Tag Archives: European Council

The invisibility of legal advice given to EU institutions

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Leino_Sandberg_P_ivi_2_photo_Linda_Tammisto.jpgWhenever a political institution seeks to rely on legal advice, there are often calls for that advice to be published, so it can be scrutinised. As has been discussed previously on the blog, there are pros and cons to placing material prepared in confidence into the public domain. Päivi Leino-Sandberg argues that in an EU context, such advice is often invisible, to the detriment of the decision-making process. 

Legal advice matters. It may not always decide the fate of nations, as Attorney General Geoffrey Cox’s advice on the Irish backstop may have done, but an astute follower of EU politics may recall times when proposals by the European Commission have hit a legal roadblock. A measure may have been found unconstitutional by the legal service of another EU Institution or a powerful Member State, bringing the political process to a halt. Typically, a flurry of fierce legal wrangling then ensues, during which the offending parts of the proposal are reviewed, removed or modified to reconcile divergent legal views. In most cases, the proposal will eventually re-emerge and is adopted in a revised form. Sometimes, it is quietly buried.

These are the battlegrounds of legal advisers working in the EU Institutions. Their opinions carry significant weight. The Commission Legal Service has enjoyed a de facto veto power over most Commission measures, even though this power has weakened during the Juncker Commission (2014-2019). The Council Legal Service is no less powerful. A Member State legal adviser explains how:

‘if you haven’t either managed to silence the Council Legal Service … or get them onside, forget about it. Because if they come out with something that’s contrary to where you are, they probably have a natural majority of fifteen Member States before you even start. And of the thirteen others, seven or eight will go with them anyway.’

But in spite of its importance, legal advice in the EU remains curiously invisible.

Two recent posts on this blog debated access to legal advice given to parliaments. In the first of these posts, Ben Yong, Greg Davies and Cristina Leston-Bandeira cautioned against publishing UK Parliament select committee legal advice. They concluded that publication of advice personalises and potentially politicises it, and threatens the relationship of trust and confidence between officials and parliamentarians. Publication might also create an exaggerated picture of the role of legal advice in political decision-making. In contrast, Gabrielle Appleby advocated for the publication of such advice to facilitate greater transparency about the influence of legal advice in parliamentary decision-making.

In the EU, legal advice given in the legislative context should, as a rule, be open to public scrutiny. However, it continues to be treated as confidential. I have been examining its use empirically in the Commission, the Council and the European Parliament. Each of these institutions has – in addition to legally trained officials in policy units – a dedicated Legal Service that plays a key role in its legislative work and defends it before the courts. It is these bodies that are tasked to assess the constitutionality of proposed action. They may advise against certain approaches and recommend in favour of others. Continue reading →

Negotiating after no deal

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kassim.jpg (1)Until now, much of the discussion concerning ‘no deal’ has been about how it might be avoided or how it will affect daily life. However, after a ‘no deal’ Brexit, the EU and UK would not simply go their separate ways. A trade deal will still have to be negotiated. Hussein Kassim shows that the procedures that would come into play are unlikely to favour the UK and sets out how leaving without a deal is likely to affect the negotiating environment.

Much of the discussion about ‘no deal’ has focused on the UK. It has detailed how Number 10 might force ‘no deal’ through, and speculated on the possibilities and prospects of parliament being able to prevent it. The preparedness of the UK, and the fallout on day-to-day life and commercial activity, have also been considered. Although these are obvious concerns, it is important not to overlook other consequences of leaving without a deal. ‘No deal’ will have an immediate impact on negotiations with the EU. Specifically, it will terminate the Article 50 process. While many Brexiteers have never been happy with Article 50, it is not at all clear that bringing it to an end will be to the UK’s advantage. Nor is it obvious, contrary to Foreign Secretary Dominic Raab’s suggestion on BBC Radio’s Today programme on 29 July, that leaving without a deal will strengthen the UK’s position in the negotiation of a future trade agreement. As well as the procedural issues that ‘no deal’ will entail, the relationship between the UK and the EU is unlikely to be improved.

Procedures and processes

The UK’s withdrawal is currently being negotiated under Article 50, which sets out a procedure created specifically for a member state that has decided to leave the EU. Such a state can, at a time of its choosing, open a two-year period of negotiations to settle outstanding liabilities and agree the shape of its future relationship with the EU. Any withdrawal agreement must have the support of a ‘qualified majority’ of the European Council and is subject to the approval of the European Parliament. It does not need to be ratified by national parliaments.

