.
7. The main features of the Commons European
scrutiny system are described in Annex 1 to the European Scrutiny
Committee's memorandum to the Modernisation Committee. The closest
parallels in other EU member states are the recently-reformed
scrutiny arrangements of the Irish Oireachtas, and the systems
adopted by both chambers of the French Parliament.
8. Following the Irish European Union (Scrutiny)
Act 2002, a sub-committee of the Oireachtas's Joint Committee
on European Affairs considers draft Community legislation and
CFSP joint actions and common positions, and refers those measures
requiring further scrutiny to specialised sectoral committees.
Government Ministers are required to "have regard to any
recommendations" made by either House or their committees,
and to report to the Oireachtas on measures adopted in Council
before they have been laid before both Houses. There is no scrutiny
reserve.
9. The French scrutiny system, as operated
by the European affairs committees ("delegations") of
both chambers of the French Parliament, has essentially developed
during the 1990s: before that time neither the Senate nor the
National Assembly wielded much influence over the French government's
negotiating prerogatives within the Council. The seminal moment
was the introduction of Article 88-4 into the French constitution
in 1992 as part of the ratification of the Maastricht Treaty.
The Article, which was further amended in 1999 during ratification
of the Amsterdam Treaty, obliges the government to forward all
proposals of a legislative nature, under all three Pillars, and
a variety of other EU documents, to both Houses, if they are matters
falling within the French domestic legislative sphere. In 2003
there were 312 documents formally transmitted to the Parliament
in accordance with the Article 88-4 provisions, though the government
also lays a large number of additional documents. Documents are
not usually accompanied by government explanatory memoranda. The
Houses have four weeks from receipt of proposals to inform the
government of their intention to adopt a resolution on a proposal;
in such cases the government applies a parliamentary scrutiny
reserve if necessary in Council. The French committees sift proposals
on the grounds of their importance, and refer a minority to other
committees. Resolutions on documents may be adopted by committees
themselves on behalf of each chamber, or by the chambers themselves.
In the 2002-03 parliamentary session, the National Assembly adopted
eight resolutions, and during 2003 the Senate adopted seven resolutions.
Resolutions of the French Parliament, which may cover a number
of individual documents, do not have a binding effect on the French
government in its negotiations in Council.
10. Amongst the new member states, the Czech
Parliament is almost alone in having adopted an essentially document-based
scrutiny system. Draft acts of the European Communities and the
EU, accompanied by explanatory memoranda, have to be sent to both
the Chamber of Representatives and the Senate committees,[44]
together with other documentation at the Government's discretion
or if the committees request it. If resolutions on documents are
agreed by the Chamber of Representatives, the Czech government
must take account of them when negotiating in Council (an element
of a mandating system). It may take account of such resolutions
agreed by the Senate. Both chambers may apply a scrutiny reserve,
in the case of the Senate limited to a maximum of 35 days. Scrutiny
in the Hungarian Parliament is also essentially document-based,
but before Council meetings ministers or their deputies have to
present themselves if the Parliament so requests.
Mandating systems
11. The template for mandating systems is
that of the Danish Folketing, introduced on Denmark's accession
to the EEC in 1973. On their accession to the EU both Sweden and
Finland established similar systems, and, as mentioned above,
so did Austria and most of the new member states which acceded
on 1 May 2004.
12. The Danish model of mandating works
almost entirely through the Folketing's European Affairs
Committee, which meets every Friday. When Council meetings are
taking place the following week, the Minister who will be attending
presents the government's desired mandate to the committee, running
through the Council agenda, and explaining the government's proposed
negotiating position in terms of the history and substance of
the items to be discussed and the likely attitudes of other member
states. The mandate sought by the government is therefore an oral
one, formulated by the Minister himself or herself. Following
the Minister's presentation of the mandate, questioning by party
spokespeople takes place, during which modifications to the mandate
can be made by the Minister. Finally the chairman of the committee
seeks to establish, without a formal vote, whether there is a
majority against the proposed mandate. Each party representative
at the meeting carries a voting weight reflecting his/her party's
strength in the Folketing: voting does not therefore depend on
individual MPs present at the meeting. It is very rare for there
to be a majority against a mandate, which has the consequence
that the Minister may not support legislation at the Council meeting.
