House
of Commons
European Scrutiny Committee
The UK parliament's European Scrutiny Committee is of tremendous
importance in Britain's relationship with the EU. It wields great
influence and therefore power. It assesses the legal and political
importance of some 1100 EU documents each year and decides which
should be debated by the European Standing Committee. Just
occasionally EU papers are debated by parliament.
UK ministers are not allowed to agree to proposals not cleared by
the Committee or which are waiting for debate.
The Committee is also responsible for monitoring the activities of
UK ministers in the EU's Council of Ministers.
It delivers a weekly report which can be accessed on line at
www.parliamentuk/parliamentary_committees/european_scrutiny.cfm
Extracts from
House
of Commons
European Scrutiny Committee Report on the Treaty of Lisbon
"European Union
Intergovernmental Conference
Thirty-fifth Report of Session
2006–07
Report ordered by The House of
Commons to be printed 2 October 2007
Document reference HC 1014"
Introduction:
Critical report on the Treaty of Lisbon from the government's own
committee
The
UK House of Commons has a committee which has the special task of
monitoring out relationship with the European Union, making assessments
and advising the government. When the first details of the proposed
Reform Treaty (later called the Treaty of Lisbon) became known the
committee issued a very critical report, published on 2 October 2007.
These
extracts relate to The Reform Treaty/The
Treaty of Lisbon and the IGC (Inter Governmental Conference)
which agreed the details of the plans for this treaty. This conference
was held in Brussels from 21 to 23 June 2007. It was attended by the
leaders of the 27 member states of the European Union.
David Roberts
See also William Cash MP's dissenting statement. - Link at bottom of column on left.
1 Current membership of House of Commons
European Scrutiny Committee
[Extracts
from official text begin here]
"Michael Connarty MP (Labour,
Linlithgow and East Falkirk) (Chairman)
David S. Borrow MP
(Labour, South Ribble)
William Cash MP
(Conservative, Stone)
James Clappison MP
(Conservative, Hertsmere)
Katy Clark MP
(Labour, North Ayrshire and Arran)
Wayne David MP
(Labour, Caerphilly)
Jim Dobbin MP
(Labour, Heywood and Middleton)
Nia Griffith MP
(Labour, Llanelli)
Greg Hands MP
(Conservative, Hammersmith and Fulham)
David
Heathcoat-Amory MP (Conservative, Wells)
Kelvin Hopkins MP
(Labour, Luton North)
Lindsay Hoyle MP
(Labour, Chorley)
Bob Laxton MP
(Labour, Derby North)
Angus Robertson MP
(SNP, Moray)
Anthony Steen MP
(Conservative, Totnes)
Richard
Younger-Ross MP (Liberal Democrat, Teignbridge)"
2 The role
of The European Scrutiny Committee
"The European
Scrutiny Committee is appointed under Standing Order No.143 to examine
European Union documents and -
a) to report its
opinion on the legal and political importance of each such document
and, where it considers appropriate, to report also on the reasons for
its opinion and on any matters of principle, policy or law which may be
affected;
b) to make
recommendations for the further consideration of any such document
pursuant to Standing Order No. 119 (European Standing Committees); and
c) to consider any
issue arising upon any such document or group of documents, or related
matters."
3
Background
"1.
At its meeting in Laeken in December 2001 the European Council agreed
that the European Union needed to become “more democratic,
more transparent and more efficient” and that for this
purpose a number of specific questions needed to be addressed.
To
examine these questions the European Council agreed to establish a
‘Convention’ which would consider the key issues
arising for the future development of the European Union and to
identify various possible responses. The questions in issue were
“a better division and definition of competence in the
European Union”, “simplification of the
Union’s instruments”, “more democracy,
transparency and efficiency in the European Union” and the
simplification and reorganisation of the Treaties. In this latter case,
the European Council raised the question of whether such simplification
and reorganisation “might not lead in the long run to the
adoption of a constitutional text in the Union”.
2.
