National Parliaments and the

Philip Norton Lord Norton of Louth

Volume 45 Number 5/6 2003 5 6 Managerial Law National Parliaments and the European Union Legislatures remain important bodies in contemporary political systems. They are multi- functional and adaptable bodies. They constitute ‘constitutionally designated institutions for giving assent to binding measures of public policy, that assent being given on behalf of a political community that extends beyond the government elite responsible for formulat- ing those measures.1 The need to assent – to give the seal of approval – to measures of pub- lic policy renders them invaluable to most regimes, democratic or otherwise. Beyond this core, defining function, most fulfil a range of other functions and those functions can change over time, in response to the needs of society.2 Few legislatures are policy-making bodies. Rather, they subject those who do make policy – the executive – to scrutiny and can, if necessary, ensure policy is changed or even withdrawn. They can also fulfil a range of representational functions, increasingly important in societies where citizens feel alien- ated or increasingly distant from the policy makers. Legislatures can act as important arena, ensuring that the views of different groups in society are heard and debated. They can act as a vital link between citizen and government, ensuring that the voice of citizens is heard by government. Legislatures, then, are important institutions. They exist at national and sub-national level. However, we now have a distinctive situation in which they operate within another, supra-national context. The European Union (EU) is, in terms of its constitutional arrange- ments, sui generis. It bears no relationship to the parliamentary systems that characterise Western Europe, where the executive is determined through elections to the parliament. At the supra-national level, there is a (EP). However, the Union itself is a union of nation States, each with its own national parliament. How, then, do national par- liaments relate to this supra-national context? The relationship between national parliaments and the institutions of the European Union has not been much studied. There is, though, now more literature on the subject than before.3 The role of national parliaments is becoming more prominent in debate. It was one of the key elements discussed in the Convention on the Future of Europe, which drew up a draft Treaty establishing a Constitution for Europe in 2003. Given the novel context, my purpose in this short paper is to address the relationship between national parliaments and the law-making process of the European Union. I propose to do so by addressing four ques- tions: (1) Should national parliaments have a role in the law-making process of the Euro- pean Union? (2) If so, what form should that role take? (3) What form has it taken? (4) What proposals are there for a new role in the future? Should national parliaments have a role in the law-making process of the European Un- ion?

Let me start with those who answer ‘no’. The argument here is that there is now a directly- elected European Parliament and it is the responsibility of the EP to scrutinise EU legisla- tion and call the Commission to account. The case for the EP has been recognised by an en- largement of its powers. It began as the Common Assembly for the European Coal and Steel Community in 1951. Its powers were variously extended. Under a number of treaty articles, it had to be consulted. The consultation provision was extended to encompass, by

Volume 45 Number 5/6 2003 7 1964, all legislative proposals (and, in 1973, all proposals). In 1979, direct elections were introduced, giving members a claim to democratic legitimacy. In 1980, in the Isoglucose case, the European Court of Justice (ECJ) held that the adoption of a piece of legislation without the opinion of the EP having being given was in contravention of the spirit of the Treaty of Rome. The EP thus acquired an effective power of delay. Its powers were later extended by treaty, first through the co-operation procedure, introduced by the , and then through the co-decision procedure, introduced under the Treaty on European Union (the ).4 The co-decision procedure made the EP a sig- nificant player in the legislative process. In the event of disagreement between the EP and the Council of Ministers, a conciliation committee is formed to try to reach agreement. The Council can adopt a disputed text by qualified majority, but can be overridden by the EP by an absolute majority. The EP can also reject a text outright at second reading stage by abso- lute majority. As Mark Shephard has noted, ‘co-decision granted the EP the capacity for the final say over legislation’.5 Since the , the co-decision procedure has been the predominant procedure.

The powers of the European Parliament have thus been extended within the EU policy-making process. Its position has further been strengthened as the scope of EU policy-making has increased. With successive treaties, policy competences have passed from the national to the supra-national level. The proposed EU Constitution, presented to the Inter-Governmental Conference in 2003, stipulated the exclusive and shared compe- tences of the EU. The competences are wide-ranging and, under the Flexibility clause (Ar- ticle 17), the Council may, by unanimity, take appropriate measures to realise the objectives of the Constitution, even though the appropriate powers have not been conferred by the Constitution. The EP is thus exercising greater powers within an expanded policy space. Its central role is acknowledged in the draft Constitution for Europe. Under Article 19-1, ‘The European Parliament shall, jointly with the Council of Ministers, enact legisla- tion, and exercise the budgetary function, as well as functions of political control and con- sultation as laid down in the Constitution’ (emphasis added). The EP is thus a partner with the Council in determining policy that will apply throughout the Member States of the European Union.

The EP can claim to be elected by the people of Europe. It has powers to negotiate and to block proposals placed before the Council of Ministers. Its position and its powers have been recognised and expanded in succeeding treaties agreed by the Member States. It is an intrinsic part of the supra-national structure of the EU.6 National parliaments can make no so claim. Until the Maastricht Treaty, they were unrecognised in treaty and had no formal position in the process by which European proposals were approved. They remain essentially outsiders to the process. They are not called upon to give assent to measures placed before the Council of Ministers. They exist primarily to scrutinise and call to ac- count their own national governments. There is no reason why they should engage in a task for which a distinct body, the EP, exists and which has the powers, resources and location to fulfil it. The parliaments should therefore exist on a parallel basis, the EP exercising its powers in relation to the EU and national parliaments exercising their powers in relation to their respective governments.

