The evolving role of national parliaments in the European Union: Ireland as a case study

The evolving role of national parliaments in the European Union

The evolving role of national parliaments in the European Union

Ireland as a case study

GAVIN BARRETT

Manchester University Press

Copyright © Gavin Barrett 2018

The right of Gavin Barrett to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988.

Published by Manchester University Press

Altrincham Street, Manchester M1 7JA

www.manchesteruniversitypress.co.uk

British Library Cataloguing-in-Publication Data

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ISBN 978 1 7849 9321 4 hardback

First published 2018

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Contents

List of tables

Preface

1The development of a role for national parliaments in the European Union

2Why are we augmenting the role of national parliaments in European affairs? Should we continue to do so?

3A slow adaptor? Eliciting a response from the Irish parliament to European integration

4The Lisbon Treaty and economic crisis: catalysts for reform of the Oireachtas role in European Union affairs

5Where we stand now: an overview of the role of the Oireachtas in European Union affairs

6Looking to the future: reflections on how the role of the Irish parliament in European affairs might be improved

Bibliography

Index

Tables

2.1Dates of creation of existing European affairs committees or their predecessor committees in national parliaments

3.1Production of reports by Joint Oireachtas Committee on the secondary legislation of the European Communities

3.2Debates in the Houses of the Oireachtas on Reports of Joint Committees on the secondary legislation of the European Communities from 1973 to 1989

3.3Visits by Ministers and Ministers of State at the Joint Oireachtas Committee on European Affairs

5.1Statutes adopted by the Oireachtas in 2015 which had a significant connection with Ireland’s membership of the European Union

5.2Statutes adopted by the Oireachtas in 2010 which had a significant connection with Ireland’s membership of the European Union

5.3Proportion of statutory instruments adopted in 2010 and 2015 which had a significant connection with Ireland’s membership of the European Union

5.4Briefings in advance of General Affairs Council meetings 2007–15

5.5Number of reports produced each year by the Joint Oireachtas Committee on European Affairs during the 30th Dáil

5.6Number of reports produced each year by the Joint Oireachtas Committee on European Affairs during the 31st Dáil

5.7Information notes submitted by Government departments/offices in 2015

5.8Reports of all kinds produced by the Scrutiny Committee in 2009–10

5.9Number of EU legislative proposals referred to Sectoral Oireachtas Joint Committees for detailed scrutiny by Joint Oireachtas Committee on European scrutiny in 2010

5.10No of EU proposals considered by each Joint Committee in the period of the 31st Dáil

5.11Scrutiny priorities identified in the 2015 Work Programme for Sectoral Joint Oireachtas Committees

5.12Record of pre-council briefings by Ministers of Joint Oireachtas Committees in 2015 in respect of the seventy-eight Council meetings held that year

5.13Commission information on Oireachtas participation in the process of political dialogue in 2010–15

5.14Commission information on Oireachtas participation in the process of political dialogue in 2006–09

5.15Political contributions submitted by individual Joint Oireachtas Committees under the political dialogue process in 2011–15 (in the period of the 31st Dáil)

5.16Topics considered at the ten meetings held by the Joint Committee on Justice, Equality, Defence and Women’s Rights in 2009

5.17Topics considered at the twenty meetings held by the Joint Committee on Justice, Defence and Equality in 2015

Preface

This book concerns the evolving role of national parliaments in the European Union. That role, as will be seen in Chapter 1, has developed considerably over time. It seems likely to continue to do so, and to feature centrally in efforts to ensure adequate democratic accountability exists in the institutional architecture of the Union. Why this should be so is an issue looked at in Chapter 2.

The book focuses on one parliament as a case study in this regard: the national parliament of Ireland, the Oireachtas. The basic structure of that parliament is modelled on that of the United Kingdom. Ireland operates the so-called Westminster system of parliamentary government. It has a bicameral legislature. Under the Irish Constitution,¹ the two houses of the Oireachtas comprise the lower House, Dáil Éireann, commonly referred to simply as the Dáil, and the upper House, Seanad Éireann, referred to in common parlance as the Seanad or the Senate.²

Like the United Kingdom, Ireland joined the then European Communities on 1 January 1973. Chapter 3 examines the initial adaptations of its parliament to European integration and how Ireland’s domestic parliamentary accommodation of membership slowly changed over time. Particular focus is brought to bear in Chapter 4 on the considerable impact on domestic parliamentary arrangements of the recent banking and foreign debt crises and of the Treaty of Lisbon. Chapter 5 is devoted to an assessment of the role of the Oireachtas in European law and policy during the lifetimes of the 30th Dáil (2007–11) and the 31st Dáil (2011–16) – the most recent periods during which comprehensive information is available – before Chapter 6 turns to the topic of possible future reforms.

