European Scrutiny Committee - Minutes of EvidenceHC 109-II

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Oral Evidence

Taken before the European Scrutiny Committee

on Wednesday 4 September 2013

Members present:

Mr William Cash (Chair)

Andrew Bingham

Julie Elliott

Chris Heaton-Harris

Kelvin Hopkins

Chris Kelly

Jacob ReesMogg

Linda Riordan

Henry Smith


Examination of Witness

Witness: Professor Damian Chalmers, Professor of European Union Law, London School of Economics and Political Science, gave evidence.

Chair: Good afternoon, Professor Chalmers. It is very good to see you and thank you for coming along.

Professor Chalmers: Thank you. It is a pleasure.

Chair: The first set of questions that we are going to deal with, as part of our inquiry, is on democratic legitimacy and the role of national Parliaments. I call Jacob ReesMogg.

Q564 Jacob Rees-Mogg: Thank you, Chairman-and, indeed, professor, for coming to see us. What is your assessment of the various proposals being floated by Foreign Office Ministers and the Prime Minister about the future relationship of national Parliaments to the EU institutions, and how does this debate link to the more fundamental question of sovereignty, on which you have written and which was the subject of an inquiry and report from this Committee in 2010?

Professor Chalmers: As far as I am aware, the proposals I see are still at a very early and a not very detailed stage. The central line of interest at the moment seems to be to extend the socalled yellow or orange card procedures and to turn them into a red card procedure, so that if some quorum of national Parliaments opposed a measure on the grounds of subsidiarity, that would be the end of it. At the moment, of course, under the yellow card, the Commission is just required to review, and under the orange card, when half of them do, there is the possibility for the Council and the European Parliament to veto the measure.

My view on that is that it is welcome, but probably not sufficient. If you look through the annual reports that the Commission has done on its relations with national Parliaments, the central challenge has not really been that somehow the Commission might get a card of some kind and then take the measure forward, notwithstanding national parliamentary opinions. It is almost inconceivable it would do that. First, it would just be such bad politics, and the second thing is that they would almost certainly not have the relevant majority in the Council. Not de jure but de facto; there is something close to a red card whenever any of these things are shown.

The first problem is that the thresholds are very high-it is quite difficult for national Parliaments to co-ordinate. If one looks at the last couple of years, we have had one case on corporate tax where there were nine parliamentary opinions and a few others where there have been five or six. If one turned it around and thought of the number of cases when there had been between five and nine Governments voting against something on the Council, they would just not have got through. It is as simple as that; there would have been some attempt at consensus. There is a collective action problem. That is the first thing that does not address, for me, the nub of the matter.

In the paper I wrote, I saw to my mind a more fundamental problem. I really do not like the idea of Parliaments being veto players. This is not my understanding of the traditional role of Parliaments. They have to say "yes" rather than actively saying "no". For a variety of reasons, I would prefer that. This is the first thing we expect as citizens: that normally Parliaments engage only when they see there is a case for collective action. The thresholds for saying no are always much higher than for actively saying yes. If there is no parliamentary enthusiasm for doing something at an EU level, my own view is that it should not be done at that level. That is pretty much the thrust of the treaty, if one looks at both the subsidiarity and the proportionality principles.

Q565 Chair: Are you saying that you think that the way in which the system is functioning at the moment is distorted in favour of EU institutions as against national Parliaments, when one has to consider that national Parliaments are the prime representatives in terms of general elections in countries, at which voters make decisions? Is that really the essence of it?

Professor Chalmers: Your question is a more general normative one. If one was looking at the treaties, of course, who they say represent the member states are not actually the national Parliaments. They are represented through the Council and the European Council, which are the Executives. The national Parliaments are just associated. Even at the totemic level, national Parliaments are not given the place that many would want, and certainly that I would want them to be given.

