Select Committee on European Scrutiny Minutes of Evidence

Memorandum submitted by Martin Howe QC


  The European Union's law-making system is widely criticised for its remoteness, its lack of transparency and its lack of accountability. Citizens by and large do not understand the processes by which laws are made in the EU; with erratic exceptions, they do not know (because they are not told by the media and do not know how to find out for themselves) what laws are proposed or under discussion in the EU legislative system which might affect them; and they do not consider that they are able to exercise any effective influence over what laws are made and how they are shaped.

  It can be argued that remoteness is an inherent problem in any system which makes laws which apply across 15 different states, rising in the foreseeable future to up to 30 states as the EU expands. However, the problem of remoteness is exacerbated by the huge range of matters which are now legislated at EU rather than national level and the very detailed nature of that European legislation.[1]

  It is clear that the doctrine of "subsidiarity" has entirely failed to curb the enactment at European level of laws which are both excessive in number and too extensive in scope and level of detail. The problem of remoteness can be reduced, although not eliminated, only by restricting the enactment of laws at European level to those for which there exists a concrete and necessary justification because of direct effects across the borders of member states. At present, the institutions at EU level are judges in their own cause when it comes to applying the test of subsidiarity. This points up the need for countervailing institutional forces firmly rooted in the member states in order to curb over-legislation at the EU level.[2]

  The problem of lack of transparency exists because the original EEC legislative system was intentionally designed to lack it, by concentrating law-making powers in a small centralised oligarchy comprising the Commission and the Council of Ministers. The Commission (originally called the "High Authority") enjoyed, and still enjoys with some limited exceptions, a monopoly of power to propose and formulate laws. The Council of Ministers meets in secret. The Council of Ministers is not analogous to a cabinet: it is a legislative body with direct law-making powers. It must be the only significant legislative body in the free world which meets in secret and in which, therefore, the words and votes of the representatives are concealed from those whom they represent.

  The supposed justification for this secrecy is so that representatives of the member states can make "necessary compromises" in aid of the functioning of the Community without being exposed to criticism in their home countries. It should be noted that this purported justification is inherently anti-democratic. It presupposes that the end of furthering European integration justifies the means of suppressing information for voters as to how their representatives have acted on their behalf.

  The secrecy of the Council of Ministers continues because it is highly convenient for the executive branch in the member states, at both political and bureaucratic levels. Measures desired by bureaucrats or governments which would face opposition in national parliaments can be pushed through at the EU level, with a claim that unpopular measures or provisions had to be agreed because "Europe" as a whole wanted them. Without an open record of the speaking and voting behaviour of national representatives in the Council, it is very difficult to check such claims.

  The secrecy is also very convenient for governments because of the advantages it gives them when dealing with the media. Each national government can "spin" the outcome of a meeting to its own media. In measures of any complexity it is generally impossible for the media or others to analyse the actual texts produced by the meeting in time to meet media deadlines, and the spin rather than the truth then gets reported. Amendments to Bills have to be tabled in advance and published so that all the implications of the amended text can be worked out. The same should be done with amendments to legislative measures in the Council of Ministers.

  The problem of lack of accountability arises because electors in member states have no effective way of voting to change EU laws which they object to. In fact, the very imperfect actions of national representatives in the Council of Ministers are the most accountable part of the system. This is because member governments will at least have some regard for the popularity or unpopularity of measures with their own electorates when they exercise their votes in the Council.

  By contrast, the European Parliament lacks any real accountability. In practice the members of the European Parliament are less accountable to the views and interests of their national electorates than the representatives of member governments in the Council of Ministers. In our national system, accountability through Parliament exists because the electorate as a whole can throw out the governing party of the day by depriving it of its Parliamentary majority. Therefore the actions of the governing party (and indeed policy announcements by the opposition) have a direct impact on prospects at the next election and politicians of all parties are aware of that fact.

  There is no comparable mechanism of cause and effect in the case of the European Parliament. The prevalence of the party list system based on national or large regional voting blocks, the multiplicity of different parties, and the very different interests and political climates in different national electorates, mean that there is virtually no cause and effect link between the voting behaviour of MEPs on particular laws or measures and their prospects of re-election.

  The European Parliament provides therefore the appearance of democratic accountability without providing its substance. In practice its amendments to EC measures have been erratic and almost always in the direction of more integration and more intrusive and expensive regulation at EU level. Indeed, the European Parliament is more susceptible to lobbying by interest groups who have either the money or the special access which allows them to work the system to their advantage, than to the concerns of the wider electorate. The idea that increasing the powers of the European Parliament is a way of increasing democracy and accountability is an extremely dangerous fallacy.

  The idea is promoted by federalists and centralisers precisely because they rightly believe that increasing the powers of the EP will actually reduce the existing restraints on the ongoing process of European integration, and will provide a way of by-passing the need to secure the consent of national electorates and parliaments. At the same time it would give the European Parliament further grounds for claiming that its own democratic mandate rivals or even supersedes the democratic mandates of national parliaments.


  In the light of these problems, the only effective way to increase democracy and accountability in the EU legislative process is by expanding the role of national parliaments. Governments, the EP and the Commission all have strong interests (for slightly differing reasons) in preserving the essential characteristics of the present unsatisfactory system. Therefore it is to national parliaments we must look in order to introduce a more effective connection between the EU legislative process and the peoples of Europe.

  There are a number of practical ways in which this could be done, some of which could be done unilaterally by the United Kingdom and others of which would require changes to the legislative mechanism at EU level:

  (a)  Pre-legislative scrutiny: It is important to strengthen the effective ability of national parliaments to scrutinise the actions of their national representatives in the Council of Ministers. The weakness in the UK's present scrutiny arrangements is that they rest on Parliamentary convention and not on strict law. It should be made unlawful for Ministers to cast a vote in the Council of Ministers except in accordance with mandates conferred by the Scrutiny Committees of the respective Houses.

