Documents considered by the Committee on Wednesday 16 March 2016 Contents

4Reform of the electoral law of the EU

Summary and Committee’s conclusions

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Public Administration and Constitutional Affairs Committee

Document details

(a) European Parliament Resolution of 11 November 2015 on the reform on the electoral law of the European Union; (b) Proposal for a Council Decision adopting the provisions amending the Act concerning the election of the members of the European Parliament by direct universal suffrage

Legal base

Article 223(1) TFEU; EP consent; unanimity


(a)Foreign and Commonwealth Office; (b) Cabinet Office

Document Numbers

(a) (37395), —; (b) (37431), —

4.1 The proposed Council Decision, which is subject to unanimity and ratification by Member States, aims to harmonise certain aspects of the conduct of European Parliament (EP) elections in Member States.

4.2The proposal was initiated by the European Parliament (EP) on the basis of Article 223(1) TFEU. Its more significant measures include: common deadlines for establishing lists of candidates and electoral registers, making members of regional parliaments and legislative assemblies ineligible for election as MEPs, gender equality of candidates, proposals on electronic and postal voting, some mandatory 3–5% thresholds for winning seats, proposals relating to voting by EU mobile citizens, incorporating the “Spitzenkandidaten” process to elect the Commission President and making provision for detailed implementing rules. However, it does not include aspirational proposals, only set out in the EP’s Resolution, such as a common minimum voting age of 16 and a common voting day.

4.3In its Explanatory Memorandum, the Government expressed some subsidiarity concerns, saying that some aspects of the proposal are best decided at national level. Its main concern appears to be that uniform practice for EP elections would be inconsistent with domestic electoral practices, making it difficult for the UK to hold EP and local elections at the same time, resulting in reduced turnout for EP elections.

4.4On 13 January,11 we recommended a Reasoned Opinion on the proposed Council Decision. Following a debate in European Committee on 2 February,12 this was approved by the House and sent to the EU institutions on 3 February. So far, five other Reasoned Opinions have been issued by the two unicameral Parliaments of Luxembourg and Sweden, by the two Chambers of the Dutch Parliament and by the UK House of Lords. Together, the Reasoned Opinions amount to a total of eight out of the 19 votes required to attain the Yellow Card threshold under the Subsidiarity Protocol.13 We have completed an analysis of the most common objections raised by the national Parliaments/Chambers (including our own) which is set out at paragraph 4.13.

4.5We concluded in the Reasoned Opinion that:

4.6However, we were not assisted greatly in this task by the Government’s inadequate subsidiarity and financial assessments of the proposal for the reasons set out in paragraphs 1.7 and 1.8 of our earlier Report. Accordingly we asked the Minister for Europe (Mr David Lidington) to comment on this as well as the following issues:

4.7Instead of the Minister for Europe, the Parliamentary Secretary at the Cabinet Office and Minister for Constitutional Reform (John Penrose) now responds. Important aspects of his response are reflected now in these conclusions.

4.8We thank the Minister for his response and ask that he continue to keep us updated on developments.

4.9We note, in particular, the Minister’s comments on amendments to Articles 11 and 14 of the 1976 Act and his concern about dilution of Member State control over EU electoral arrangements through the proposed use of QMV for implementing measures. We ask the Minister to clarify whether he considers that such an amendment could amount to a “change to Article 223(1) TFEU transferring competences from the UK to the EU” which “would require a referendum under the European Union Act 2011”. His meaning is not quite clear to us. While the proposals would affect voting on provisions made under Article 223(1) they would not amend the Article itself.

4.10We draw to the attention of the wider House the common objections set out in the Reasoned Opinions of national Parliaments and Chambers summarised at paragraph 4.13 of this Report chapter. On the question of subsidiarity, we are disappointed that the Minister has not addressed our concern at the inadequacy of the Government’s subsidiarity and financial assessment. We note that in the debate on 2 February, when pressed, the Minister finally stated:

“The hon. Gentleman14 asked about finances. It is rather early in the process to have a precise, detailed accounting, but as we are politely but pretty firmly demurring from most of the contents of this proposal, we hope not to get to the point at which the finances become relevant, because we do not want this to happen in the first place, but should we get to that point in the process, of course we would have to add up which bits would cost money and which would not.”15

4.11Where possible justifications of legislation against the subsidiarity principle should be made on both qualitative and quantitative grounds. As a matter of general principle, Government delays in producing costs and financial assessment impair our ability to recommend a Reasoned Opinion to the House. Moreover, a failure to equip the House with the information needed to fully use its powers to object to legislative proposals on grounds of subsidiarity will undermine its ability to participate in the new “red card” mechanism agreed as part of the UK’s renegotiation of its relationship with the EU. We therefore ask the Minister to note these concerns and to confirm that it is not official Government policy to delay the provision of adequate assessments of subsidiarity, including financial implications, on proposals involving unanimity until such time as they might be expedient for the Government in the negotiations.