The research in this book should be regarded as up to date to the end of the 31st Dáil (which was dissolved on 3 February 2016), although it has occasionally been possible to insert more recent material. Time and events have not stood still since the end of the period under study – even if the implications for the Oireachtas role in relation to European Union affairs remain as yet largely unclear. The Oireachtas generally takes time to adjust in the wake of Dáil elections, given the constitutional requirement for Seanad elections to take place not later than ninety days after a dissolution of Dáil Éireann,³ and the time needed for the creation of the Committee structure in the wake of the election of each new Dáil and Seanad. The process did so with particular slowness in 2016, thanks in particular to the failure of any political party or viable coalition of parties to secure victory in the general election which followed the dissolution of the 31st Dáil.

In brief, the sequence of events which has occurred since the period studied in the main part of this book has been as follows.

At the request of the then Taoiseach (or prime minister) Enda Kenny, the 31st Dáil was dissolved by President Michael D. Higgins on 3 February 2016. The subsequent general election for membership of the 32nd Dáil⁴ took place on 26 February, resulting in the election of 157 Teachtaí Dála (members of parliament, normally referred to as TDs) from forty constituencies across the country.⁵ Elections to the Seanad were completed by 26 April and the Taoiseach availed of his right to nominate eleven out of sixty senators on 27 May 2016. The 25th Seanad met at Leinster House for the first time on 8 June.⁶

The 32nd Dáil had already met for the first time on 10 March. The general election results had dealt a severe setback to Taoiseach Enda Kenny’s Fine Gael (although it remained the largest political party) and had devastated its junior Coalition partner, Labour. No party or coalition of parties secured enough seats to govern without opposition cooperation. A new Fine Gael-led administration could be formed only with some difficulty, only as a minority government and only after tortuously long negotiations.⁷ Agreement on a new government was ultimately reached only on 29 April, some sixty-three days after the election.The agreement reached constituted a new phenomenon in Irish political life (even if one far from unknown in other parliamentary democracies based on the Westminster system): a so-called ‘confidence-and-supply’ agreement between the minority government formed by Fine Gael and some independents, on the one hand, and the Opposition Fianna Fáil party on the other. This (renewable agreement) lasts until the end of 2018, and involves Fianna Fáil facilitating government budgets which are consistent with agreed policy principles and either opposing or abstaining on confidence measures.⁸ Subsequently, on 6 May (on what was its fourth attempt) the Dáil finally re-elected Enda Kenny as Taoiseach, making him the first ever Fine Gael party Taoiseach to win re-election. (Notwithstanding this, the aftershock of the election was sufficient to lead to Kenny being replaced by Leo Varadkar as Taoiseach just over a year later, on 14 July 2017.)

Perhaps unsurprisingly, given its minority status, the new administration has suffered from ongoing instability and an inability to ensure legislation is adopted at anything near the rate of previous parliaments.⁹ Neither the new administration nor the Oireachtas (and in particular, the Joint Committee on European Union Affairs) has lacked ongoing challenges in the European field. Principal among them is the challenge of dealing with the effects of the referendum vote on 23 June 2016 in the United Kingdom in favour of leaving the European Union (so-called Brexit), the implementation of which has already and will continue to present difficult negotiating challenges for Irish governments, particularly given such factors as the high level of trade between the two states, the enduring interest of both states in maintaining the hard-won peace in Northern Ireland secured by the 1998 Good Friday agreement after decades of political conflict and the political risks associated with a hard border between Northern Ireland and the Republic.

The Oireachtas faces challenges which include imposing adequate democratic accountability, particularly in relation to Irish governmental involvement in any such (Commission-led) negotiations at Council and European Council level,¹⁰ and subsequently in relation to any arrangements which derive from them – both vis-à-vis the European Union and vis-à-vis the United Kingdom. Its response to such challenges remains to be fully seen.

On the positive side, the Oireachtas committee structure has seen some significant reforms. At the time of writing, the number of joint committees has been increased to twenty-one. There has also been recourse to more over-arching committees, an example of this being the establishment of the Dáil Select Committee on Budgetary Oversight in July 2016 with the objective of enhancing the role of the Oireachtas in the budgetary formation process, and which includes in its role consideration of the limitations arising from the application of EU fiscal rules. Use has also increased of ad hoc committees (including, to take one somewhat European-related example, through the establishment of the Joint Committee on the Future Funding of Domestic Water Services, which sought to find a way ahead in the politically controversial field of water charges).¹¹ Another change to the operation of committees is that efforts have been made to avoid previously endemic clashes between Dáil time and committee time (so that the Dáil now sits only in the afternoon).

