Select Committee on European Communities Sixth Report


PART 3 THE IMPLICATIONS FOR PARLIAMENTARY SCRUTINY OF JUSTICE AND HOME AFFAIRS MATTERS ARISING FROM THE DRAFT AMSTERDAM TREATY (continued)

A FORMAL CONSULTATION ROLE FOR THE EUROPEAN PARLIAMENT

  130.    The Amsterdam Treaty strengthens the European Parliament's position under the Third Pillar, in new Article K.11, which provides for the Council to consult the European Parliament before adopting any framework decisions, decisions for other purposes or conventions. The Parliament will be required to deliver its opinion within a time limit which the Council may lay down but which shall not be less than three months. In the absence of an opinion within that time limit, the Council may act.

  131.    The Home Office thought that the new Article K.11 would have little direct impact on national parliaments but would have some practical consequences. It would require the Council to wait for the Parliament's opinion and could mean that the time taken to reach decisions under the Third Pillar would be increased. This might help national scrutiny arrangements indirectly by allowing more time for scrutiny of Third Pillar proposals thus reinforcing the application of the new minimum notice requirement under the Protocol on the role of national parliaments. The three-month time limit should also be read as a minimum period and for a lengthy and complex instrument the Council could extend the time allowed. Consideration might also have to be given for when the Parliament was in recess and for further consultation with the Parliament in the light of its opinion on a Third Pillar proposal (p 18).

  132.    Mr Fortescue from the Commission commented that the new provisions on consultation of the European Parliament under the residual Third Pillar would remove the "woolliness" which is present in the Maastricht Treaty. He believed that the new Article K.11, if honoured by the Council, would slow down the decision making process and help to buy time for national parliaments to scrutinise Third Pillar proposals (QQ 238, 250-1, 258).

  133.    Mrs Neyts-Uyttebroeck, MEP, considered the new Article K.11 as a major improvement which would increase the possibilities for Parliamentary control over the Third Pillar. She was convinced that the European Parliament would have no difficulty in producing reports on Third Proposals within the minimum three-month deadline (QQ 276-9, 285).

Opinion

  134.    In our 1993 Report we commented that parliamentary scrutiny of the inter-governmental pillars was a suitable matter for consultation and exchange of information between national parliaments and the European Parliament. We supported the idea of meetings between members of the relevant European Parliament Committees and those of national parliaments to discuss specific subjects arising under the inter-governmental pillars, provided they were well prepared and proved able to make a useful contribution to the exercise of parliamentary control. We commented that a document available for examination by the European Parliament or by any one of the national parliaments should be available to all. We expressed our intention to strengthen our links with the European Parliament, and with other national parliaments, in such a way to ensure that this occurred. In practice, because of the difficulties the European Parliament has experienced in its attempts to obtain and report on proposals under the Third Pillar, contacts with the Committee have been limited although delegations from the Committee have attended joint meetings between the European Parliament's Civil Liberties and Internal Affairs Committee and the relevant committees from national parliaments.

  135.    We believe that the new Article K.11 will offer new opportunities for enhanced co­operation between the European Parliament and national parliaments aimed at ensuring greater parliamentary oversight of the Third Pillar. As a starting point we recommend that national parliaments and the European Parliament should explore the possibilities for enhancing the exchange of information and documentation on Third Pillar matters. This will be particularly important because the minimum period for parliamentary scrutiny provided for under the Protocol on the role of national parliaments will commence from the time that proposals are made available to the European Parliament and the Council as distinct from national parliaments. We do not, however, see any need for co-ordination of procedures - each parliament is broadly aware of the techniques employed by others, but the methods followed depend ultimately on national constitutions and traditions.

  136.    We share the view expressed by the Home Office and Mr Fortescue that the minimum three-month consultation period provided for in Article K.11 will indirectly benefit national parliaments and provide them with more time for consideration of Third Pillar proposals. We agree that this should help to slow the decision-making process down under the Third Pillar and improve the quality of Third Pillar legislation.