4.12We continue to retain the documents under scrutiny. However, we draw them and this chapter to the attention of the Public Administration and Constitutional Affairs Committee.

Full details of the documents

(a) European Parliament Resolution of 11 November 2015 on the reform on the electoral law of the European Union: (37395), —; (b) Proposal for a Council Decision adopting the provisions amending the Act concerning the election of the members of the European Parliament by direct universal suffrage: (37431), —.

Analysis of the Reasoned Opinions of national Parliaments/Chambers

4.13We have analysed the Reasoned Opinions referred to in paragraph 4.4 of this Report. The following are the most common objections to aspects of the legislative proposal:

Minister’s letter of 12 February 2016

4.14The Parliamentary Secretary at the Cabinet Office (John Penrose) writes to remind us that the UK Government has a veto in respect of all measures set out in the legislative proposal. He then responds to the questions we asked (outlined in paragraph 4.6 above).

Setting the date of the electoral period and elections for the EP

4.15The Minister says that he believes that the Council should retain its current prerogative to decide the date of the EP elections rather than to transfer that power to the EP as proposed. He considers it is in Member States’ interests that “inter-institutional balance is kept on this matter” and EP electoral periods are consistent with national circumstances. The need for predictability and consistency would be undermined by the proposed removal from Article 11 of the 1976 Act of the reference to the elections being held in a “corresponding period” every five years.

Change to QMV in amendments to Articles 11 and 14 of the 1976 Act

4.16The Minister’s full response is set out here because it is significant in its focus on the dilution of unanimous control by Member States over changes to EU electoral arrangements:

“Article 223(1) TFEU concerns election law for elections to the European Parliament. It provides that the European Parliament is to draw up a proposal to lay down the necessary provisions for elections to be held in accordance with a uniform procedure in all Member States (MS). When it has done so the Council is to lay down the appropriate provisions which it shall recommend to the MS for adoption. In doing so the Council is to decide unanimously after attaining the consent of the European Parliament. Articles 11 and 14 of the European Parliament’s proposals would result in such decisions being approved in the Council by Qualified Majority Voting. This would be inconsistent with the current Article 223(1) which gives each Member State a veto over such changes. The Government is opposed to any measure that would see the UK relinquishing its right to veto in this important area, which could have a direct effect on the conduct of elections held in the UK. Please also note that any change to Article 223(1) TFEU transferring competences from the UK to the EU would require a referendum under the European Union Act 2011.”

The “European Added Value Assessment” provided by the EP

4.17The Minister does not think the Added Value Assessment provides “credible or convincing evidence to underpin its arguments on several points” in particular he highlights:

4.18The Minister explains this last point:

“The Government does not consider that the proposals would achieve their stated objective, and would not be helpful to participation levels in elections to the European Parliament. For example, the proposals to establish common (and for the UK, earlier) deadlines for candidates’ nominations and for registering to vote, if adopted for European elections, could create potential difficulties for parties and candidates wishing to stand for election if they did not have the necessary nomination papers ready by the earlier date, and may prevent eligible persons who, for example, may have recently moved, from registering to vote in the run up to the poll. The proposed changes could also create complexities with the combination of European elections with other polls, such as local elections, which has generally been considered to have had a positive impact on voter turnout at these polls. Such changes for European elections could therefore prove to be unhelpful to candidates, electors and levels of participation in elections to the European Parliament, which would not strengthen the legitimacy of the European Parliament.

“Generally, we are not persuaded that the proposals would strengthen the legitimacy and efficiency of the European Parliament or enhance the effectiveness of the system for conducting elections.”

Consultation of the Electoral Commission

4.19The Minister explains that the Government would not normally consult the Electoral Commission at such an early stage but that this should follow if “more refined proposals” emerge after consideration by Member States.

European Council review of the nomination process for Commission President

4.20The Minister says that this review is yet to take place but that the UK’s position remains that “only the European Council enjoys the right to propose the candidate for Commission President”.

Previous Committee Reports

Nineteenth Report HC 342–xviii (2015–16), chapter 1 (13 January 2016).

11 Nineteenth Report HC 342–xviii (2015–16), chapter 1 (13 January 2016).

12 Gen Co Deb, European Committee B, 2 February 2016.

13 Protocol 2 to the Treaties on the application of the principles of subsidiarity and proportionality.

14 See note 2. Wayne David MP, page 9 of the record of the debate.

15 See note 2. The Minister (John Penrose) at page 14 of the record of the debate.

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Prepared 22 March 2016