European Scrutiny Committee Press Notice No 3, Session 2007-08

27 November 2007


European Scrutiny Committee calls for Debate in the Commons before the EU Reform Treaty is signed

With two weeks to go before the signing of the European Reform Treaty, the European Scrutiny Committee is publishing a second, follow-up report on the European Union Intergovernmental Conference. This new report concentrates on the Intergovernmental Conference process, the imposition by the Reform Treaty of legal obligations on national parliaments and the durability of the Government’s ‘red-lines’.

In this new report, which follows the Committee's Evidence Session with the Foreign Secretary and the October informal meeting of the European Council, the Committee repeats its earlier criticism that the Intergovernmental Conference process could not have been better designed to marginalise the role of national parliaments and to curtail public debate. The Committee remains concerned that the Reform Treaty may have imposed legal obligations directly on national parliaments in respect of their proceedings, and doubts that the Protocol on the Charter of Fundamental Rights will prevent the courts of the UK from being bound by judgments of the European Court interpreting and applying the Charter.

Chairman of the Committee, Michael Connarty says, "Although the Government has secured the right to ‘opt-in’ in respect of justice and home affairs (JHA) matters it is clear that if the government opt in on any measure ultimate jurisdiction will transfer from the UK courts. There are also new and unquantifiable risks which may be incurred by future decisions by the UK not to opt in. These matters should be debated on the Floor of the House before the Treaty is signed."

Today’s report examines the evidence provided by the Government on the preparations for the IGC and on the Government’s four pre-conditions for agreement on the new treaty, known as the 'Red Lines’. The Committee focuses, in particular, on the impact of the Charter of Fundamental Rights which will be given legal force by the Treaty and on the ‘opt-in’ arrangements for justice and home affairs (JHA).

The Committee notes from the Government’s evidence that the Charter will be legally binding and that the UK’s Protocol is not an opt-out. The Committee further notes that nothing in the UK Protocol will excuse the UK from the obligation to comply with interpretations handed down by the European Court, even where these are based on the Charter. The Committee considers that the only way of ensuring that the Charter does not affect UK law in any way is to provide that the Protocol takes effect notwithstanding the Treaties or Union law generally. Such provision has been made in the past in relation to concerns by Ireland over the law on abortion and by Denmark over land ownership (see Protocol No 17 to the EU Treaty and  Protocol No 16 to the EC Treaty respectively) but this has not been done on this occasion. The Committee concludes that the Protocol does not provide a guarantee that the Charter can have no effect on UK law. 

The Committee draws attention to the consequences of transferring JHA matters to Title IV under the new Treaty. This will give the Commission power to bring infraction proceedings against Member States in respect of criminal justice measures and provide for the compulsory jurisdiction of the European Court, with the result that the Member States will lose the ability finally to determine their own law in areas covered by Union measures.

The Committee notes that there seems to be no right to opt out of negotiations on a JHA measure. Having once opted in. the UK would therefore be bound by the result of a measure adopted by QMV and co-decision, unless it can apply the ‘emergency brake’, but this is not available in all cases.

The Committee accepts that the Government sought to achieve firm control of the process covering the right to opt into new JHA measures and those amendments made under the new powers which amend or replace what has already been agreed at EU level. However, it does not understand why, unlike Denmark, the UK was not able to achieve a firmer position which would have allowed the UK to keep its existing EU measures (without being subject to the Commission’s enforcement powers or the compulsory jurisdiction of the European Court) in circumstances where it decides not to opt in to a new or amending measure. The Committee also questions whether these provisions on the opt in may lead to new and unpredictable consequences and  risks for the UK if it decides not to opt in.

The Committee notes that the Government’s ‘red-line’ was one to protect ‘the UK’s common law system and our police and judicial processes’. It is concerned that protection will be lost each time jurisdiction is conferred on the Commission and the European Court and calls for the arguments for and against opting into any particular JHA measure to be closely scrutinised by Parliament before any decision is made.

The Committee’s Chairman, Michael Connarty  MP, said: “Despite expressing our deep concerns that the government argue boldly for a form of words that would put the sovereignty of the UK Parliament beyond doubt, there is still ambiguity in the draft Treaty on whether a legal obligation is being imposed on Parliament in respect of its proceedings. This is not an area in which any ambiguity is tolerable, and we look to the Government to deliver on its undertaking. We also retain serious doubts about the effectiveness of the Protocol on the Charter, and conclude that despite the government strengthening control of the ‘opt - in’ arrangements, there will be a steady transfer of jurisdiction to the Commission and the European Court of Justice in the areas of Civil and Criminal Justice ”


1. Committee Membership is as follows: Michael Connarty MP (Chairman), Labour, Mr Adrian Bailey MP, Labour, Mr David S Borrow MP, Labour, Mr William Cash MP, Conservative, Mr James Clappison MP, Conservative, Ms Katy Clark MP, Labour, Jim Dobbin MP, Labour/Co-op, Mr Greg Hands MP, Conservative, Mr David Heathcoat-Amory MP, Conservative, Keith Hill MP, Labour, Kelvin Hopkins MP, Labour, Mr Lindsay Hoyle MP, Labour, Mr Bob Laxton MP, Labour, Angus Robertson MP, SNP, Mr Anthony Steen MP, Conservative, Richard Younger Ross MP, Lib Dem

2. Transcripts of the committee's oral evidence session can be found on the Committee website at:

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