  137.    We recommend that the Conference of European Affairs Committees[55] should explore, prior to the entry into force of the Amsterdam Treaty, the possibility of establishing a mechanism for the transmission of Third Pillar documents from the European Parliament to national parliaments as soon as they are received. We believe that electronic mail and systems for the transmission of data might offer possibilities in this regard. If an effective information exchange system was established it would help to reduce the risk of national parliaments not receiving documents in good time.

THE DRAFT PROTOCOL ON THE ROLE OF NATIONAL PARLIAMENTS

  138.    The draft Protocol is set out as Chapter 19 of the Amsterdam Treaty. It provides that Commission Green and White Papers and Communications shall be "promptly" forwarded to national Parliaments and Commission proposals for legislation shall be "made available in good time" so that Member State Governments may transmit them to their Parliaments. Paragraph 3 contains a requirement for a six-week period to elapse between a legislative proposal or a proposal under the Third Pillar being made available in all languages to the European Parliament and the Council by the Commission and the date when it is placed on a Council agenda for decision, subject to exceptions on grounds of urgency, the reasons for which must be stated. The draft Protocol differs from an earlier version attached to the Dublin draft Treaty presented at the Dublin European Council in December 1996 in two important respects. First, the Dublin draft did not refer to the Third Pillar. Secondly, the minimum notice period has been increased from four to six weeks.

  139.    The Home Office commented that, although paragraph 3 of the Protocol referred to the Third Pillar, it was arguable that it applied only to Third Pillar proposals brought forward by the Commission. It believed that the six-week notice period should be of considerable help to Parliament in ensuring that the relevant Parliamentary Committees receive Third Pillar proposals in English in good time before they are adopted. Thought would need to be given as to when the exceptions on grounds of urgency could be invoked in relation to Third Pillar proposals (p 17).

  140.    Mr Hill from UKREP also took the view that the Protocol was limited to proposals made by the Commission and as a matter of strict drafting it did not refer to proposals for measures made by Member States including the Presidency. However, he considered that it would be anomalous in principle to apply one rule to Commission proposals and another to Member State proposals (QQ 224-6).

Opinion

  141.    We share the view expressed by the Commons Committee in its Report, The Draft Protocol on the Role of National Parliaments[56], that it is a fundamental requirement of democratic accountability in the European Union that national parliaments (and those whom they represent) should have authoritative texts of European proposals in time for analysis, debate and influence at national level before decisions are taken at the European level. We wish to pay particular tribute to the work which that Committee has done in refining the drafts of previous versions of the proposed Protocol and in persuading other national parliaments to support their initiatives.

  142.    We welcome the draft Protocol as offering a substantial improvement over Declaration 13 to the Maastricht Treaty[57], and as an acknowledgement that a period of notice for legislation needs to be entrenched in the Treaty. We agree with the view expressed by the Commons Committee that an effective Protocol, although it is couched in terms of the role of national parliaments, must give those who will be affected by legislation time to see it in draft and to have an input into the process, whether through their national parliaments or otherwise. Its provisions must not be so circumscribed, or diluted by exceptions, as to make them merely cosmetic.

  143.    Despite this general welcome, we wish to point out that the present draft does contain shortcomings which may reduce its effectiveness. As both Mr Hill from UKREP and the Home Office indicated in their evidence, paragraph 3 of the Protocol appears to be restricted to Commission proposals under the Third Pillar. We believe that this would considerably reduce the Protocol's application to the Third Pillar, as most proposals emanate not from the Commission but from the Member States or the Presidency. We recommend that this ambiguity in the Protocol should be removed and that paragraph 3 should apply to all Third Pillar proposals irrespective of their origin. We are also concerned that paragraph 3 of the Protocol might not apply to proposals brought forward by Member States under the new Title III-A of the EC Treaty. Under the new Title III-A Member States will have a shared right of initiative with the Commission for a period of five years from the date of entry into force of the Treaty. If these proposals were excluded from the scope of the Protocol this would seriously weaken the ability of national parliaments to scrutinise them. We urge the Government to ensure that this ambiguity is removed from the draft Protocol prior to the signing of the Amsterdam Treaty.

