Select Committee on Constitution Ninth Report

Memorandum by Alan Trench

Senior Research Fellow, The Constitution Unit, School of Public Policy, University College London; sometime Specialist Adviser to the Committee

1.  The purpose of this memorandum is to draw the Committee's attention to the implications of the draft European Constitution prepared by the Convention on the Future of Europe, chaired by Valéry Giscard d'Estaing, for devolution in the UK and the UK's devolved institutions: the Scottish Parliament and Executive, the National Assembly for Wales and (when not suspended) the Northern Ireland Assembly and Executive.[102]

2.  Relations between the United Kingdom's devolved institutions and the EU, and the role of the UK Government in those, were discussed in the Committee's report on Devolution: Inter-institutional relations in the United Kingdom published in January 2003.[103] At that time the Committee found that relations were generally good and that the arrangements for liaison, consultation and communication in relation to EU business had worked well. The Committee noted the work of the Convention on the Future of the Europe, and the role of meetings of the Joint Ministerial Committee in its EU format as part of the process by which the UK Government shared information and consulted the devolved administrations about the work of the Convention. However, these issues are not raised by the House's Select Committee on the European Union in its recent identification of key issues for consideration by the House.[104]

3.  Sub-national authorities have made a number of efforts to express their views about the Constitution. A group of various European regions was formed in 2001, and the Scottish Executive and later the National Assembly for Wales have participated in this. The name of that grouping has changed several times, from 'constitutional regions' to 'Regions with Legislative Power' (REGLEG). Likewise the composition of the group has grown, from seven initial members in May 2001 to 40 in November 2002. The group has produced three principal statements of its position regarding the Convention; the 'Flanders declaration' of 28 May 2001, the 'Liege resolution' of 15 November 2001 and the 'Florence resolution' of 15 November 2002.[105] Of these, the most useful document is the 'Florence resolution', which states most clearly and fully the views of REGLEG on the outcome of the Convention. The UK Government's views on these issues (formed in consultation with the Scottish Executive and Welsh Assembly Government) was set out in a undated paper by Peter Hain entitled 'Europe and the Regions'.[106]

4.  The key issue for the REGLEG regions has been the safeguarding of their constitutional position. They sought to achieve this by securing a number of changes to existing arrangements:

    (a)  a more precise definition of EU competences

    (b)  more express recognition of the importance of regional governments and their functions throughout the Constitution

    (c)  a strengthened institutional position for the Committee of the Regions, and better representation for REGLEG regions on it

    (d)  making the principles of subsidiarity and proportionality legally binding, and ensuring that they are considered in the legislative process

    (e)  access for sub-national authorities to the European Court of Justice to protect sub-national authorities' interests

    (f)  securing an express right to attend Council of Ministers' meetings where the matter under consideration is the responsibility of sub-national authorities

    (g)  special status for REGLEG, with preferential rights of consultation on legislative proposals [107]

In general terms, the goals set out by the UK Government on these matters have been realised in the draft Constitution. This embraces most of those sought by REGLEG (notable omissions were b), e) and g) above). However, this has been accomplished by strengthening the position of regions as part of member states, and by increasing the onus on member states to protect the interests of their regions. The Constitution emphatically does not alter the fundamental nature of the European Union as a set of European institutions which relate to member states.

5.  It is easiest to understand most of the changes made by the draft Constitution in the context of the principle of subsidiarity. The Constitution increases the effectiveness of this both substantively and procedurally. So far as substantive protection of sub-national authorities is concerned, subsidiarity is linked to national constitutions and concerns. Thus Article 5, para. 1 requires the Union to "respect the national identities of the Member States, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government" (emphasis added). Article 9 provides that the use of Union competences is governed by the principles of subsidiarity and proportionality, and spells out what subsidiarity means:

    "Under the principle of subsidiarity, in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the Member State, either at central level or regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level." (emphasis added)

6.  This marks a significant change from the position at present. When subsidiarity was first introduced into EU law by the Maastricht Treaty, it was initially unclear whether (and how) it related to functions discharged by sub-national governments. A short-lived political and academic debate was ended in October 1992 by a declaration adopted at the Birmingham European Council meeting which inter alia made it clear that subsidiarity related only to the question of whether the Union or the member states should act, and had no applicability to internal issues such as whether legislation should affect sub-national authorities and their functions, or to how member states should deal with such authorities.

7.  The new subsidiarity clause does not alter the principle that the allocation of functions between member states and sub-national authorities is a matter for the member state concerned. However, it incorporates the involvement of the sub-national level in the determination of whether a function should be the subject of legislation by the EU or the member states; when a function is the responsibility of a sub-national authority (and therefore not of either level directly involved in EU business), it remains subject to subsidiarity. To make this work, there are various procedural safeguards that are to be incorporated into the EU's legislative procedures.

