2.18 House of Commons European Scrutiny Committee: EU Intergovernmental Conference: follow-up report

The House of Commons European Scrutiny Committee (ESC) produced its initial report on the EU Intergovernmental Conference (IGC) in October 2007.¹ The overall conclusion of the report was:

"Taken as a whole, the Reform Treaty produces a general framework which is substantially equivalent to the Constitutional Treaty."

The ESC's follow-up report² reported further on six main issues. These six issues with the main conclusions of the report are listed below.

(i) The process for agreeing the IGC Mandate and Reform Treaty

"We again recall that as recently as June of this year the European Council not only emphasized the ‘crucial importance of reinforcing communications with the European citizens...and involving them in permanent dialogue' but also stated that his would be ‘particularly important during the upcoming IGC and ratification processes'." (Paragraph 8)
"Such statements now ring hollow, and we reiterate our earlier comment that the process could not have been better designed to marginalise the role of national parliaments and to curtail public debate, until it has become too late for such debate to have any effect on the agreements which have been reached." (Paragraph 8)

(ii) Whether the Reform Treaty imposes legal duties on national parliaments

"We are not persuaded that the text of the Reform Treaty has been amended so as to put beyond any doubt the principle that no obligation must be imposed on Parliament." (Paragraph 16)
"In our view, the obvious amendment would have been to use the word ‘may' instead of ‘shall' in Article 8c EU as well as in Article 63 and Article 9 of the Protocol on the role of national parliaments in the Union. The statement ‘National parliaments contribute to the effective functioning of the European Union' is one from which an obligation can readily be inferred." (Paragraph 16)
"Given its constitutional significance, we must emphasise that this is not an area in which any ambiguity is tolerable and we shall look to the Government to ensure that its original undertakings are met in any new text." (Paragraph 16)

(iii) The ‘red-line' in relation to the CFSP and ESDP

"In view of the intention by the Foreign Affairs Committee to conduct its own inquiry into the foreign policy aspects of the Reform Treaty, we confine ourselves to the observation that - apart from a few cases where new provision will be made for voting by QMV - the largely intergovernmental nature of the CFSP and ESDP will be maintained, with no significant departures from the arrangements which currently apply under the EU Treaty." (Paragraph 21)

(iv) The ‘red-line' in relation to tax and social security

"In our view, control of tax and social security was never seriously threatened. The previous Treaty establishing a Constitution for Europe contained no proposals to move to QMV in relation to tax. In relation to social security, that previous Treaty provided for measures on social security to be adopted by QMV, but also provided for an ‘emergency brake'." ³ (Paragraph 24)
"As far as we can establish, the only material change is that the ‘emergency brake' may now be applied in cases where ‘important' rather than ‘fundamental' aspects of a Member State's social security system would be affected." (Paragraph 25)

(v) The ‘red-line' in relation to the Charter of Fundamental Rights

"It is clear that the Government accepts that the Charter will be legally binding, and it has stated that the Protocol is not an opt-out. Since the Protocol is to operate subject to the UK's obligations under the Treaties, it still seems doubtful to us that the Protocol has the effect that the courts of this country will not be bound by interpretations of measures of Union law given by the ECJ and based on the Charter. If the ECJ gives a ruling in a case arising outside the UK on a measure which also applies in the UK, the duty to interpret the measure in accordance with that ruling arises, not under the Charter, but under the UK's other Treaty obligations. Nothing in the Protocol appears to excuse the UK from this obligation." (Paragraph 38)
"In our view, the only way of ensuring that the Charter does not affect UK law in any way is to make clear...that the Protocol takes effect ‘notwithstanding the Treaties or Union law generally.' We note that this kind of provision has been made in the Protocol to the EC Treaty on the acquisition of property in Denmark (No. 16) and in the Protocol to the EU Treaty on Article 40.3.3 of the Irish Constitution (No. 17), but it has not been made in respect of the Charter." (Paragraph 42)

(vi) The ‘red-line' in relation to the "protection of the UK's common law system", and the protection of police & judicial processes

"We do not understand why the UK did not interpret the red-line on protection of the UK's position in a firmer form by insisting on a provision which would have preserved the effect of existing EU measures in relation to the UK, in circumstances where the UK decides not to opt in to an amending or repealing measure. This would have ensured that the UK would keep what it now holds and would more effectively have protected the UK's interests. It would have been open to the UK to keep its existing EU measures in their present form indefinitely as an alternative to opting in to a measure which would be subject to the enforcement powers of the Commission and the jurisdiction of the ECJ." (Paragraph 64)
"The Government describes its ‘red-line' in this area as the ‘protection of the UK's common law system and our police and judicial processes'. The issues of voting procedure (i.e. the move from unanimity to QMV), the enforcement powers of the Commission and the compulsory interpretative jurisdiction of the ECJ are, in our view, central to such protection." (Paragraph 66)
"Under the system to be established by the Reform Treaty, a Member State will lose the ability finally to determine its own law to the extent that measures are adopted at Union level. Such measures will become the subject of the Commission's powers to require changes in domestic law and will be subject to the interpretative jurisdiction of the ECJ. The ECJ will become, thereby, the conclusive arbiter of the meaning of Union measures and, by extension, of national law passed to implement such measures." (Paragraph 66)
"The ‘opt-in' arrangements are only a means to ensure protection in the sense that the UK may choose not to opt in, which protection will be lost each time a decision to opt-in is taken. Once a decision to opt-in is taken, it now seems clear...that there is no right to opt-out, if the resulting measure is not thought satisfactory. The only remedy, which is not available in all cases, is the ‘emergency brake'. It is important, therefore, that the consequences of any decision whether or not to opt in are clearly understood." (Paragraph 67)
"We note the detailed explanations...on the operation of the proposed transitional arrangements, but we raise the question of whether these may have the unintended effect of exposing the UK to new and unpredictable consequences and risk if it decides not to opt in to any transposed or amended measure." (Paragraph 69)
"The ‘opt-in' decision under these proposals will become one which may lead to serious consequences for the UK through the transfer of jurisdiction on important measures dealing with civil and criminal justice." (Paragraph 70)

References

1. House of Commons European Scrutiny Committee, European Union Intergovernmental Conference, 35^th Report of the Session 2006-07, HC 1014, October 2007. See Global Vision Fact Sheet 2.17.

2. House of Commons European Scrutiny Committee, European Union Intergovernmental Conference: Follow-up report, 3^rd Report of the Session 2007-08, HC 16-iii, November 2007.

3. The "emergency brake" mechanism allows any Member State to object to QMV being applied to legislation that would otherwise be decided by QMV.

Ruth Lea, January 2008