My own view is that, historically, this has been one of the challenges of the EU. It is not so much about centre/periphery-Europe versus nation state-as Executive versus national Parliaments. A classic example is the flexibility provision, which started off as 235, became 308 and is now 352. This allows the Union pretty much to do what it wants, but it has always been subject to the veto. The argument was always that that should be enough. If one national Government out of 28 dislike it, that would be it. Historically-not so much in recent times-it has been one of the most centrally used instruments. It was used to develop all kinds of new things that eventually became formal competences: social policy, environment policy, structural policy, etc. One of the challenges I would suggest that has to be thought of is also about Executive-Parliament relations, as well as EU-national ones.

Q566 Chair: I would just like to follow this a little bit further because, in the context of a person who is voting at a ballot box in a poll in a general election, they say they want a certain Government who will give rise, in their opinion, to certain decisions, some of which are based on manifestos, for the most part. However, to go back to your general theme, when-in the question of the intervention through the treaties and section 2 of the European Communities Act, and all that goes with it-the decisions are taken by majority vote in the Council of Ministers or, in the case of regulations, are made by the Commission, there is no evident connection between what is going on at the ballot box and what is going on in the institutional machinery. Simon Hix came to see us; I do not know whether you know him.

Professor Chalmers: We are good friends.

Chair: He had some very interesting evidence to give us, through VoteWatch, on the whole question of consensus. Some 90%, in round figures, of everything that goes before the European Council is decided by consensus because they already know that it would not be wise to have a vote. There is a democratic deficit that is inherent in all that, and it is just that your analysis seems strongly to support the questions that some people have been asking, for example in COSAC, about democratic legitimacy. Do you have any thoughts on that?

Professor Chalmers: The argument for the European Union, and I am not disagreeing with any of that, is that you are able to do things through it that you would not be able to do just nationally-that would otherwise be done by Foreign Office officials or whatever. If it was just the European Union and national Parliaments doing equivalent things, we run into precisely the problem that you identify: citizens associate their voices as expressed through the ballot and then through a system of representative democracy, which in many ways historically-and, to my mind, this still is the case-is not mediated very well through EU decisionmaking processes.

I would elaborate on your point and say it does not just go back to the supranational elements that you identify, the role of the Commission and qualified majority voting. If we, even on issues of unanimity, look at how Government Ministers across the EU express their positions, some states of course take this very seriously and have a mandate system for Parliament-Government relations, where the national Government require a mandate from the national Parliament before it can vote accordingly in the Council. Denmark is always given as the salient example of that. The issue with that historically is that they have discovered that, even in those states, the mandate is used only for a select number of items. The reality is that a lot is agreed in the Council that Parliaments do not really express a view on and that, to my mind, is a further issue.

Q567 Jacob Rees-Mogg: I just want to follow up on the various coloured cards and Parliament exercising them in a specifically UK context. I was interested by what you were saying: that if five, six, seven, eight or nine Governments opposed something, it would not go ahead anyway. Therefore, clearly this use of cards is secondary to that. Obviously, in our system, the Government command a majority in the House of Commons. There is no way the House of Commons can issue a red card if the Government of the day are against it and have already agreed the position. Is it, in a sense, window dressing to say that the UK national Parliament will be given this wonderful new enhanced role? In fact, it is not a role we can exercise without the Executive supporting it, because that is how our constitutional system works.

Professor Chalmers: That is certainly an argument that has been put by a lot of scholars. I would make a couple of points in relation to that argument. Scholars have written about it and said, when one thinks about it, one has to look at the position of party politics in the relative political systems. They say it worked well in Denmark, because historically it has had a coalition Government. Certainly one of the arguments that has always been given for why we do not have a mandate system here in the United Kingdom is that Parliament might be seen precisely as a handmaiden of Government. In some ways, if it could review and just suggest, almost like a reviewing chamber-and this is why it has always been argued that the House of Lords has been particularly effective in its observations-then that works a little bit better, for the reasons that you have given.

My own feeling is that that might be the case, but it is a rather fatalistic role for the potential of national Parliaments and rather overlooks the possibility for parliamentarians to take an independent pride in what they do as parliamentarians. That is the first thing.