In the event, the Convention, which ran from 2002 to 2003, drew up a
Draft Constitutional Treaty which was
presented to Member States in July 2003. The text formed the
basis of an intergovernmental conference (IGC) which led to the
adoption in October 2004 of a “Treaty establishing a
Constitution for Europe” (the Constitutional Treaty). In June
2005 the Constitutional Treaty was rejected by a popular referendum in
France (with a ‘no’ vote of 54.5%) and in the
Netherlands (by a ‘no’ vote of 61.6%). Following a
“period of reflection” the European Council in June
2006 asked the German Presidency to produce a report to the June 2007
European Council. This report was to “contain an assessment
of the state of discussion with regard to the Constitutional Treaty and
explore possible future developments”.
3. The report of 14
June from the German Presidency recommended that the European Council
should agree to the “rapid convening of an IGC” and
to giving a “precise and comprehensive mandate (on structure
and content) to the IGC”. Although the IGC would be asked to
adopt a “Reform Treaty” amending the existing
Treaties rather than repealing them, the report stated that
“the mandate for the IGC should set out how the measures
agreed upon in the 2004 IGC with a view to a more capable and
democratic Union should be inserted into the Treaty on the European
Union and the ‘Treaty on the Functioning of
the
Union’”. The Presidency report noted that a number
of Member States had underlined the importance of the
“impression which might be given by the symbolism and the
title ‘Constitution’
that the nature of the Union is undergoing radical change”
and that for them this also implied
“a return to the traditional method of treaty change through
an amending treaty, as well as a number of changes of terminology, not
least the dropping of the title ‘Constitution’”.
The report found that such an approach was “not
incompatible” with the demand
from those Member States which had already ratified, that “as
much of the
substance of the
Constitutional Treaty as possible should be preserved”. The
report noted that these Member States “insist on the need to
preserve the substance of the innovations agreed upon in the 2004
IGC”.
4. Under the rubric
“The way forward”, the report recommended the rapid
convening of an IGC with a view to adopting an amending Treaty, but
noted that a number of changes from the measures agreed at the 2004 IGC
would be needed to reach an overall agreement.
The report went on
to note that, to this end, “there should be further
discussions” with regard to a number of issues, namely,
“the question of the symbols and of the primacy of EU
law”, “possible terminological changes”,
“the treatment of the Charter on Fundamental
Rights”, “the specificity of the CFSP”,
“the delimitation of competences between the EU and the
Member States” and “the role of national
parliaments”.
5. In the event, a
‘Draft IGC Mandate’ containing a series of detailed
prescriptions on each of the above
issues, as well as an outline of the proposed treaty, was circulated by
the Presidency on 19 June as the “exclusive basis and
framework” for the IGC. Since the Presidency report
was distributed on Thursday 14 June, and the draft IGC mandate was
first circulated the following Tuesday on 19 June at 5:00 pm in the
evening, we require the Government to clarify what “further
discussions” on the issues identified in the Presidency
report took place before the draft IGC mandate was produced .[See
footnote 6]
6. The
‘draft IGC Mandate’ provided the basis for
discussion at the European Council, which began just over 48 hours
later at 5:30 pm on 21 June. The European Council concluded in the
early hours of 23 June, having agreed an IGC Mandate in substantially
the same terms as the draft of 19
June. The European Council agreed to convene an IGC and invited the
Presidency “without delay” to take the necessary
steps in accordance with Article 48 EU7 with the
objective of opening the IGC before the end of July. The German
Presidency made a formal proposal on 27 June reproducing the agreed IGC
Mandate. The Commission adopted its opinion on 10 July, and the
European Parliament gave its opinion the following day. The IGC was
subsequently opened on 23 July.
Footnote 6 (Other
footnotes omitted)
6 We also note that
we were told by the Minister for Europe on 4 July that the draft IGC
mandate was circulated for the first time in Brussels at 5:00pm local
time on 19 June (Q6) and that it was confirmed on behalf of the
Minister that this was the first time that any text at all had been
given to those representing the UK (Q15). European Scrutiny Committee,
35th Report, Session 2006-07"
----------------------------------------------------
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4 The
Scrutiny Committee was disturbed by the way the government was not
involved in the preparation of the new treaty.