8 Managerial Law The argument for national parliaments having a role in European law-making de- rives from the perception of a ‘democratic deficit’ in the EU. That is, that there is insuffi- cient involvement in the law-making process by the elected representatives of the people. National parliaments are closer to the people than a supra-national parliament and the turn- out for elections is greater for national parliamentary elections than it is for European par- liamentary elections. If people are to accept the legitimacy of laws made by the institutions of the EU, then it is important that national parliaments have some involvement in the pro- cess.

This argument has been advanced by various bodies within the Member States. In 1995, the Select Committee on the European Union of the British House of Commons de- clared that ‘there is a widespread and growing recognition that National Parliaments are, and should remain, the primary focus of democratic legitimacy in the European Union’.7 The Committee went on:

National Parliaments, with their diverse characters matched to their national cultures, have, compared with the European Parliament, many fewer electors per Member of Parliament. They are closer to the citizen, and are uniquely qualified to provide an element of responsiveness and democratic control that the Union needs.8

The Committee – now re-named the European Scrutiny Committee – reiterated the point in its 2002 report on Democracy and Accountability in the EU and the Role of Na- tional Parliaments.9 The case has also been conceded by the collectivity of national gov- ernments within the EU. The European Council meeting in Dublin in 1990 drew attention to a possible ‘greater involvement of the national parliaments in the democratic process of the Union, in particular in areas where new competences will be transferred to the Un- ion’.10 Subsequent treaties have sought to give some effect to this, starting with the Maas- tricht Treaty – to which two declarations were attached (one encouraging greater involve- ment by national parliaments in the EU and the other calling for regular meetings of the Conference of the Parliaments)11 – and followed by protocols to the Amsterdam Treaty, which recognised – for the first time – the role of the Conference of Community and Euro- pean Affairs Committees of Parliaments of the European Union (known by the French ac- ronym COSAC), a body drawing together representatives from of national parliaments and of the EP. It also provided for a period of six weeks for national parliamentary scrutiny before a proposal was placed on the agenda of the Council of Minis- ters.

The normative case has also been conceded by the EP itself, recognising in the report of its Constitutional Affairs Committee in 2002 that the EU’s democratic deficit can be remedied by strengthening both the EP and national parliaments. It has also been recog- nised by the Convention on the Future of Europe. The European Council meeting in Lae- ken in December 2001 established the Convention and proposed that it consider the role of national parliaments in the EU. The Convention set up a National Parliaments Working Group. The Group recommended greater direct involvement by national parliaments, pri- marily in respect of monitoring the application of subsidiarity. This was then embodied in

Volume 45 Number 5/6 2003 9 the Protocol on the Role of National Parliaments in the European Union to the draft Consti- tution. The case for national parliaments having a role is therefore generally conceded. As the European Union Committee of the recorded: The Convention’s National Parliaments Working Group, the Commons Committee and our Committee are all agreed that national parliaments have a distinct role to play in the EU, and that enhancing their material involvement would help to strengthen the democratic legitimacy of the Union. The Com- mons has argued that national parliaments are closer to the citizen than any EU institution, including the European Parliament. In this sense, enhancing their role can help remedy the “disconnection” between the EU and its citi- zens, a point clearly stressed by the Government in this House during the re- cent debate on the Convention. The remedy will only be effective as long as national parliaments improve their responsiveness to their citizens.12 If national parliaments have a role in European law making, what form should it take?

If there is general agreement that national parliaments should play a greater role in the EU, what form should it take? There are three forms that have been advanced: the individual, the collective, and the complementary. Individual

The individual form refers to national parliaments operating as independent entities, each taking on the task of scrutinising and influencing, perhaps even determining, the stance of the representative of the national government in the Council of Ministers. This can be done, typically, through the use of committees. The argument for the individual approach is clear and straightforward. It allows each national parliament to proceed at its own pace. Some may be more enthusiastic and better resourced than other parliaments for engaging in sustained scrutiny. Resources and proce- dures can be moulded to the particular structure and desire of each parliament. Though na- tional parliaments in Western Europe fall within the category of parliamentary (as opposed to presidential) systems, there is great variation in terms of their internal structures and the relationship between executive and legislature. Furthermore, with expansion, the EU is likely to draw in more countries that have different political systems, some of them having what have been termed semi-presidential systems.13 Proceeding on an individual basis does not preclude sharing information. Indeed, COSAC exists essentially for that purpose. It allows for the dissemination of advice on best practice and for the discussion of common concerns.14 National parliaments can thus pro- ceed at their own pace while sharing information among themselves. The problem with the individual approach, however, is that it weakens the capacity of national parliaments to influence outcomes. It effectively strengthens national govern- ments, which can pursue a strategy of dividing and ruling. Though national parliaments can share best practice advice through COSAC, the discussion covers principally procedures

10 Managerial Law rather than the substance of proposals placed before the Council. COSAC in any event meets only twice a year. How one national parliament reacts to a particular proposal is not necessarily known to another parliament. The potential consequences of this are shown in a practical example. In a recent Federal Trust publication, Dutch MEP Florus Wijsenbeek re- counted the occasion when the EP asked the Commission to delay adoption of a trade agreement with Romania (then still under Communist rule) and the relevant Commissioner had indicated that it would do so:

The astonishment and even anger in the Parliament was great when a fortnight later the Council nonetheless approved the trade agreement with Romania. A request was sent out immediately to all national parliaments to question their governments about this. The reply turned out to be revealing. In five national parliaments the governments declared that they were against as well, but could not on their own resist the wish of eleven other member states. Mutual information was not speedy and accurate enough for the national parliaments to contradict this misrepresentation.15 Though the differences between national parliaments, in terms of structures and atti- tudes toward the EU, are such that each will necessarily have to develop its own means of dealing with EU law-making, the individual approach, when taken as an exclusive ap- proach, is going to restrict the capacity of national parliaments to influence the outcome of deliberations in the Council of Ministers. Collective