The second thing is that, even if that argument was right, the consequence of it would be the Committee would become a lot more powerful. As Government and Opposition began thinking, "This is something we really have to stack," it would become a much more highprofile Committee. Even if it was stacked by the political parties, there would be a lot more salient debate, and there might be more highlevel reporting and issues might get aired. That is a little bit, one could argue in a rather cynical way, what happens sometimes in the House of Commons when there are large majorities. The value of it is not just independent representatives, but the quality of debate that takes place. I would still argue for perhaps a slightly more mandated system, notwithstanding our constitutional traditions.

Q568 Chair: In your paper on democratic selfgovernment you say: "The institutions with most credibility to verify whether an EU measure adds democratic value are national parliaments. They are the central fora for democratic contestation within Europe and, as they lose by EU competence creep, do not have the same reasons as EU institutions to be passive about EU law." Now, one of the measures-and Jacob ReesMogg has just referred to this-mentioned by the Foreign Secretary and the Minister for Europe is this socalled red card or emergency brake. We do know that, in the context of the Bloomberg speech and all the thinking that has been going on about this, and the issues of democratic legitimacy, there are increasingly concerns about the process, reflected for example by the Barroso blueprint, and what Viviane Reding and others have been saying in the European establishment, for more and further European integration.

This red card or emergency brake would quite clearly be a reaction to this increasing degree of integration, which the Bloomberg speech in a way suggests does not have the "demos", as the Prime Minister put it. He put emphasis on the importance of national Parliaments being the root of our democracy. The Foreign Secretary calls it a red card or emergency brake but, considering the number of national Parliaments that are given the right to block legislation, how would that operate in practice, do you think? What would "the right to block legislation" mean in practice, in your feeling?

Professor Chalmers: I will just repeat what I opened with in relation to Mr ReesMogg’s point, which was that, in practice, we have something close to a red card already, because of the way voting is stacked up in the Council. If a third or a quarter of national Parliaments, or half, already stated they dislike a thing, it is highly improbable we would get the necessary majorities in the Council, so it would not change much. The issue, as you, Chair, alluded to yourself in part, is the thresholds. In part, it is Parliaments saying "no".

I would raise a further issue that has been raised by some colleagues. I understand the Barroso initiative and what Viviane Reding is saying. They are unlikely to affect the EU anyway. I would be sceptical about them actually winning the necessary referenda. Aside from that, it is not clear it is for new legislative powers; if you look at what they are looking for, it is very much national Parliaments holding the ECB to account. However, there is another problem about the red card that might come back if it was to be done for a treaty amendment. I personally would not favour a treaty amendment anyway.

Some people have bemoaned the fact that national Parliaments have used this process in article 7 to look at things beyond subsidiarity. They said the only thing they are really meant to look at is whether a proposal meets the subsidiarity test. National Parliaments have not done that; they have looked more broadly at whether they like the measure or not. That has been the general practice. There is a danger that if you formalise this, if you are not careful-depending on how it is worded-it will become an issue. The Commission might take a measure-once again there would be different politics behind it-and say, "You have broken the terms of the compact, because you promised only to look at subsidiarity and you have looked at something broader." The challenge with the subsidiarity principle is that is quite a narrow functional principle, in my view.

Let me just give you one example. I speak as someone who has very liberal views-probably much more liberal than most of those in this room-on migration. If you had the subsidiarity principle, the EU would be quite justified in doing anything that facilitates free movement. It is, of course, very difficult for any state to do that by itself. The terms of reference for the legislation or the debate are purely more migration. Of course, if one was having a wider debate about it-issues about pressure on labour markets and public services-there would also be other issues that would be taken into account. What the EU would say is, "Are we doing what is necessary to realise this one goal?" It is a functional test. I believe-even though I actually support that goal quite strongly-that we would want a broader role for national Parliaments than just generally deciding, "Is this something we like or not?", rather than tailored to the objectives of a particular treaty.