"Our consideration
of the preparations for the IGC
7. We were
concerned at an early stage that the process which was leading up to
the convening of an IGC was proving to be far from transparent. We
raised this issue with the then Foreign Secretary when she came to give
evidence to the Committee on 7 June, referring to a background of
“non-transparency” and to the fact that despite an
avowed welcome for ‘parliamentary contributions to the
debate’8, the Government had resisted requests from the
Committee for a statement of its views on what sort of changes there
should be to the present institutional arrangements or for sight of
either the Berlin Declaration or Presidency progress reports ahead of
the relevant European Council meetings.
8. In her evidence
in reply, the then Foreign Secretary commented that she understood our concerns and that the Government itself would
have wished to have an earlier sight of the Berlin declaration than it
did. The Minister stated that there was no proposal to bring back
the Constitutional Treaty in its original form and that the Government
was “on record at various levels as saying that was such a
proposal made we would continue to take the
view that that would require a referendum”. The Minister went
on to assure us that:
“There has not been anything that
you could really call negotiation and not much that you
could really call discussion perhaps because the differences of view
are still so considerable that it is hard for people to identify the
ground on which that discussion might take place.”
9. The Minister
recalled that, in relation to its negotiating position, at that stage
the Government was determined to “keep its powder
dry”. The Minister described the Government’s
attitude in these terms:
“We have continued to say
quite succinctly, I think, that what we would look for is a
treaty
which is very different from that proposed as the Constitutional Treaty
for something that was in a perfectly understandable and
straightforward, historical lineage, an amending treaty. It should be
very different from the Constitutional Treaty proposals and, to use the
phrase of the Prime Minister which I find quite helpful, it should not
be proposing the characteristics of a Constitution. That is where we
have hung our hats and where we stay."
10. Despite the
statements from the then Foreign Secretary, work had clearly been
ongoing within the Presidency,
resulting in the circulation only 12 days later of a draft IGC Mandate
setting out a series of detailed amendments together with an outline of
a proposed draft Treaty. In his evidence to us on 4 July, the Minister
for Europe confirmed to us that the Presidency circulated the draft IGC
Mandate for the first time at 5:00pm on 19 June. It was also confirmed
on his behalf that the process of preparation for the European Council
began with a meeting of each country’s representatives,
referred to as “focal points”, with the
Presidency in Berlin on 24 January, with a further such meeting
on 2 May, with no draft text provided or discussed
on either occasion and that the first time any text was given was 5:00
pm on 19 June and that “there had previously been no
negotiations” — merely a statement of each
country’s position.
11. We were also
struck by the evidence given on 4 July that those representing the UK
did not see the draft IGC Mandate
until 5:00 pm on 19 June, even though the European Council
was due to commence just over 48 hours later. We wrote to the Minister
on 11 July asking to be told whether responsible Ministers were
consulted about the draft
mandate during
that brief period and for an account of such consultations. We also
asked for the Government’s views on whether it was acceptable
for a process which had taken two years then to be
“bounced” into the European Council in two days.
Although the Minister replied to our letter on 31 July, he did not
offer any comment on this point.
12. In order better
to understand the process whereby the IGC was being prepared, we asked
the Minister on 19 July formally to deposit the Commission’s
opinion of 10 July on the convening of an IGC and to supply an
Explanatory Memorandum explaining the Government’s views on
the opinion. The Minister acceded to our request and supplied an
Explanatory Memorandum on the document on 25 July.
The Commission’s Opinion
13. The
Commission’s Opinion, entitled “Reforming Europe
for the 21st Century”, is given pursuant to Article 48 EU.
The Opinion consists of three parts. Part I “Reforming Europe
together”, briefly reviews the state of the European Union
over the last decade, the process which
led to the Constitutional Treaty and the subsequent outcome. This part
of the opinion claims that the European Union “is uniquely
well placed to find the answers to today’s most
pressing questions” and asserts that “after fifty
years of integration and enlargement, the vision set out by
Europe’s founding fathers holds as good as ever”.
It goes on to argue that the European
Union has the potential to reinforce its policies in the areas of
modernising the European economy to face new competition, keeping
Europe at the forefront of efforts to address climate change worldwide,
securing sustainable energy supplies, managing migration
effectively, combating terrorism, helping developing countries to fight
poverty and seeing “European values promoted effectively in
the global community”, but that this potential
“must not be held back by outdated ways of working”.