  144.    The text of paragraph 3 of the draft Protocol refers to texts of legislative proposals or a proposal for a measure to be adopted under Title VI being made available in all languages to the European Parliament and the Council by the Commission. We welcome the work being undertaken by the Council in exploring the possibilities for the introduction of an electronic document transmission system. The introduction of a full electronic system would, in our view mark, a great step forward and we hope that by the time the Amsterdam Treaty enters into force such a system will be fully operational.

  145.    The minimum notice period provided for in paragraph 3 of the draft Protocol would be subject to exceptions on the grounds of urgency, the reasons for which shall be stated. We have already commented in Part II that exceptions for reasons of urgency or confidentiality should be invoked sparingly. We welcome the requirement that the reasons for invoking urgency must be stated. This should increase accountability and should have a positive effect on the timely organisation of business. We agree with the opinion of the Commons Committee that there must be safeguards against urgency becoming the norm, or it being invoked merely because of some failure by the Commission or the Council in bringing a proposal forward for decision at the right time. We recommend that decisions to override the minimum scrutiny period should be taken by the same voting procedure required for the measure concerned. As Third Pillar proposals generally require unanimity for adoption[58], unanimity would be required to override the minimum notice period. We believe that this would reinforce the requirement in the draft Protocol to state the reasons for invoking urgency.

TRANSPARENCY AND OPENNESS

  146.    The principle of openness is not currently laid down within the Treaties. However, Declaration 17 to the Maastricht Treaty states that "the Conference considers that transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration".

  147.    The Amsterdam Treaty contains several important provisions relating to transparency and openness. An amendment to the second paragraph of Article A in the Maastricht Treaty recognises that the Amsterdam Treaty marks a new stage in the process of creating an ever closer Union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. This is essentially declaratory, though it clearly signals an intention to make decision-making more open under all Pillars of the Maastricht Treaty.

  148.    A new Article 191a will be incorporated into the EC Treaty which will create a right of access for any citizen of the Union and any natural or legal person residing or having its registered office in a Member State to European Parliament, Council and Commission documents. The right is subject to "general principles and limits to be determined by the Council in conjunction with the European Parliament under the co-decision procedure within two years of the entry into force of the new Treaty". The new Article also requires each of the institutions to elaborate their own rules of procedure in this area. A Declaration accompanying the new Article states that the principles and conditions to which the right of access is subject will allow a Member State to request the Commission or Council not to communicate to third parties a document which it has produced without its permission. Article 191a will apply to the Third Pillar by virtue of Article K.13.

  149.    Article 151(3), second subparagraph, specifies the rules and conditions under which the public shall have access to Council documents under Article 191a(3). The Council will have to specify when it is acting in its legislative capacity, with a view to providing greater access to documents in those cases. When it acts in its legislative capacity, the results of votes, explanations of votes, and statements in the minutes, shall be made public. Some discretion will remain regarding freedom of access to full documentation, but there is a presumption in favour of greater access, particularly in legislative matters. Article K.13 applies Article 151 to the Third Pillar.

  150.    Article K.13 also provides for the application of Article 138e EC Treaty to the Third Pillar thus extending the role of the European Ombudsman to cover matters arising under the Third Pillar. This reflects a proposal put forward by the Government during the Inter-Governmental Conference.

  151.    The Home Office took the view that the value of the new Article 191(a) would depend on what general principles and limits on access are in due course determined by the Council, and then embodied in rules of procedure. They stated that the United Kingdom would press for the widest possible right of access (p 17).

Opinion

  152.    We welcome the new provisions on transparency and openness contained in the Amsterdam Treaty. We believe that they are essential to removing the mystique surrounding the operations of the Community institutions, bringing the Union closer to the citizen and making the Community Institutions accountable for their actions.

