ELEVENTH REPORT - THE FUTURE OF EUROPE:
NATIONAL PARLIAMENTS AND SUBSIDIARITY - THE PROPOSED PROTOCOLS|
PART 1: INTRODUCTION
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
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.
PART 2: NATIONAL PARLIAMENTS
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
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
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
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.
PART 3: SUBSIDIARITY
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