2nd Report of Session
2009-10 from the Procedure Committee
The Lisbon Treaty: procedural
implications
1. We have considered a memorandum by the Leader
of the House, outlining her proposals for the implementation of
new powers and scrutiny arrangements arising as a result of the
coming into force of the Treaty of Lisbon on 1 December 2009;
the commencement of the European Union (Amendment) Act 2008; and
commitments made during the passage of that Act by the then Leader
of the House, Baroness Ashton of Upholland, on 9 June 2008. The
Leader's proposals were endorsed by the Chairman of the European
Union Committee, Lord Roper.
2. The new powers exist in respect of:
- The right of each national Parliament
or chamber thereof to challenge draft EU proposals on grounds
of subsidiarity (Article 6 of the Protocol on the application
of the principles of subsidiarity and proportionality, hereafter
referred to as "the Protocol");
- The right of each national Parliament or chamber
thereof to ask national Governments to challenge recently adopted
EU legislation on subsidiarity grounds, by bringing cases before
the European Court of Justice (Article 8 of the Protocol);
- The requirement that before voting for or supporting
a decision to move any EU Treaty provision from a procedure requiring
unanimity to one involving qualified majority voting or co-decision[1]
(i.e. a "passerelle" clause), the Government must secure
the approval of each House of Parliament (section 6 of the European
Union (Amendment) Act 2008).
3. These powers are exercisable by each House
independently. In respect of subsidiarity, each House has the
right either to challenge a draft EU proposal or to ask the Government
to take a case to the European Court of Justice. In respect of
passerelle clauses, each House has the right to withhold its approval
and thereby block the Government's proposed course of action.
4. The commitments made by Baroness Ashton of
Upholland on 9 June 2008 related to enhanced scrutiny by the EU
Committees of the two Houses of Government decisions on whether
or not to "opt in" to proposals in the area of Justice
and Home Affairs.
5. We expect the procedures described below to
be used relatively seldom, though it is impossible to make firm
estimates. Decisions on timetabling debates under these procedures
will of course be a matter for the Usual Channels, in consultation
with other interested parties. This Committee will keep the operation
of the procedures under review.
CHALLENGING EU PROPOSALS ON GROUNDS OF SUBSIDIARITY
6. We recommend the following procedures, as
proposed by the Leader of the House and endorsed by the EU Committee:
- Where the EU Committee comes across
an EU legislative proposal that it considers does not comply with
the principle of subsidiarity, it will produce a report on the
proposal, containing a "reasoned opinion" to this effect.
The Committee will recommend its report for debate by the House.
- The report will be debated in the usual way,
on a "take note" motion in the name of the Chairman
or a Member of either the Select Committee or the relevant Sub-Committee.
- The "take note" motion will be debated
jointly with a second, free-standing motion inviting the House
to support the reasoned opinion contained in the report and instructing
that it be forwarded to the Presidents of the EU institutions
on behalf of the House. This motion will be amendable and divisible.
At the end of the debate the second motion will normally be moved
formally, but if there are amendments these will be dealt with
in the usual way.
7. The motions would be in the following form:
The following two motions are expected to be debated
together:
Lord [name] to move that this House takes note of
the Report of the European Union Committee on the XYZ Directive
(1111/09) (First Report, HL Paper 10).
Lord [name] to move to resolve that this House considers
that the XYZ Directive (1111/09) does not comply with the principle
of subsidiarity, for the reasons set out in the First Report of
the European Union Committee (HL Paper 10); and, in accordance
with article 6 of the Protocol on the application of the principles
of subsidiarity and proportionality, instructs the Clerk of the
Parliaments to forward this reasoned opinion to the Presidents
of the European institutions.
8. This procedure assumes the publication of
a report by the EU Committee, and we expect that this would be
the normal practice, as the EU Committee's routine scrutiny of
EU legislative proposals includes an assessment of their consistency
with the principle of subsidiarity. However, it would remain open
to any Member of the House to table a free-standing motion along
the lines set out in the second motion above, replacing the reference
to the EU Committee report with a short, self-contained "reasoned
opinion", as required by the Protocol.
9. We note that the Protocol sets an eight-week
deadline for the completion of the above procedure, counting from
the date on which the draft legislative proposal is transmitted
to national Parliaments in the official languages of the Union.
This deadline could potentially create difficulty, particularly
in the event of a proposal being transmitted shortly before the
summer recess. We understand that the European Commission has
given a commitment that the month of August should not count towards
this eight-week period. The Government has also agreed to propose
to other Council Members that the Council would not, under normal
circumstances, place a qualifying proposal on its agenda for eight
weeks, plus the four weeks of August where they fall within the
eight week period after adoption of the proposal by the Commission.
On this basis, we recommend adoption of this approach, subject
to review if the timetable proves unworkable.
10. Finally, we welcome the commitment by the
Europe Minister, Mr Chris Bryant MP, in a letter to Lord Roper,
that the Government will not support a proposal in the Council
of Ministers which has been the subject of a reasoned opinion
from either House without first further communicating to Parliament
their reasons for doing so.
