Select Committee on European Communities Sixth Report


  31 July 1997

  By the Select Committee appointed to consider Community proposals, whether in draft or otherwise, to obtain all necessary information about them, and to make reports on those which, in the opinion of the Committee, raise important questions of policy or principle, and on other questions to which the Committee considers that the special attention of the House should be drawn.




  1.    In 1993 the Committee reported on House of Lords Scrutiny of the Inter-Governmental Pillars of the European Union[1]. That report looked forward to the coming into force of the Treaty on European Union (the Maastricht Treaty) and made proposals for Parliamentary scrutiny of draft legislation brought forward under the new procedures contained in Title V, Common Foreign and Security Policy (the Second Pillar), and Title VI, Justice and Home Affairs (the Third Pillar) of the Maastricht Treaty. In this report we have returned to the question of scrutiny of Third Pillar proposals in the light of the experience we have had of the operation of the new arrangements. We believe that Parliament owes a duty to the public to ensure that Ministers are made fully accountable for their actions in the Council. The matters falling under the Third Pillar can have serious implications for the rights and freedoms of the individual, and Parliament must ensure that its procedures for monitoring work under the Third Pillar are effective. Already we have been able to undertake some worthwhile scrutiny. But, as this Report will show, there is scope for significant improvement in the opportunities available for Parliamentary scrutiny, and indeed wider public scrutiny, of the Third Pillar[2].

  2.    The Maastricht Treaty heralded a new era in co­operation between the Member States in the fields of justice and home affairs. It placed such co­operation on a formal treaty basis, in substitution for the informal arrangements which had operated previously. Title VI of the Maastricht Treaty, commonly referred to as the "Third Pillar" of the European Union, comprises ten articles, Articles K and K.1 to K.9, which lay down how co­operation is to be carried out in a number of defined policy areas regarded as "matters of common interest"[3].

  3.    Co­operation under the Third Pillar takes place outside the European Community procedures and the resulting decisions and acts do not form part of Community law. Third Pillar instruments constitute public international law. Under the Third Pillar, the right of initiative belongs to any Member State, or to the Commission, for the subjects enumerated in Article K.1(1) to (6), but for the matters referred to in Article K.1(7) to (9) the right of initiative rests solely with the Member States. The Third Pillar does not employ the Community's legislative instruments (regulations, directives and decisions). Instead, Article K.3(2)(a) to (c) lists the following forms of co­operation: first, the adoption of joint positions and the promotion of any co­operation contributing to the pursuit of the objectives of the Union; second, the adoption of joint actions and decisions on measures implementing joint actions; and third, the drawing up of conventions. The legal force of joint actions and joint positions is unclear and requires careful consideration of the language employed in each such proposal.

  4.    The Council[4] is the body within which the Member States act formally under the Third Pillar. The Council acts unanimously, except on matters of procedure and in cases where Article K.3 provides for other voting rules. Co­operation under the Third Pillar takes place at five different levels: in the Council, in COREPER (the Committee of Permanent Representatives), in the so-called K.4 Committee (established under Article K.4, as a co-ordinating committee), in three steering groups, and in numerous permanent and ad hoc working groups. Pursuant to Article K.4(2) the Commission participates in all meetings. However, its right of initiative is limited and it is not given the task of implementing the measures adopted. The Third Pillar is not subject to the jurisdiction of the European Court of Justice except in so far as the Court may, at the discretion of the Member States, be granted a role in interpreting conventions adopted under Article K.3(2)(c) or in disputes between Member States on the implementation of a convention.

  5.    Under Article K.6 the European Parliament will be informed of discussions by the Presidency and the Commission. It will be consulted on the principal aspects of Third Pillar activities, and its views must be "duly taken into consideration". It may ask the Council questions or make recommendations to it and every year it is required to hold a debate on the progress made in implementation of the areas referred to in the Third Pillar. Consultation of the European Parliament falls under the sole responsibility of the Presidency and not the Council and there is no mechanism by which it can assert its rights. The Parliament's views and recommendations have no binding force and the Member States' failure to respect Article K.6 does not affect the validity of acts adopted under the Third Pillar.