Q569 Chair: That brings us on to the question about the thresholds, in the sense that there are those who say there should be a threshold amongst all national Parliaments. The question is whether, as you put it in your own paper-I will quote from that again-"Individual national parliaments should also be able to pass laws disapplying EU law where an independent study shows that EU law imposes higher costs than benefits for that member state." Of course the principle there is the question of disapplication. We already have a competence review that is going on across the board.

What that raises is the question-which is a fundamental constitutional issue-about whether or not an individual Parliament could make a unilateral decision to disapply the law. Of course, the European Communities Act itself is a voluntary Act. We entered into it in 1972, albeit on the basis that a 1971 paper, by a very narrow majority, which specifically stated that the veto must be retained in the national interest, because to do otherwise would be contrary to the national interest. It went further and said it would endanger the very fabric of the European Community, which is an interesting addition to the dimension. Given that that is the constitutional position, in what way would the unilateral application of a disapplication work, in your judgment, and what would be the mechanism, assuming that you would have to have primary legislation in order to pass it?

Professor Chalmers: What is in my paper is a proposal; it is obviously currently not the situation. Chair, as you well know, the current situation, both in English law with Thoburn and also the Court of Justice ruled repeatedly this year in Malone-

Chair: And there is Macarthys v. Smith.

Professor Chalmers: Yes, there is a whole weight of things, particularly since Factortame, which gives primacy of EU law over national law. I argued in my paper a rather technical legal argument on article 4(2) of the Treaty of Lisbon, which requires EU law to respect national state identities "inherent in their fundamental structures…inclusive of regional and local selfgovernment". This provision-which was, in so far as it was justiciable, new to the EU treaty after Lisbon-offers new ways of thinking about this. This is not just some academic who decides to say this to provoke argument. This is the position, it has to be said, of the Polish constitutional tribunal and the German constitutional court. They made it very clear in their judgments on whether those two states could accede to the Lisbon treaty that this principle was fundamental and that primacy of EU law had to take effect.

Now, what those two states say, as well as France, the Czech Republic and, I think one could argue, Italy, is that there are certain areas of national activity that EU law just will not have primacy over. They create a sort of division of competences, if you want, irrespective of the EU treaties. That is how they say it. My argument is that that is not a good way of looking at it; there is nothing in the provision that says that. A better way should be to think about the structures that you have that are your fundamental democratic structures, which both the German and Polish courts say is democratic selfgovernment and national legislatures, and that therefore there should be the possibility for acts of national legislation to take precedence over EU law because of this provision. Those are the consequences of what the German and Polish constitutional courts say.

Q570 Chair: It is already inherent as well, surely, and not only in terms of what you are saying. Is it not inherent in the right of the United Kingdom Parliament anyway-we took evidence, by the way, on this in our EU sovereignty report a few years ago-to pass any legislation notwithstanding the European Communities Act, if we chose to do so? You could disapply it. In fact, I just mention this-you may not know this-on occasions amendments have been put forward that have been accepted by the House authorities and have been moved with that formula in it, and indeed have been voted on, and on a threeline whip, in the case of the Conservative party before the general election.

Professor Chalmers: Chair, you know better than I. You are absolutely right: of course it is Parliament’s right to amend or change the European Communities Act-the 1972 Act-as it sees fit, and the EU 2011 Act also makes that very clear. My issue as an EU lawyer is a slightly different one. It is not whether there is that possibility, which there clearly is constitutionally. Traditionally, the position has been that, if you do that, it might put your membership of the Union at risk. This is historically one of the things that states, since the Copenhagen criteria in 1993, have had to put in place. The argument was that you can do this, but it is not compatible with the existing EU constitutional settlement, i.e. being a member of the EU. My argument is that it is. You could do this and there really would not be a problem for EU membership. In fact, EU law allows it. It is a slightly different argument from that one, because it is saying that, actually, EU law allows it, irrespective of what the status of EU law is.

Q571 Andrew Bingham: On the experience of the yellow card procedure, what does it tell us about how national Parliaments act in practice when given new powers under the treaties?