8.  These safeguards are mainly set out in the Protocol on the Application of the Principles of Subsidiarity and Proportionality (the 'Subsidiarity Protocol' for short), annexed to the draft Constitution. The first is a requirement for wide consultation, which is to include consultation on the regional and local dimensions of proposes action. The second is the requirement for the reasons for legislation to be set out in the legislative proposal. In effect, there will be a 'subsidiarity impact assessment' in all Commission proposals for EU legislation. (The Commission retains the sole right of initiative for most areas of shared competence.) This assessment will need to take account of the impact of the Commission's proposal on regional legislation where that will be necessary to implement the proposal. It will need to support its view that action should be taken at EU level in qualitative and if possible quantitative terms, and take account of financial and administrative burdens imposed as a result.

9.  Much of this is an administrative matter for the Commission, which will not concern any level of government in the UK. However, the need for the 'subsidiarity impact assessment' to consider the implications of the proposal for regional legislation is somewhat more complicated. This is intended to address problems that have notably arisen in Belgium where the Federal government has negotiated Community legislation regarding matters which are exclusively the function of the Regions or Communities, which the Federal order has no power to implement but for which it has been held accountable before the European Court of Justice.[108] It is unlikely to be legally problematic in the UK, where powers remain at UK level to implement EU obligations in default of implementation by the devolved institutions. However, the Commission will need to take account of the powers transferred to the Scottish Parliament and Executive and National Assembly for Wales in framing legislation as a result, and no doubt the UK Government will consequently wish to ensure that the Commission is fully aware of the nature of devolution in the UK.

10.  A third protection for devolved administrations is the institutional position of the Committee of the Regions. This becomes an advisory body to the Union as a whole, advising the Council of Ministers, European Commission and European Parliament equally, and able to issue opinions on its own initiative too. However, the suggestions in Peter Hain's paper that it might have full institutional status or that its name be changed to reflect its status has not been realised. There is provision for the composition of the Committee to be reviewed by the Council of Ministers (at present it is fixed in the EC Treaty).

11.  The main change affecting the Committee relates to the obligation that it be consulted. The draft Constitution adds an express formal requirement that the Committee be consulted on most legal measures in areas affecting sub-national authorities.[109] At present the Committee has no formal right to complain to the Court if its interests are over-ridden (in particular, if it is not consulted about a matter where consultation is required). It now gets the right to bring an action before the Court where it has not been consulted over legislation where that consultation is required by the draft Constitution.[110] This does not quite go as far as sought by REGLEG, although it is hard to see what substantive difference there is between seeking protection for all the Committee's prerogatives (without stating what they are) and protecting those rights that directly and expressly arise under the Constitution.

12.  A fourth area, which raises more questions, is the role that national Parliaments will come to assume in relation to subsidiarity. The Subsidiarity Protocol will require all Commission proposals (and opinions on those) to be communicated to national Parliaments at the same time as they are forwarded to the Council and Parliament. National Parliaments (and chambers of them) have six weeks to produce and send to the Commission, Council and Parliament a "reasoned opinion" if they consider a proposal does not comply with the principle of subsidiarity. This is part of the broader trend within the draft Constitution to find ways of involving national Parliaments more closely in EU matters. However, as far as sub-national authorities are concerned national Parliaments assume a broader role, as they are also made responsible for consulting "regional Parliaments with legislative powers".

13.  This raises a number of questions, to which there are no obvious answers. The first is that of principle: why should a national Parliament safeguard the prerogatives of other legislatures, which may have acquired their powers at its expense? This may be problematic in other EU member states. It is perhaps a less difficult issue for the UK given the generally good nature of relations between the UK level and the devolved institutions. However, it does give practical point to the concerns expressed in the Committee's report on Devolution: Inter-institutional affairs in the United Kingdom about the very limited relations between the legislatures and assemblies within the UK.[111] If the devolved institutions come to consider that the UK level does not take their concerns seriously, and act to help them protect or advance their interests, those relations may start to deteriorate. It is therefore important that in practice the UK is effective in helping the devolved institutions to look after their interests. The draft Constitution means that is no longer solely an issue for the executives involved, but one that concerns the legislatures as well.

14.  This leads to a number of practical issues. Which chamber of Parliament at Westminster, and whom within that chamber, will take on the responsibility of communicating with the Scottish Parliament, Northern Ireland Assembly and (in some cases) the National Assembly for Wales? An obvious candidate would be the House of Lords Select Committee on the European Union, which is highly respected for its work on EU legislation. That would need to be agreed with the Commons, however, and with the Constitution Committee (given the Constitution Committee's interest in devolution matters). It would require changes in the European Committee's ways of working, as the principle of 'scrutiny reserve' cannot apply where the deadline is so tight as is proposed. Whichever body at Westminster takes on that responsibility, it will need to ensure that communication takes place quickly, given the tight six-week deadline for a response and the need for internal deliberations in those bodies. It will also need to put in place effective procedures for identifying proposals that require consultation with the devolved legislatures and assemblies, and those will need to work quickly.