CHALLENGING EU LEGISLATIVE ACTS ON GROUNDS OF SUBSIDIARITY
11. We recommend essentially the same procedures
as those we have described above, except that in this case the
procedures would apply in respect of newly adopted EU legislative
acts, at the post-legislative stage, rather than in respect of
draft proposals at the pre-legislative stage. The motions would
be worded as follows:
The following two motions are expected to be debated
together:
Lord [name] to move that this House takes note of
the Report of the European Union Committee on Directive 2009/10/EC
on XYZ (First Report, HL Paper 10).
Lord [name] to move to resolve that this House considers
that Directive 2009/10/EC on XYZ infringes the principle of subsidiarity,
for the reasons set out in the First Report of the European Union
Committee (HL Paper 10); and calls on Her Majesty's Government
to bring an action on these grounds before the European Court
of Justice.
12. We welcome the Government's commitment, in
the event of such a motion being agreed by either House, to take
the case forward on behalf of the House concerned, though we would
expect the costs to fall upon the House. We also recommend that
the same principles apply to motions of this type as have been
outlined in paragraph 8 above. However, we note that the issue
of summer recesses is less acute in this case, as the deadline
is longer (two months and 10 days) and there is likely to be more
advance warning.
SEEKING APPROVAL FOR THE USE OF "PASSERELLE"
CLAUSES
13. Under section 6 of the 2008 Act, the approval
of each House of Parliament is required before the Government
may support the use of one of the "passerelle" clauses
in the Treaties. Passerelle clauses are Treaty provisions allowing
Member States to decide, by unanimity, to move to Qualified Majority
Voting and/or co-decision with the European Parliament in a specified
policy area. According to the Act, approval is only given if "each
House agrees to the motion without amendment".
14. The motion, which would be moved by a Government
minister, would be as follows:
Lord [name] to move that, in accordance with section
6 of the European Union (Amendment) Act 2008, this House approves
Her Majesty's Government's intention to support the adoption of
draft Council Decision 1111/09."
15. It would of course be possible for a Member
to call "not content" when the question was put a second
time. However, it would, we believe, be undesirable for a Member
to precipitate a division on such a motion without giving advance
notice. We therefore recommend that notice of opposition should
be required, by means of an amendment in the following form:
Lord [name] to move, as an amendment to the above
motion, to leave out "approves" and insert "declines
to approve".
16. Given the requirement in the 2008 Act that
a motion for approval should be agreed to "without amendment",
we recommend that no other type of amendment should be admissible.
17. Finally, we welcome the Government's assurance
that, save in exceptional circumstances, they expect there to
be sufficient "lead-in" time for the EU Committee or
any other committee to have the opportunity to make its views
known before the House is asked to approve use of a "passerelle"
clause.
SCRUTINY OF JUSTICE AND HOME AFFAIRS (JHA) OPT-INS
18. Baroness Ashton of Upholland, in her statement
on 9 June 2008,[2] gave
an undertaking that the Government would take account of the views
of the EU Committees of each House as to whether or not the United
Kingdom should opt in to a specific JHA proposal, providing that
any such views were forthcoming within eight weeks from publication
of the proposal.[3] The
Government would, as a general rule, not make any formal notification
to the Council of a decision to opt in within this scrutiny period,
except where an earlier opt-in decision was necessary, in which
case the Government would explain their reasons to the Committee
as soon as possible. Baroness Ashton's statement noted that, as
with all EU legislative proposals, it would be open to the EU
Committees to make a report to the House, and recommend it for
debate. The Government undertook that it would seek to arrange
debates on such reports through the Usual Channels, on a motion
that would be amendable.
19. The Leader of the House has now proposed
that the motion, to be tabled in the name of either the Chairman
or another Member of the Committee or Sub-Committee, should be
as follows:
Lord [name] to move that this House agrees the recommendation
of the European Union Committee that Her Majesty's Government
[should/should not] exercise their right, in accordance with the
Protocol on the position of the United Kingdom and Ireland in
respect of the Area of Freedom, Security and Justice, to take
part in the adoption and application of the proposed XYZ Directive
(1111/09) (First Report, HL Paper 10).
20. We note also that the European Union Committee
has in fact already published a report of this type, which was
debated in accordance with the procedure now recommended.[4]
CONCLUSION
21. We recommend the above proposals to the
House.
Standing Order 19
22. Standing Order 19 describes the procedure
for the election of the Lord Speaker. Standing Order 19(2) states
that "All members of the House shall be entitled to stand
for election and to vote, save that (a) Lords who have not taken
the Oath in the current Parliament, or who are on Leave of Absence,
may not stand or vote".
23. At the time the Standing Order was agreed,
in 2006, there was, for most practical purposes, only one relevant
statutory disqualification for members of the House, namely that
applying to bankrupts.[5]
Since 2006 two additional disqualifications have been created,
in relation to Members of the European Parliament and holders
of disqualifying judicial office.[6]
As a result, a total of 17 members of the House are currently
disqualified by statute from taking any part in proceedings.
