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
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")
 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
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
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
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 ) 
ECR I-5755): it follows that a bad choice of legal base in one
instance does not constitute a legal precedent for continuing
I trust that the above clarifies the Government's
position sufficiently to enable the Committee to conclude its
18 January 1998
18 January 1998
Letter from Lord Tordoff, Chairman of
the Committee, to the Rt Hon theLord Irvine of Lairg, the Lord
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
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
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