The “second” chamber

Andrew Duff MEP

Memorandum of evidence to the House of Lords Select Committee on the European Union by Andrew Duff MEP

1. The government appears to be about to make a proposal for the introduction of a new parliamentary chamber of the European Union. It would be more wise not to do so.

2. The significance of such a proposal should not be underestimated. The European Union is by no means a perfect political system, but it is a fairly delicate one, where the checks and balances, first, between the federal, national and (increasingly) regional levels of government and, second, between executive, legislative and juridical institutions have developed cautiously over decades. One would have to be completely sure that something was seriously wrong with the existing system before making such a drastic proposal for reform as this. The hard-fought introduction of direct elections by universal suffrage to the European Parliament under a previous Labour government remains one of the symbolic high points in European integration. In that the Union has nurtured the first international parliament in history, its efforts should not be subverted without very good reason and widespread public support.

3. Before improvising with additional parliamentary chambers, it is important to understand the existing roles of the European and member state parliaments. It must be regretted that appreciation of the European Parliament does not seem to come easily to either British government ministers or their officials, very few of whom have any first-hand knowledge. Mr Darroch, for example, seems to imagine that MEPs spend all their time poring over the phrasing of legislation. Although the European Parliament is assuredly a legislature, it also has a serious and broad political function within the Union and outside it, especially in relation to candidate countries, as well as an important representative function on behalf of the European citizen. So besides being the first legislative chamber of the Union, the European Parliament also attempts to hold the Commission and Council presidency to account and to chivvy the European Central Bank. It is one part of the budgetary authority of the Union. It shares with the Council the appointment of the Commission. It is a busy place and, as the growing number of lobbyists serves to testify, is fast by way of becoming the forum or market place of the single European political market. By no means does the European Parliament confine its activities to European Community legislation. It would be most surprised to learn that it has no role, as Mr Darroch implies, in questions of competency, subsidiarity and proportionality. One can only speculate why it is that, just when the directly elected European Parliament is maturing steadily and its powers of codecision are settling down, along comes a British government seeking to recreate alongside it, cuckoo style, its former, unelected predecessor.

4. If the European Parliament has no need to lack confidence, neither do member state parliaments. Both have important treaty-based responsibilities in the European Union. National MPs have rights by virtue of the Protocol on the role of national parliaments in the European Union, and they have duties by virtue of the Treaty on European Union Articles 48 and 52 (treaty amendment), 49 (enlargement), 17.1 (defence), 24 (international agreements in foreign and security policy), 34.2(d) (conventions in the field of police and judicial cooperation), 42 (passerelle between third and first pillar), and by virtue of European Community Treaty Articles 22 (development of European citizenship), 190.4 (electoral procedure of the European Parliament) and 269 (system of own resources). These are all powers which the European Parliament, quite rightly, envies.

5. It is true, however, that, just as the European Parliament needs to become more capable, so also national parliaments should become more informed and engaged, and generally less grumpy, about European Union affairs. Only in this way could they help to transmit the reality of the European dimension to the domestic, and often nationalistic press and public. COSAC, which engages the national parliaments in dialogue, will continue to play a useful role as long as it is not dumped with quasi-legislative responsibilities, in which case it would quickly become the poodle of the governments (as would, of course, Mr Blair’s ‘second’ chamber).

6. Otherwise innovation is needed. Most member states should reform the way their own parliaments and governments jointly organise themselves to deal with the EU. As a matter of routine, representatives of national parliaments could be included inside ministerial and official delegations to the Council. In addition, policy specific interparliamentary conferences could be promoted by each presidency of the Council, usefully involving the relevant committee of the European Parliament. (The supposedly sensitive subsidiarity questions are better exposed by specialist examination rather than by occasional visitation from Euro-generalists of the sort that Mr Blair’s third chamber would undoubtedly attract.) In the field of security and defence a more permanent joint arrangement between the European and national parliaments could be considered, in part to compensate for the loss of the WEU Assembly. And other experiments could be tried: for example, why not allow MEPs, who know a thing or two, to table questions to ministers through national parliamentary procedures?