  153.    In our previous Report, The 1996 Inter-Governmental Conference[59], we argued that granting the citizen a specific right of access to information, with safeguards, would greatly strengthen the accountability of the Council to the peoples of Europe. We urged the Government to make improved transparency its priority in the negotiations leading to the Amsterdam Treaty text. We are gratified that the Government heeded our pleas and wish to congratulate the Government on the key role it has played in ensuring that provisions on improving transparency and openness have been enshrined in the Amsterdam Treaty.

  154.    We regard the provisions contained in the amended text of Article 151(3)EC Treaty as being particularly helpful. A formal Treaty obligation on the Council, when it is acting in a legislative capacity, to make public the results of votes and explanations of vote as well as statements in the minutes will provide a useful insight into the positions of different Governments and the extent of support for a particular decision[60].

  155.    In its Report, The 1996 Inter-Governmental Conference, the Committee drew particular attention to the lamentable absence of transparency under the inter-governmental pillars. We are pleased to note that the provisions on transparency and openness will be applicable to the Third Pillar by virtue of Article K.13. We are, however, concerned that the Declaration on Article 191a(1) could severely limit the application of the new provisions on transparency and openness to the Third Pillar.

  156.    The Committee notes that the General Principles to be drawn up in accordance with Article 191a(2) shall be subject to the co-decision procedure. We welcome this. Leaving it in the hands of the Council alone to decide what principles and limits should apply is akin to leaving children unsupervised in a sweet shop and expecting them to exercise restraint. We believe that allowing the European Parliament a role in preparing the general principles and limitations to apply should help to ensure that exceptions to the general rule on making documents available to the public will be limited in number and application.

  157.    We welcome the extension of the role of the European Ombudsman to the Third Pillar. This will remove an element of ambiguity from the existing Treaty and ensure that individuals and legal persons have an alternative route to a complaint to the Community Courts when faced with a refusal to provide information or documents by the Council, the European Parliament or the Commission. We congratulate the Government for proposing this amendment and securing its acceptance by other Member States.


55   The Conference of European Affairs Committees (often known by its French acronym COSAC) was established as a result of a French initiative in 1989 under their Presidency. It meets every six months in the Presidency country. Each National Parliament (and the European Parliament) is represented by up to six Members. In the United Kingdom both Houses are represented by delegations (three delegates each) from their respective European Select Committees. The Conference proceeds by consensus; it is a body for the exchange of views, ideas and experience rather than for taking executive decisions.  Back

56   13th Report, Session 1996-97, (HC Paper 36-xiii). Back

57   Declaration 13 committed the Governments of Member States to "ensure ... that national parliaments receive Commission proposals for legislation in good time for information or possible examination". It is simply an expression of view and has no binding legal force. Back

58   An exception will be measures necessary to implement decisions adopted under Article K.6.2(c), where provision is made for qualified majority voting in the Council. Back

59   21st Report, Session 1994-95 (HL Paper 105). Back

60   In practice the Council already publishes the result of votes and formal entries in the Council minutes. The Council's Rules of Procedure (93/662/EC, OJ L304, 10 December 1993) include a number of implementing rules concerning issues of openness and transparency. Articles 5, 6 and 7.5 contain rules on open Council debates and when records of Council votes and accompanying explanations of vote should be made public. An interesting feature of these rules is that any one Member State can stop votes taken under Titles V and VI of the Maastricht Treaty from being made public, and that the provision for explanations of votes to be made public at the request of the Council members concerned is qualified by the need for "due regard for these Rules of Procedure, legal certainty and the interests of the Council". In 1995 the Council, adopted a Code of Conduct on Public Access to the Minutes of the Council acting as legislator. The Code of Conduct lays down a number of criteria and procedures for releasing both Council minutes and accompanying statements. Back


 
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Prepared 12 September 1997