14. The Opinion further argues that
the European Union needs modernisation and reform, but that the
“delicate balance of the Union’s institutional mix
still provides the best combination to bring together
Europe’s strengths” and that “the
‘Community method’ and more particularly the
European Commission’s special role and its right of
initiative is
the key to the success of the European system”. We
are far from convinced that a
Commission monopoly of the right of initiative
needs any longer to be preserved and maintained and would be
grateful for the Minister’s assessment. [Emphasis added.]
15. The Opinion
notes that the Constitutional Treaty has been ratified in a majority of
Member States, but “failed to secure unanimous
support”. In the Commission’s view, although the
ratification of the Constitutional Treaty was “at a
standstill”, the need to reform Europe’s way of
working “remained as compelling as ever”. The
Opinion states that the steps towards an “institutional
settlement”, namely the European Council in 2006, the Berlin
Declaration in March 2007 and what the Commission describes as
“a comprehensive agreement
on the elements for reform in June 2007” have been realised.
16. Part II of the
Opinion describes the outcome of the European Council of June 2007.
The Commission
notes that the European Council agreed a “precise
mandate” for the IGC which it describes as “the
fruit of a carefully crafted compromise”, and the effect of
which it summarises as follows:
“Together with many
positive elements, which are to be welcomed, this compromise
meant that some of the changes agreed in the 2004
IGC were not retained, and a number of derogations were granted to
individual Member States. The disappearance of some elements, including
some symbolic ones, as well as changes that reduced the readability of
the Treaty text, were necessary parts of a package agreement which
could be subscribed to by all Member States.”
17. The Commission
also notes that the European Council emphasised that during the IGC and
during the process of ratification “the EU should reinforce
communication with its citizens, providing them with full and
comprehensive information and involving them in permanent
dialogue”18. In the Commission’s view, the approach
of amending the existing Treaties “makes it particularly
important to communicate the proposed reforms and their underlying
rationale, and to make available as soon as possible an easily
accessible and readable text of the Treaties”.
17 Under the
‘Community method’ (which presumably refers to the
EC Treaty) the Commission has the exclusive right to
initiate proposals.
18 Cf. paragraph 7
of the Conclusions which reads “The European Council
emphasises the crucial importance of reinforcing
communication with the European citizens, providing full and
comprehensive information on the European Union and involving them in a
permanent dialogue. This will be particularly important during the
upcoming IGC and ratification process.” Given a background in
which even UK Ministers were given little more than 48 hours to
consider the draft IGC Mandate, the statement in the Conclusions is
welcome, even if its credibility is weak.
18. Part II of the
Opinion continues by reviewing salient features of the Reform Treaty
under the headings of “A More Democratic and Transparent
Europe”, “A more effective Europe”,
“A Europe of rights and values, solidarity and
security” and “Europe as an actor on the global
stage”.
19. Under the first
of these headings, the Commission states that, with the Reform Treaty,
“Europe’s democratic
infrastructures will be refreshed and reinforced”. This is to
be achieved by an
increase of co-decision to around 50 new areas which “will
see the European Parliament placed on an equal footing with the Council
for the vast bulk of EU legislation”, and giving national
parliaments “greater opportunities to be involved in the work of the EU while respecting the established
roles of the EU institutions”.
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However,
we doubt the significance of the
“greater oppor-tunities” for national parliaments
to be involved in any meaningful manner in the workings of the EU
without independence from Government whipping systems on subsidiarity
and a “red card” system that compels the Commission
to withdraw any proposal which threatens to breach the subsidiarity principle. The
Commission also refers to the provision for a
“Citizen’s Initiative”
whereby a petition from a million citizens from different Member States
can trigger an invitation to the Commission to bring forward a new
proposal.
20. Under the
heading “A more effective Europe”, the Commission
argues that the Community method provides the basic structure to enable
the interests of different states and peoples in Europe to be married
with the interests of the Union as a whole. In this connection, the
Commission notes that it “attaches particular importance to
the primacy of EU law, clearly established in existing case law and
recognised in the mandate”.
