3 Rule of Law in the EU
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; recommended for debate on the floor of the House (decision reported on 7 May 2014); further information requested; drawn to the attention of the Foreign Affairs Committee, the Justice Committee and the Joint Committee on Human Rights
|
| Document details | Commission Communication: A new EU Framework to strengthen the Rule of Law
|
| Legal base | —
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Departments
Document numbers
| Foreign and Commonwealth Office and Ministry of Justice
(35878), 7632/14 + ADD 1, COM(14) 158
|
Summary and Committee's conclusions
3.1 In response to calls from some Member States
and the European Parliament, the Commission published this Rule
of Law framework in March 2014. It was intended to better protect
the rule of law in Member States from systemic threats. These,
the Commission considered, could not be effectively tackled through
Article 258 TFEU infringement proceedings which target specific
breaches nor through Article 7 TEU mechanisms which involve high
"last resort" thresholds for action.
3.2 The framework seeks to resolve such future threats
to the rule of law before conditions are met for activating the
procedures in Article 7 TEU. It is only intended to be used where
national mechanisms are no longer capable of addressing the difficulties.
It gives some indication of the threshold for action under the
mechanism: "the political, institutional and/or legal order
of a Member State as such, its constitutional structure, separation
of powers, the independence or impartiality of the judiciary,
or its system of judicial review including constitutional justice
where it exists, must be threatened — for example, as a
result of the adoption of new measures or of widespread administrative
practices of public authorities and lack of domestic redress".
3.3 The framework consists of a three stage process:
the Commission would send a confidential reasoned opinion to the
Member State concerned; if the matter remained unresolved, the
Commission would set out a timetable for recommended action; if
this was not complied with, the Commission would consider activating
one of the Article 7 procedures.
3.4 The Government has been concerned about: the
scope for duplication of existing mechanisms; the undermining
of the role of the Member States within the Council; uncertainty
about the threshold for activating the framework; the Commission's
competence to issue the framework and a widening of the remit
of the Fundamental Rights Agency. We have also had concerns about
the potentially wide scope of the concept of the rule of law envisaged,
the lack of oversight of the Commission and the possibility of
the framework's extension in future to wider Article 2 TEU values.
We thought that if the threshold in Article 7 was set too high,
it was a matter for Treaty change and the collective political
will of the Member States. We also recommended the document for
debate on the floor of the House.
3.5 We have previosuly reported on the joint letter
from the Secretary of State for Justice (Chris Grayling) and the
Minister for Europe (Mr David Lidington) of 2 March. They informed
us that the current document had not been endorsed by the Council
in December and that the Council had opted instead to hold annual
dialogues on the rule of law. The Government was also unable to
commit to organising the recommended debate. However, it did respond
to the concerns we had initially raised on the document in May
2014.
3.6 In response, in our most recent Report on this
Communication, we urged the Government to hold the debate before
the dissolution of Parliament, noting that the Government had
conceded that that it would be "complacent to imagine that
the Commission will not try to take further action in relation
to the rule of law in future". We also asked the Government
to comment on the publicly available opinion of the Council Legal
Service (CLS) that the Commission had no competence to issue the
current document. The Ministers now write in response to that
last Report, reiterating their position on our debate recommendation
and declining to comment on the CLS opinion.
3.7 We thank the Ministers for their prompt response
to our last Report. We regret that the Government's position remains
unchanged on our debate recommendation. We hope that our successor
Committee will see fit to continue to pursue this outstanding
matter with the next Government in the new Parliament. We ask
Ministers to continue to provide updates on developments, including
any rule of law dialogues.
3.8 In the meantime, the document remains under
scrutiny.
Full details of the documents:
Commission Communication: A new EU Framework to strengthen
the Rule of Law: (35878), 7632/14 + ADD 1, COM(14) 158.
Background
3.9 A full background to and account of the current
document, together with the Government's view, are set out in
our Report of 7 May 2014.[22]
The Ministers' letter of 19 March 2015
3.10 The Ministers say on the question of the debate
recommendation:
"We note your further comments on the recommendation
for a debate but regret that as matters stand we are not in a
position to add anything to what we said in our letter of 2 March."
3.11 The Ministers then comment on the issue of the
publicly-accessible Council Legal Service opinion:
"Thank you for drawing our attention to
the fact that the opinion of the Council Legal Service (CLS) had
been placed in the public domain, which we understand to be highly
unusual. As you know, it is not the government's practice to comment
on, or, normally, even refer to, CLS opinions, which are usually
covered by the Council Rules of Procedure — Article 6 on
professional secrecy and disclosure of documents, prohibiting
their disclosure. We can say, however, that the government naturally
takes appropriate account of such opinions when formulating our
policy positions."
3.12 Referring to their previous letter of 2 March,
the Ministers recall they considered the Council Conclusions,
adopted at the General Affairs Council of 16 December, were "a
good result for the UK". They also recall that the Council
Conclusions did not endorse the current document "including
the questionable proposal the Commission might make recommendations
to Member States", but instead "emphasised the principle
of conferred competences". The Ministers note that:
"The CLS opinion states that the Commission's
communication was not compatible with that principle which governs
the competences of the institutions of the Union."
Previous Committee Reports
Thirty-sixth Report HC 219-xxxv (2014-15), chapter
1 (11 March 2015); Forty-eighth Report HC 83-xliii (2014-15),
chapter 1 (7 May 2014).
22 Forty-eighth Report HC 83-xliii (2014-15), chapter 1
(7 May 2014). Back
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