Professor Chalmers: When one looks at the takeup of the yellow card procedure, one has to go back not just to Lisbon, but to 2006 and the socalled Barroso initiative, when there was an informal commitment by the Commission to listen to national Parliaments. What has happened is that, every year, the takeup has got higher, but it is very asymmetric. The Parliaments of all states other than one submitted observations last year: the Portuguese and the Italians were the highest, if I remember, by a long way. I do not have the figures to hand, but I think that Parliaments from about seven or eight states made 15 or more observations.1 One can also see this in the length of the reviews. It was chambers like the French or Czech Senates or the House of Lords here that tended to be most active. We will have to wait and see how it stabilises, but it is still going up.

Q572 Kelvin Hopkins: Professor Chalmers, the Minister for Europe recently spoke in the debate in Westminster Hall about the possibility of introducing some form of "own initiative" procedure for national parliaments. Is this similar to one of the limbs of your proposed test of democratic responsiveness?

Professor Chalmers: Yes. I did not know that, but yes; I think it would be a good thing. My own view is that the biggest challenge for the EU-and this is irrespective of what happens with the euro area-is not to develop another 10,000 instruments. No one is suggesting that. If anything, the number of instruments has gone down in recent years. It has been rather stable, but it is how it manages its existing legislative docket. At the moment, the only person who can change those things is the Commission. It seems to me that it would be a good thing if this monopoly was broken up. This is not a national point or an EU point; I just think that Parliaments should be able to propose amendments to legislation, repeal the legislation or even propose new EU legislation.

I would make one further point on this: the success of the European Parliament, if one likes to put it this way, was precisely because of that in the early 1990s. Anyone who is denigrating the European Parliament too much has to explain why so many of its amendments were accepted by the national Governments when you needed a qualified majority. According to some studies, it was over 80%. The reason why so many amendments were accepted was because the only place you could go, if you did not get something in the Commission’s proposal, was to the European Parliament to get it changed. What happened was a lot of lobbyists and national Governments who did not like what was in the Commission’s proposal and had lost would go to the European Parliament, which would then propose amendments that had to be accepted in the Council. I think having a third opportunity for that, where national Parliaments could suggest amendments or require proposals to be submitted, would be very welcome.

Q573 Kelvin Hopkins: I have a long-standing view that democracy is something that comes upwards, not downwards from the top. The procedures of the European Union bear some similarity to democratic centralism, in the sense that things are decided centrally and fed down, and yet they get acquiescence by Governments, Parliaments and whatever. Could it not be quite threatening to the European Union if national Parliaments chose to push things that it did not like? Supposing we had a leftwing Government who wanted to decide that some utilities should go back into public ownership, and the European Union said, "No, no, this is against market views." That would be interesting, would it not?

Professor Chalmers: Two things: first, the fact that things are threatening is not necessarily a bad thing. I just think that is what democratisation is about. The second thing, in my proposal-and I understand it was also in the Minister’s proposal-is that it is only a right to propose. If you think about it at the moment, we give the right to propose to all of yourselves. It is much more widely dispersed in Westminster through the possibility of a private Member’s Bill than these proposals suggest. It still has to get through the national Governments and, if they say no, all they have to do is give their reasons why it is no, which does not seem to me a bad thing.

Q574 Kelvin Hopkins: I have had the honour of accompanying the Chairman on a number of occasions to COSAC meetings, and there is a sense there that the Commission and indeed the European Parliament are slightly nervous about COSAC, if COSAC starts to propose things with all the parliamentary representatives. They want to play down COSAC and not play it up, whereas we want to play it up, I think.

Professor Chalmers: I cannot speak to that and I think you would have to talk to commissioners, MEPs or Commission officials. It is interesting, both with the European semester and what is happening in the euro area, that the Commission is anticipating a much greater role for national Parliaments. Of course, the Barroso initiative, in my opinion at least-in my judgment-was reasonably sensitive to them. Of course, if some of these proposals took off, there would be something that acts a bit as, if you like, a political competitor to the Brussels sphere but, once again, I do not actually see that as bad for the European Union.

