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Jun252012

United Kingdom

House of Commons

 

 

According to the replies of the UK House of Commons to the questionnaire for the 13th Bi-annual Report of COSAC (May 2010) and updates:

"A) REVIEW OF REGULATIONS ADOPTED

1. Have there been any regulations adopted by your Member State in order to incorporate the new powers that are entrusted to the national Parliaments by the Treaty of Lisbon? If so, please specify the regulations in their corresponding categories.

1a. Constitutional provisions

The UK does not have a single constitutional act.

1b. Legal provisions - Statutory provisions

The Treaty of Lisbon was incorporated into national law by an Act of Parliament: the European Union (Amendment) Act 2008, which received Royal Assent on 19 June 2008. The Act gives the Lisbon Treaty primacy over national law and lays down procedures for Parliamentary approval of the Ordinary and Simplified revision procedures and several other ‘passerelles’.

1c. Parliamentary Standing Orders

Standing Order No. 143, Orders of Reference of the European Scrutiny Committee, and the resolution of the House of 17 November 1998, the Scrutiny Reserve Resolution, has been revised through negotiations between the European Scrutiny Committee and the Government."

"1. MONITORING THE ACTIVITIES OF THE EU INSTITUTIONS

1a. Please indicate if the monitoring includes all the activities of all the EU institutions. If not, please specify which activities and which institutions will be subject to monitoring (e.g. only legislative proposals from the Commission).

The European Scrutiny Committee (ESC) scrutinises “European Union documents”, without making a distinction between EU policies. The expression “European Union documents” will cover draft legislative acts, European Council and Council decisions under the CFSP, and any other document submitted by one EU institution to another. The Government has yet to agree that it covers draft non-legislative acts. “European Union documents” do not include European Council or Council Conclusions.

1b. Please indicate if the monitoring is comprehensive or applies selectively to certain topics or questions of particular national interest.

If a document falls within the definition of a “European Union document”, it follows that it will be subject to the entirety of the scrutiny mechanism. This includes the Scrutiny Reserve Resolution, under which a minister is prevented from giving agreement to the document, unless in exceptional circumstances, before it has been cleared from scrutiny by the ESC.

1c. Briefly describe the procedure and specify the parliamentary bodies involved.

Documents are deposited in the House by the Government within two working days of its arrival in the Foreign and Commonwealth Office in London. 

Within ten days of the deposit of the EU document, the responsible government Department has to submit an Explanatory Memorandum (EM) on it. An EM sets out the legal, financial and policy implications of the document, and the procedure and timetable for its consideration and adoption. The submission of an EM is the trigger for the scrutiny process. Although the ESC will already have already received the EU document and the Commission’s explanatory memorandum on it, there is no point in formal consideration until the Government’s evidence, in the form of an EM, is also available.

The ESC is required by Standing Order No.143 to report its opinion on the ‘legal and political importance’ of each EU document and to make recommendations as to which should be further considered by the House.

The ESC meets every Wednesday when the House is sitting. On every one of the usually 30 or so items of business (both EU documents and letters from Ministers) each member of the ESC receives a written analysis and recommendation from the ESC staff in advance of the meeting. The recommendation may be to clear the document with a Report to the House, to keep the document under scrutiny pending further explanations from the minister, or to debate the document. During the weekly meeting the ESC considers each document on the agenda in turn, with the help of supplementary oral advice from the staff where necessary, and agrees its weekly Report.

The ESC can choose to have the document debated either in the European Committees or — for the most important documents — on the Floor of the House. There is always a debate if the ESC recommends one, but the ESC has no power to require that the debate be on the Floor of the House; for that the Government’s agreement is needed. If the ESC decides on a European Committee debate, the document is automatically referred to one of the European Committees for debate.

In an average year, the ESC considers about 1,000 documents. It finds about 500 to be of political or legal importance, and reports substantively upon them. It recommends about 40 documents for debate in European Committee, and about three for debate on the Floor. Documents of insufficient political or legal importance are not reported.

1d. Do the regulations establish the Government's duty to report to the Parliament / Chamber? If so, in which terms?

 The Scrutiny Reserve Resolution places obligations on the Government not to give political agreement in the European Council or Council to a “European Union document” which has not been cleared from scrutiny by the ESC. There are exceptions to this in cases where the Minister decides that “exceptionally and for special reasons” agreement should be given. In the latter case, the Minister must report his reasons to the Committee at the first opportunity after reaching his agreement.

1e. In bicameral Parliaments, could you describe the mechanisms for information exchange and coordination between both Chambers?

The House of Lords has a parallel but separate system of EU scrutiny, conducted by the House of Lords Select Committee on the European Union.