15.  The proposals will also pose challenges for the devolved assemblies and legislatures. The devolved assemblies and legislatures will need, for their part, to ensure that the relevant committee or organ responsible for such matters is identified and deals with such issues quickly. In practice it is likely to have no more than two or three weeks to consider a proposal, formulate a view and communicate it to Westminster. That is little time by any standards, and is unlikely to be compatible with usual cycles for committee meetings. A special committee able to meet urgently, and with access to considerable resources to support it, will be needed. That is not straightforward, especially if (as is likely) the volume of proposals is not great. The machinery needed may not be called on to work often, but it must work quickly and smoothly when the time comes.

16.  It may be that one way to resolve some of these difficulties would be for Westminster to consult the devolved legislatures and assemblies on all legislative proposals, or all those on which the Committee of the Regions has also been consulted. That would greatly simplify the task of identifying relevant proposals and ensure that machinery was developed and kept in regular use, as well as enabling Westminster to benefit from the contributions of the devolved bodies.

17.  One area where REGLEG has not been successful is in securing access for its members to the European Court of Justice. REGLEG sought something like the right of access to the Court that member states and EU institutions have, for competence disputes with the Union and its institutions. They did not secure such privileged status. Two options will be open to sub-national authorities if their interests are infringed: to persuade their member state to bring an action, or to persuade the Committee of the Regions to do so (provided, of course, the Committee's own rights have been infringed). The latter is unlikely to prove an effective remedy in practice, so the willingness of a member state to take action to defend the interests of its sub-national authorities will become important for it to have good relations with those sub-national authorities.

18.  It is also worth noting the position under the draft Constitution regarding attendance at and participation in meetings of the Council of Ministers by ministers from sub-national authorities. This was first conferred by the Maastricht Treaty and has been used by the UK devolved administrations on a number of occasions.[112] This is not altered by the Constitution; those attending Council will still have to be "a representative of each Member State at ministerial level" who will be the only person able to commit the Member State or vote for it.[113] Ministers from the devolved administrations will therefore continue to able to attend Council meetings and vote, but in doing so must continue to represent the UK Government and not the administration of which they are members.

19.  The draft Constitution does not dramatically transform the position of devolved administrations in the United Kingdom regarding the European Union. They may be more significant for sub-national authorities in member states such as Spain or Germany, where access to EU institutions is either restricted by the member state or operates in a very formalised manner. These safeguards may mean more to the sub-national authorities than they do in the UK.

20.  The draft Constitution makes modest changes that affect the position of the UK's devolved institutions. The new provisions regarding subsidiarity alter the position of the Scottish Parliament and National Assembly, and will require greater co-operation between those bodies and the United Kingdom Parliament when EU legislation affecting devolved functions is proposed. The draft also slightly strengthens the position of the Committee of the Regions and will enable the devolved institutions to exercise some influence through that channel as well.

21.  However, the UK Government remains overwhelmingly the most important formal link between the devolved institutions and the EU. The issues raised by the Committee in its report on Devolution: Inter-institutional relations in the United Kingdom therefore remain current. The concerns expressed by the Committee about the working of intergovernmental relations in the absence of political consensus between devolved administrations and UK Government, or if the present level of consensus were to decline, are therefore highly pertinent in the context of the draft Constitution. As regards devolution in the UK, this means that UK Government will need to exercise its powers with great care in future, if its dominant position in relation to EU matters is not to be come a source of tension with the devolved administrations.

22.  As regards the draft Constitution, it would be unrealistic to expect major changes at this stage to accommodate what, in the overall context, are relatively minor concerns that are specific to the United Kingdom. The draft does not, however, amount to a fundamental change in the relationship between sub-national authorities and the EU. The draft Constitution creates a changed framework for relations, and the issue is so much not one of what is included in the draft Constitution, or of how that Constitution comes to be implemented in the UK, but rather of the practices that are followed and conventions developed subsequently.

8 September 2003

102   References to the draft Constitution are to its final draft, document number CONV 850/03, submitted to the President of the European Council on 18 July 2003.  Back

103   Session 2002-03 2nd Report, HL Paper 28, chapter 6.  Back

104   House of Lords Select Committee on the European Union Session 2002-03 35th Report The Future of Europe: Progress Report on the Draft Constitutional Treaty and the IGC (HL Paper 150).  Back

105   All available on the internet at Back

106   Available on the internet at  Back

107   See Florence Resolution, p. 3-5.  Back

108   One notable early case of this concerned the failure of the Walloon regional government to implement one of the drinking water directives; Case C-42/89 Commission v. Belgium [1990] ECR I-2821. Belgium has now established a number of complicated procedures to ensure that the interests of the Regions or Communities are considered when EU policy is made, which include arrangements for Regional or Community Ministers to attend the Council of Ministers to represent Belgium.  Back

109   See Article 32 and Articles III-292-294.  Back

110   Subsidiarity Protocol, para. 7.  Back

111   Session 2002-03 2nd Report, HL Paper 28, chapter 4 and Appendix 5, paper 1 'Inter-Parliamentary Relations in a Devolved UK: an initial overview'.  Back

112   Session 2002-03, 2nd Report, Devolution: Inter-institutional Relations in the United Kingdom, para. 175.  Back

113   Article 22, para. 2.  Back

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