21. The Opinion
continues by describing the main features of the institutional changes
made by the Reform Treaty. These include the move to Qualified Majority
Voting (QMV) in justice and home affairs which is described as bringing
“swifter and more consistent decisions” as well as
meaning a “step change in Europe’s ability to
combat terrorism, to tackle crime and human trafficking, and to manage
migratory flows”. It is also pointed out that QMV will be
extended to more than 40 new matters (see Annex) and “will
make a reality of EU action in these areas”. Reference is
also made to “new and reinforced legal bases” in
relation to energy policy, public health and civil protection, climate
change,
“services of general
interest”, research and development, “territorial
cohesion”, commercial policy, space,
humanitarian aid, sport, tourism and administrative cooperation.
Finally, this part of the Opinion notes that future changes to policies
within existing competences, and extensions of QMV and co-decision
“can be agreed without needing to call a new IGC”,
and that what is described as the “confusing
distinction” between the European Community
and the European Union will be brought to an end. We are
concerned that removing the
“distinction” between the EU and EC in relation to
matters now dealt with under the Third Pillar (with the consequent
increase in the powers of the Commission to bring infraction
proceedings and those of the ECJ to interpret and apply Union measures)
will change the legal relationship between the EU and national
governments in a way that will increase their powers in relation to UK
law. We call on the Government to set out the safeguards they will
expect to gain from the IGC to prevent this happening.
22. Under the
heading “A Europe of rights and values, solidarity and
security”, the Commission draws attention to the statement of
the Union’s values and objectives which it considers will
serve as a point of reference for citizens. Also highlighted is the
Charter of Fundamental Rights which the Commission describes as
offering citizens guarantees “with the same legal status as
the treaties themselves”. The Commission states that the
Charter “will
also apply in full to acts of implementation of Union law, even if not
in all Member States”.
23. The day before
the Commission’s Opinion was published, we asked Commissioner
Wallström to expand on a remark she had made in a speech to
the European Parliament that “the Charter will be binding
… for Member States when they implement EU law, even if this
does not apply to all of them”. The Commissioner replied that
this meant that “the Charter cannot be invoked in front of UK
courts”. The Commissioner was further asked if a ruling of
the ECJ would be binding on all Member States, even the UK, if it
concerned the implementation of EU law. The Commissioner replied that
the provision for the UK
“simply means that one Member State
has an opt out and that has to be respected, but I did not talk about
the Court of Justice”.
24. The Commission
Opinion also states that “gaps in judicial protection ensured
by the European Court of Justice” will be filled
“to ensure jurisdiction in freedom, security and
justice”. Also noted are a new
“solidarity” clause to give
“force” to the obligation of Member States to
support each other in the event of terrorist attack or natural or
man-made disaster, and the need for solidarity in the case of shortages
of energy supplies.
25. A final
section is entitled “Europe as an actor on the global
stage” and is concerned with the conduct of external
relations by the EU. The Commission argues that all aspects of external
relations (“external action policies”) need to be
“geared to work together to better effect”. It
states that the IGC Mandate recognises this point by providing that all
such policies — CFSP, trade, enlargement, development and
humanitarian assistance — “are placed on an equal
political and legal footing”. In apparent contradiction, the
Opinion notes that respect for the particular interests of Member
States will be maintained by “retaining specific
decision-making procedures” (i.e. unanimity) in the area of
the Common Foreign and
Security Policy. We note that this could be interpreted as
contradictory and call on the Government to set out clearly what
safeguards it will expect from the IGC to ensure that the particular
interests of the UK ‘will be maintained’.
The Opinion also notes that the European Security and Defence Policy
“will be brought more clearly into the Union”, but
that special decision-making arrangements (i.e. unanimity) will be
preserved, whilst paving the way for reinforced cooperation among a
smaller group of Member States. (In this case, only those countries
which wished to proceed with a particular matter would be under any
obligation to do so).
26. The Opinion
comments on the question of establishing a single legal personality for
the Union in these terms:
“Establishing a single legal
personality of the Union will strengthen the Union’s
negotiating power, making it even more effective
on the world stage and a more visible partner for third countries and
international organisations.”