Of particular relevance to the contents of this book has been the formation of the Joint Oireachtas Committee on European Union Affairs, which held its first meeting in private on 19 July 2016, and its first public meeting on 7 September. The chair of the new group is Independent TD Michael Healy-Rae, whose chairmanship reflects the very large number of independent members elected to the 32nd Dáil.¹²

The membership of the new Committee comprises seven TDs¹³ and four Senators,¹⁴ with the Committee’s composition capable of ensuring a pro-Government Independent–Fine Gael majority – or, if not, effective control through conditional support on the part of the Opposition Fianna Fáil party. That much said, the Committee has traditionally operated in a non-partisan manner in any case. In the twelve months following the first meeting of the new Dáil, the Joint Oireachtas Committee, however, met on only ten occasions.¹⁵ Even taking account of the greater role accorded to other sectoral committees which began in the previous (31st) Dáil period, this seems inadequate to establish systematic accountability in European affairs, although it is only fair to acknowledge that a considerable portion of the fault for this lies with (a) the (by now normal) slowness in re-establishing the Oireachtas Committee system after the 2016 election and (b) the considerable delay on this occasion before it proved possible to put together any new government at all.

As Chapter 5 of this book illustrates, it would be a mistake, however, in assessing the impact of the Oireachtas in European affairs, to focus on the role of the Joint Committee on European Affairs alone. Other formations of the Oireachtas have a role to play. The topic of Brexit, for example, has featured with great frequency in Oireachtas debates of all kinds, including Dáil questions, and can be expected to continue to do so in the two-year period of negotiations on UK exit after the triggering by the UK government of the Article 50 exit clause in the Treaty on European Union.¹⁶ In the twelve months following the first meeting of the 32nd Dáil, four Joint Oireachtas Committees conducted seven debates or hearings on the issue¹⁷ – including the Joint Committee on European Union Affairs (which held two of these hearings, and which also sent a delegation to Brussels in February 2017 to meet with the key individuals involved in the Brexit negotiations).¹⁸ The new Dáil Business Committee also hosted a half-day symposium on the economic implications of Brexit on 22 September 2016 in the Mansion House for members of the Dáil, Seanad and European Parliament to inform debate in advance of the then forthcoming parliamentary session.

Three members of the European Commission appeared before Dáil committees on separate occasions to discuss controversial issues including Brexit in the same twelve-month period.¹⁹ Nor was there any sign of such activity reducing in intensity. Another interesting development in this field was the Seanad’s decision in February 2017 to establish a ten-person cross-party Seanad Special Committee on the Withdrawal of the United Kingdom from the European Union, in order to consider the implications for Ireland of Brexit. The Special Select Committee was to report to Seanad Éireann on 4 July 2017. From April 2017, it had become active in hearing submissions by a range of actors in political life (including two former Taoisigh), civil society and business.

The Oireachtas may thus be said to have been active in informing itself and certainly not been entirely bereft of a public communications role in relation to European issues in the short lifetime to date of the 32nd Dáil. However, the establishment by the Government in November 2016 of an All-Island Civic Dialogue on Brexit was also worthy of note. By late February 2017, this had met twice in plenary session and on fourteen separate occasions in sectoral meetings throughout the country. This process saw official efforts to communicate with the public concerning Brexit-related issues move away from the Oireachtas to some extent, just as they had earlier during the 2001–09 lifetime of the National Forum on Europe. It may thus be that the responsibility of such communication will continue to be shared by the Oireachtas rather than being borne exclusively to it in the near future.

All of the foregoing EU-relevant changes and developments have taken place in the context of more broadly relevant parliamentary reforms being introduced in the 32nd Dáil period, including the election for the first time of a Ceann Comhairle, the introduction of the d’Hondt system to govern the appointment of committee chairs; the shifting of what was heretofore the Taoiseach’s prerogative (normally implemented by the Government party whips) to set the Dáil agenda to a Business Committee representing all groups in parliament; the empowerment of more groups to propose legislation; and moves towards improved administrative and legal supports for parliamentarians. Many of these developments had been long planned. Others were introduced effectively as the price of Opposition participation in negotiations on the formation of a Government. The effect of such changes remains to be seen: the 32nd Dáil has certainly garnered a reputation for less efficiency (particularly in legislating) than its predecessors. But this probably is in large part more properly ascribed to the minority status and consequent weakness of the Government than the negative effects of parliamentary reforms. A proper assessment of the true effect of the latter reforms may well have to await the future election of a majority regime, however.²⁰

