House of Lords - Constitution

Select Committee on Constitution Sixth Report

CHAPTER 4: Conclusions and Recommendations

125. Our approach to the Lisbon Treaty is different to that of other committees: we are concerned exclusively with the changes that may be brought about to the workings of the UK constitution rather than the operation of the EU's institutions and processes. We also make comments and recommendations on Parliament's control over amendments to the treaties governing the EU.

126. There has been considerable debate over how different the Lisbon Treaty is compared to the abandoned Constitutional Treaty. We do not enter into that debate. Our focus in this report is on the changes that the Lisbon Treaty would make to the arrangements currently in force.

Parliamentary Control of Future Alterations to the European Union Treaties

127. We welcome the requirement created by clause 5 of the Bill that the Government must seek parliamentary approval before ratifying any future amendments to the founding Treaties made under the "ordinary revision procedure". However, we call upon the Government to explain and resolve the relationship between the new requirement created by clause 5 and the existing requirement under section 12 of the European Parliamentary Elections Act 2002 for parliamentary approval of treaty amendments which enlarge the powers of the European Parliament.

128. We welcome the specific requirement contained in the Bill for parliamentary approval prior to Government agreement to amendments made under the simplified revision procedure. These provisions of national law would reinforce the controls contained in the Treaty on European Union itself.

129. 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.

130. 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.

131. 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.

The Lisbon Treaty and the UK Constitution

A LASTING SETTLEMENT?

132. Constitutional stability is a desirable characteristic. We note that the Government view the reforms that would be brought about by the Lisbon Treaty as providing a lasting settlement. We therefore hope that, if ratified, the Treaty will provide a period of stability in the institutional framework of the EU and we urge the Government to use their influence to ensure that this is the case. This, in turn, will enable the UK constitution to develop further the procedures needed to ensure that the Government are properly accountable for the exercise of their powers in the sphere of the European Union, with effective roles for the United Kingdom Parliament and the governments and legislatures of Northern Ireland, Scotland and Wales.

DEFINING THE EUROPEAN UNION'S COMPETENCES

133. Questions of distribution of power are inherently complex. In the United Kingdom, devolution and membership of the European Union have the combined consequence that the United Kingdom Government and Parliament operate in a system of multi-level governance: for practical purposes they have such powers as have not been conferred on the devolved administrations and legislatures or the European Union. With this in mind, we welcome the Lisbon Treaty's attempt to set out with greater clarity the demarcations of responsibility between Member States and the European Union. These demarcations will continue to be open to interpretation by the European Court of Justice.

134. The articulation of categories of competence in the Treaty on the Functioning of the European Union would be a useful step in clarifying the distribution of powers between the European Union and the Member States.

PEOPLE'S RIGHTS AND RESPONSIBILITIES

135. We conclude that the change in status of the Charter from political document to having the force of a treaty would be less of a radical step than at first it may appear. This is because the Charter is declaratory of rights already recognised as existing in law by the courts and therefore currently available to the UK citizen.

136. We agree with the European Union Committee that Protocol 7 clarifies the application of the Charter rather than operating as an opt-out.

137. In our view, the European Union's accession to the European Convention on Human Rights should have no impact on national law, and therefore no constitutional implications.

CITIZENSHIP

138. We conclude that the continued existence of citizenship of the European Union in and of itself has no constitutional implications for British citizenship. Although it remains to be seen whether the new formal procedures for citizens' initiatives at European Union level will have any significant practical impact (in addition to their symbolic aspirations), they can be seen as complementing proposals contained in the Government's Governance of Britain programme for citizens' "calls for action" at local authority level and the development of online petitions on the Number 10 Downing Street website.

139. We urge the Government to clarify whether they envisage taking a formal or informal position on any such citizens' initiative, and whether this would entail making representations at the European Union level. If the Government do expect to play such a role, they must explain how they intend to keep Parliament informed and how they envisage remaining accountable to Parliament in the exercise of this function.

THE UNITED KINGDOM PARLIAMENT AND PARLIAMENTARY SUPREMACY

140. We welcome the enhanced role for national parliaments proposed by the Lisbon Treaty. In order to make the most of these new opportunities, it is essential that both Houses should work together to develop complementary scrutiny procedures, particularly in respect of the role of select committees. It would also be desirable for Parliament informally to seek the earliest possible involvement in the policy-making processes at the European level.

141. We agree with the House of Lords European Union Committee that the Treaty of Lisbon does not subject the United Kingdom Parliament to legal duties.

142. We conclude that the Lisbon Treaty would make no alteration to the current relationship between the principles of primacy of European Union law and parliamentary sovereignty. The introduction of a provision explicitly confirming Member States' right to withdraw from the European Union underlines the point that the United Kingdom only remains bound by European Union law as long as Parliament chooses to remain in the Union.

NATIONS AND REGIONS

143. There is a clear need to develop and enhance cooperation between the United Kingdom Government and the devolved administrations on those aspects of European Union policy that are devolved or have implications for the devolution settlement. Frequent meetings of the Joint Ministerial Committee (JMC) on Europe are essential in this regard. Moreover, cooperation between the different administrations ought to be undertaken in as open and transparent manner as possible. We therefore recommend that information relating to meetings of the JMC on Europe should be made much more widely available.

144. There is a clear need for cooperation between the United Kingdom Parliament and the devolved legislatures on European Union matters, particularly the 'yellow card' procedure for policing the principle of subsidiarity. We therefore suggest that the respective legislatures give further consideration to a formal mechanism for improved cooperation on these issues.

THE AREA OF FREEDOM, SECURITY AND JUSTICE

145. We conclude that the importance of how the opt-ins and opt-outs are used is such that Parliament must be fully involved in their use. We therefore recommend that the European Union (Amendment) Bill be amended so as to require the Government to obtain approval from both Houses of Parliament before using opt-ins or opt-outs in any policy area. This would be consistent with the Bill's policy to require parliamentary approval of the use of the Simplified Revision Procedure and passerelles.

COURTS AND THE JUDICIARY

146. Many of the issues we have examined in this report—including the competences of the EU, the interpretation and application of the Charter, and the detailed working-out of the consequences of the UK's opt-outs and opt-ins (particularly in relation to the area of freedom, security and justice)—will be shaped by the European Court of Justice's adjudications in the years to come. Insofar as the European Union is an organisation based on the rule of law, there can be no complaint that this is so, even if from time to time the developments introduced have taken Member States by surprise.

147. In order for Parliament to be fully informed of the European Court of Justice's interpretation and application of the Lisbon Treaty provisions, we recommend that the Government lay before Parliament an annual report on their assessment of the impact of the Court's rulings on the United Kingdom. In interpreting and applying the Charter, the European Court of Justice will increasingly refer to the case law of the European Court of Human Rights and so the relevant rulings of that Court ought also to be covered in the Government's annual report.

148. The provision of such an annual report would complement Parliament's efforts in recent years to seek greater information about the operation of the United Kingdom courts through, for example, the requirement of the Constitutional Reform Act 2005 for the Supreme Court to make an annual report and the Lord Chief Justice's proposed regular reports on the courts system in England and Wales.