The collective refers to national parliaments coming together to exercise advisory or decision-making powers. This can be done through coming together occasionally, in a committee, or on a more structured and permanent basis. The most radical proposal for in- stitutionalising such a collective role has been that of a second chamber of the EP.16

The proposal for a second chamber was advanced by British politician Michael He- seltine in 1989.17 He wanted to see the creation of a Senate, with the membership drawn from members of national parliaments. In 1993, the European Policy Forum advocated a two-chamber parliamentary review process, again with members drawn from national par- liaments.18 In 1994, the Speaker of the French National Assembly, Philippe Seguin, made a similar proposal, though with the lower chamber being composed of members drawn from national parliaments. The existing European Parliament would, under this proposal, be- come a Senate.19 The call for a second chamber was also made by the German Foreign Minister, Joschka Fischer. He proposed a second chamber in November 1998 and reiter- ated his proposal in May 2000.20

There have also been proposals for a Committee of Parliaments, again with members drawn from national parliaments, but with specific tasks. Leon Brittan advanced this idea when he was Vice-President of the Commission.21 The proposal was also taken up by the Délégation for European affairs of the French National Assembly. Under the proposals of the latter, an Inter-parliamentary Committee would be formed, composed of two or three members of each national parliament. This would meet every month for short sessions. It

Volume 45 Number 5/6 2003 11 would have specified responsibilities in respect of subsidiarity, the budget, international agreements, and justice and home affairs.22

There have been other proposals along the same lines. These have included a High Parliamentary Council, based on the institutionalisation of COSAC, as proposed at one point by the French Government, and—moving away from a membership drawn from na- tional parliaments—a Regional Chamber of the EU, as favoured by the German Länder, with significant powers.

The idea of a second chamber has also been embraced by the British Government. Speaking in Warsaw in 2000, Prime Minister Tony Blair declared: ‘I also believe that the time has now come to involve representatives of national parliaments more on such mat- ters, by creating a Second Chamber of the European Parliament.’23 The proposal embraced by the Prime Minister appears closer to the Committee of Parliaments model rather than the full second chamber model. The second chamber, or committee, would have limited, specified tasks and would meet only a few times each year.

The proposal for such an institutionalised involvement of members of national par- liaments was not well received, either by the EP or by some national parliaments. The EP, not surprisingly, viewed it as an unnecessary rival. Survey data show that MEPs regard the EP as the body for conferring democratic legitimacy on the EU,24 and MEPs are not keen to see that legitimacy challenged. The French philosopher Maurice Duverger advanced three arguments against a second chamber and these were embodied in a resolution adopted by the EP in 1990: an appointed chamber (like the pre-1979 appointed EP) would not be able to claim substantial powers; there is already a body representing the interests of the mem- ber states (the Council of Ministers) and one representing the interests of citizens (the EP); and ‘decision making would become even more complex and, therefore, less transpar- ent’.25

Both the European Union Committee of the House of Lords and the European Scru- tiny Committee of the House of Commons have also come out strongly against a Second Chamber.26 The Committees advanced two principal objections. One was practical. It would be difficult to ensure that parliamentarians had both the time and the interest to get involved in checking whether proposals complied with the principle of subsidiarity. The Lords Committee noted that there was a problem also in identifying an appropriate stage for the second chamber to check for subsidiarity. The Commons Committee feared that if parliamentarians had to devote time to frequent trips overseas, they would soon lose touch with their national parliaments and constituents. The other objection derived from the prin- ciple of representation. It would be difficult to ensure that the members of the second chamber were truly representative of their national parliaments. As the Commons Commit- tee noted, this would be an even greater problem following the enlargement of the Union. To make the second chamber manageable in size, each national parliament would be lim- ited to a few members ‘and this creates the problem of representativeness (and selec- tion)’.27 The Lords Committee came to the damning conclusion, embodied in the title of its report, that it was ‘an unreal solution to a series of real problems’.28

12 Managerial Law The proposal for a second chamber constitutes the most institutionalised form of col- lective involvement by national parliaments. However, other means of achieving collective action exist. One is a more informal contact, effectively a ‘bottom up’ approach by national parliaments, those parliaments with an interest in co-operating doing so through the regular exchange of information. This does not require members of committees to come together, but can be achieved through electronic contact at official level, with each European com- mittee in a parliament – or even the chamber itself – being kept informed of the views, ac- tions and analyses of other European committees. The means exist for sharing data29 and some European committees engage in regular and informed scrutiny of proposals going to the Council of Ministers. A more informal collaboration in this way obviates the need to go as slow as the least interested parliament, since co-operation would be principally between national parliaments with an interest in engaging in such collaboration.

The complementary is what is sometimes referred to as the ‘sixteen parliaments’ op- tion. That is, 15 national parliaments scrutinising and influencing the national governments and the EP scrutinising and influencing the Commission and Council of Ministers. Na- tional parliaments and the EP thus operate on two parallel levels, each complementing the work of the other. This is the approach favoured by the EP. The EP’s Constitutional Affairs Committee, in its report on Relations between the European Parliament and the national parliaments in European integration in 2002, argued that the fundamental way of ensuring the participation of national parliaments in the legislative activity of the EU was through monitoring their respective governments. National parliaments have a direct relationship with their respective governments and are thus in a position to influence (in some cases, mandate) ministers before they attend the Council of Ministers. Allowing national parlia- ments a formal role in the legislative process at the supra-national level would blur respon- sibilities. Only the EP is elected at this level and has the capacity to engage in direct negotiations with the other institutions of the EU. The EP therefore argues that there should be co-operation between the EP and national parliaments based on the principle of comple- mentarity.

