Legally and politically important
Cleared from scrutiny; further information requested
(a) European Parliament Resolution of 11 November 2015 on the reform of 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 (“the proposal”)
Article 223(1) TFEU; EP consent; unanimity
(a) (37395),—; (b) (37431),—
6.1This proposed Council Decision aims to harmonise certain aspects of the conduct of European Parliament (EP) elections in Member States.
6.2The proposal was initiated by the EP and is based on Article 223(1) TFEU. This means that it must be agreed unanimously by Member States, is subject to the EP’s consent and must be approved by Member States “in accordance with their own constitutional requirements”. For the UK, this means approval must be obtained by an Act of Parliament before final adoption of the proposal, in accordance with Section 7 (2)(b) of the European Union Act 2011 (the 2011 Act). It is also relevant that both that requirement and our own scrutiny resolution reserve cannot be circumvented by the UK abstaining from any final vote in the Council. This is also true for the application of our scrutiny reserve to a decision of the Council to send the proposal to the EP for its consent—the stage in the legislative process currently under consideration.
6.3The more significant measures in the original proposal included: 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, the proposal did not include more controversial measures set out in the EP’s Resolution, such as a common minimum voting age of 16 and a common voting day.
6.4In its Explanatory Memorandum which predated the Referendum, the previous Government expressed some subsidiarity concerns, saying that some aspects of the proposal were best decided at national level. Its main concern appeared 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.
6.5On 13 January 2016the previous Committee recommended a Reasoned Opinion on the proposed Council Decision which was subsequently approved by the House and sent to the EU institutions on 3 February. Five other Reasoned Opinions were issued by national parliaments/chambers including the UK House of Lords. The former President of the EP, Martin Schulz responded on 8 April 2016 saying that the Reasoned Opinion had been passed to the EP’s Committee on Constitutional Affairs (AFCO) for its consideration. Since then nothing has been heard from the EP.
6.6There has been little further updating from the Government since early 2016 until this past month of April during which the Minister for the Constitution (Chloe Smith) sent us two letters. In her letter of 6 April, she says that negotiations reached a point where, following a COREPER meeting of 28 March, a proposal was to be put to the General Affairs Council on 17 April. The UK Government intended to support the proposal. She included with that letter a detailed Annex about the negotiated proposals and a limité version of the Presidency’s proposals. However, in her more recent letter of 20 April the Minister informs us that no agreement was reached at that Council meeting. Instead, agreement was to be sought before the end of the month by Council written procedure. In view of that, she requests scrutiny clearance or a scrutiny waiver.
6.7We thank the Minister for her comprehensive and detailed letter of 6 April. Also for her subsequent letter of 20 April, updating us on the outcome of the Council meeting of 17 April. We note that the Minister has now requested scrutiny clearance or a scrutiny waiver in relation to any agreement to the proposal by the UK before the end of the month. We clarify that it is our understanding this would be an agreement to send the proposal to the European Parliament for its consent, not for its final adoption. We also note that the latest informal information from Government officials is that agreement had still not been reached as at the morning of 2 May.
6.8While we are disappointed at the overall infrequency of Government updates since the proposal’s introduction in 2015, we recognise that more effort has been made by the Minister and her officials to inform us in relation to these final stages of the legislative process. Unfortunately, the letter of 6 April was not sent before the Easter recess which meant that we could not report it to the House before the 17 April Council meeting. Likewise, the letter of 20 April arrived too late for us to consider at our meeting of 25 April. We were therefore unable to consider clearance or a scrutiny waiver in time for any agreement before the end of April.
6.9Given that the UK will not be participating in the EP elections as it is withdrawing from the EU, we now clear the proposed Council Decision from scrutiny, together with the EP’s Resolution. However, we ask the Minister to keep us updated on the outcomes in the final stages of the legislative progress of the proposed Council Decision which are not clearly delineated in either of her letters. Specifically, we would like to know:
6.10As a final observation, we would urge the Minister and the Government more generally to identify from the outset when a proposal is subject to the requirements of the 2011 Act. Apart from a reference in the original EM to the need for approval by Member States in accordance with their own constitutional requirements, the Government has not specifically highlighted the 2011 Act requirement for an Act of Parliament before the UK can finally approve the proposed Council Decision. This is not acceptable on a proposal of this initial importance.
(a) European Parliament Resolution of 11 November 2015 on the reform of 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),—.
6.11In our Report of 28 March, in a chapter on a related proposal the Minister provided the following short update on the current proposal, as requested in our first report on the related proposal (29 November 2017):
“These proposals are still under consideration by Member States and I will write to the Committee with further details should any firm proposals emerge. If any proposals are agreed, given that the United Kingdom will cease to be a member of the European Union on 29 March 2019 and will therefore not be taking part in future European Parliamentary elections, in practice the proposals would not have any practical effect in the UK”.
