14th REPORT: STRENGTHENING NATIONAL PARLIAMENTARY
SCRUTINY OF THE EU—THE CONSTITUTION'S SUBSIDIARITY EARLY
WARNING MECHANISM
Letter from Rt Hon Jack Straw MP, Foreign
Secretary, Foreign and Commonwealth Office to the Chairman
I attach the Government response to your Committee's
Report on the subsidiarity early warning mechanism.
My officials and I have read this report in
detail and found it a very interesting and useful document. As
you know, strengthening the role of National Parliaments is something
which the Government, and I, take particularly seriously.
The circumstances surrounding the EU Constitutional
Treaty have of course changed significantly since the report was
published. However, we have attempted to answer the questions
posed in the report as fully as possible in the circumstances.
19 July 2005
Government Response
INTRODUCTION
1. The Government welcomes the Committee's
Report "Strengthening National Parliamentary Scrutiny of
the EU—the Constitution's subsidiarity early warning mechanism".
The Government believes that the thorough investigation and research
that has gone into to the report will prove valuable, whether
or not the Treaty comes into force. The Government has always
pushed for the role of National Parliaments to be strengthened
in the EU legislative process and was pleased with the final result
agreed by the Inter Governmental Conference.
2. As the Committee will fully appreciate,
the circumstances surrounding the Treaty have significantly changed
since the Committee's Report was first published. The recent referendums
in France and the Netherlands resulted in majority votes against
ratification of the Treaty. Austria, Cyprus, Germany, Greece,
Hungary, Italy, Latvia, Lithuania, Malta, Slovakia, Slovenia,
Spain and Luxembourg have already approved the Treaty, but for
it to come into force, all Member States must ratify it. In the
UK, this will involve approval first by Parliament (through the
EU Bill) and then by a nation-wide referendum. However, the Foreign
Secretary announced on 6 June that until the consequences of the
French and Dutch votes were clarified, the Government did not
intend to proceed with the Bill's parliamentary process.
3. At the European Council on 16-17 June,
Heads of State and Government recognised the need for a period
of reflection to consider the outcomes of the referendums in France
and the Netherlands. They said that they would come back to the
matter in the first half of 2006 to agree on how to proceed. However
as the Prime Minister said to the House of Commons on 20 June,
under the current circumstances, the Treaty cannot proceed.
4. In other Member States, Belgium and Estonia
are proceeding with parliamentary ratification of the Treaty.
The Czech Republic intends to proceed with their ratification
process by referendum, although the requisite enabling legislation
has yet to be passed and the government has announced that any
ratification is unlikely before mid-2006. The Irish Government
have announced that they will not set a date for their referendum.
Poland has not decided how, if at all, to proceed with ratification
and the Polish President has said that a referendum in 2005 looks
"unrealistic". The Swedish Government has announced
that it will seek to postpone its parliamentary ratification process
and the Finnish Government has postponed parliamentary ratification.
The Danish and Portuguese Governments have postponed their referendums.
5. Irrespective of whether the Constitutional
Treaty comes into force, the Government believes that strengthening
the role of National Parliaments in the making of EU legislation
should continue to be pursued. The Foreign Secretary made this
clear in a statement made to the House of Commons on 6 June: "The
issue of subsidiarity—of decisions being made at the lowest
level possible—has been a long-standing concern of the Government
and is one that we shall pursue". The Government has therefore
attempted to answer the questions posed by the Committee as fully
as possible. It is also giving active consideration to whether
it would be possible, by agreement in the European Council and
Commission, to implement the spirit of the Subsidiarity Protocol.
RESPONSES TO
COMMITTEE RECOMMENDATIONS
AND QUESTIONS
6. The passages in italics are the Committee's
own.
In view of the political significance of
the exercise of a vote under the early warning mechanism, we recommend
that the House itself should cast the vote (subject to our conclusion
in paragraph 99). (para 95)
We recommend that in this House the trigger
for a debate and decision on whether to cast a vote under the
early warning mechanism should be a report from our Committee.
(para 96)
7. These are matters for the House. We would
observe only that if the Committee were unanimous and no party
disagreed with them, the motion to exercise the vote might go
through "on the nod".
The House could agree that the exercise of
its vote on any legislative proposal would be delegated to the
EU Select Committee in the event of a six week period expiring
during a recess, unless the House had already come to a decision
on the proposal in question. (para 99)
8. This is a matter for the House to decide
but it is important, as the Committee recognises, that alternative
arrangements are made for the long recesses.
