Passerelles
32. The term passerelle has slipped into
the jargon of the EU. It is not a term used in the Treaties but
has been coined to describe a category of provisions in the Treaties
which permit alterations to be made to decision-making processes
within the EU institutions without the need for a formal amendment
to the Treaties. There are a number of passerelles in the
Lisbon Treaty including, as we have noted, the simplified revision
procedure set out in Article 48(7). Changes made under
the passerelle provisions, once agreed by the governments
of Member States, are typically brought about by the adoption
of a decision by the Council.
33. Professor Tridimas told us that "It
is clear that these provisions [the passerelles] are far
reaching since they enable decisions which are taken by unanimity,
and in which therefore national Governments retain the power of
veto, to be taken in the future by majority without the need to
go through the full procedure for the revision of the Treaties"
(p 75).
34. In respect of Article 48(7) of the Treaty
on European Union and Article 81[25]
of the Treaty on the Functioning of the European Union, national
parliaments must be notified of proposed changes in procedure
and if any objection is forthcoming (within six months) the revision
cannot be made. Professor Tridimas explained that "Member
States enjoy discretion as to how national Parliaments may exercise
that power. In particular, it will be up to each Member State
to decide whether a decision to oppose a Treaty revision should
be taken by a simple or any other kind of majority" (p 76).
35. Clause 6 of the Bill would introduce parliamentary
control over the Government's capacity to agree to changes made
under passerelles: "A Minister of the Crown may not vote
in favour of or otherwise support a decision … unless Parliamentary
approval has been given". Clause 6(1)(b) deals with the general
passerelle in Article 48(7) TEU, which is made under the
simplified revision procedure. Paragraphs (b) to (i) of clause
6(1) of the bill deal with other passerelles created elsewhere
in the Treaty.
36. We asked the Foreign and Commonwealth Office
to explain the significance of the seven passerelles listed
as paragraphs (c) to (i) of clause 6(1) and whether there were
other passerelles or similar provisions in the Treaties
that were not being made subject to prior parliamentary approval
in the bill. They responded by saying:
"The Bill includes all provisions which allow
a move from unanimity to QMV or co-decision. This is further to
the Prime Minister's commitment in his post European Council statement
on 22 October where he said: 'To ensure that no government can
agree without Parliament's approval to any change in European
rules that could, in any way, alter the constitutional balance
of power between Britain and the European Union, we will make
a provision in the Bill that any proposal to activate the mechanisms
in the treaty which provide for further moves to QMV—but
which require unanimity—will have to be subject to a prior
vote by the House.' The Bill also covers the two new general simplified
revision procedures which are introduced in by Article 48 TEU,
as amended by the Lisbon Treaty. The Bill does not purport to
cover all provisions which are, or could be, considered to be
passerelles. Such provisions have existed since the Single
European Act and have not previously been made the subject of
a statutory requirement for Parliamentary approval."
37. We also sought clarification of the scope
and operation of clause 6(3) of the bill which seeks to create
a "disapplication provision" in relation to the requirement
for parliamentary authorisation. Such a provision, if accepted
by Parliament, would allow the Government to agree to a draft
decision which is slightly different from the one that Parliament
approved in the first place. The Foreign and Commonwealth Office
told us:
"In most cases, notably proposals to move to
QMV or co-decision, the choice will simply be either to support
or reject a specified draft decision. There may however be occasions
where some negotiation on the final wording of a specified draft
decision may be envisaged—for example in relation to the
date from which a decision is to take effect or, in relation to
the simplified revision procedure, the precise language of a proposed
change to a provision in Part III of the Treaty on Functioning
of Union. In these cases, the Bill makes clear that any flexibility
is entirely a matter for Parliament where it wishes to allow Ministers
some flexibility to take advantage of the negotiating process
in order to promote the UK's interests."[26]
38. Under clause 6(2), Parliamentary approval
would only be deemed to have been given if each House agreed the
motion without amendment. However, clause 6(3)(b) makes clear
that Parliament would be free to reject a Minister's proposal
to be granted the negotiating flexibility outlined above (through
the disapplication provision) while still authorising the Government
to support a specified draft decision. This reinforces the point
made above, that the granting of the negotiating flexibility envisaged
by clause 6(3) would be wholly a matter for Parliament.