  6.    The introduction of the Third Pillar posed two problems for Parliamentary scrutiny. First, work under the Third Pillar may take several forms: conventions requiring ratification by Member States under national constitutional procedures before entry into force; other international agreements not requiring ratification or alteration to domestic law; and agreements in the form of joint positions, joint actions, decisions and recommendations. Except in the case of conventions subject to ratification[5], United Kingdom constitutional practice does not have any formal procedures under which Parliament has to be consulted or can make its views known to the Government before it signs a convention. Secondly, the inter-governmental procedures adopted in formulating such legislation may be entirely confidential until final agreement is reached among Member States. Most proposals based on the Third Pillar emanate from Member States and there is no requirement for them to be published.

  7.    With these developments in mind, the Committee conducted an enquiry in 1993 into the ways in which Parliament could oversee work undertaken under the two inter-governmental pillars of the European Union. In its report, House of Lords Scrutiny of the Inter-Governmental Pillars of the European Union, the Committee stated that it was essential that work under the inter-governmental pillars of the European Union should be supervised by national parliaments and that draft documents should be provided to Parliament if they qualified under any one of three tests - significance, the eventual need for United Kingdom legislation, or the imposition of legal commitments on the United Kingdom.

  8.    In its response to the Committee's report[6], the Government did not accept all of the Committee's recommendations but agreed with the Committee's conclusion that accountability for work under the inter-governmental pillars of the Maastricht Treaty should be to national parliaments and undertook to co­operate fully in arrangements for effective supervision and to respond to the needs of Parliament. In relation to the Third Pillar[7], the Government agreed to provide Parliament with the first full text of any convention or proposal which would, if agreed, require later primary legislation in the United Kingdom and of other documents of significant importance (subject to possible exceptions arising out of the need for security or operational matters). The Government did not agree that Third Pillar proposals should be subject to a formal Parliamentary scrutiny reserve[8].

  9.    Since 1994 scrutiny of Third Pillar proposals has become an increasingly significant part of the work of the Committee. To date the Government has deposited more than a hundred Explanatory Notes on Third Pillar matters. The Committee has made four reports on specific Third Pillar proposals[9] and has corresponded with Ministers on many others[10].

  10.    Bearing in mind that nearly four years had elapsed since the entry into force of the Maastricht Treaty and that negotiations were under way for a revision of the Treaties, we decided to undertake a review of the operation of the existing arrangements for Parliamentary scrutiny of the Third Pillar. During the course of the Committee's enquiry the inter-governmental negotiations on the revision of the Treaties were concluded at the Amsterdam European Council held on 16-17 June 1997 and a draft Treaty was published which, it is anticipated, will be signed by the Member States in October 1997. As the draft Treaty significantly alters the present structure of the Third Pillar and has important implications for Parliamentary scrutiny of justice and home affairs matters, we decided to comment on some of the more notable provisions of the draft Treaty.


  11.    This report is based on an enquiry undertaken by Sub-Committee F (Social Affairs, Education and Home Affairs), whose membership is listed in Appendix 1. Oral and written evidence was taken from the witnesses listed in Appendix 2. The institutional structure applicable under the Third Pillar is outlined in Appendix 3. Part 2 of the report focuses on the existing arrangements for House of Lords scrutiny of the Third Pillar and suggests ways in which these could be improved. Part 3 comments on various provisions of the draft Amsterdam Treaty and assesses their implications for Parliamentary scrutiny of justice and home affairs matters. The Committee's conclusions and recommendations are summarised in Part 4.

  12.    The Sub-Committee was greatly assisted in its enquiry by the Secretary of State for the Home Department, who gave evidence in person, and by Home Office officials. During the course of the enquiry two members of the Sub-Committee visited Brussels and took evidence from the United Kingdom Permanent Representation to the European Union (UKREP), the Council Secretariat (privately and informally), the Commission's Title VI Task Force, and Mrs Annemie Neyts-Uyttebroeck, MEP, representing the European Parliament's Institutional Affairs Committee. We would like to extend special thanks to Sir Stephen Wall, Mr Jeremy Hill and Mr Richard Bradley from UKREP and to Mr Adrian Fortescue from the Commission's Title VI Task Force for the detailed evidence they provided to the Sub-Committee during that visit. Other witnesses have provided helpful evidence on various aspects of the Third Pillar, and in particular officials of Parliaments in other Member States have provided information on the supervisory procedures applicable to the Third Pillar in their Parliaments. We are grateful to all those who submitted evidence during the course of the enquiry.