The writing of this book has involved the assistance of many. Particular thanks are due to Tony Mason of Manchester University Press, Professor Brigid Laffan, Michael Barrett, Della Barrett, Conor Barrett and the Honourable Judge Max Barrett, André, Hélène and Bernard Roussel-Coumont, Maria Fitzsimons, Professor Heinrich Wolff, Professor Anneli Albi, Art O’Leary, Dr. Brian Hunt, Dr. Wolfgang Heusel, Professor John Horgan, Dr. Maurice Manning, Professor Blánaid Clarke, Professor Oonagh Breen, Professor Colin Scott, Professor Imelda Maher, Professor Joe McMahon, Caroline Fine, Noelle O’ Connell, Dr. Stephen Coutts, Ministers Paschal Donohue TD, Lucinda Creighton TD and Dara Murphy TD, Dr. Brendan Halligan, Noelle O’Connell, Úna Langan, Francis Jacobs, Gay Mitchell TD, Golda Hession, Catherine Lynch, Ciarán Smyth, Niall Ó Cléirigh, Seán Burke, Emer Deane, Elaine Gunne, Siobhán Malone, Ray Treacy, Ted McEnery, Rónan Gargan, Conor Gouldsbury and my other interlocutors among the staff of the Library and Research Service in the Oireachtas, and clerks and political advisors in Leinster House who were enormously helpful in responding to my queries, as well as the members of the various Oireachtas committees I have appeared before over the years, whose interest in my work has been greatly encouraging. Thanks are also due to the Erasmus Plus programme of the European Union, which supported my research by awarding me a Jean Monnnet professorship during the writing of this book. Finally, and most of all, my thanks are due to my wife Madeleine and to our children Marie-Hélène, Stéphane, Sébastien and Matthieu for their patience in putting up with their Dad as this project drew to its completion.

Notes

1 See Article 15.

2 The continued existence of the Seanad was ensured on 4 October 2013 when a Government proposal to alter the Constitution to abolish the upper House was defeated. In a referendum held on that date on the Thirty-second Amendment of the Constitution (Abolition of Seanad Éireann) Act 2013, 634,437 (51.7%) of the 1,240,729 voters who voted (a relatively low 39.2% turnout), rejected the Act (and thus to retain the Seanad). 591,937 (48.3%) of those voting cast their ballots in favour of the Act (and abolition of the Seanad).

3 See Article 18.8 of the Constitution.

4 Under Article 16.3.2 ° of the Constitution, a general election is required to take place not later than thirty days after a dissolution of Dáil Éireann.

5 The Ceann Comhairle (chairman) was in addition returned automatically, bringing the total membership of the new Dáil to 158. (Under Article 16.6 of the Irish Constitution, provision is required to be made by law to enable the member of Dáil Éireann who is the Ceann Comhairle immediately before a dissolution of Dáil Éireann to be deemed without any actual election to be elected a member of Dáil Éireann at the ensuing general election. Provision is currently made for this by s. 36 of the Electoral Act 1992.)

6 In terms of its composition, there are nineteen Fine Gael , fourteen Fianna Fáil , seventeen Sinn Féin , five Labour Party, one Green Party and fourteen independent members in the 25th Seanad .

7 The election results constituted something of an earthquake in terms of their implications for the established political parties. Fine Gael remained the largest party in the Dáil but with only fifty members (if one includes the automatically-returned Ceann Comhairle ) – twenty-six less than the total achieved in the 2011 election to the 31st Dáil (in which however they had not the advantage of having a Fine Gael Deputy automatically returned as Ceann Comhairle ). A rejuvenated Fianna Fáil secured forty-four. Sinn Féin attained twenty-three, putting it in third place and the Labour Party achieved its worst-ever result of only seven TDs (down from thirty-seven in 2011, from which it emerged as the second-largest party). A combination of independents and members of smaller parties secured the (very large) total of thirty-four seats).

8 The text of the agreement is available in F. Kelly, " The Full Document: Fine Gael-Fianna Fáil Deal for Government ", Irish Times, 3 May 2016.

9 See for one recent assessment in this regard, H. McGee, Ten Ways the Engine Room of Irish Politics Has Changed Since Last Year’s Election, Irish Times , 28 February 2017. See also M. Lehane and C. McMorrow, A Year On, Has ‘New Politics’ Gone Stale? RTE.ie, 10 March 2017, S. Collins, It’s Obvious That the Current Dáil is Unworkable, Irish Times, 6 April 2017 and N. Whelan, Current Dáil Remains a Very Feeble Legislator, Irish Times, 5 May 2017.

10 See regarding the respective roles of Council and European Council, Article 50 of the Treaty on European Union.

11 This Committee finally reported in April 2017 after a fractious, highly-publicised debate, a key feature of which were differing party political views as to what the need for any water funding regime to comply with the requirements of the EU Water Framework Directive (Directive 2000/60/EC of 23 October 2000) entailed. (See generally S. Bardon, FF Concessions Seal Deal on Water Charges, Irish Times , 12 April 2017.)

12 As is noted in the text below, Committee chairs in the 32nd Dáil – including that of the EU Affairs Committee – were selected, for the first time ever, on the basis of the d'Hondt system. Healy-Rae's appointment made this the second successive occasion a chair has been appointed to the European Union Affairs Committee, who has not previously been noted for any expertise or interest in EU matters (although, in fairness, this has not previously prevented successful tenure of the position).