We recommend to the House that the operation
of the early warning mechanism should be kept separate from the
House's current Scrutiny Reserve under which we currently operate.
(para 100)
9. This is a matter for the House.
We recommend that the Government should not
support a proposal in Council which has been the subject of a
subsidiarity yellow card in either House of Parliament without
first further explaining to Parliament its reasons for doing so.
(para 101)
10. The Government values the contribution
of Parliament on EU questions and takes seriously its responsibility
to keep Parliament informed. Therefore, the Government agrees
in principle with the Committee's recommendation, that the Government
should not agree to proposals which have been the subject of a
yellow card in either House without first explaining to Parliament
its reasons for doing so. The Government would aim to do this
at the earliest possible point at which such a decision was taken.
This approach would be consistent with the Government's undertakings
embodied in the House's Scrutiny Reserve Resolution of 6 December
1999. However, given the often fast moving pace of negotiations,
and periods of parliamentary recess, it may not be possible for
the Committee to consider the Government's position further before
decisions are reached in the Council of Ministers. The Government
is of course ready to work with the Committee to ensure that appropriate
procedures are put in place to respond to such instances if they
arise.
We disagree with the suggestion that the
two Houses must co-ordinate their response in individual cases.
However, we recognise that although each chamber has its own vote
it will be desirable for the House to work with the Commons on
subsidiarity issues and, where possible, for the two Houses to
support each other when submitting reasoned opinions. In spite
of this, it is important to note that if the two Houses do reach
a different view on whether a yellow card should be raised in
a particular case their votes would not cancel each other out—it
will just be that the threshold is not one step closer to being
reached. (paras 107-108)
11. The Government welcomes the commitment
to work with the Commons on subsidiarity issues, although we acknowledge
the right of the two Houses to exercise their votes independently.
The Treaty stresses that "Before proposing
European legislative acts, the Commission shall consult widely".
We recommend that the Commission should inform national parliaments
when consultation on a legislative act is launched. (para
115)
12. We support the Committee's recommendation
that the Commission should inform National Parliaments as soon
as consultation on a legislative Act is launched. We would also
encourage the Committee to continue its practice of keeping up
to date with future Commission activity through the Commission's
Annual Legislative Programme and Five Year Strategic Objectives.
We welcome this commitment by the Government
to assist Parliament during the six week period. We expect the
Government to assist Parliament as early as possible in the six
week period and to provide a detailed analysis in each case of
the application of the subsidiarity principle. Such an analysis
should take the form of the quantitative and qualitative analysis
the Commission would be required to produce by Article 5 of the
Protocol. (para 134)
13. As the Government set out in its Memorandum
by the Minister for Europe in February this year, the EU Bill
includes a provision to impose a duty on the relevant Minister
of the Crown to lay a statement before Parliament about whether,
in his or her opinion, the draft legislative act complies with
the principle of subsidiarity. In cases where the Government believes
that subsidiarity is an issue, such a statement would be sufficiently
detailed and thorough to aid the Committee in their consideration
of the proposal in question.
We conclude that the Treaty does not clearly
provide whether or not the early warning mechanism applies again
in the case of a legislative proposal amended during negotiations
in the Council and the Parliament, and we would welcome clarification
from the Government on this point. (para 141)
14. The Government agrees with the Committee's
view that the Treaty does not offer clarity on this point. The
Government's interpretation of the Protocol however is that that
national parliaments will only be able to express a reasoned opinion
on subsidiarity in the six weeks following the publication of
the legislative proposal. The Government notes the Committee's
concerns that National Parliaments will not be able to comment
on amended proposals, and recognises that proposals may be amended
to the extent that a National Parliament may wish to subsequently
submit a reasoned opinion. However, it also recognises that it
would be impractical for National Parliaments to be able to express
opinions after every stage of the legislative process.
Subsidiarity checks by the Government, and
the assessments promised under Clause 3 of the European Union
Bill, should be rigorous and detailed whether or not the Protocol
comes into force. The Government's subsidiarity assessment should,
as now, be part of the Explanatory Memoranda furnished by the
government on each legislative proposal. (para 180)
We expect, given the short time frame allowed,
that these documents should not be presented by the Government
any later than two weeks after submission of the draft legislative
proposal. This is the timetable to which the Government currently
works. In the event of a delay in preparation of an Explanatory
Memorandum, the subsidiarity analysis should if necessary be presented
separately to avoid delay. (para 181)
15. As acknowledged by the Committee, the
Government already provides subsidiarity assessments on legislative
proposals in the form of Explanatory Memoranda. This will continue
to be the case whether or not Protocol comes into force. Although
the EU Bill stipulates that the statement should be laid "Before
the end of six weeks from the date of transmission" in practice
the Government would endeavour to lay the statement as early as
possible.