Importantly, EU documents must clear the scrutiny process in both Houses before the Minister can give agreement to them in Brussels.

The scrutiny processes in both Houses complement each other well. There is no formal but much informal cooperation, with officials keeping in close contact. The two scrutiny processes being independent of each other, there is no consensus-reaching mechanism between the two Committees.

1f. Please briefly describe the administrative and advisory resources and support available for the task of monitoring the EU institutions.

The ESC has the usual powers of a House of Commons Select Committee including to: require the submission of written evidence; examine witnesses; make reports; obtain specialist advice; travel; appoint sub-committees; and sit on days when the House is not meeting. The ESC also has the right to legal advice from the Speaker’s Counsel (European Legislation) who is assisted part-time by an assistant counsel. In addition to the normal complement of Select Committee staff – clerk, second clerk, administrative secretariat - the ESC is also served by ‘clerk assistants’ (usually former senior civil servants) who assist in the expert scrutiny of the very large volume of documents it scrutinises. In all the ESC has a staff of 14; this is substantially more than any other Select Committee.

2. ENSURING COMPLIANCE WITH THE PRINCIPLE OF SUBSIDIARITY

2a. Please specify the Parliamentary bodies in charge of ensuring such compliance.

The ESC in the House of Commons; the Select Committee on the European Union in the House of Lords; the European and External Affairs Committee in the National Assembly for Wales; and the European and External Relations Committee of the Scottish Parliament. The Northern Ireland Assembly does not have a European affairs committee.

2b. Briefly describe the procedures involved.

Since the introduction of the principle of subsidiarity, the ESC has been reviewing European Union documents for compliance with it. Under the subsidiarity mechanism introduced by the Protocol on the Application of the Principles of Subsidiarity and Proportionality, the ESC will be responsible for drafting the reasoned opinion and recommending it to the House for adoption. Reasoned opinions have to be approved by the House before being submitted to the EU institutions or group of member States.

2c. Briefly describe the procedures for the participation of regional parliaments, if applicable.

Given the short timetable, the ESC considers that it would not be in a position to act on behalf of the regional parliaments spotting what for them might be objectionable proposals. For example it might not be apparent to the ESC that a proposal contained material which was likely to be objectionable to one of the regions of the United Kingdom and not to others. The ESC considered therefore that it:

  • should place the onus on the regional parliaments to obtain draft EU legislation, vet it and tell the ESC as quickly as possible if they have objections; and
  • should invite the comments of the regional parliaments on the ESC’s draft reasoned opinions where the draft includes reference to a matter on which one or more of them have expressed a view. If a regional parliament were not ready to express its views until after the reasoned opinion had been proposed to the House, or if the ESC disagreed with the views, the regional parliament should be invited to send its views to the ESC for onward transmission to the Government."
  • ESC proposals on how the subsidiarity early-warning mechanism could work in the House of Commons

 

 

House of Lords

 

 

 

According to the replies of the UK House of Lords to the questionnaire for the 13th Bi-annual Report of COSAC (May 2010):

 

"A) REVIEW OF REGULATIONS ADOPTED

1. Have there been any regulations adopted by your Member State in order to incorporate the new powers that are entrusted to the national Parliaments by the Treaty of Lisbon? If so, please specify the regulations in their corresponding categories.

1a. Constitutional provisions 

None

1b. Legal provisions - Statutory provisions

European Union (Amendment) Act 2008 section 6 on passerelles.

1c. Parliamentary Standing Orders

House of Lords Procedure Committee 2nd and 3rd Reports 2009-10, agreed to 16 March 2010. See below for details.

1d. Other (please specify)

None

1. MONITORING THE ACTIVITIES OF THE EU INSTITUTIONS

1a. Please indicate if the monitoring includes all the activities of all the EU institutions. If not, please specify which activities and which institutions will be subject to monitoring (e.g. only legislative proposals from the Commission).

Under its terms of reference, the EU Committee monitors activities of the EU institutions on the basis of its scrutiny of European Union documents deposited in the House by the Government. Such documents include:

(a) a document submitted by an institution of the European Union to another institution and put in the public domain;
(b) a draft legislative act or a proposal for amendment of such an act;

(c) a draft decision relating to the Common Foreign and Security Policy of the European Union under Title V of the Treaty on European Union.

Documents deposited for scrutiny are subject to the Scrutiny Reserve Resolution of the House under which no Minister may give agreement in the Council or the European Council to a document which has not been cleared from scrutiny by the EU Committee except in limited, clearly defined circumstances.

1b. Please indicate if the monitoring is comprehensive or applies selectively to certain topics or questions of particular national interest.