13 Two of these are from Fine Gael , two from Fianna Fáil , one from Sinn Féin and two are independent members – including the Committee chair – who are loosely affiliated in the Rural Independent Group.

14 Two of these are from Fine Gael , one from Fianna Fáil , and one is an independent member.

15 This includes a joint sitting with the Joint Committee on Foreign Affairs and Trade, and Defence on 21 February 2017.

16 A search on 17 May 2017 for the term Brexit on the website KildareStreet.com, in which it is possible to search through Oireachtas debates for particular terms, yielded a remarkable 1,805 hits.

17 These debates were in the Joint Committee on European Affairs (on 8 November and 7 December 2016); in the Joint Committee on Agriculture, Food and the Marine (on 17 January and 24 January 2017); in the Joint Committee on Communications, Climate Action and Environment (on 14 and 28 February 2017); and in the Joint Committee on Foreign Affairs and Trade, and Defence (on 9 March 2017).

18 This occurred on 7–8 February 2017. See report at www.oireachtas.ie/parliament/media/committees/euaffairs/Report-of-the-Committee-Travel-to-Brussels-7–8-February-2017.pdf (accessed on 12 May 2017).

19 Commissioner Vice-President Frans Timmermans appeared before a joint sitting of the Joint Committee on Foreign Affairs and Trade, and Defence and the Joint Committee on European Union Affairs on 21 February 2017 to discuss Brexit. The Commissioner for Competition Margrethe Vestager appeared before the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach to discuss the Commission’s controversial 2016 decision that tax arrangements in Ireland concerning companies in the Apple group constituted illegal state aid and Commissioner for Economic and Financial Affairs, Taxation and Customs Pierre Moscovici discussed EU corporate taxation strategy and EU investment and growth strategies with the same Committee on 24 January 2017. Michel Barnier, the Chief Negotiator for Brexit (appointed by the European Commission) addressed a joint session of the Dáil and the Seanad on 11 May 2017. (See further Commission website https://ec.europa.eu/info/persons/director-head-service-michel-barnier_en (accessed on 15 May 2017).)

20 See in this regard C. Lynch, E. O’Malley, T. Reidy, D. Farrell and J. Suiter, Dáil Reforms Since 2011: Pathway to Power for the ‘Puny’ Parliament? (2017) 65 Administration 37 at 55–56.

1

The development of a role for national parliaments in the European Union

Introduction

National parliaments: a role in the shadow of the Treaties

This chapter seeks to examine the norms which the European Union (EU) has established regarding the role of national parliaments, and how these norms have evolved over time, and then offer some brief reflections on how domestic legal systems within the EU have tailored the role of their national parliaments in EU affairs.

National parliaments were present at the birth of the EU. Each of the three original Community Treaties required approval by the national parliaments of all six founding member states. (Another treaty, the 1952 European Defence Community Treaty foundered in failing to secure passage through the French Assemblée Nationale.) The founding Treaties had very little to say about national parliaments, however. Even if some role was envisaged for them, national parliaments were nonetheless well described as having remained largely in the shadow of the Treaties.¹

Several possible reasons can be identified for this early neglect. First, the early central focus of European integration was on solving a particular set of market and industrial problems. The institutional challenges presented to existing national structures by European-level market creation were not the immediate focus. Secondly, the nature of the potential challenge posed to national parliaments was not initially clear. The Communities were sectoral organisations to begin with, in their scope if not in their ultimate aims. Thirdly, according to the classical federalist logic of European integration, efforts for developing European parliamentarianism were concentrated on the European Parliament, rather than on national parliaments.² Insofar as European integration disempowered national parliaments, the solution was sought in compensating for this at European level, not by re-empowering national parliaments.³

During the first decades of European integration, the democratising impulse concerned itself with gradually empowering the Common Assembly. The Assembly had emerged as something of an afterthought in the negotiations on the 1951 Coal and Steel Community Treaty, receiving no mention in the 1950 Schuman Declaration.⁴ It chose to rename itself the European Parliamentary Assembly on its first sitting in 1958,⁵ adopting the name European Parliament in 1962 – a choice of name officially ratified by the Single European Act in 1987.⁶ Direct elections followed in 1979, and the introduction of the cooperation legislative procedure by the Single European Act in 1987 began the movement towards a greater Parliamentary role in the legislative process. The co-decision legislative procedure, introduced by the Maastricht Treaty in 1993, gave the Parliament legislative powers largely equivalent to those of a national parliament and all subsequent amending Treaties have increased the scope of this procedure’s application, leading to its rechristening as the ‘ordinary legislative procedure’ at Lisbon.⁷