27. The Opinion
concludes with a brief Part III stating that the “Reform
Treaty will underpin some of the most deep-seated aspirations of
European citizens”. The Opinion cites no evidence for this
conclusion, and refers only obliquely to the rejection of the
Constitutional Treaty by popular referendum in France and the
Netherlands.21 The Opinion goes on to welcome the convening of an IGC,
stating that “Europe needs a Reform Treaty to be agreed and
ratified ahead of the June 2009 European elections” and that
“it is the responsibility of all participants in the
Inter-Governmental Conference to create the conditions for this goal to
be met”.
Part of
the UK government's views
"The
Government’s view
28. In his
Explanatory Memorandum of 25 July the Minister for Europe at the
Foreign and Commonwealth Office (Jim Murphy) explains that the
Government notes the publication of the Commission Opinion. The
Minister adds that the document covers a broad range of issues
regarding the IGC, and that the Government’s position on the
IGC is set out in the White Paper “The Reform Treaty: The
British Approach to the European Union Intergovernmental
Conference” (Cm 7174) published and laid before Parliament on
23 July .
29. The White Paper
sets out the Government’s approach to the IGC and includes a
glossary of EU terms and the text of the IGC Mandate agreed at the June
European Council. The White Paper explains that in the run-up to the
European Council in June the UK argued that the EU needed a new
amending Treaty “without constitutional
characteristics” and that it set out four pre-conditions
(referred to in the foreword as ‘red lines’ ) for
agreement on a new Treaty. These four pre-conditions are stated as
follows:
-
“protection of the UK’s existing
labour and social legislation;
-
protection of the
UK’s common law system, and our police and judicial processes;
-
maintenance of
the UK’s independent foreign and defence policy;
-
protection of the
UK’s tax and social security system.”
---------------------------------------------------
Subsidiarity - taking decisions at the lowest practical level
"Subsidiarity
and the role of national parliaments
38. On subsidiarity
and the role of national parliaments, the White Paper states that the
Reform Treaty “strengthens the role of national parliaments
in EU decision-making” and that the latter “will be
given a direct say in the EU’s law-making procedures for the
first time”. However, it may be noted that the Protocol (No
9) on the role of national parliaments in the European Union (1997)
already requires the Commission to forward all consultation documents
to national parliaments of the Member States and to make legislative
proposals available in good time to governments so that they may ensure
that their own national parliaments receive them. The White Paper
states that “at present, there is no obligation on the EU
institutions to consult national parliaments about EU laws”
but that under the new mechanism “all national parliaments
must be notified by the EU institutions of proposed EU legislation and
be given eight weeks to comment”. The White Paper also refers
to the possibility of national parliaments gaining the power to
challenge proposals on subsidiarity grounds if one third of them agree.
If such a challenge is made, the EU institutions “would have
to reconsider” and decide whether to maintain, amend or
withdraw the proposal. The White Paper notes that if a majority of
national parliaments object to a proposal but the Commission decides to
maintain it the “final decision on whether the legislation
should proceed” would be made by the Council and the European
Parliament. The White Paper comments that there is a “lack of
clarity” as to how the IGC Mandate provisions will apply in
practice and that the Government “will seek early
clarification” in the IGC.
We agree
that it is not helpful to its scrutiny role not to have the process
outlined and asks the Government to have the process clarified at the
IGC.
We
further ask the Government to set out its proposals for the process
that will operate in the UK Parliament and for clarifying how the UK
Parliament will be allowed to respond on issues of subsidiarity
independent of executive."
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Single
legal personality
"Single
legal personality for EU
39. The White Paper
notes that the European Community and Euratom already have express
legal personality and that the Reform Treaty would formally give the EU
a single legal personality. The White Paper comments that, when it acts
in CFSP and some JHA matters, the EU already has a “degree of
‘functional’ legal personality by virtue of its
power to make international agreements” and adds that
conferring a single legal personality “will be simpler than
the existing situation and will therefore allow the EU to act in the
international arena in a more coherent way” and that this
“should lead to streamlined procedures for negotiating
agreements throughout the EU”.