The reference to the national "legal
order" seems intended to go primarily to the relationship
between the National Parliaments and the executive within Member
States. This, as we will explain below, raises a number of questions.
We first, however, ask the Government to clarify whether Article
III-365 would apply to an action notified under Article 8 by a
Member State on behalf of a National Parliament (or a chamber
thereof). (para 227)
We do not accept that it is in accordance
with the letter and the spirit of Article 8 that "careful
consideration" by the executive of a request from our Parliament
(or a chamber of our Parliament) would suffice. We are also not
clear what the legal or political justification of the Government's
interpretation is. (para 234)
We accordingly ask the Government to clarify
first what the position would be in the United Kingdom. Given
our national "legal order" would the executive be required
to act if either House of our Parliament resolved that a challenge
be notified under Article 8? If not why not and is this interpretation
in accordance with the provisions of Article 8? (para 235)
We also ask the Government to set out in
full to Parliament how other Member States interpret the effect
of this provision. (para 236)
In particular we ask the Government what
their interpretation is of the changes recently made to the French
Constitution. A new Article 88-5 provides that each chamber can
bring an action in the ECJ against a European legislative act
on the grounds of subsidiarity. It appears that the French Government
would be obliged to notify the action to the ECJ: "Chaque
assemblée peut former un recours devant la Cour de justice
de l'Union europe«enne contre un acte legislative europe«en
pour violation du principe de subsidiarite. Ce recours est transmis
a" la Cour de justice de l'Union européenne par le
Gouvernement". (para 237)
We accordingly ask the Government to confirm
that the National Parliament (or chamber) should remain in control
of any application. It would clearly not be acceptable if the
executive could, for example, discontinue the proceedings without
the consent of the National Parliament or chamber, as the case
may be. (para 239)
As noted above, Article 8 only comes in to
play when a European legislative act has been adopted. As a consequence,
the circumstances in which a National Parliament (or a chamber
of a National Parliament) is likely to raise an objection would
seem to us to be:
— if that National Parliament does
not agree with their Member State's government's decision to support
a proposal in Council and maintains a subsidiarity objection;
— if that National Parliament wishes
to raise a subsidiarity objection, the Member State's government
having been outvoted in the Council;
— if a European legislative act
as adopted is in a form different from that examined by a National
Parliament at an earlier stage, a new issue of subsidiarity arising
as a result of changes made during the passage of the legislative
act. (para 246)
Given these factors, it is our preliminary
conclusion that the number of occasions on which National Parliaments
would be likely to make use of the recourse to the Court under
Article 8 would be very few. We recommend that the Government
make it their practice, if the Constitutional Treaty comes into
force, to keep Parliament fully informed of any changes to a European
legislative act during its passage that might give rise to a subsidiarity
objection after adoption. (para 248)
GOVERNMENT'S
GENERAL COMMENT
ON ARTICLE
8
16. Article 8 as drafted is, as the Committee
have pointed out, imprecise in certain respects. In broad terms,
Article 8 is intended to provide a mechanism by which National
Parliament can present their views on subsidiarity to the ECJ.
The precise legal process for achieving that aim is not fully
set out in the Article and will therefore require to be elaborated
in further discussion among the Member States and the Institutions
(including of course the Court of Justice itself).
17. Informal consultations earlier this
year suggested that the preliminary views of other Member States
were generally consistent with the UK's initial thinking. Had
the process of ratification of the Treaty continued as originally
expected, the Government would have engaged in more in depth discussions
with partners (and the relevant institutions) to try to work out
exactly how to give practical effect to Article 8. In the current
circumstances, there are no immediate plans to continue that discussion
and given the current uncertainty over the future of the Constitutional
Treaty, it is unlikely that other Member States will set out their
positions in more detail at this stage.
OTHER
18. For information, we note that paragraph
3 of the Committee's report states that "The threshold to
trigger a review is one third of the votes allocated or one quarter
in cases of proposals in the field of justice and home affairs;
that is 13 and 10 votes respectively." We believe that since
there are a total of 50 votes awarded to Member States National
Parliaments, the actual numbers of votes needed to trigger a review
would be 17, and 13 in respect of Justice and Home Affairs issues.
July 2005
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