6.12After rehearsing the scrutiny history of the proposals, the Minister updates us on the progress of the proposals:
“Member States have been considering the European Parliament’s proposals at working group level. There has been some discussion at COREPER on the proposals. It has proved difficult to achieve a consensus among Member States on the European Parliament’s original proposals as many of them created difficulties for individual Member States. As such, since the European Parliament’s original proposals were published it has not been clear whether Member States would be able to agree a package of proposed changes, and if so, what particular changes would command support. It has therefore not been possible to provide you with certainty on the position until now.
“The current position is that the Presidency has identified areas for potential agreement among Member States. I attach a limité document from the Presidency that sets out proposed changes to the electoral law governing European Parliamentary elections, that draw upon elements of the original European Parliament proposals, and if agreed would form the basis of a Council Decision. The limité document from the Presidency is being provided in confidence to ensure that the Committee handles the information accordingly and does not publish the text.
“Of course, since the European Parliament produced its proposals, the context has changed and the UK will be leaving the UK and not taking part in future European Parliamentary elections. The European Parliament has recommended to the Council the dates of 23 to 26 May 2019 for the next European Parliamentary election. Member States are considering this and the exact timing will be confirmed about a year ahead of the poll. The next scheduled European Parliamentary elections are therefore due to take place after the UK has left the EU and in practice, any proposed changes will not have any practical effect in the UK”.
6.13The Minister next lists the modifications to the EP’s original proposals which have been put forward by the Presidency for agreement by Member States. More detailed outlines of these modifications are provided in an Annex to the Minister’s letter. They are:
6.14Next the Minister assesses the minimal impact of the proposals, if agreed:
6.15On the timetable for the agreeing the proposals, the Minister tells us that:
6.16Further to her letter of 6 April, the Minister reports on the outcome of the Council Meeting on 17 April:
“I can confirm that the compromise text proposed by the Presidency, as set out in the limité document that I forwarded to you, was considered at the General Affairs Council on 17 April. At the Council, it was not possible for Member States to reach agreement on the proposed text and the Council will now try to reach agreement on this matter as soon as possible. I am advised that the Presidency hopes to adopt the proposed Council Decision quickly by written procedure before the end of April.
“As I explained in that letter, since the European Parliament’s original proposals were published it has not been clear whether Member States would be able to agree a package of proposed changes, and if so, what particular changes would command support. In any event, the Presidency has put forward a revised package of measures and it is this set of proposals that is now being considered by Member States. We had not anticipated that the matter would be considered as early as at the meeting on 17 April and in the event, as I have indicated, it was not possible for Member States to reach agreement at that meeting.”
6.17The Minister then reiterates the Government’s view on the proposal:
6.18Turning to scrutiny matters, the Minister says that given there was no agreement at the 17 April meeting, the UK maintained its scrutiny reserve and did not abstain on the proposals at that time. The Minister therefore seeks a scrutiny waiver or clearance from us.
83 Section 1(7) of the 2011 Act provides that “A reference to a Minister of the Crown voting in favour of or otherwise supporting a decision is a reference to a Minister of the Crown—
(a) voting in favour of the decision in the European Council or the Council, or
(b) allowing the decision to be adopted by consensus or unanimity by the European Council or the Council.
84 Paragraph 5 of our provides that “In relation to any proposal which requires adoption by unanimity, abstention shall for the purposes of paragraph1 be treated as giving agreement”.
85 This is a process by which European political parties designate one candidate each for the post of EU Commission President, ahead of the European elections. However a candidate can only be put forward by the European Council in accordance with the process outlined in Article 17(7) TEU.
86 Explanatory Memorandum of submitted by the then Minister for Europe, David Lidington.
87 Nineteenth Report HC 342–xviii (2015–16), (13 January 2016).
88 See Reasoned Opinion of the House of Commons,
89 Letter from Martin Schulz to the Speaker of House of Commons,
90 This Annex may be accessed at the end of the letter of 6 April from the Minister to Sir William Cash which has been published on the Cabinet Office website
91 Our clarification: provide for written procedure as follows: “Acts of the Council on an urgent matter may be adopted by a written vote where the Council or COREPER unanimously decides to use that procedure. In special circumstances, the President may also propose the use of that procedure; in such a case, written votes may be used where all members of the Council agree to that procedure.
92 Proposal for a Regulation on the European Parliament and Council amending Regulation (EU, Euratom) No 1141/2014 on the statute and funding of European political parties: 12308/17, COM (17) 481.
93 Third Report HC 301–iii (2017–19), (29 November 2017)—see paragraph 15.
94 This Annex may be accessed at the end of the letter of 6 April from the Minister to Sir William Cash which has been published on the Cabinet Office website
Published: 8 May 2018