Select Committee on European Union Forty-First Report



We make this report to the House for information although we hope that the House will soon have a further opportunity for another debate on the Convention and that this report would inform any such debate.

The Government is a strong advocate of enhancing the role of national Parliaments in EU business. National parliamentarians are the closest and most visible link to citizens. So it is right that they be more involved in EU affairs. This would help to re-connect our citizens to the Union and address concerns about the EU's democratic legitimacy.

The Convention were concerned primarily not to dictate measures to national Parliaments but, rather, to offer a framework within which national Parliaments can develop their role.

The Government has been a major proponent of creating a new mechanism through which national parliamentarians can monitor compliance of EU legislative proposals with the principle of subsidiarity: ensuring that action is taken at the appropriate level - be it European, national or sub-national.


Scrutiny: The Council

We agree with the case for greater openness in the Council when it is legislating, as do the Commons Committee and the UK Government.

We accordingly support the provision in the proposed protocol on national parliaments for the direct transmission of Council Agendas and outcomes to national parliaments. The protocol should make clear that this transmission must be prompt. Council Agendas should be transmitted in advance and as soon as available, to allow for effective national parliamentary scrutiny.

As the Committee rightly notes, the Government continues to advocate greater openness in the Council when it is legislating. We welcome the recognition of this in the draft Constitutional Treaty.

We also support the proposal in the draft Protocol on the role of national Parliaments to transmit Council Agenda and outcomes to national parliaments direct. We agree with the Committee that such transmission must be timely if national Parliaments are to take full advantage of this innovation.


While we do not argue that there is any one model of scrutiny that can fit all national parliaments, we have suggested that our system, of involving Members with expertise in policy areas in the work of European scrutiny, could provide a model from which a national parliament wishing to scrutinise European legislation in depth and on the basis of genuine expertise might be able to learn some lessons.

We would wish to see the proposed protocol strengthened by more direct reference to the importance of effective scrutiny.

We agree that these are all important factors and we are working to enhance our own activity in these areas. The Cabinet Office's undertaking that it will press for the electronic transmission of documents from Brussels is accordingly welcome.

The Government agrees with the Committee that the United Kingdom's system of parliamentary scrutiny is an effective model for scrutinising EU legislative proposals and holding the Government to account. The ten accession countries are already considering how best to provide for national parliamentary scrutiny of EU legislation. The Government encourages the Committee to raise awareness among national parliamentarians from other Member States of the Westminster model of scrutiny.

The Government further agrees that national Parliaments should take seriously their role in holding their Governments to account. Effective scrutiny is an important element of that. The draft Protocol on the role of national Parliaments is designed to provide the framework within which national Parliaments - whose organisation is not a matter for Union regulation - can set out their own processes, to take account of the different constitutional and historical traditions that span the national Parliaments of the Union's Member States. We favour this approach, which is neither too prescriptive nor heavy-handed. We recognise, however, the need for this to be complemented with more effective and more frequent inter-parliamentary co-operation and exchange of best practice, to encourage all national Parliaments to take their scrutiny role as seriously as the Committee.

The Government supports the Committee's efforts to further enhance the effectiveness of the national scrutiny system. The Cabinet Office, which has responsibility for sifting and assessing for deposit the majority of EU documents, now receive documents electronically from the Council Secretariat. This arrangement has resulted in documents being deposited significantly earlier than would have been the case under the old system of paper transmission from the Secretariat. The Cabinet Office is working with the Council Secretariat and Departments to extend this service to all Government Departments. The aim is for this work to be completed during the Summer.


We continue to recommend that no form of agreement should be reached in Council during the six week period allowed for parliamentary scrutiny.

All national parliaments should endeavour to operate a strong and effective scrutiny system. We also recommend that the Treaty should formally recognise the status of scrutiny reserves in the Council.

The Government is committed to observing the terms of the scrutiny reserve resolution and believes that it serves as an important and effective discipline on Ministers to observe the need for scrutiny to be complete before decisions are taken in the Council of Ministers. For all cases where this does not happen, Ministers must account for their actions, including appearing before the Committees. The Government continues to work closely with the Committees in the forward planning of business to ensure that occasions when overrides occur are reduced. In responding to the Committee's report on the review of scrutiny of European legislation, the Government undertook to provide additional information about scrutiny overrides in a twice-yearly report to the Committees. Also, in this context, the Government is committed to bringing forward proposals for improving the procedures for keeping the Committees informed during the passage of proposals through the co-decision procedure.

The Government has made clear that the reaching of a "general approach" in the Council of Ministers describes the position on a text before the EU's legislative preconditions for a vote in the Council have been concluded. The Government has maintained in the Council that it would be prepared to revisit the text of a dossier after a general approach had been reached, if significant new concerns were raised by the Committee with which the Government agreed.

The Government agrees with the Committee that national Parliaments should endeavour to operate a strong and effective scrutiny system. The Government encourages the Committee to take that strong message to their parliamentary colleagues, particularly at COSAC meetings.


We recommend that the proposed protocol on national parliaments be amended to stress the importance of national parliamentary scrutiny at an early stage, including at the stage of the Council's Strategic Agenda and the Commission's Annual Work Programme; and before the formation of legislation proposals.

The Government welcomes the Committee's commitment to ensure effective scrutiny and agrees fully that early scrutiny is key. We stand ready to help the Committee achieve this, principally by working closely with the clerks of the Committee.