24. In addition, in May 2009 the House established
that it possessed the power to suspend Members for a defined period
not longer than the remainder of the current Parliament.[7]
25. In most cases, members who are disqualified
will not have taken the Oath, and will therefore be covered under
the present terms of the Standing Order. However, for the avoidance
of doubt, we propose the Standing Order should specify that, like
members on Leave of Absence, members who are either disqualified
or suspended are not entitled to stand for election as Lord Speaker
or to vote. We therefore recommend the addition of the words
highlighted in bold below in Standing Order 19(2):
"All members of the House shall be entitled
to stand for election and to vote, save that (a) Lords who have
not taken the Oath in the current Parliament, who are subject
to statutory disqualification, who are suspended from the service
of the House, or who are on Leave of Absence, may not stand
or vote".
Private notice questions
26. Paragraph 5.29 of the Companion, on
private notice questions (PNQs), states that "The decision
whether the question is of sufficient urgency and importance to
justify an immediate reply rests in the first place with the Speaker,
after consultation, and ultimately with the general sense of the
House." Paragraph 5.30 goes on to describe the procedure
whereby the Lord Speaker's initial decision can be challenged:
"5.30 If a member of the House challenges the
preliminary decision of the Lord Speaker on the question of urgency,
they should:
(a) give as much notice as possible to the Speaker
that they propose to challenge the preliminary decision in the
House; and
(b) make clear to the House, when rising to ask
for leave to ask the question, that they are appealing to the
House for support against the preliminary decision of the Speaker."
27. We have now reconsidered the procedure for
challenging the Lord Speaker's decision, on the basis of a memorandum
by the Clerk of the Parliaments. He points out that the procedure
has for many years been largely ineffectual: records show that
no challenge has ever been upheld on the floor of the House on
the same day, though in one or two cases an identical PNQ has
been allowed the following day. Moreover, until 2006 the role
assigned to the Lord Speaker was performed by the Leader of the
House, and while the Leader was able to defend his or her decision
on the floor of the House, the Lord Speaker cannot do so; nor
would it be appropriate for her either to defend her decision
herself or to delegate this task to a representative. The Clerk
of the Parliaments has accordingly invited us to consider whether
the Lord Speaker's decision in respect of the admissibility of
PNQs should henceforth be made final.
28. We were unable to reach agreement on this
proposal, though a majority of the Committee supported a change
that would make the Lord Speaker's decision final and remove the
procedure for challenging her decision on the floor of the House.
But we are agreed that on a matter such as this the final decision
must be taken by the House as a whole. In order to enable the
House to take this decision, we therefore recommend
that the Lord Speaker's decision in respect of the admissibility
of PNQs be made final.
29. If the House agrees this recommendation,
the next edition of the Companion will be amended accordingly.
Guidance on motions and questions
30. As part of the process of reviewing the text
of the Companion, we have considered the guidance on the
content and wording of questions and motions (paragraphs 5.11-5.19
of the Companion). This guidance has not been reviewed
for many years, and we believe that the lack of a comprehensive
and authoritative guide could create difficulty for members, members'
research staff, and the staff of the House—particularly
as the number of questions for written answer being tabled has
increased threefold since 1997, and continues to increase. We
believe that the time has come for the guidance to be reviewed.
31. The Clerk of the Parliaments has therefore
put forward revised guidance, which is annexed to this report.
We fully endorse the revised guidance, which is significantly
more consistent and more comprehensive than that found the current
Companion. At the same time we emphasise that it contains
nothing new: it is a summary of existing rules and conventions,
which already form the basis of the advice given by the clerks
to members. Moreover, nothing in this revised guidance affects
the fundamental principle of self-regulation. It will remain the
case that "the advice tendered by the Clerks should be accepted";
but also that "there is no official who has authority to
refuse a question or motion on the ground of irregularity."
Members will continue to be responsible for the form in which
their questions and motions appear in House of Lords Business,
"subject to the sense of the House which is the final arbiter."
32. We have therefore agreed that the revised
guidance set out in the annex to this report should be incorporated
in the next edition of the Companion, in place of paragraphs
5.11-5.19 of the 2007 text.
1 "Co-decision" has been renamed, following
the coming into force of the Lisbon Treaty, as "ordinary
legislative procedure"; similarly, the term "justice
and home affairs" has become the "Area of Freedom, Security
and Justice". However, we have used the older and more familiar
terms in this report. Back
2
See European Union Committee, Enhanced scrutiny of EU legislation
with a United Kingdom opt-in, 2nd Report, session 2008-09
(HL Paper 25). Back
3
The time-limit within which the United Kingdom must notify the
Council of its decision is three months from publication. Back
4
European Union Committee, Asylum directives: scrutiny of the
opt-in decisions (First Report, Session 2009-10, HL Paper
6). The report was debated on 12 January 2010, and the motion
calling on the Government to opt into the two directives was disagreed
to on division. Back
5
By virtue of the Insolvency Act 1986, as amended. Back
6
By virtue of the European Parliament (House of Lords Disqualification)
Regulations 2008 and section 137 of the Constitutional Reform
Act 2005 respectively. Back
7
Committee for Privileges, First Rpt, session 2008-09 (HL Paper
87). Back
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