More often amendments are made to the mandate originally proposed
by the Minister. The mandate is politically binding on the government,
and there is debate in Denmark as to whether it is also legally
binding. Following Council meetings Ministers publish reports
on their outcome, allowing the committee to check whether the
mandate was observed. If the committee desires clarification,
it can take written or oral evidence from the Minister.
13. In essence, the Swedish and Finnish
systems are the same, but whereas in the Folketing attempts
to integrate subject committees into the mandating process have
not met with much success, in the Riksdag and the Eduskunta
the opinions of other committees form an important basis for the
EU Affairs Committee and the Grand Committee respectively when
considering their government's negotiating mandates. In Finland
Second Pillar matters fall to the responsibility of the Foreign
Affairs Committee, not the Grand Committee.
14. All three Nordic Parliaments have comprehensive
arrangements to obtain EU documentation from their governments
when it is produced, accompanied by explanatory memoranda, and
have sought, through involvement of subject committees and by
hearings, to follow legislation before the moment at which it
reaches the Council for political agreement or formulation of
a common position. As all the parliaments operate a scrutiny reserve
as well as a mandate, it is clearly in their governments' interests
to provide the fullest possible information in advance of the
presentation of a negotiating mandate for adoption.
15. The Nordic mandating system depends
for its success on several factors:
— a strong parliamentary tradition
of control over governments (in Denmark minority governments are
the norm);
— a willingness to allow a committee
to act on behalf of the parliament as a whole (and to allow the
committee chairman to sanction changes in mandate if contacted
by the Minister as Council negotiations unfold); and
— the lack of a second chamber, avoiding
the possibility of conflicting mandates being adopted.
16. Among the old EU-15 member state parliaments,
in addition to the Austrian case mentioned above (paragraph 3)
there are some other examples of parliamentary approval or sanction
being possible or required before Ministers may agree to proposals
in the Council. The Dutch Parliament, for example, must give prior
consent, explicit or tacit (more usually the latter), to Third
Pillar measures post-Maastricht, whether or not those policy areas
have since been shifted to the First Pillar. In cases of European
legislation covering matters where German Länder have
jurisdiction, the Bundesrat may deliver legally-binding
decisions which must be followed in the Council by German Ministers.
17. An account of scrutiny systems in new
member states is given in chapter 6 of the first COSAC biannual
report on EU procedures and practices, from which it is clear
that the Nordic model has made a strong impression. Most new member
state parliaments have established a scrutiny system involving
mandating. Before Council meetings the Polish Government will
be obliged to present its negotiating position to the Sejm's
European Affairs Committee and to take account of the committee's
opinion. All official positions of the Latvian Government have
to be approved by the parliamentary committee. The Estonian and
Slovenian committees are empowered to mandate their governments
before Councils, and in Hungary the committee may adopt a politically
binding opinion. One of the difficulties faced by mandating systems
is that decisions may already have been taken in Council working
groups and COREPER before a matter comes to the Council itself:
the Hungarian Parliament is attempting to address this problem
by requiring the government to keep the committee informed of
negotiations in working groups from the start of the legislative
process. In Slovakia discussions continue between the government
and the parliament over whether parliamentary opinions should
be mandatory on the government, or couched in the form of recommendations.
18. A particularly interesting "traffic-light"
scrutiny system is likely to be established in the Lithuanian
Parliament. This could be described as a hybrid of the document-based
and mandating systems. On receipt of EU documents they will be
placed in one of three categories: (i) requiring the Parliament
to produce a politically-binding mandate (ie "red"),
(ii) requiring the Parliament to be consulted (ie "yellow"),
and (iii) of little or no interest to the Parliament (ie "green").
19. It is too early to assess how the various
mandating systems established in the new member states will actually
operate in practice. Some have not yet entered into force. While
they allow for mandates, of differing degrees of rigour, they
do not in general oblige the parliaments to provide mandates.
It is possible that the systems will diverge, with some of the
parliaments settling into a pattern of systematic and comprehensive
mandating on Nordic lines, and others making sparing use of their
theoretical powers, as has happened in Austria.