The draft Protocol on the role of national Parliaments provides for the early and electronic transmission of documents to a range of national Parliaments, to assist their endeavours to be involved in scrutiny at as early a stage as possible. The Government believes that this is the right approach. However, we urge the Committee to take their message about the importance of beginning scrutiny as far upstream as possible to parliamentary colleagues in other Member State national Parliaments.


We will be pursuing these recommendations in the coming months. We welcome the proposed protocol's emphasis on joint working between national parliaments and the European Parliament to improve inter-parliamentary co-operation.

The Government welcomes the Committee's support for greater inter-parliamentary links and congratulates the Committee for its continued efforts to reform COSAC. The Government firmly hopes that the Committee will continue in its endeavours to make COSAC a more effective forum for inter-parliamentary contact.

The Government believes that there are many advantages to be had from greater links between national and European parliamentarians and encourages the Committee to do all it can to pave the way for more meetings and contacts - both formal and informal.


Recent attempts by COSAC to reform itself, however, are not wholly encouraging. The possibility remains that a new structure may need to be considered by the IGC in order to meet the objectives which COSAC should, in our view, be achieving.

As noted above, the Government is grateful for the Committee's efforts in pressing for reform of COSAC. Whilst recognising that such efforts have been largely frustrated to date, not least by the requirement for decisions within COSAC to be taken by unanimity, the Government encourages the Committee to continue to emphasise the role that COSAC could and should have, and the benefits that would accrue from reform of this body.



We agree with the Working Group's conclusion that the monitoring of compliance with subsidiarity has a strong political content. We welcome the importance that the Working Group has attached to greater involvement of national parliaments in the monitoring of the application of subsidiarity. An opportunity has to be provided for such monitoring at the earliest possible stage of the legislative process. We accordingly undertake to continue to monitor all proposals coming before us in this light. We also note that an alternative means of controlling the application of subsidiarity would be the creation of a constitutional council. If any such proposal were to emerge - particularly during the Convention's deliberations or at the forthcoming IGC - we would examine it in due course.

The Government welcomes the Committee's agreement that there is a strong political content to monitoring the compliance of EU legislative proposals with subsidiarity. We believe that national Parliaments should be involved in monitoring compliance with this principle. That opportunity should begin as early in the legislative process as possible.

We have also pressed for national parliamentarians to consider whether legislation complies with the principle of proportionality, which relates to how detailed legislation should be. We believe that this is a primarily political, rather than technical, matter, as with subsidiarity.

The idea of a constitutional council was raised by a small number of delegates at the Convention. It did not, however, generate significant support. Conventioneers preferred the creation of an early warning mechanism.


We recommend that the proposed subsidiarity protocol likewise be amended to provide two votes per Member State, with the presumption that bicameral parliaments will allocate one vote to each House.

We nevertheless recommend that the Commission be required to communicate its reasons direct to national parliaments.

The Government agrees with the Committee that providing national Parliaments with one vote could lead to complications for bicameral Parliaments. Accordingly, we have supported calls for the subsidiarity mechanism to be based upon two votes per national Parliament, as the Committee recommends.

The precise details of how the subsidiarity mechanism will work in practice are likely to be a matter for the Intergovernmental Conference. That said, the Government agrees in principle that the Commission should be required to communicate directly to national Parliaments its reasons for proceeding with a legislative proposal against the objections of the relevant number of national Parliaments.


We note that the Praesidium's proposed protocol on subsidiarity takes forward only the "yellow card" proposal and not the "red card". We consider that this will, in most circumstances, strike the right balance, providing an individual right to be heard, rather than a collective right to block. We nevertheless recommend that the "red card" proposal be maintained. The successful marshalling of the necessary majority to activate the "red card" will, in our view, be a very rare event. The fact that so many national parliaments were concerned about a proposal might well reveal a serious concern that would need addressing. Any effective early warning system would of course require an effective mechanism to allow national parliaments to exchange information.

The Government welcomes the Committee's thoughts. Compelling the Commission to reconsider a proposal if one-third of national Parliaments object on subsidiarity grounds does indeed offer a sanction and provides some accountability. In the vast majority of instances there will be no need for the mechanism to provide for any stronger process. Indeed, as the Committee notes, if a significant number of national Parliaments had serious concerns about a given legislative proposal, it seems unlikely that national Governments in the Council would sign up to such an initiative. But the Government will continue to look at ways in which the "yellow card" proposal can be strengthened.


We agree with the Working Group that it is important that national parliaments should have the possibility of challenging a measure in the Court of Justice on subsidiarity grounds. The proposed protocol accordingly needs strengthening, as Gisela Stuart proposed, to give national parliaments the right to bring proceedings for violation of the principles of subsidiarity and proportionality.

The creation of a new mechanism for national parliamentarians to monitor the application of subsidiarity reflects the largely political nature of such decisions. However, the Government believes that the existing ex-post legal provisions should remain, enabling the Courts to judge on whether EU legislation complies with subsidiarity.

Paragraph 7 of the draft Protocol on the Application of the Principles of Subsidiarity and Proportionality provides for Member States to bring a case to the European Court of Justice on the grounds of infringement of the principle of subsidiarity, on behalf of their national Parliament. It does not, however, extend the right of direct access to the ECJ to national Parliaments themselves. Rather, they would do so through the Member States. As the Committee notes, this preserves the status quo in this respect, which the Government feels is an appropriate balance, and one which does not impinge upon the relationship within the Member States between national Government and national Parliaments.

139   Government Response dated 10 July 2003.  Back

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