1   28th Report, Session 1992-93 (HL Paper 124). Back

2   The House of Lords Journal and Information Office has produced an Information Sheet (No. 4) explaining the operation of House of Lords scrutiny of European Union legislation. Copies may be obtained on request. Back

3   The matters listed in Article K.1 are (1) asylum policy; (2) rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon; (3) immigration policy and policy regarding nationals of third countries; (4) combating drug addiction; (5) combating fraud on an international scale; (6) judicial co­operation in civil matters; (7) judicial co­operation in criminal matters; (8) customs co­operation; and (9) police co­operation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime. Back

4   In practice the Justice and Home Affairs Council is primarily responsible for taking decisions on Third Pillar matters. However, as the underlying principle for all Council deliberations is that the Council is one and indivisible it is possible for Third Pillar proposals to be given formal approval in other Councils, and for the Justice and Home Affairs Council to give such approval to proposals in other sectors. Only Third Pillar items which do not require discussion by Ministers are put to Councils covering other sectors of EU business. Back

5   Under United Kingdom constitutional practice, the advance authority of Parliament for ratification of a treaty or international agreement is necessary only where the executive could not give effect to the treaty without a change in the law of the United Kingdom. In other cases a treaty signed on behalf of the United Kingdom with another State or with an international organisation is presented to Parliament in the form of a Command Paper. On being so laid the text enters the public domain and ministers may be questioned or otherwise held accountable for its contents. Parliamentary control was, however, extended in 1924 by the practice known as the Ponsonby Rule under which the Government by constitutional convention does not proceed to the ratification of a treaty until it has lain on the table of each House of Parliament for a period of twenty-one sitting days. Where in cases of urgency Ministers have wished to depart from the letter of the Ponsonby Rule they have sought the express authority of Parliament or (if Parliament was not sitting) consulted the leaders of the Opposition parties. Detailed consideration by Parliament of the terms of an international agreement is inhibited by the fact that Parliament has no power to modify it, and the agreement may well not permit ratification subject to reservations. The role of Parliament in the United Kingdom in regard to the conclusion of treaties is described in detail in Appendix 4 to our Report on Political Union: Law-making Powers and Procedures, 17th Report, Session 1990-91 (HL Paper 80) at p 56. International agreements signed after 1 January 1997 which are laid under the Ponsonby Rule are accompanied by an explanatory memorandum (House of Lords Hansard, 16 December 1996, Col WA 101). Back

6   Published in February 1994 as Cm 2471. Back

7   Different scrutiny arrangements apply to the Second Pillar (Common Foreign and Security Policy or "CFSP"). Under the Second Pillar the Government agreed to make available to both Houses of Parliament the texts of CFSP statements, declarations, common positions and joint actions once they are agreed and certain CFSP documents which fall within the Community legislation scrutiny guidelines. Back

8   The Parliamentary scrutiny system applicable to European Community legislation rests on the undertaking given by the Government that it will not, except in special circumstances, agree to any proposal in the Council until it has been cleared by the Committee, an undertaking similar to that given to the House of Commons and now embodied in a Resolution of that House of 24 October 1990. Back

9   Visas and Control of External Borders of the Member States, 14th Report, Session 1993-94 (HL Paper 78), Europol, 10th Report, Session 1994-95 (HL Paper 51), Europol - Draft Confidentiality Regulations, 1st Report, Session 1997-98 (HL Paper 9) and Brussels II: the draft Convention on jurisdiction, recognition and enforcement of judgments in matrimonial matters, 5th Report, Session 1997-98 (HL Paper 19). Back

10   The text of correspondence with ministers is published in the Select Committee's Correspondence with Ministers Reports. Back

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Prepared 12 September 1997