The problem with complementarity is that it does not necessarily address the demo- cratic deficit in the EU. Strengthening national parliaments in monitoring their respective national governments may be desirable but by itself may not address the existing dis- connection between citizens and the EU. Such a strengthening may increase popular sup- port or feeling of connection with national parliaments rather than with the institutions and processes of the European Union. As I pointed out in evidence to the European Scrutiny Committee of the House of Commons, the EP’s own proposals for change have tended to concentrate on the relationships between parliament and the executive, whereas relatively little attention is given to strengthening the relationship between EP and citizens: ‘even if the EP does a good job in scrutinising and influencing the executive, citizens will not nec- essarily feel connected with the EU if they themselves feel detached from the process’.30 Given that, there is a case for national parliaments to play a role that connects them more directly with the law-making process of the EU.

Various proposals have been advanced that enable national parliaments to be more involved, and thus depart from the dichotomous relationship intrinsic to the concept of

Volume 45 Number 5/6 2003 13 complementarity. As we have seen, those who favour a collective role have advanced vari- ous proposals. The generally favoured role – as, for example, by the Commons European Scrutiny Committtee and, in the event, the Convention on the Future of Europe – is in re- spect of subsidiarity. However, the nature of the role is not agreed. As we have seen, there is little support for a second chamber or conference of parliaments. Rather, there is a view that national parliaments should operate within their respective capitals, but with the ca- pacity to refer proposals, on the grounds they breach the principle of subsidiarity, to the European Court of Justice. This would extend to them a formal role over and above infor- mal contact and co-operation. What form has it taken?

The form of scrutiny undertaken by national parliaments has changed over time. Let me identify the three principal historical stages and then illustrate how scrutiny of EU legisla- tion is undertaken in the United Kingdom. Three stages

The first stage lasted from the beginning of the EP (as the Assembly) through to the 1980s. This was when there was no systematic engagement by national parliaments in the affairs of the European Community. Community affairs were seen as a matter for Community in- stitutions. Their remit was limited and seen as somewhat distant from the interests of na- tional parliaments. In any event, the national parliaments had some link through the European Assembly, which later re-named itself the European Parliament, the membership of which was drawn from members of national parliaments. New Member States, such as the UK, did create some means of parliamentary scrutiny, but they were the exception rather than the rule. The long-standing members of the Community did not, in the main, have any dedicated procedures for the regular scrutiny of Community legislative proposals. Only one legislative lower chamber – the Belgian House of Representatives – set up a com- mittee to consider European affairs. The committee was not particularly active and was abolished in 1979.31 Otherwise, the burden fell on second chambers. Three parliaments – those of Germany, Holland and Italy – utilised their upper chambers for the purpose of scrutiny. The second stage was the creation by national parliaments of committees to cover European affairs. With direct elections in 1979, the direct link between national parlia- ments and the EP was broken. The White Paper on Completing the Internal Market, pub- lished in 1985, identified measures and a timetable for the completion of a single market by 1992. The Single European Act, ratified in 1987, provided the means for achieving the sin- gle market, including through the more extensive use of qualified majority voting in the Council of Ministers. The Act also extended the competences of the EC to include the envi- ronment, health and safety, and economic and social cohesion. The implementation of the Single European Act made legislatures aware that a large raft of matters previously dealt with by national governments were now being taken at a supra-national level. If they were to exercise some influence over developments, they needed to create the means for doing so. Though the EP existed, and had been given more powers, it was not seen either as a fully-fledged legislature or a body that could substitute for the work of national parlia-

14 Managerial Law ments. As a result, virtually all the legislative chambers in national parliaments became both more specialised and more active in the scrutiny of EC legislative proposals.32

National parliaments devoted more time and attention to EC legislation. They also ensured that more consistent consideration could be given through the establishment of dedicated committees. The Belgian House of Representatives set up an Advice Committee. Six other parliaments then followed in establishing committees. In 1990, the Belgian Sen- ate set up a committee, similar to that of the lower House. In 1991, the German Bundestag created a Standing Committee on European Community Affairs. By the turn of the decade, dedicated committees were the norm. European legislation was no longer seen as some- thing falling under the rubric of foreign affairs.

The change that occurred was thus significant. National parliaments had realised the significance of what was occurring within the European Community and adapted accord- ingly. Though committees were a common feature of the response, the adaptation was es- sentially at the individual level. Each parliament crafted structures and procedures to fit its particular needs. The creation of COSAC provided an arena for sharing information, but that was about the extent of structured co-operation. The emphasis was very much on the individual form, not the collective.

The third stage is the recognition that there should be a greater role for national par- liaments collectively as well as individually. The motivation for this change can be as- cribed to experience as well as the further extension of the treaty competences of the EU. National parliaments found themselves operating as outsiders to an increasingly powerful process of law-making. The Single European Act effected a shift in power relationships be- tween the institutions of the EC and the Member States. The national parliaments had adapted in order to catch up, but the mechanisms they introduced did not affect their consti- tutional status in relation to EC law-making. As we have seen, there has also been one other powerful motivation: the recognition of the need to address the democratic deficit. The per- ceived ‘dis-connection’ between citizens and the institutions of the EU has meant that pol- icy makers and parliamentarians have started to look more seriously at national parliaments as institutions that may help re-connect citizens. Although the EP has in- creased in power, it appears to have decreased in terms of popular support, turnout drop- ping at succeeding EP elections. Most citizens – except in countries where voting is compulsory – have preferred to stay at home on election day. Turnout in national parlia- mentary elections has been much higher. Most citizens are prepared to turn out to vote. The presumption has thus been that national parliaments engage the commitment of citizens more than the EP and may therefore provide the means of addressing the democratic defi- cit.