7. Moreover, national parliaments should be joining the European Parliament in its fight to achieve a constitutional convention that would be tasked at Laeken in December with the preparation of proposals for the next Intergovernmental Conference in 2004. Both levels of parliament have a common interest in insisting on participatory and not just consultative rights in the constitutional development of the Union. Both played their part in ensuring the success of the Convention that drafted the Charter of Fundamental Rights. Even the British government has now conceded, as your Committee proposed, that the Charter is a worthy thing.

8. One might well wonder, if there is already so much parliamentary sinew in the body politic of the European Union, why an additional body is at all required. If Mr Darroch is to be believed, the government appears to be proposing a chamber of roughly 300 members in order to second-guess the ordained EU legislative processes. This body would meet three or four times a year to intervene according to its own interpretation of the Treaties supplemented by a new but determinedly non-binding (because otherwise constitutional) political code of competencies, subsidiarity and proportionality. How this code could improve on the existing Treaties is not made clear. How would a political code mix and match with the legal texts? As with the status of the ‘solemnly proclaimed’ Charter, I fear that legal uncertainty and political confusion will ensue. How would such a blatantly political intrusion into the existing checks and balances work? Which of the Commission, Parliament or Council would least appreciate correction on the controversial grounds of subsidiarity by a bunch of MPs on a day-trip to Brussels?

9. The new body would be composed of national parliamentarians selected in at least 15 different ways who would be expected to devote themselves to long and difficult meetings three or four times a year regardless of the domestic agendas of their own parliaments and national electoral mandates. Would there be agreement about whether the MPs should sit in national delegations, as the ministers in the Council, or in party groups, as the MEPs in the European Parliament? How would they vote? Presumably the members of this body would be expected to be well briefed (by whom?) across the whole policy spectrum of the Union. Apparently the new chamber would have recourse to the European Court of Justice, and would therefore itself be exposed to counter litigation. The government clearly intends the putative body to be a legislative chamber the Union’s third! and not a consultative chamber like the Committee of the Regions or the Economic and Social Committee (despite duplicating some of the same functions as those two bodies).

10. I would be most interested to learn how the House of Lords might appoint its own delegation and what the representative capability of that delegation might be.

11. I am unable to gather why or how the government imagines this proposal could add to the efficiency, effectiveness, transparency or democratic legitimacy of the Union. The government gives no specific examples of when or how the Union has failed so far to apply the principle of subsidiarity, or is presumed to have acted ultra vires, or precisely of what wrong the insertion of a third chamber is intended to right.

12. If the Council makes the law, and if ministers in the Council represent their national parliaments, how can their own parliaments be given a separate, valid legislative role? Or does Mr Darroch mean that UK government ministers in the Council do not properly represent the Westminster parliament? One hopes not.

13. On the question of the annual work programme of the Union, both Commission and Parliament accept that there is room for improvement. It is likely that next year’s programme will be brought forward to the autumn and that the political story contained within it will be told more clearly. As it is, however, the Commission’s programme is an important and informative document. Unfortunately, despite the UK government’s interest in this programme, the current (Swedish) presidency of the Council absented itself entirely from the Parliament’s debate on the annual programme earlier this year.

14. Lastly, I must add that I fear that if the UK pursues such a proposal as has been outlined, as it seems intent on doing, it will make itself look fairly ridiculous and lose what influence it has on the collective effort to rectify the mistakes of Nice or to contribute in the future to the constitutional development of the Union. Of course, there is plenty of scope to enhance the role of the European Parliament; and there are other proposals around for the reform of the second chamber of the Union’s legislature the Council but none other, as far as I know, involving the insertion of a completely new third chamber. The suspicion is that this is yet another example of the United Kingdom’s wish to disable the European Union.

15. I hope, therefore, that the Committee will be moved to urge the government to drop this proposal and to concentrate instead on influencing the mainstream, mainland agenda of Laeken. For that is focussed on the constitutionalisation of the European Union, without which a satisfactory answer to where power lies, and who does what, will remain illusory. It is still not too late for the British government to contribute positively to enhancing the efficiency, effectiveness and legitimacy of the European Union.

Andrew Duff MEP is the spokesman on Constitutional Affairs, European Liberal Democrats & Reformers (ELDR). He may be contacted via www.andrewduffmep.org.

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