Select Committee on European Communities Report



63.  PROPOSAL FOR A EUROPEAN PARLIAMENT AND COUNCIL DECISION ESTABLISHING AN ACTION PROGRAMME TO IMPROVE AWARENESS OF COMMUNITY LAW FOR THE LEGAL PROFESSION (DC 12007/97)

Letter from Lord Tordoff, Chairman of the Committee, to the Right Hon the Lord Irvine of Lairg, The Lord Chancellor

  At its meeting today the Sub-Committee considered the Government's Explanatory Memorandum of 13 November on this proposal. The Sub-Committee noted with appreciation your wish to keep it informed, particularly of the change in position as regards the cost of the programme and the application of the principle of subsidiarity. You also draw attention to the question of the appropriate legal base.

  In your Explanatory Memorandum you put forward the view that Articles 126 and 127 of the EC Treaty are more appropriate than Article 100A. The Sub-Committee considers that the arguments in favour of Article 100A are not strong. In its view the relationship between the proposal and the establishment and functioning of the internal market is insufficiently direct. Reliance on Article 100A could set an undesirable precedent. This said, the Sub Committee remains to be convinced that the measure falls within Articles 126 and 127 as you suggest and believes that further consideration might be given to the use of Article 100A provides an adequate and appropriate legal base.

  The proposal remains under scrutiny pending your response to the questions raised above.

3 December 1997

Letter from the Rt Hon Lord Irvine of Lairg, The Lord Chancellor, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 3 December concerning this initiative, which is known as "Action Robert Schuman".

  Before coming to your detailed question about the Government's opinion as to the Treaty base for this decision, I owe you an explanation about why the proposal fell to be voted on in the Council before it had cleared your Committee's scrutiny. The position is, quite bluntly, that my Department was taken by surprise by the placing of this matter, which had been dormant for several months, on the agenda for the Internal Market Council on 27 November. My Department prepared an Explanatory Memorandum quickly in the hope that there would be time for the scrutiny Committees of both Houses to consider it in time. Unfortunately there was insufficient time and regrettably the matter was pushed to a vote at the Council. Naturally I regret that it was not possible to complete scrutiny in the usual way.

  Political agreement to a common position was reached at the Council but the United Kingdom delegation maintained its Parliamentary scrutiny reserve. I mention this particularly because I understand a subsequent press release from the Council Secretariat made no reference to the UK position. The proposal is expected to come before a Council for formal agreement around the end of January.

  The Government had no doubt that there was competence on the part of the Community to adopt the measure. The dispute was as to which was the more appropriate Treaty base, not that there was no legal basis for the Community to act. Although citing the correct legal base is undoubtedly important, it is less vital than establishing that there is competence to act at all. Indeed, there is a precedent for the European Court of Justice, when annulling a measure on the grounds that it was adopted on the wrong legal base, maintaining the measure in effect in the interests of legal certainty until a proposal under the correct legal base could be adopted: an example is Parliament v Council ("Edicom") [1996] ECR I-1689.

  The Government's view is that the correct Treaty base would have been a combination of Articles 126 and 127 of the Treaty. That view was also put forward by the Council Legal Service. Under Article 126(2), action aimed at "developing the European dimension in education" is envisaged. This proposal would be an "incentive measure", because it is confined to establishing a framework for financial support, and it does not involve harmonisation, thus satisfying Article 126(4).

  The Council Legal Service also made reference to the jurisprudence of the European Court of Justice, under which a wide view has been taken of the meaning of the expression "vocational training", and cited the fifth indent of paragraph 2 of Article 127, under which Community action to "develop exchanges of information and experience on issues common to the training systems of the Member States" as being relevant. Under Article 127, Community action should "support and supplement" the action of the Member States, and that is exactly what the proposal would do so far as Member States' efforts to improve the knowledge of legal professionals in Community law are concerned.

  We take the view that it is open to question whether Article 127 on its own would form a sufficient Treaty base, but that a joint base of the two Articles does seem to be appropriate.

  Our political agreement to the proposal was covered by a minutes statement making clear that this was without prejudice to our view that Article 100a was not the correct Treaty base.

  Our position was that we wished to support the proposal. By virtue of Article 189a.I, unanimity would have been required for the Council to amend the proposal of the Commission. With our support, there was a qualified majority for the proposal on the basis of Article 100a. Our assessment of the likely voting intentions of the other Member States led us to the view that had we not supported it on that basis, the proposal would not have received the necessary unanimity under Articles 126 and 127. Consequently the business would in all probability have been lost.

  I should perhaps add that it is not clear, contrary to what is said in the Council press release, that Germany, the Netherlands and Sweden voted against the proposal because of the Treaty base. Their ministers did not explain their position at the Council. Germany, in particular, is known to have had more general objections and would probably have voted against it in any event.