Although the European Parliament’s view of the national parliaments’ European role has emphasised the latter’s gap-filling potential in policy areas where the Parliament itself has little power,⁸ from about the beginning of the 1990s, a shift in the overall democratisation debate took place, with a role alongside an increased role for the European Parliament now being widely envisaged for national parliaments. A fourth reason for neglecting national parliaments in the EU’s early years was that political incentives to remedy any erosion in national-level democratic controls were lacking – national executives, not legislatures, were in the driving seat when it came to negotiating treaties. Fifthly, securing agreement on the involvement of national parliaments in a multi-level organisation such as the EU has presented formidable intellectual and political challenges.⁹ The sui generis nature of the European Union arguably requires an equally unique approach in relation to the role of national parliaments, and the elucidation of this role has involved a time-consuming process of conceptualisation, bargaining and trial-and-error. Sixthly, empowerment of national parliaments tends to be bedevilled by sensitivities regarding national sovereignty.¹⁰ Resistance – including from national parliaments themselves – to European-level intervention regarding internal constitutional arrangements has made a cautious approach necessary. Hence the Preambles to Treaty Protocols on the role of national parliaments agreed upon at Amsterdam in 1997 and Lisbon in 2007 both began by carefully recalling that either the fact¹¹ or manner¹² of scrutiny was a matter for the particular constitutional organisation and practice of each Member State. Indeed, the wording of Article 12 of the Treaty on the Functioning of the European Union (TFEU) (agreed upon at Lisbon) had to be toned down, in the face of opposition from, among others, the House of Commons European Scrutiny Committee, from a prescription that "national parliaments shall contribute actively to the good functioning of the Union¹³ to its present, merely descriptive, declaration that national parliaments contribute actively to the good functioning of the Union". In other words, national parliamentary resistance was encountered even to reforms empowering them vis-à-vis national executives.¹⁴

The genesis of change

A case could always be made for according national parliaments a greater role in European matters, not only at national level, but also at European level,¹⁵ and one which, in some respects, has gradually strengthened. Empowerment of the European Parliament has not sufficed as a democratising mechanism for reasons including, but not confined to, the lack of identification between national electorates and the Parliament.¹⁶ Bebr’s 1953 observation that the lack of supranational identification among the Community’s population limited the role of the ECSC Common Assembly still holds good today.¹⁷ Low participation rates in European Parliament elections underline this point.

Arguments favouring increasing the role of national parliaments included that this would help defuse claims of an EU-level democratic deficit, bridge the gap between the EU and its citizens, and increase EU transparency. Such empowerment could also be argued to be needed to prevent the escape of national executives from democratic control with the gradual transfers over time in competences to what is now the EU. With the increased use of qualified majority voting, a European-level role for national parliaments might also compensate for a loss of democratic control at national level in outvoted states. It might also compensate for the rupturing of links with national parliaments which occurred with the advent of direct European Parliament elections in 1979 (ending an initial period during which of the Parliament’s membership had been made up of delegates from national parliaments).

An unmistakeable trend towards the gradual empowerment of national parliaments is certainly now evident. The rate of reform has, however, been slow and lacking in uniformity. It took four decades for the underlying seismic shifts in opinions pertaining to the appropriate role of national parliaments in the European Union to make themselves visible in the conclusions of intergovernmental conferences (IGCs). The temporal peaks (or perhaps plateaus) in the debate have been the negotiation and ratification of the Treaty of Maastricht in 1990–93, the negotiation and ratification of the Treaty of Amsterdam in 1995–99, and the lengthy process of Treaty reform that began with the Convention on the Future of Europe in 2001 and finally played itself out with the coming into force of the Lisbon Treaty in late 2009.

In this chapter this evolution of the legal rules at European Union level which relate to national parliaments will be examined in more detail.

In the beginning: examining the original legal position of national parliaments in detail

National parliaments were not initially afforded a key role in the day-to-day life of the European Economic Community (EEC). A role was foreseen, but in only one respect was it expressly set out in the Treaties. Article 138(1) of the 1957 EEC Treaty stipulated that the Common Assembly of the (then) three Communities,¹⁸ shall be composed of delegates whom the Parliaments shall be called upon to appoint from among their members in accordance with the procedure laid down by each Member State. National parliaments thus supplied the Assembly’s membership. In this way, a link was established between them and the Community institutions.

Article 21 of the earlier European Coal and Steel Community Treaty of 1951 had envisaged the breaking of this umbilical cord to national parliaments, providing that

the Assembly shall be composed of delegates whom the parliaments of each of the member States shall be called upon to designate once a year from among their own membership, or who shall be elected by direct universal suffrage, according to the procedure determined by each respective High Contracting Party.