We are thus in a situation where, firstly, the emphasis moved from essentially no form at all to one based on the individual – that is, national parliaments scrutinising their respective national governments – and, secondly, to a growing recognition that the collec- tive form has some merit, and that there should be some moves in that direction. The em- phasis remains on the individual parliament but with attempts now being made to supplement that with collective involvement. Let us, therefore, consider an example of in-

Volume 45 Number 5/6 2003 15 dividual scrutiny – in other words, what presently happens – before looking at the propos- als for change. Scrutiny by the UK Parliament

Practice varies from country to country. This, in large part, reflects the political culture in terms of attitudes to executive-legislative relations and the ideological stance in relation to Europe. The United Kingdom places emphasis on parliamentary scrutiny, but does so within the context of a political system where the government dominates the legislature. In terms of attitudes towards European integration, the country has acquired a reputation for being somewhat wary of further integration. Compared with other Member States, the UK has a moderately strong system of EU scrutiny. It is not as powerful as some legislatures, which can mandate ministers (notably but not exclusively Denmark), but it is not as limited in its interest and scrutiny as others. It may be deemed in the top rank of national parlia- ments for its scrutinising capacity.

The scrutiny mechanism can be described from the moment an EU document is gen- erated and transmitted to the Member States. When a document is received by the UK Gov- ernment, it is forwarded to Parliament within two working days, with an explanatory memorandum being produced within ten days. The memorandum explains the subject mat- ter, the legal base and the legislative procedure to be employed, whether it accords with the principles of proportionality and subsidiarity, the impact on UK law, the financial implica- tions, the stance of the government, and the expected timetable for its consideration by the Council of Ministers. The explanatory memoranda are, in my experience, extremely help- ful.

In the House of Commons, the documents are deposited with what was the Select Committee on European Legislation and what is now titled the European Scrutiny Com- mittee. Previously the Committee was empowered only to consider legislative proposals. Since 1998, when it was re-named, its terms of reference have extended to all documents. The Committee has 16 members (drawn proportionally in party terms from the party con- figuration in the chamber) and has the assistance of 16 staff – more than twice as many as any other Select Committee in the Commons. Its principal role is to assess the legal and/or political significance of each document and to decide whether it should be debated. The committee does not consider the merits of documents, though in effect it can intimate con- cern or approval.

In a typical year, the Committee considers about 1,300 documents and designates about 500 as being legally or politically important. Of these, it recommends about 30 or so as meriting further debate. Most of the documents recommended for debate are considered in one of three European Standing Committees, each dealing with a number of specified subject areas. Only two or three documents a year are recommended for debate on the floor of the House. Debate on the floor is generally avoided as each debate is confined to ninety minutes and does not permit for sustained questioning of a minister. Furthermore, a recom- mendation for debate does not guarantee a debate. The government controls the timetable and may not find time for it.

16 Managerial Law Each European Standing Committee has 13 members, though other MPs may attend and speak. The Committees meet for about 15 to 20 meetings a year, with an average atten- dance of between 7 and 9 members. Some other MPs also make use of the power to attend the meetings: in recent sessions about 60 Members have availed themselves of the opportu- nity. A Committee will normally consider a document for up to two-and-a-half hours. The first hour is usually taken up by questioning the relevant minister in private. This question- ing session is usually the most important part of the exercise, enabling members to express concerns and enabling the minister to gain some sense of the committee’s feelings on the issue. Debate takes place on a government motion, though the motion is amendable. After the committee has come to a conclusion on the document, a motion is then moved in the House. It can be voted upon but not debated. Given the government’s domination of the House, the vote will follow the wishes of the government.

Outside this consideration, it is also open to departmental select committees in the House of Commons to consider EU proposals that fall within the ambit of the government departments they cover. The Foreign Secretary appears before the Foreign Affairs Com- mittee, and the Home Secretary before the Home Affairs Committee, prior to a European Council meeting that is to discuss matters under the Second and Third Pillars of the EU. Other committees will occasionally consider matters related to the EU. In the 2002-03 Ses- sion, for example, the Environment, Food and Rural Affairs Committee issued reports on the Common Fisheries Policy, the Common Agricultural Policy, and the Water Framework Directive. The Treasury Committee reported on the UK and the Euro.

Table 1 European Union Committee of the House of Lords: Sub-Committees Sub-Committee A Economic and Financial Affairs, Trade and External Relations Sub-Committee B Energy, Industry and Transport Sub-Committee C Common Foreign and Security Policy, International Development and External Relations Sub-Committee D Environment, Agriculture, Public Health & Consumer Protection Sub-Committee E Law and Institutions Sub-Committee F Social Affairs, Education and Home Affairs

In the House of Lords, the documents are deposited with the European Union Com- mittee. The EU Committee operates through six committees (see Table 1), each dealing with a specified subject area. Each sub-committee comprises two or three members of the main committee and about ten co-opted members. The result is that about 60-70 members of the House are engaged in the scrutiny of European legislation. Members are appointed to sub-committees on the basis of their knowledge and experience. Sub-Committee E, dealing with law and institutions, is chaired by a Law Lord (currently Lord Scott of Foscote). The

Volume 45 Number 5/6 2003 17 members of that sub-committee include usually leading lawyers, professors of government or related subjects, and members who have served in the UK government or in the Euro- pean Parliament.

