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.
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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