Written Evidence – Lord Kinnoull (DYN00072)
Dear Jock,
Thank you for inviting me to the Committee evidence session on the 9th of June.
I'm writing to you in order to set out a bit more clearly my thoughts on the "mechanism of constraint" for Parliament. This is a mechanism that would apply to new pieces of EU law that the Government was seeking to bring into UK law under the principles of dynamic alignment but that either House of Parliament was unhappy about.
Where Norway is unhappy about particular dynamic alignment arrangements the dispute resolution mechanism involves the EFT A Court. Where the Switzerland processes do not agree particular instruments, the dispute resolution mechanism is not set out but presumably is dealt with in the Joint Committee structure.
Turning to the UK, we discussed in the evidence session the unsatisfactory nature of CRAG. CRAG was born as it was in an era when the European Parliament had power over treaties and thus UK citizens·arguably had a parliamentary representative who could object to a treaty. On leaving the EU this position changed, and I commented on the weakness of our secondary legislation scrutiny arrangements in general.
I also referred to the Reasoned Opinion Procedure which allowed National Parliaments to challenge the European Commission on legislative proposals. This procedure is generally well regarded and an EU Committee description is described in Appendix I of this letter.
It would seem to me that the mechanism of constraint that would be fair and reasonable in all the circumstances would be built out of this procedure. Where either House of Parliament, acting through its EU scrutiny committee, was unhappy with a new legislative proposal this procedure could be engaged leading to the requirement for the government to produce a justification document and for there to be a debate on the floors of both Houses. See an outline in Appendix 2 of this letter.
I think however that in line with the (unsatisfactory) position that we have with CRAG, the Orange card would be unlikely to succeed as presumably the Government can win a Commons vote.
In any event none of this would prevent a subsequent parliament from repealing legislation, which presumably would mean that the issue had to be discussed through the Joint Committee arrangements and enter the dispute resolution mechanism.
I hope this thinking of is of some help.
Yours sincerely
Lord Kinnoull DL
The Convenor of Crossbench Peers
Appendix 1
“Sometimes known as the 'Yellow Card' procedure, though there is no mention of coloured cards in the EU Treaties.
· Draft legislative acts are transmitted by the Commission to national parliaments.
· Within eight weeks, each national parliament, or chamber, may issue a "reasoned opinion" "stating why it considers that the draft in question does not comply with the principle of subsidiarity" (Article 6, Protocol 2).
· Definition of subsidiarity principle: "the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level" (Treaty on European Union (TEU) Article 5).
· A reasoned opinion from one of the 15 unicameral Parliaments counts as two votes; a reasoned opinion from a chamber in one of the 13 bicameral Parliaments counts as a single vote. There are 56 votes available in total.
· If reasoned opinions are submitted comprising more than one third of the total votes (a Yellow Card), the Commission must review the proposal and "may decide to maintain, amend or withdraw" it. "Reasons must be given for this decision" (Article 7(2), Protocol 2). For legislative proposals concerning police co-operation or criminal justice, the threshold is one quarter of votes, not one third.
· If reasoned opinions comprising over half of the total votes are submitted (an Orange Card), the Commission must review the proposal and, if it nonetheless wishes to proceed, justify why it considers that the proposal complies with the principle of subsidiarity (Article 7(3), Protocol 2). If the Commission does proceed, a majority vote in the European Parliament, or a vote of 55% of the Member States in the European Council, will block the proposal.
· These procedures do not apply in areas where the Union has exclusive competence (customs union; competition rules necessary for the internal market; monetary policy; conservation of marine resources under the Common Fisheries Policy; common commercial policy).
· The procedures do apply to any legislative initiatives from institutions other than the Commission: groups of Member States, the European Parliament, the European Central Bank and the European Investment Bank.
· The Protocol also provides that a national parliament may bring a case before the EU Court of Justice, arguing that an adopted legislative act does not comply with the principle of subsidiarity. This is known as the Red Card procedure.
Source: Articles 5 and 12, TEU; Protocols 1 and 2 to the EU Treaties”
Source “The Role of the National Parliaments in the European Union European Union Committee - Ninth Report March 2014.
Appendix 2
“The UK 'Yellow Card' procedure
· Draft legislative acts are transmitted by the Commission to both Houses of Parliament via their EU Scrutiny Committees.
· Within [eight] weeks, either chamber may issue a "reasoned opinion" "stating why it considers that the draft in question does not comply with the principle of “[being in the national interest]”.”
· Definition of the principle: "[Keir Starmer dicta saying that dynamic alignment had to be in the national interest].”
· If a sole reasoned opinion is submitted (a Yellow Card), the Government must review the proposal and may decide to maintain, amend or withdraw it. The Government must give reasons for this decision. [Debate on the floor of the House concerned]
· If a joint reasoned opinion comprising both Houses is submitted (an Orange Card), the Government must review the proposal and, if it nonetheless wishes to proceed, justify why it considers that the proposal complies with the principle. If the Government does proceed, a majority vote in both Houses of Parliament will block the proposal.
· The procedures do not apply to any legislative initiatives from organisations other than the EU.
Received 17 June 2026