When documents are received in the House of Lords, they are subjected to a ‘sift’ by the Chairman, presently Lord Grenfell, assisted by legal advisers. Those documents deemed worthy of further consideration are sent to the relevant sub-committees. About 250 documents are referred to the sub-committees each year and about 30 or so are subject to detailed reports by the committee. A sub-committee will normally consider documents on the basis of the explanatory memoranda and subsequent correspondence with a minister. Where it decides to undertake a more detailed inquiry, it will call witnesses and engage in evidence-taking over several weeks. Apart from ministers and civil servants, representa- tives of affected groups as well as officials and others may be called to give evidence. The reports that result from such inquiries are often substantial and authoritative documents, well regarded as much in the institutions of the EU as in White- hall and Westminster.

In the case of the Lords, if the EU Committee recommends a report for debate, then time is found for debate. In January 2003, for example, the House debated the Report of the EU Committee on the Review of the EC Merger Regulation. That was the 32nd report from the Committee in the 2002-03 session. In June it debated the EU Committee’s Report on the Charter of Fundamental Rights. In September, it debated the Committee’s latest report on the Convention on the Future of Europe.

The work of both Houses is thus extensive. Though Parliament’s role is advisory – it has no formal status in relation to European law making – it does have some leverage in re- lation to national government. This comes through the Scrutiny Reserve. Both Houses have agreed motions declaring that ministers should not normally agree to any proposal in the Council of Ministers if the proposal is still being considered by Parliament. There are exceptions – for example, if the minister considers the matter is urgent or if it is essentially minor or technical – but a minister who agrees to a proposal still subject to the Scrutiny Re- serve has to come and explain himself or herself to Parliament. If a Committee decides to keep a proposal ‘under scrutiny’, for example, until it has more information, then that is normally respected by government and the minister will not agree to it in the Council of Ministers.

The work of parliamentary committees dealing with EU affairs can be valuable for informing and influencing ministers prior to meetings of the Council of Ministers. Through dissemination of the reports, they may have a more direct influence within the European Commission and within other EU institutions. Their reports may also serve as the basis for informing citizens about the work of the EU. The impact here is not on citizens generally but rather on particular groups within society, those affected by the subject being consid- ered. The activity of the European Union Committee of the House of Lords stands as a par- ticularly fine example of what I have in mind. The reports of the committee often embody a mass of material supplied by interested parties. They thus help connect the groups with consideration of the proposal. Through the reports, affected groups may also gain knowl-

18 Managerial Law edge not only of the committee’s thinking but of the EU context within which it is operat- ing. The reports may also serve a wider educative purpose, since through them one learns a great deal about the subject under review. This can encompass process as well as policy. An understanding of processes comes especially from the inquiries undertaken by Sub- Committee E, dealing with law and institutions. It variously looks at different aspects of the structures and process of the EU. I served on the sub-committee for three years from 1998 until 2001. Among the several topics we considered during that time were comitol- ogy (producing the first full list of committees covered by comitology) and the Court of First Instance. Anyone reading those reports would be immeasurably better informed about the work of the EU.

The scrutiny process demonstrates the strength and weaknesses of scrutiny by na- tional parliaments. The strengths are to be found in the complementarity of the two cham- bers – the House of Commons goes for breadth and the House of Lords for depth. It is also to be found in the explanatory memoranda and the scrutiny reserve. These give the com- mittees some understanding and some leverage. They are features not shared by all other national parliaments. The scrutiny reserve gives a committee the opportunity to ensure that it has studied the document to its satisfaction before deciding to clear it or pursue it further with the minister. Use of the scrutiny reserve can also serve to convey to government the concern of the committee. The combination of the complementary roles of the two cham- bers, the wide expertise that the Lords EU Committee is able to call upon, the explanatory memoranda, and the scrutiny reserve render the British Parliament one of the more effec- tive of national parliaments in scrutinising EU documents. However, like all national par- liaments, the British Parliament suffers from certain weaknesses. Some of these derive from executive-legislative relations within the UK. The government determines the parlia- mentary timetable. It may not always agree to recommendations for improving scrutiny, given that the scrutiny is not just of the document but also of the government’s position on the document. The weakness also derives from the treaties. As we have seen, no national parliament is empowered to approve or veto any EU law – it engages in what, in effect, is pre-legislative scrutiny – and it operates largely unaware of what other national parlia- ments are doing in respect of specific EU documents. Its role is, in short, advisory and car- ried out in some degree of isolation. What it does, it does well - though not as well as it would wish – but it is operating within very significant constraints. What proposals are there for change?

There has been a growing realisation on the part of policy makers and commentators that national parliaments should play a greater role within the EU. The need for action has be- come more apparent over the past decade or so as the awareness of the growing democratic deficit within the EU has increased. The realisation has found some expression, as we have seen, in succeeding treaties, starting with the declarations appended to the Maastricht Treaty. COSAC was given treaty status under the Amsterdam Treaty, but no formal status was given to national parliaments.

The need for national parliaments to have a greater role has, as we have seen, been acknowledged in the current debate on the Future of Europe, launched by the Swedish

Volume 45 Number 5/6 2003 19 presidency at the beginning of 2001, leading up to the Inter-Governmental Conference of October 2003. The role of national parliaments was, as we have recorded, identified as one of the four main subjects to be addressed.

This debate has generated proposals from a number of sources. Let me just identify four.

First, we have the proposal advanced by various bodies, including the British Gov- ernment, for a second chamber of the European Parliament. This, as we have said, revives the proposal made much earlier by Michael Heseltine. By establishing such a body, with members drawn from national parliaments, it is believed that this will help ensure a greater link between citizens and the decision-making process.