Article 50 is intended to provide for an orderly and minimally disruptive exit. The two-year period it imposes is intended to concentrate minds. But Article 50 also allows the deadline to be extended if requested by the departing member state and agreed unanimously by the other member states, as it has been twice. Moreover, Article 50 negotiations are a matter of high priority for the EU. The European Council, Council of the European Union, and the European Commission have devoted considerable resources to the process, which have been focused on the EU negotiator, Michel Barnier. They have worked closely together with each other and with the European Parliament. The European Council and the European Commission have also been concerned to ensure a continuous flow of communication between the EU institutions and the capitals of the EU27. It is not at all clear that the negotiations would have the same level of priority or resource under another arrangement. Continue reading →

What role will the UK’s MEPs play in the new European Parliament?

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simon.usherwood.staffOn 23 May, the UK participated in elections to the European Parliament. Now that we know who our MEPs are going to be, the question becomes: with the UK currently set to leave the EU on 31 October, what can they actually do? Simon Usherwood explains how the UK’s new MEPs can influence control of both the Parliament and the European Commission, and discusses the potential political consequences of exercising their legal authority.

In all of the hubbub around the European elections, the small matter of what the 73 individuals elected to serve as the UK’s Members of the European Parliament (MEPs) will actually do has been somewhat overlooked.

With that in mind, it’s useful to consider what MEPs do in both general terms and more specifically on Brexit, as well as the tension between political understandings and legal rights.

A quick refresher

The European Parliament’s role in the EU is to represent the popular will, in both making decisions and providing scrutiny of the work of the rest of the organisation. It does that on the basis of being composed of directly elected members and from the powers given to it by the treaties that underpin the EU as a whole.

This role comprises a number of different elements, each involving the 751 MEPs either as a whole or in representative sub-groupings.

The most substantial element is that of being co-legislator. Under the EU’s Ordinary Legislative Procedure – which covers most areas of EU decision-making, as the name implies – the Parliament has to agree with the Council of the EU – made up of ministers from the member states – on a piece of legislation in order for it to pass. The EP thus has not only a say, but also a veto, on most EU legislation including matters relating to the budget; and in the other cases it usually has at least some rights of consultation.

The second element is that of oversight. The Parliament’s various committees can summon officials and politicians from the other institutions of the EU to appear before them to answer questions about their conduct. Those committees can then produce reports that highlight issues and which can often force problems onto the agenda for action. In extremis, the Parliament has the power to seek the resignation of the entire Commission, the threat of which in 1999 brought about the early end of the Santer Commission. Continue reading →

Monitor 68: A constitution in flux

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The latest issue of Monitor, the Constitution Unit’s regular newsletter, was published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen the EU (Withdrawal) Bill pass from the Commons to the Lords; the failure of talks in Northern Ireland; and a significant government reshuffle. Abroad, Ireland is considering a permanent constitutional change and Japan has seen a constitutional first as its current emperor confirmed he is to abdicate. This post is the opening article from Monitor 68. The full edition can be found on our website. 

The UK is experiencing a period of deep constitutional uncertainty. In at least four key areas, structures of power and governance are in flux. Screenshot_20180308.210141 (1)

The first of these, of course, is the nature of the UK’s future relationship with the European Union, to which the Brexit negotiations will shortly turn. The degree to which the UK continues to pool its sovereignty with other European countries depends on the form of that relationship: how far, and on what issues, the UK continues to adhere to EU rules, align closely with them, or follow its own separate path. Theresa May set out her most detailed proposals yet in a speech at Mansion House on 2 March, advocating close alignment outside the structures of the EU Single Market and Customs Union. On 7 March, the President of the European Council, Donald Tusk, published draft guidelines for the EU’s position. As before, this emphasises ‘that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking.”’ What deal will emerge from the negotiations is entirely unclear.

The government’s preferred path will face stiff resistance in parliament too. In late February Jeremy Corbyn signalled that Labour wants a UK–EU customs union (an issue also central to the conclusions reached by the Citizens’ Assembly on Brexit). Consequently the government now risks defeat on an amendment to the Trade Bill pursuing the same objective, tabled by Conservative backbencher Anna Soubry. Beyond that, an amendment to the EU (Withdrawal) Bill passed in the House of Commons in December guarantees that the deal between the UK and the EU agreed through the Brexit negotiations will need to be endorsed by an Act of Parliament in the UK. Brexit’s opponents are increasingly vocal and organised, and occupy a strong position in Westminster. The odds remain that Brexit will happen, but that isn’t guaranteed. Continue reading →