The anticipated break occurred in 1979, with the first direct elections to the European Parliament, providing an incentive to find an alternative role for national parliaments. The 1979 elections were a pivotal moment in the Communities’ democratisation process. As Jančić has observed,

the structural linkage with [national parliaments] was severed and two separate channels of parliamentary representation were born: one operating directly at the Community level through the EP and one indirectly at the national level through [national parliaments]. Their mutual relationship has formally developed as one of amity, while informally the EP and [national parliaments] have gone through numerous patches of rivalry and institutional jealousy.¹⁹

Four other provisions of the original EEC Treaty seemed to envisage a role for national parliaments, although not in so many words. Article 236 of the EEC Treaty envisaged that future Treaty amendments should enter into force only after being ratified by all Member States in accordance with their respective constitutional rules. Such rules would, of course, normally involve national parliamentary intervention.

Article 237 provided that agreements between the existing member states and applicant states, governing conditions of admission of the latter to the Community,²⁰ had to be submitted to all the contracting States for ratification in accordance with their respective constitutional rules, and Article 201 provided for the Council laying down so-called own resources provisions for the Community whose adoption it shall recommend to the Member States in accordance with their respective constitutional rules. Again, both processes would normally be expected to involve a role for national parliaments.

Finally, the provision of Article 146 that the Council should be composed of representatives of the Member States and that each Government shall delegate to it one of its members seemed to anticipate some role for national parliaments, given that governments are normally accountable to their national parliament.

In sum: of the five cases cited above, only in one was the role of national parliamentarians made explicit – the composition of the Assembly stipulated by Article 138(1) – and this, in itself, was a role subsequently to be lost following the onset of direct elections in 1979. Of the other – implicit – roles,²¹ three did not impinge in any way on the daily activities of what is now the Union.²² The remaining role of holding national ministers accountable was at the discretion of the member states and, in most member states, insofar as concerned European-level activities, its exercise remained for many years in the realms of legal fiction. In effect, national parliamentarians were offered no more than opportunity structures to obtain access to institutions such as Parliament and Council²³ – and no guarantee existed that these would be exploited with any great effectiveness.

From Maastricht to Nice: the evolution of the legal position of national parliaments

Treaty changes were slow to arrive. A generalised desire to involve national parliaments more actively in European affairs seemed to take root in the late 1980s. Concerns were beginning to be expressed about a possible democratic deficit, and the reduced scope for national parliamentary power because of the involvement of national executives at EU level.²⁴ Some studies, reports and proposals emerged from the European Parliament at around this time, indicating a desire to bring national parliaments into the equation.²⁵ More prominently, 1989 saw the founding of an interparliamentary conference made up of parliamentarians specialising in European matters, later known as COSAC (which now stands for the Conference of Community and European Affairs Committees of Parliaments of the European Union). COSAC originally had no existence outside of its biannual meetings which would take place in whichever country held the Council Presidency and at which six members would represent each parliament (including the European Parliament). Since 2003, however, COSAC has had a small secretariat. It continues to operate to this day as a forum for the exchange of information and best practice rather than as a player in the policy-making process at European level.

A less enduring extra-Treaty development of this time were the so-called Assizes of Rome, held over four days in November 1990, in the Italian Chamber of Deputies. The Assizes drew together 173 parliamentarians from the member states, as well as 85 MEPs.

Such developments were significant and were built upon in subsequent Declarations, Protocols and even Treaty provisions.

Declaring the way ahead: the Treaty of Maastricht

The first recognition by an IGC of the need for an increased role for national parliaments came about with the 1992 Maastricht Treaty.²⁶ In a move proposed by the UK and France,²⁷ the IGC which adopted this Treaty also adopted (legally non-binding) Declaration (No. 13) on the Role of National Parliaments in the European Union and Declaration (No. 14) on the Conference of the Parliaments.

Declaration No. 13 asserted that

the Conference considers that it is important to encourage greater involvement of national Parliaments in the activities of the European Union.

To this end, the exchange of information between national Parliaments and the European Parliament should be stepped up. In this context, the governments of the Member States will ensure, inter alia, that national Parliaments receive Commission proposals for legislation in good time for information or possible examination.

Similarly, the Conference considers that it is important for contacts between the national Parliaments and the European Parliament to be stepped up, in particular through the granting of appropriate reciprocal facilities and regular meetings between members of Parliament interested in the same issues.

Lacking any legally binding force, the Declaration also promoted the idea of governments ensuring that national parliaments received legislative proposals in good time – without, however, suggesting either that there should be any sanctions for failure to do so or that any deadline apply. The result was that governments could decide if and when to inform national parliaments of proposals.

The statement in the Declaration that the Conference considered it important for contacts between national Parliaments and the European Parliament to be stepped up adverted implicitly to the fact that such contacts had already been taking place in the framework of COSAC since 1989.

