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.
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.
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.
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.
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'.
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'
(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 
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
"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
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.
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.
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.
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.
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
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
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.
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
Session 2002-03 2nd Report, HL Paper 28, chapter 6.
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
All available on the internet at http://www.scotland.gov.uk/about/FCSD/ExtRel1/00014768/page598851166.aspx Back
Available on the internet at http://www.scottishsecretary.gov.uk/Publications/0114%20Europe%20and%20the%20Regions.htm#
See Florence Resolution, p. 3-5. Back
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  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
See Article 32 and Articles III-292-294. Back
Subsidiarity Protocol, para. 7. Back
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
Session 2002-03, 2nd Report, Devolution: Inter-institutional
Relations in the United Kingdom, para. 175. Back
Article 22, para. 2. Back