  There is also an argument that some important powers should only be exercised following affirmative resolutions of the Houses or even an Act of Parliament. For example, Article 308 EC (formerly Article 235) contains an extremely broad power to introduce any measure in order to attain one of the objectives of the Community where "this Treaty has not provided the necessary powers". The invocation of this exceptional and untrammelled power should only take place with specific full Parliamentary authority.

  (b)  Openness of proceedings of the Council: For the reasons argued above, all legislative sessions of the Council of Ministers (and of the European Council) should take place in public. Proposed amendments to measures should be tabled and published in advance, so that national parliaments (and in particular this Committee), media and interested parties can analyse and digest them. Different arguments may apply to meetings with foreign policy and defence implications under the CFSP, but open proceedings should be required by law in all first pillar (EC) legislative acts and in all non-operational matters under the Justice and Home Affairs Title.[3]

  (c)  Ratification by national parliaments: In order to provide a real and effective increase in the powers of national parliaments in the EU legislative process, all regulations and directives adopted at EU level should require ratification by national parliaments before they come into force.[4] I believe that this proposal would be preferable to creating a Chamber of representatives of national parliaments at European level, whose members would lose touch with feeling in their national parliaments and become part of the central EU machine.

  Where the Treaty base under which the measure is adopted requires unanimity, unanimous ratification by all national parliaments should of course be required. Where the measure is adopted under a QMV Treaty base there is more room for discussion but ratification should be required from at least sufficient national parliaments for the weighted votes of the member states concerned to amount to a qualified majority. I would personally go further and argue that non-ratification by a national parliament should have the effect that the measure does not come into force in the territory of the state concerned.

  A requirement for ratification by national parliaments would have a number of desirable effects in enhancing the democratic accountability of the EU law-making process. It would no longer be possible for ministers to present their national parliaments with a fait accompli when returning from a Brussels meeting. This would mean that they would be less likely to agree to measures in the first place which would face difficulties in securing the support of their national parliament. National parliaments would be more likely than either governments or certainly the European Parliament to question the necessity of legislating at EU level. There would be more opportunity for media debate and genuine voter participation as measures came up for ratification in national parliaments. And undesirable amendments made by the European Parliament could be stymied by national parliaments.

  (d)  Democratic scrutiny of national implementing measures: Directives adopted at EU level normally require national implementing measures. Whilst such measures must conform with the provisions of the directive concerned, it is often the case that quite important questions of implementation remain to be decided at national level. There is a feeling in business circles that the United Kingdom tends to "gold plate" directives by implementing them more extensively and more onerously than other member states.

  National implementation in the United Kingdom is achieved to an ever greater extent by using the statutory instrument power under section 2(2) of the European Communities Act 1972. Even important amendments to primary legislation are now routinely made by this method, rather than by Bill. The vastly increased use of section 2(2) over time to make important changes to domestic law makes a mockery of the assurances which were given to the House of Commons by the government in the course of the debates on the 1972 Act, when it was said that any important changes would be made by Bill rather than by subordinate legislation.[5] The lack of Parliamentary scrutiny to which section 2(2) measures are subject makes it attractive for government and officials to use this route for legislating. The lack of effective scrutiny also makes it easier for them to load on additional provisions which may be wanted by the bureaucratic machine beyond what is strictly required by the directive concerned.

  The problem of the woefully inadequate procedures for Parliamentary scrutiny of statutory instruments of course extends beyond this particular area. However there are two things that could be done. First, Parliament should be given the power[6] not merely to accept or reject, but to amend, these statutory instruments. Secondly, the power to amend existing statutes under section 2(2) could be removed, so that a Bill would be needed whenever a directive was said to entail the need to amend an existing Act of Parliament.

11 April 2002

1   In many cases, this takes place as a result of excessive application of the doctrine that the European single market requires a "level playing field". For example, requiring the use of metric measures for vegetables weighed out loose by shopkeepers or market traders has no discernible effect on trade between member states. Nor (to take a justified French complaint) does the application of harmonised EC hygiene rules to the sale of food in street markets have any such justification. Back

2   I addressed certain issues relating to subsidiarity in a Memorandum "Subsidiarity: How to make it work" to the House of Commons Foreign Affairs Select Committee ( HC (1993-94) 205 page 52). Briefly, the relevant Treaty provisions (Article 5 (formerly 3b) EC and the Protocol) are largely ineffective or even counter-productive because they explicitly reaffirm the acquis Communautaire and all the existing competencies of the EU; they reinforce the doctrine of the supremacy of Community law as developed by the ECJ; they make it clear that it is for the EU and not the member states to define the areas in which the member states may take action; and the principle itself is limited to allowing member states to take action to implement policies decided at European level. Back

3   Because measures adopted under this Title, eg the European Arrest Warrant, can have huge implications for the law as it directly affects the citizen. Back

4   There may be an argument for doing this by a "negative resolution" procedure in the case of minor measures, but any major measures should require affirmative assent. Back

5   For example, Geoffrey Rippon in the second reading debate, HC 15 Feb 1972 col 282, said: "I fully appreciate the concern of the House at any new general power to make subordinate legislation, but I should like to reassure hon. Members about the prospect. On the basis of existing Community instruments, we foresee a need for not more than four instruments under clause 2(2) in 1972 and about another 12 in 1973." He then went on to suggest that any important changes would be incorporated in "the ordinary programme of departmental legislation". Back

6   It is possible that either House might be able to achieve this by altering its Standing Orders to provide for passage of a negative resolution, followed by detailed consideration of the instrument in Committee and an invitation to the government to re-submit the draft instrument in a form amended in accordance with the views of the House. Back

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