Q575 Chair: In the context of COSAC, the Irish presidency held a debate on democratic legitimacy and I was invited to respond on behalf of the views that many people know I hold on the question of the issues that we are discussing now. In fact, Commissioner Viviane Reding was invited by the Irish presidency to take part in that discussion. She sent a video of her views on movements towards a federal system. I put forward the arguments as I did. Did you know that the COSAC debate is increasingly engaged in this issue of democratic legitimacy, and that these debates are in fact made public through webcasts and things of that kind? Were you aware of that at all?

Professor Chalmers: I read all the COSAC reports and find them quite interesting. I was not aware of the webcasts, no.

Q576 Chair: The Irish did hold one. I do not know whether it is going to continue in other sessions, because there is a new session coming up in Lithuania. I just mention the fact that the essence of what we are discussing today, in terms of principle, is being debated. The question of where the national Parliaments stand in relation to the EU is a very relevant issue at the moment.

Coming back to the primacy of national law, your argument about article 4(2) is very interesting but, so that we can get a better idea of its strength and value, could I ask you two questions on it? How would you argue it in front of the European Court of Justice? Secondly, how do you think the European Court of Justice would be likely to decide it? There are all these cases that go back to 1963 and Van Gend en Loos, and there is a whole body of assertions of constitutional primacy, in the language of the European Court and in the decisions of the Court, over the constitutions of member states. How do you think all that would work out in practice?

Professor Chalmers: Chair, if you will forgive me for answering your question in a slightly indirect way, I would take a slightly different tack. The reason for this is it is not clear to me that the Court of Justice has a monopoly of interpretation over the authority of EU law-the relationship between EU law and national law. I think there are only, arguably, two states that believe that at the moment: Belgium and Luxembourg. I am not clear that any others do, if I look at the national constitutional courts. I would have to check that, but there is an overwhelming majority that do not. There are also two other things that lead me to that view, and these are once again quite technical legal arguments, but they are arguments that might play with Government lawyers.

First of all, through the Lisbon treaty, as you will be aware, the member states passed a declaration on the primacy of EU law. Now, if the member states-the Heads of Government-thought that it was not them but the Court of Justice that had a monopoly over this issue, it begs the question of why they passed that statement. It suggests that they thought that they had some authoritative position on this themselves-on this question of interpretation-and it was not just for the Court of Justice. You have that. You have the position of almost all the national constitutional courts. Thirdly, you have the wording of article 4(2), which uses the word "respect". I do not see how you can respect someone by telling them what they are and that your word will always take precedence over theirs. That just goes against any semantics I have seen with that word. Those are the arguments for why the Court would not have a monopoly.

What I would suggest-and this is, of course, a very pompous and narcissistic suggestion-is that actually the best way to go forward would be a declaration on article 4(2) by the European Council, setting out how it sets in place the relationship between EU law and national law. As you will see with my proposal, it was not just disapplication of national law. The idea of being part of a community is that you consider the effects of disapplication on the citizens of other states, so I suggested this procedure where Parliaments of other member states could look at it and refer it to the European Council, if they were unhappy with it. Being part of a community requires you to think of the views of others and take them into account. There has to be some procedure. That would be my preference, but I think a European Council declaration would be the way forward.

Q577 Chair: Of course there are optouts and there is the process of enhanced co-operation, both of which indicate that there can be differences in the manner in which legislation is made part and parcel of an integrated system.

Professor Chalmers: Absolutely. Sorry, I had forgotten a point. This mechanism of declarations is not new. It was used, of course, with the Edinburgh declaration in relation to subsidiarity in 1993. The EU institutions use them all the time for all kinds of things. In terms of modalities of how states would want to give effect to national law or, according to my proposal, how it would be referred to, say, COSAC or national Parliaments, that would be very much a matter for national law. There are constitutional traditions. The French have a constitutional council in a way we do not and, in my view, one should be respectful of that.