The second, advanced by the European Scrutiny Committee in the House of Com- mons, is for joint meetings of national parliamentarians and MEPs to scrutinise the Com- mission’s annual work programme, European Council programmes and other EU matters.

The third, advanced by the European Union Committee in the House of Lords, is for national parliaments to have some involvement in the European law-making process through the Conciliation Procedure.33 If a proposal is subject to the conciliation procedure, the documents relating to it should be published and sent to national parliaments, with a specified period elapsing in which they could consider the proposal.

The fourth is that advanced by Working Group IV on National Parliaments, one of the eleven working groups established by the Convention. This wants national parliaments to be involved in the early stages of the legislative process and to be able to take a view on whether or not the proposal is being considered at the appropriate level.

These various proposals give the national parliaments a formal role but are essen- tially divided between those which accord an advisory role and those which accord formal powers. It is the former which found favour with the Convention on the Future of Europe and which, not surprisingly, fed into the draft Treaty establishing a Constitution for Europe. The draft provides national parliaments with what has been termed a ‘yellow card’ power. Under the Protocol on the Role of National Parliaments in the European Union, national parliaments may send to the presidents of the EP, Council of Ministers, and the Commis- sion ‘a reasoned opinion on whether a legislative proposal complies with the principle of subsidiarity, according to the procedure laid down in the Protocol on the application of the principles of subsidiarity and proportionality’. Under the latter protocol, the EP, Council of Ministers and Commission ‘shall take account of the reasoned opinions’. Where the opin- ions on non-compliance represent at least one-third of all the votes allocated to the national parliaments, ‘the Commission shall review the proposal’. (The proportion is one quarter for proposals in the field of freedom, security and justice.) After such a review, the Com- mission may decide to maintain, amend or withdraw the proposal. The Commission shall give reasons for its decision.

If implemented, the Constitution will thus provide national parliaments operating collectively, or at least through the counting of their opinions, with the opportunity to re-

20 Managerial Law quire the Commission to think again. It cannot force the Commission to amend or with- draw a proposal: it thus lacks what has been called ‘a red card’. The Commission may maintain its position, but it has to give the reasons for so doing.

I mention these different proposals in order to show that the role of national parlia- ments is clearly a live one in the context of debate about European integration. However, the proposals themselves are open to considerable criticisms. The second chamber pro- posal, for the reasons already given, is seen as a non-runner. The other proposals give na- tional parliaments a voice but not a veto. Under the draft Constitution, the ‘yellow card’ power of national parliaments is enshrined in a protocol. The protocol is legally binding. It provides that Member States can, if necessary at the request of a national parliament, bring cases alleging a breach of subsidiairity before the European Court of Justice. However, this provision, as the EU Committee of the House of Lords has noted, ‘looks impressive but in fact it does nothing’.34 The ECJ already has jurisdiction and a national government can, if it chooses to do so, bring an action on the prompting of its parliament.

There is the wider problem in that proposals for strengthening national parliaments in the law-making process are essentially marginal relative to the other changes taking place. The Nice Treaty paved the way for a massive enlargement of the Union. As a result of the Convention, the proposed Constitution extends the competences of the EU as well as enshrining them in a codified document that ‘shall have primacy over the laws of the Mem- ber States’ (Article 10-1). There is the danger that national parliaments will fall massively behind in terms of the changes taking place in the size, shape and nature of the Union. In that, there lay significant dangers – especially if citizens feel disconnected from what is happening at the centre. For many, the EP is a distant entity.

There are, it strikes me, two ways forward. One is providing for some limited ‘red card’ power for national parliaments, enabling them in exceptional circumstances to block a proposal (or to require the Council to act by unanimity). That would have the advantage of ensuring that the Commission and the Council of Ministers took national parliaments se- riously. As the existing Protocols to the draft Constitution stand, national parliaments will not necessarily acquire a greater capacity to affect outcomes than is already enjoyed, for example, by the House of Lords EU Committee: it sends well-researched and reasoned re- ports to the EU institutions. Though it cannot require a reasoned response, its reports are read and taken seriously. The ‘red card’ power would also make national parliaments more relevant to those organisations that believe that the principles of subsidiarity and propor- tionality are being breached. As such, it may serve both to strengthen national parliaments and to connect people more with the EU.

However, there are dangers in enshrining a formal mechanism and assuming that it is both necessary and sufficient to enable national parliaments to play a greater role in the EU. Formal powers may be necessary but they are not sufficient. The political will has to exist to use them. Much therefore rests on national parliaments themselves. Some are more committed to engagement than others. There is a case for like-minded parliaments to come together, to share information and do so as soon as documents are submitted. The explana- tory memoranda prepared by Government Departments in the UK, for example, are public

Volume 45 Number 5/6 2003 21 documents. There is no reason why European committees in national parliaments should not use the technology now available to share information and share advice immediately. Knowledge is power and the more it is shared among national parliaments, the greater the potential to influence national governments. At the moment, we are looking too much solely at a ‘top down’ solution, whereas I think, if there is to be a change enlarging the role of national parliaments, then it must come as much from the ‘bottom up’. The answer to the problems facing national parliaments is to be found, in large part, with national parliaments themselves. They have the potential to change things. It is up to them whether they do so.