40. The White Paper
states that conferring a single legal personality “does not
create any new powers for the EU” and refers to a declaration
to be made by all the Member States that “the fact that the
European Union has a legal personality will not in any way authorise
the Union to legislate or act beyond the competences conferred upon it
by the Member States in the Treaties”32. The White Paper also
comments that conferring a single legal personality “will not
impact on the independence of Member States’ foreign
policies”. We accept that the mere fact of conferring legal
personality may not have this effect, but it should be noted that
Article III-323 of the Constitutional Treaty (now reproduced as Article
188l of the Reform Treaty) confers a wide power on the Union to
conclude international agreements, not only where the Treaties
expressly provide, but also where “the conclusion of an agreement is
necessary in order to achieve, within the framework of
the
Union’s policies, one of the objectives referred to in the
Treaties, or is provided for in a legally binding Union act or is
likely to affect common rules or alter their scope”. In
relation to Title IV EC matters, (i.e. justice and home affairs) a
declaration (No.25) will be adopted confirming that Member States are
entitled to conclude agreements with third countries and international
organisations in these areas33, in so far as such agreements are
consistent with Union law.34 In the case of Title IV matters where the
UK has not ‘opted in’, it seems to us that the
freedom of the UK to enter into agreements with third countries
will not be
affected, but we invite the Minister to confirm if this assumption is
correct.
We would
wish the Government to make clear whether or not these powers will in
any way prevent the UK from concluding its own treaties in the same
areas as the Union, despite the provisions of the new Article 3(2) EC
on exclusive external competence.
---------------------------------
Has the
Constitution disappeared?
"We do not
consider that references to abandoning a ‘constitutional
concept’ or ‘constitutional
characteristics’ are helpful and consider that they are even
likely to be misleading in so far as they might suggest the Reform
Treaty is of lesser significance than the Constitutional Treaty. We
believe that the Government must offer evidence if it is to assert that
the processes are significantly different."
---------------------------------
House of
Commons European Scrutiny Committee Conclusions
"71. We welcome the
emphasis placed by the European Council on providing EU citizens with
“full and comprehensive information” and involving
them in “permanent dialogue” which is said to be
“particularly important” during the IGC. However,
the evidence until now has not been consistent with these ideals, with
an essentially secret drafting process conducted by the Presidency,
with texts produced at the last moment before pressing for agreement.
The compressed timetable now proposed, having regard to the sitting
terms of national parliaments, could not have been better designed to
marginalise their role.
72. As far as the
substance of the Reform Treaty and its comparison with the
Constitutional Treaty are concerned, we accept that references to the
“constitutional concept” or
“constitutional characteristics” in trying to
distance the present proposals from the creation of a Constitution are
less than helpful. What matters is whether the new Treaty produces an
effect which is substantially equivalent to the Constitutional Treaty.
We consider that, for those countries which have not requested
derogations or opt outs from the full range of agreements in the
Treaty, it does, and refer readers to the table in the Annex to this
report.
73. We explain in
this report our concerns about the security of the United
Kingdom’s position under the Charter. In our view, it
requires to be made clear that the Protocol
No.7 to the Reform
Treaty takes effect notwithstanding other provisions of the Treaty or
Union law generally.
74. We note that
the ‘opt-in’ arrangements under the Protocol on the
position of the United Kingdom and Ireland will apply to the areas
transferred by the Reform Treaty to Title IV. In our view, it should be
made clear that the United Kingdom retains the ability also to
‘opt-out’ of participating in a measure in these
sensitive fields, if UK interests are not fully protected in the final
text of any measure.
75. We note the new
provisions on the role of national parliaments. In our view, these mark
only a minor improvement on the proposals contained in the
Constitutional Treaty. If these are to have any real utility, the
threshold for discontinuing a proposal which has been objected to by
national parliaments on subsidiarity grounds must be made lower than
55% of the members of the Council or a majority of votes in the
European Parliament.
76. We wish to
emphasise that the proposals in the Reform Treaty raise a serious
difficulty of a constitutional order in as much as they appear to
impose, whether by accident or design, a legal duty on national
parliaments “to contribute actively to the good functioning
of the Union” by taking part in various described activities.
National parliaments, unlike the European Parliament, are not creations
of the Treaties and their rights are not dependent on them. In our
view, the imposition of such a legal duty on the Parliament of this
country is objectionable as a matter of principle and must be resisted.
77. Pending further
information from the Government and answers to the questions we have
posed, we are holding the document under scrutiny."
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