Q578 Chair: Section 3 of the European Communities Act 1972 makes an assumption that as far as the UK law is concerned, as it stands at the moment, we have to implement the interpretations of the Court of Justice. There would have to be some adjustment there, would there not?

Professor Chalmers: The basis of my argument is that a central mission of EU law is to respect the democratic identity of nation states. This means that when a Parliament says, "EU law is not for us," this democratic identity provision says that that national law must prevail over other EU law. It is not a general, willynilly thing-a way to say, "We will apply EU laws in some cases or not." The argument is it prevails unless the national Parliament says no.

Q579 Chair: Is this fundamentally because you believe that a democratic process should enable a national Parliament to be able to make a decision with respect to the laws of its own citizens?

Professor Chalmers: Yes, absolutely. Just in relation to your point about judgments of the Court of Justice, if the Court of Justice, for example, gave an interpretation that went against something that citizens of a state strongly believed in, citizens should have the right to pass an Act of Parliament that does not apply that ruling or that disapplies that ruling. Of course, the Czech constitutional court has already done that and no one batted an eyelid. It did it in relation to the system of pensions that they have in the Czech Republic and what rights they give Slovak nationals there. You would need mechanisms in place to ensure that the dislocatory effects are not too great on other EU citizens and you talk about those effects, in my view. The basic principle clearly is that our Parliaments are of a higher democratic pedigree and of a greater democratic tradition. There is the argument that Mr Hopkins has made of a preference for local selfgovernment over more centralising mechanisms. They all point to that conclusion, when push comes to shove.

Q580 Chair: All this runs completely contrary to the assumption that is in all the European jurisprudential body of law that the acquis is sacrosanct and cannot be changed, except by unanimity of the member states.

Professor Chalmers: Yes, it does a little bit, but it is not contrary to many of the judgments of national constitutional courts. One has to reflect that, as I mentioned earlier in my evidence, constitutional courts in the Czech Republic, Poland, Germany and, to some extent, France and Italy have said that their law, whatever the treaty says, can prevail over EU law. That is the first thing. Of course, what has happened, if one looks at the academic literature, particularly in Germany, is that quite a lot of it now takes the position that EU law cannot prevail over the basic law. They see the basic law in a little bit of the same way that we would see parliamentary sovereignty. They take quite an analogous position.

Q581 Chair: How have national parliamentary scrutiny systems across Europe, in your judgment, kept up with the changes in the EU decisionmaking process since Lisbon? To give an example, there is the increasing significance of trilogues and first reading deals. We understand first readings have increased by as much as 80%.

Professor Chalmers: They are just under 80%-79.5%.

Q582 Chair: Thank you very much. The second question is whether the greater use of qualified majority voting, as another example, means that national Parliaments, even if mandated, can be outvoted.

Professor Chalmers: Briefly, there is a lot of interesting evidence on the trilogues coming through now. The challenge of the trilogue for national Parliaments and for all kinds of people was a consequence of enlargement that first began with the enlargement of Sweden, Austria and Finland. You got very heavy use of trilogues then for the second reading. It then moved to the first reading and you found similar proportions, really from 2004 onwards. They increased a little bit; they went from about 30% to between 70% and 80% now.

The challenges with trilogues are numerous. First, there is evidence from a Dutch academic, Rik de Ruiter, who looked at British and Dutch Parliaments and found that, if things were decided at first reading rather than later in the process, there was evidence of less parliamentary engagement. I am talking about domestic parliamentary engagement. Clearly it telescopes the whole process. Instead of these eight weeks being when the Council has a first look, it is the eight weeks when the thing is finally decided. That has been ameliorated a bit by the Barroso initiative, which tries to get to the information even before the formal proposal.

The biggest challenge I would say with the trilogue, which the Court of Justice might rectify any day of course, is that my understanding is that, because these are documents limitée, this chamber does not have a right to them. They are treated at the moment as not being subject to access or freedom of information laws. It certainly cannot publish or see explanatory memoranda on them. This is a challenge, because the Commission proposal may be a little bit away from the trilogue draft, or the position that everyone knows is going to be staked out in the meetings.