Declaration No. 13 did have some political effects. An intensification of the debate on parliamentary involvement in European affairs did take place between national parliaments and the European Parliament in the wake of the adoption of the Declaration.²⁸ A very considerable increase in interparliamentary cooperation – demonstrated by an increase in meetings of various kinds – also came about in the mid-1990s.²⁹ Moreover, at domestic level, subsequent to Maastricht, improvements were effected in the information rights of most member states’ national parliaments.³⁰ However, such rights were generally restricted to the obtaining of ex post facto information, rather than the right to participate in important policy decisions.

The other relevant Declaration adopted at Maastricht was Declaration (No. 14) on the Conference of the Parliaments which provided that

The Conference invites the European Parliament and the national Parliaments to meet as necessary as a Conference of the Parliaments (or Assises).

The Conference of the Parliaments will be consulted on the main features of the European Union, without prejudice to the powers of the European Parliament and the rights of the national Parliaments. The President of the European Council and the President of the Commission will report to each session of the Conference of the Parliaments on the state of the Union.

This attempt to strengthen the collective role of the national parliaments on the European level³¹ proved unsuccessful and no such Conference was ever held.³² Although the November 1990 Assizes of Rome which had inspired this Declaration had successfully agreeing a declaration calling for Treaty reform, a feeling that the European Parliament had taken over the event led to several parliaments declining to repeat the experiment. A full decade later, in the 2001–03 Convention on the Future of Europe (which produced the draft Constitutional Treaty), even the support of Convention Chairman Valery Giscard d’Estaing for a revived Assizes with the modified name of a Congress of the Peoples of Europe proved insufficient to persuade the Convention to revive the idea.

The Maastricht Treaty’s ratification process had positive effects for national parliaments, with extra rights being conferred on them (in some cases by national constitutions).³³ The provision of supplementary information by governments (e.g., in the form of short commentary sheets) now became the norm in several member states.³⁴ The more critical public attitude to European integration, which emerged at this time probably also assisted in the long term in the process of parliamentary empowerment.³⁵

In the short term, however, many national parliaments’ rights, post-Maastricht, continued to be confined, for the most part, to the ex post facto acquisition of information without any acquisition of influence over the management of European policy by national executives. Nevertheless, something of an awakening seems to have occurred on the part of many national parliaments as to the need to convince their governments to improve matters.

Protocols and parliaments: the Treaty of Amsterdam

Less than three years after the entry into force of the Treaty of Maastricht, the member states signed the next major amending Treaty – the Amsterdam Treaty.³⁶ Negotiations leading to this accord once again addressed the role of national parliaments, focusing on (a) the creation of some form of European platform for the scrutiny role of national parliaments and (b) the question of interparliamentary cooperation.³⁷

The negotiations on the Amsterdam Treaty attracted more interest from member state parliaments and higher expectations.³⁸ Agreement resulted on an instrument which had binding legal force, unlike the Maastricht Declarations. The Final Act of the Amsterdam Treaty also adopted Protocol (No. 13) on the Role of National Parliaments in the European Union. (Protocols have exactly the same legal force as Treaty provisions.)³⁹

The Protocol⁴⁰ [contained], on the one hand, rules to facilitate the indirect participation of national parliaments in Community affairs, articulating mechanisms of information for them. On the other hand, it [confirmed] COSAC as a mechanism for their direct or collective participation.⁴¹ It was divided into two Titles, one relating to information which national parliaments were to be provided with, the other pertaining to COSAC.⁴²

Title I (styled Information for National Parliaments of Member States) provided:

1. All Commission consultation documents (green and white papers and communications) shall be promptly forwarded to national parliaments of the Member States.

2. Commission proposals for legislation as defined by the Council in accordance with Article 151(3) of the Treaty establishing the European Community, shall be made available in good time so that the government of each Member State may ensure that its own national parliament receives them as appropriate.

3. A six-week period shall elapse between a legislative proposal or a proposal for a measure to be adopted under Title VI of the Treaty on European Union 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 either for the adoption of an act or for adoption of a common position pursuant to Article 189b or 189c of the Treaty establishing the European Community, subject to exceptions on grounds of urgency, the reasons for which shall be stated in the act or common position.

These provisions were inherently limited. First, their focus on indirect participation by national parliaments at European level impliedly accepted that there should be no direct role for national parliaments. Secondly, Title I merely facilitated rather than required even an indirect role, doing this via information transmission obligations and the requirement of delays before legislative proposals could be placed on the Council agenda, rather than compelling governments to engage in meaningful discussions with their parliaments. Thirdly, the Protocol wording⁴³ carefully avoided imposing an obligation on member state governments (or anyone else, for that matter) even to carry out the most basic task of transmitting proposals to national parliaments. Fourthly, the Protocol’s conception of the range of legislative proposals which had to be made available in good time so as to facilitate their transmission was narrow. It