39. It will be for the House as a whole to consider
whether the Bill sets out with sufficient specificity the procedures
to be adopted when the Government moves a motion seeking approval
for support of a specified draft decision. As a minimum, it may
be thought desirable to have an express statutory requirement
to lay an explanatory document before Parliament.[27]
Such a document might, for example, include information about
consultations that the Government has carried out with the devolved
administrations. The Bill is silent as to the length of time that
Parliament and its committees would have to scrutinise the Government's
proposals. In other contexts, legislation enables Parliament to
consider draft proposals and specifies a timetable;[28]
this is a model that might be adopted here.
40. We broadly welcome the provisions in the
European Union (Amendment) Bill which would establish parliamentary
control over Government decisions to agree to changes under the
passerelle mechanisms. There are, however, two ways in
which the procedure could be strengthened so as to ensure proper
scrutiny. We recommend that the Government lay an explanatory
memorandum or make a written statement when tabling a motion seeking
approval for support of a specified draft decision; and we further
recommend that the Bill be amended to ensure that Parliament is
given sufficient time to scrutinise the proposals in respect of
passerelles.
41. Whilst we accept that some passerelle
mechanisms have existed in earlier EU Treaties, we are not convinced
that this fact alone provides a cogent justification for the Bill's
omission of a comprehensive list of passerelle and similar
enabling provisions both in the Lisbon Treaty and in previous
treaties. We call on the Government to provide a list enumerating
all these provisions in order to allow Parliament to consider
during the passage of the Bill whether each one should or should
not be subject to parliamentary control under clause 6.
The Flexibility Clause
42. Finally, we draw attention to Article 352
of the Treaty on the Functioning of the European Union which,
whilst not amending the Treaties, would enable the Council, with
the consent of the European Parliament, to adopt measures "to
attain one of the objectives set out in the Treaties" even
though the Treaties "have not provided the necessary powers".[29]
This provision already exists in the current treaties as Article
308 EC. In his evidence to us, Professor Chalmers noted that
Article 352 would have "a wider remit as it acts as a flexibility
provision to the Union now and not the EC. This is particular[ly]
significant given the frequent usage of Article 308 EC, about
30 times [per annum]" (p 12). Clearly, Parliament will
wish to pay particular attention to initiatives brought under
Article 352 of the Treaty on the Functioning of the European Union
in its role of scrutinising compliance with the principles of
subsidiarity and proportionality.[30]
16 Consultation Paper CP 26/07, Part 2. Back
17
See paragraph 1, above. Back
18
See Table 2, above. Back
19
See paragraph 32, below. Back
20
Clause 4 of the Bill will provide parliamentary approval for the
use of the Government's prerogative powers to ratify the Lisbon
Treaty for the purposes of section 12. Similar provisions are
to be found in the several European Union (Amendment) Bills that
have been introduced to Parliament since 1978 following agreements
between EU Member States to amend the founding treaties. In and
of itself there is therefore little that is constitutionally noteworthy
about clause 4. Back
21
Patricia M. Leopold, "European Assembly Elections Act 1978"
(1979) vol 42 Modern Law Review 66, p 67. Back
22
HC Deb 2 February 1978 col 794. Back
23
See Table 2, above. Back
24
For more detailed discussion see The Treaty of Lisbon: an impact
assessment, Chapter 3. Back
25
Article 81 contains a provision allowing the Council to change
the legislative procedure in respect of family law with cross-border
implications. Back
26
Supplementary evidence not printed. Back
27
In a different context, see for example section 14 of the Legislative
and Regulatory Reform Act 2006. Back
28
For example, section 15 of the Legislative and Regulatory Reform
Act 2006. Back
29
Considered in more detail in The Treaty of Lisbon: An Impact
Assessment para 11.17. Back
30
See Table 3 below. Back