In the access info case, the General Court in 2011 said this was completely illegal. It said, in principle, the positions of all the member states in negotiations had to be disclosed. There was this idea that you could hold those. The Council appealed. The Advocate General in May upheld the position of the General Court, and we will see what the Court of Justice says any day. If it follows the Advocate General and the General Court, you will be able to have an unfettered right, as I understand it, to what takes place in the trilogue and will be able to publish it for citizens to see, which I think would be a marvellous thing.

Q583 Chair: On the principle of limitée, you may or may not know that I was actually, on an occasion at COSAC, given a leaked document and a limitée paper, which was incredibly important in the context of the economic convulsions that were going on at the time and the proposals for bailouts. I was able-because of our procedures here in the House of Commons, irrespective of any attempt to impose a limitée requirement on me-to raise it as an urgent question with the Speaker, who gave authority for the matter to be exposed in the House of Commons. It was rather an awkward way of having to do it, but that did happen on that occasion.

What I would also like to ask-this is a more general question, because we are getting to the end of our time now-is whether there are other professors of law and others who have engaged in a dialogue with you about your views. You have a very clear view based on certain principles, and I just wondered whether there are others who have written to you or raised questions with you and challenged the underlying arguments that you are putting forward.

Professor Chalmers: My final research on this is not published. I put out the initial findings because there is a public debate at the moment going on about both the UK’s position within the EU and the role of national Parliaments. My research is not fully published, so it is all a bit premature. What has happened when I have given presentations and courses is some people have said the argument you have raised, Chair: "This is what the Court of Justice says; it believes in the primacy of EU law." Other arguments that have been raised are, "Well, if you allowed national parliaments to disapply EU law, would you get some retaliatory race to the bottom?", and I am sceptical about that for a number of reasons as well. Some people liked my proposal for a citizens’ initiative and others did not. It tends to be whether one likes citizens’ initiative or not.

Could I just make one point here about trilogues? Sorry, I rambled off in the previous answer to your question. On trilogues, you mentioned the point about consensus that Simon Hix had raised. The figure he gave was for all legislative procedures. For qualified majority, and these are the figures from VoteWatch, 65% was consensus and 35% no consensus. The reality is that I suspect all the ones that are consensus have to be agreed by trilogue. It is a condition for the trilogue that there is consensus. When you are looking at the first reading ones, that is when the consensus takes place. If they do not have consensus at trilogue, you then move to a vote later one.

The consequence of that is that you have a Commission proposal on which a consensus will emerge, but national Parliaments may not know about it and certainly cannot expose it to their publics. There is the problem that you raised that what happens is that these consensuses have a veto, but you do not as a national Parliament. You will know this very well. You can ask for a little, but you cannot assert too much. That is the basis of consensus. The issue you raise, Chair, is about whether a national Parliament could stop certain things, if push can to shove. In some circumstances, it could but, in many circumstances, it would be politically unwise for it to do so.

Chair: I now have one last thought, which is a question regarding the strengths and weakness of the House of Commons scrutiny system but, because of the time constraints, if you do not mind, I am going to ask you if you would be kind enough to do us a note on these. They have been covered by other evidence. In brief, they are what do you think about: sifting by the European Scrutiny Committee; debate in ad hoc European committees; policy analysis by departmental Select Committees; and the question of key matters being debated on the Floor of the House?

I would also be interested if you were able to give a note on how the disapplication procedure would work in practice, given the fact that you would need primary legislation to give effect to it, so that the consequences of a decision or resolution of the House of Commons, or a motion that had been passed, would actually work in practice. If you could do that, it would be very much appreciated, as indeed is your attendance today, for which we are extremely grateful. Thank you very much for coming.

[1] Note by witness: In response to Q571 from Mr Bingham, I said I did not have the figures to hand of national parliaments who made 15 or more reasoned opinions a year but I thought it was ‘seven or eight’. In fact, the numbers are nine for 2012, ten for 2011, six for 2010.

Prepared 27th November 2013