All of the documents deposited with us are considered. However we operate a sifting system whereby the Chairman of the Committee refers certain documents to sub-committees for examination or information. This allows us to focus on the most important documents, but "national interest" is not necessarily a deciding factor in sifting a document for examination. The remainder of the documents deposited with us are cleared by the Chairman at his sift.

1c. Briefly describe the procedure and specify the parliamentary bodies involved.

European scrutiny starts with the EU Committee. When a document is deposited for scrutiny the Chairman and legal adviser assess it and decide whether it is important enough to be referred to a sub-committee of the EU committee (or on occasion to the EU Committee itself) for examination or information, or whether it can be cleared from scrutiny.

Where a document is examined by a sub-committee there are a number of options. These include clearing from scrutiny, entering into correspondence with the UK Minister responsible or launching an in depth inquiry. These in depth inquiries result in a published report which is most often debated in the Plenary.

On rare occasions an EU sub-committee has worked with a non-EU committee where their inquiries overlap.

1d. Do the regulations establish the Government's duty to report to the Parliament / Chamber? If so, in which terms?

The obligation to report is not found in regulations but successive governments have committed to keeping the EU Committee generally informed of EU developments; in particular on documents subject to scrutiny, and before and after each Council meeting.  Ministers also make statements to the House (when it is sitting) before and after Council meetings. The Government has made a specific separate commitment to report each year on their approach in the forthcoming year to EU Justice and Home Affairs matters and on the exercise of the UK opt in during the previous year.

The Government provides both Houses with the following:

  • Explanatory memoranda shortly after the Commission or other Institution adopts a qualifying document. This is followed by updates throughout the negotiations;
  • Statements before and after each Council meeting; and
  • Details are prescribed in Guidance issued by the Cabinet Office.

1e. In bicameral Parliaments, could you describe the mechanisms for information exchange and coordination between both Chambers?

There is no formal coordination of day to day scrutiny of EU initiatives, although staff do keep in touch. Members of the Lords committee, Commons EU Committee and UK MEPs meet formally three times per year.

2. ENSURING COMPLIANCE WITH THE PRINCIPLE OF SUBSIDIARITY

2a. Please specify the Parliamentary bodies in charge of ensuring such compliance.

The EU Committee takes the lead in assessing legislative proposals for their compliance with the principle of subsidiarity. However the Plenary will be involved before a Reasoned Opinion can be sent. It is also worth noting that any individual member could  move a motion asking the Plenary to agree a Reasoned Opinion 

2b. Briefly describe the procedures involved.

The procedures are set out in the House of Lords Procedure Committee 2nd and 3rd Reports 2009-10, and were agreed by the House on 16 March 2010.

The EU Committee has adopted internal procedures to identify and fast track subsidiarity issues.
Where the EU Committee comes across an EU legislative proposal that it considers does not comply with the principle of subsidiarity, it will produce a report on the proposal, containing a "Reasoned Opinion" to this effect. The Committee will recommend its report for debate by the Plenary.

The report will be debated in the usual way, on a "take note" motion in the name of the Chairman or a Member of either the Select Committee or the relevant Sub-Committee.

The "take note" motion will be debated jointly with a second, free-standing motion inviting the House to support the Reasoned Opinion contained in the report and instructing that it be forwarded to the Presidents of the EU institutions on behalf of the House. This motion will be amendable and divisible. At the end of the debate the second motion will normally be moved formally, but if there are amendments these will be dealt with in the usual way.

The motions would be in the following form:

The following two motions are expected to be debated together:

Lord [name] to move that this House takes note of the Report of the European Union Committee on the XYZ Directive (1111/09) (First Report, HL Paper 10).

Lord [name] to move to resolve that this House considers that the XYZ Directive (1111/09) does not comply with the principle of subsidiarity, for the reasons set out in the First Report of the European Union Committee (HL Paper 10); and, in accordance with article 6 of the Protocol on the application of the principles of subsidiarity and proportionality, instructs the Clerk of the Parliaments to forward this reasoned opinion to the Presidents of the European institutions.

As mentioned above, it remains open to any Member of the House to table a free-standing motion along the lines set out in the second motion above, replacing the reference to the EU Committee report with a short, self-contained "reasoned opinion", as required by the Protocol.

Finally, the UK's Europe Minister has given a commitment that the Government will not support a proposal in the Council of Ministers which has been the subject of a reasoned opinion from either House without first further communicating to Parliament their reasons for doing so.

2c. Briefly describe the procedures for the participation of regional parliaments, if applicable.  

We will not enter into a formal protocol with the devolved assemblies. However, where we think it appropriate we will contact them informally and invite them to give their opinions. In addition they are always welcome to submit their views to us. We would be under no obligation to agree with their views or to issue a Reasoned Opinion because they ask us to do so."

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