Other scrutiny systems
19. Parliaments which would not classify
themselves as falling into either the document-based or the mandating
scrutiny categories might be dubbed "supportive" or
"consensual" scrutinisers of European policy and legislation.
Some of these parliaments, such as those in Greece, Italy and
Portugal, have very few levers for influencing their governments'
approach in Council. Others, such as the German Bundestag
and the Dutch Parliament, may have greater formal powers, but
have tended to share a general political approach on Europe with
their governments which disinclines them from seeking to invoke
close or rigorous control mechanisms. While all these parliaments
have tried in recent years to tighten their procedures for receiving
EU documentation and then dealing with it, it remains the case
that, insofar as they wish to influence their governments in Council
negotiations, the preferred route is generally informal and political
rather than procedural and systematic.
CONCLUSION: A COMPARISON
BETWEEN DOCUMENT-BASED
AND MANDATING
SYSTEMS
20. Both document-based and mandating systems
have their own advantages and disadvantages, and parliaments practising
each one have attempted to import aspects of the other to strengthen
their overall scrutiny. In considering the question of whether
to assimilate further aspects of a mandating system into the Commons'
approach to European scrutiny, the Modernisation Committee may
wish to consider the following factors:
— mandating systems provide an objectively
stronger form of parliamentary control than document-based systems,
where the intention is to influence rather than control ministerial
actions in Council;
— a mandating system guarantees more
intensive government information and accountability to parliament
in relation to ministerial activity in Council; on the other hand,
a document-based system generates a greater amount of public information.
Though Nordic parliaments do publish a great deal of information
to the public on European matters, this is not integral to their
scrutiny. European affairs committee meetings in the Nordic parliaments
to establish mandates are held behind closed doors and with only
a limited amount of information being released subsequently;
— a document-based system, especially
when it concentrates on the initial publication of draft legislation,
may have difficulties in coping with amendments made to legislation
as it continues through the legislative process; on the other
hand, a mandating system may find that it is seeking to exert
control too late in the legislative process, when decisions have
already been made in Council working groups and COREPER;
— mandating systems have worked best
in strong unicameral parliaments; in other settings, so far, they
have tended to be underused. Even in the Nordic parliaments there
is an element of circularity in the mandating process, with the
government tending to obtain the mandate which it had sought;
— a watertight mandating system relies
on delegation to a committee of the power to define the parliament's
position, and on that committee sitting during parliamentary recesses
as often as necessary (August is the only month of the year when
Council meetings do not usually take place);
— strict mandates may cause Ministers
to be sidelined in Council negotiations on matters subject to
qualified majority voting, leading in some cases to a worse outcome
in terms of national interest;
— the timing of the lifting of a parliamentary
scrutiny reserve is usually more predictable in a mandating system,
coming as it does at the time the mandate is agreed; in a document-based
system such as the UK's there is more uncertainty;
— should the constitutional treaty
come into effect, the introduction of procedures at national parliament
level to implement a subsidiarity early-warning mechanism will
fit more comfortably as part of a document-based system focused
on the initial publication of legislative proposals.
July 2004
SOURCES
National Parliaments on their Ways to Europe:
Losers or Latecomers?; Andreas Maurer/Wolfgang Wessels (eds),
Centre for European Integration Studies 2001.
Thirtieth Report from the European Scrutiny
Committee of Session 2001-02, European Scrutiny in the Commons,
HC 152-xxx.
European Affairs Committees: The Influence
of National Parliaments on European Policies: An Overview,
European Centre for Parliamentary Research and Documentation,
2002.
Chapter 6 and Annexes of the COSAC biannual
report on EU procedures and practices, May 2004 (www.cosac.org).
43 Luxembourg has a single committee covering foreign
and European affairs and defence, and Portugal a committee on
European affairs and foreign policy. The Irish and Spanish Parliaments
have a Joint Committee on European Affairs of both Houses. Back
44
In the case of the Senate, Second and Third Pillar documents go
to the Foreign Affairs, Defence and Security Committee rather
than the European Affairs Committee. Back
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