  This is not ideal, but I am sure that the Committee will understand that in all international negotiations there are times when one has to be pragmatic. In this case we had to bear in mind our overall position on the single market and the programme the Government wishes to carry forward during the UK presidency. We took the view that the issues raised by Action Robert Schuman were not sufficiently important to merit our blocking it on the ground of the Treaty base alone, particularly given that we did not have any doubt that there was competence on the part of the Community to adopt the measure.

  I should say, however, that I am not convinced that reliance on Article 100a would necessarily set a precedent. The European Court of Justice has recently reminded us that "it is settled case-law that what is merely Council practice cannot derogate from the rules laid down in the Treaty, and cannot therefore create a precedent binding on the Community institutions with regard to the correct legal base" (paragraph 19 of the judgment in United Kingdom v Council (Working Time Directive ) [1996] ECR I-5755): it follows that a bad choice of legal base in one instance does not constitute a legal precedent for continuing the mistake.

  I trust that the above clarifies the Government's position sufficiently to enable the Committee to conclude its considerations.

18 January 1998

18 January 1998

Letter from Lord Tordoff, Chairman of the Committee, to the Rt Hon theLord Irvine of Lairg, the Lord Chancellor

  Thank you for your letter of 18 January, a copy of which was received by the Committee last week. Your letter was considered by Sub-Committee E at its meeting yesterday.

  You explain the events surrounding the Internal Market Council on 27 November and the views of the Government as regards the appropriateness of Article 100A and the stance taken at the Council. Your letter has not, however, removed the doubts and concerns which the Sub-Committee has in respect of this matter. Indeed, it increases them, for the following reasons.

  First, as regards your statement that the United Kingdom has maintained its Parliamentary scrutiny reserve, the Committee takes the view that what was done was in effect to lift the scrutiny reserve. As the President of the Privy Council, Ann Taylor, recently said to the Select Committee on the Modernisation of the House of Commons the Government has undertaken (an undertaking embodied in the Resolution of the House of Commons of 24 October 1990) that Ministers will not give agreement to any proposal for Community legislation where the Scrutiny Committees have not completed their consideration of the proposal. In Annex B to her Memorandum, Mrs Taylor said: "The term `agreement' is held to apply to the stages of formal adoption, common position and to the stages of political agreement of a formal common position". The Select Committee in this House takes the view that it is inconsistent with the 1990 Resolution for Ministers to give "political agreement" to a proposal pending completion of the scrutiny procedure.

  As regards the present proposal it would appear that the United Kingdom vote was critical to the proposal being agreed. The political reality is that when agreement has been reached the die is cast. The scrutiny reserve has been abandoned. A Member State cannot go back on the matter.

  Second, as your letter indicates, especially your arguments and conclusions on Articles 126 and 127, the Government and the Committee are in agreement that Article 100A is not the appropriate legal basis for Action Robert Schuman. Where the Committee disagrees with you is in relation to the importance and weight to be placed on securing a statement of the correct legal basis in the recitals to the instrument. The fact that the Decision can be made under the Treaty and that the Court will not regard Council practice as binding precedent does not give the Committee much comfort. The correct definition and recital of vires is important, both as regards the relationship of the Community and its Member States and the Community's own legal order. The Member States have not yet given the Community a general power to act provided certain procedures (eg co-decision) are followed. The Treaty contains a large number of provisions, some more specific than others, in which the powers of the Community institutions are delimited, both as to their scope and their procedure. That limitation serves to define the extent of Community competence and the boundaries between action at Member State and Community level. As regards the Community's legal order, the Court has generally rejected the notion that a legal measure can simply refer to "the Treaty" as its legal base. It requires recitation of the appropriate Article or Articles in application of the principles of legality and of legal certainty and in order that it can exercise its powers of supervision.

  The Committee acknowledges that on occasion political considerations may outweigh legal arguments. Questions of the proper exercise of powers, whether given under the Treaty to Community institutions or under an Act of Parliament to Ministers, must not be treated lightly or dismissively. Legal principles, especially those underpinning the transfer and exercise of sovereign powers, should not be sold short for political or other pragmatic gain.

  The Committee takes the view that the Parliamentary scrutiny reserve has been overridden by the actions of the Government at the Council of Ministers on 27 November. For the reasons set out above, we consider this to be most unsatisfactory.

5 March 1998

Letter from the Rt Hon The Lord Irvine of Lairg to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 5 March.

  The Government's undertaking in relation to uncleared proposals provides, among other things, that the Minister concerned may give agreement to a proposal which is still subject to scrutiny if he decides for special reasons that agreement should be given, but that he should explain his reasons to the Committee. I did explain those reasons in my letter of 18 January.

  Nevertheless, you are quite right to point out that it is not consistent to seek to maintain a Parliamentary scrutiny reserve when political agreement to a proposal has been reached. That is in accordance with the Government's general position. There was clearly a misunderstanding over the proper course to adopt about Parliamentary scrutiny in this case and naturally I regret that this has happened.

  I understand a similar difficulty has recently arisen involving another Department. I have been advised that the Cabinet Office will be reminding Departments that agreement cannot be reached on a proposal whilst maintaining a Parliamentary scrutiny reserve.


 
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