22 Managerial Law Endnotes 1. P. Norton, ‘General Introduction’, in P. Norton (ed), Legislatures (Oxford: Oxford Uni- versity Press, 1990), p. 1. 2. See the discussion in Ibid., pp. 1-16. 3. See, for example, F. Laursen and S. A. Pappas (eds), The Changing Role of Parliaments in the European Union (Maastricht: European Institute of Public Administration, 1995); P. Norton (ed), National Parliaments and the European Union (London: Frank Cass, 1996); E. Smith (ed), National Parliaments as Cornerstones of European Integration (London: Kluwer Law International, 1996); R. S. Katz and B. Wessels (eds), The European Parlia- ment, the National Parliaments, and European Integration (Oxford: Oxford University Press, 1999). 4. See M. Shephard, ‘The European Parliament: Crawling, Walking and Running’, in P. Norton (ed), Parliaments and Governments in Western Europe (London: Frank Cass, 1998), pp. 167-89. 5. Ibid., p. 171. 6. On the EP, see especially D. Judge and D. Earnshaw, The European Parliament (Lon- don: Palgrave, 2003). 7. The 1996 Inter-Governmental Conference: The Agenda, Democracy and Efficiency, The Role of National Parliaments, Twenty-fourth Report of the Select Committee on European Legislation, Session 1994-95, HC 239-I, para. 106. 8. Ibid., para. 107. 9. Democracy and Accountability in the EU and the Role of National Parliaments, Thirty- third Report from the European Scrutiny Committee, Session 2001-02, HC 152-xxxiii-I, paras. 1-7. 10. Quoted in ibid., para. 108. 11. The Conference of the Parliaments (the assises) drew together representatives of the EP and national parliaments and had met in Rome in 1990. It has not met since. 12. The Future of Europe: National Parliaments and Subsidiarity – The Proposed Proto- cols, 11th Report, Session 2002-03, HL Paper 70, Para. 7. 13. See T. F. Remington, ‘Introduction: Parliamentary Elections and the Transition from Communism’, in T. F. Remington (ed), Parliaments in Transition (Boulder CO: Westview Press, 1994), Table 1.1, pp. 13-14. 14. See Lord Tordoff, ‘The Conference of European Affairs Committees: A Collective Voice for National Parliaments in the European Union’, The Journal of Legislative Studies, Vol. 6, no. 4, Winter 2000, pp. 1-8.

Volume 45 Number 5/6 2003 23 15. F. Wijsenbeek, ‘Fifteen Years in a Growing Parliament’, in Lord Plumb, C. Tongue, and F. Wijsenbeek, Shaping Europe: Reflections of Three MEPs (London: Federal Trust, 2000), p. 149. 16. This section draws on my evidence to the House of Lords EU Committee in 2001. Lord Norton of Louth, ‘Addressing the Democratic Deficit: The Role of a European Second Chamber’, evidence submitted to the House of Lords European Union Committee, Febru- ary 2001. 17. M. Heseltine, The Challenge of Europe: Can Britain Win? (London: Weidenfeld & Ni- colson, 1989). 18. European Policy Forum, A European Constitutional Settlement (London: European Policy Forum, 1993). 19. M. Westlake, ‘The View from Brussels’, in Norton, National Parliaments and the European Union, p. 173. 20. A. Gimson, ‘Germany planning new chamber for Euro-parliament’, The Daily Tele- graph,24 November 1998; J.Fischer, ‘From Confederacy to Federation – Thoughts on the finality of European Integration’, Press Release, 16 May 2000. 21. Sir L. Brittan, The Europe We Need (London: Hamish Hamilton, 1994). 22. J. Rideau, ‘National Parliaments and the European Union – Co-operation and Conflict’, in Smith, National Parliaments as Cornerstones of European Integration, p. 174. 23. Speech by the Rt. Hon. Tony Blair MP, in Warsaw, 6 October 2000. 24. R. S. Katz, ‘Representation, the Locus of Democratic Legitimation and the Role of Na- tional Parliaments in the European Union’, in Katz and Wessels, The European Parlia- ment, the National Parliaments, and European Integration, pp. 27-28. 25. Resolution on the preparation of the meeting with the national parliaments to discuss the future of the Community (‘the Assises’), adopted 12.7.90, C 231, 17.9.90, p. 165. Cited in M. Westlake, ‘The View from Brussels’, in Norton, National Parliaments and the Euro- pean Union, p. 174. 26. A Second Parliamentary Chamber for Europe: An Unreal Solution to Some Real Prob- lems, 7th Report from the European Union Committee, Session 2001-02, HL Paper 48; De- mocracy and Accountability in the EU and the Role of National Parliaments, Thirty-third Report of the European Scrutiny Committee and Accountability in, Session 2001-02, HC 152-xxxiii-I. 27. Democracy and Accountability in the EU and the Role of National Parliaments, para. 127. 28. A Second Parliamentary Chamber for Europe: An Unreal Solution to Some Real Prob- lems,paras. 30-38, 83.

24 Managerial Law 29. See V. Miller and R. Ware, ‘Keeping National Parliaments Informed: The Problem of European Legislation’, The Journal of Legislative Studies, Vol. 2, no. 3, Autumn 1996, pp. 184-97. 30. Democracy and Accountability in the EU and the Role of National Parliaments, para. 92. 31. See L. De Winter and T. Laurent, ‘The Belgian Parliament and European Integration’, in Norton, National Parliaments and the European Union, pp. 76-9. 32. P. Norton, ‘Conclusion: Addressing the Democratic Deficit’, in Norton, National Par- liaments and the European Union, pp. 179-80. 33. Review of Scrutiny of European Legislation,1st Report from the European Union Com- mittee, Session 2002-03, HL Paper 15, para. 35. 34. European Union Committee, The Future of Europe: National Parliaments and Subsidiarity – The Proposed Protocols, para. 59.

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