EU: Subsidiarity Scrutiny

Lord Wallace of Saltaire Excerpts

Tuesday 5th March 2013 Lords Chamber

[Lord Kakkar]

To ask Her Majesty’s Government what assessment they have made of the working of the European Union subsidiarity test procedure under the Lisbon treaty in view of the two recent reasoned opinions submitted by this House to the European Union institutions.

[Lord Wallace of Saltaire]

My Lords, the power of national Parliaments to issue a reasoned opinion that an EU proposal does not uphold subsidiarity has been exercised many times since 2010, including five times by your Lordships’ House. Only once, on the Monti II proposals on the right to collective action across borders, have enough Parliaments done so to trigger what is called a yellow card. However, the views of national Parliaments have been influential on a wide range of issues and the continuing use of this procedure should give them an increasing role.

[Lord Kakkar]

My Lords, I declare my interest as a member of your Lordships’ European Union Committee, Sub-Committee B. Under the current test procedure, this Parliament can only challenge the Commission on the basis of subsidiarity, as the Minister has said, if at least eight other Parliaments also raise concerns. What obligations does the Lisbon treaty place on national Parliaments to participate actively in the scrutiny of directives, because without such scrutiny and participation, the subsidiarity test cannot possibly work? Under what circumstances would the Government consider using the red card in the test procedure, to seek judicial review by the European Court of Justice, where this Parliament, through its scrutiny, has raised substantial concerns about subsidiarity and where other Parliaments may not have participated in the process?

[Lord Wallace of Saltaire]

My Lords, in the nature of events, red cards are to be used in an emergency situation, not as part of the normal procedure. Perhaps it would help the House if I point out that last year, the Swedish Parliament issued 20 reasoned opinions; the Luxembourg Chamber of Deputies issued seven in 2011 and a larger number in 2012; the French Senate issued seven last year; and the House of Lords issued five. It is not the case that we are the only Parliament to be active in this regard.

[Lord Elton]

My Lords, under what circumstances would my noble friend consider that Her Majesty's Government should exercise themselves through the diplomatic network to engage the interest of other Parliaments in matters that concern us and appear not to have reached their attention?

[Lord Wallace of Saltaire]

My Lords, Her Majesty's Government do operate a diplomatic network in precisely that area. I hope that scrutiny committees through COSAC—the Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union—also now operate actively in this regard. I am told that it has become a much more effective body since I used to attend COSAC meetings many years ago when I was the chairman of a sub-committee. There is now a set of offices in Brussels of national Parliaments which provides a network where national scrutiny committees can get together. I hope that the Lisbon treaty arrangements will allow that network to become more and more active.

[Lord Pearson of Rannoch]

My Lords, remembering that for the past 33 years all British Governments have promised not to allow enactment of proposed EU legislation which is still being scrutinised by our Select Committees here and in the other place, will the Minister confirm Written Answers which reveal that this scrutiny reserve was broken no fewer than 403 times between January 2010 and June 2012? Does that not make 403 pieces of EU legislation that Parliament has not agreed but which have been steamrollered through by the juggernaut anyway?

[Lord Wallace of Saltaire]

My Lords, the noble Lord uses his characteristically robust and colourful language. There is always a tension between the time that national Parliaments wish to take for scrutiny and the pressures that national Governments, including our own, may wish to give to taking decisions. There are those in national Parliaments who regard the eight-week limit for taking a scrutiny decision as unfortunate, but I am informed by those who know the Brussels situation better than I do that the earlier national Parliaments submit reasoned opinions in the process of negotiation, the greater effect they have.

Reasoned opinions in the form of reports issued by the European Committee of this House are widely respected throughout the European Union in other national Parliaments and elsewhere. I recall with delight a Member of the European Parliament being appointed to head a committee in the European Parliament. He was asked by his clerk to start by reading three documents, two of which were reports from the House of Lords EU Committee.

[Lord Hannay of Chiswick]

My Lords, would the Minister not agree that in the short period of time that the yellow-card system has existed, the main lesson to draw is that we have to get better at enlisting other national Parliaments when we use the yellow card because that is the shortfall? Will he confirm that on the one occasion when it was used, the Commission withdrew its proposal—the Monti II proposal? Will he also confirm that the right to take action in the Court is one for this House, not the Government under the Lisbon treaty?

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[Lord Wallace of Saltaire]

I can confirm all of those matters. On the Monti II proposals, some of the reasoned opinions submitted by national Parliaments were much more about the principle of the proposal rather than the subsidiarity issue. Her Majesty's Government did not suggest that we should submit a reasoned opinion on subsidiarity issues because they objected to the principle of the proposal.

[Lord Spicer]

My Lords, is not one of the ironies of subsidiarity that it requires greater centralisation to determine with whom the subsidiarity should remain?

[Lord Wallace of Saltaire]

I am not entirely sure that I follow the logic of that. We are in an increasingly globalised economy. That economy requires increasing international regulation of one sort or another. We are in a constant situation of tension between international regulators—not just the European Union but many other international bodies as well—wishing to extend the process of regulation and national Governments, national Parliaments, local groups and other lobbies wishing to resist it.

[Lord Wigley]

My Lords—

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[Baroness Falkner of Margravine]

My Lords, does my noble friend agree with the European Union Scrutiny Committee when it took evidence from Professor Dashwood who, in respect of arguing before the European Court of Justice, said that,

“the subsidiarity principle was most useful in the state of law-making rather than at adjudication, at which point it was ‘largely inoperable’”?

In other words, as the noble Lord, Lord Hannay of Chiswick, has said, we need to build alliances in good time rather than wait to go to court.

[Lord Wallace of Saltaire]

My Lords, the principle of subsidiarity is in many ways a difficult concept to get hold of, and of course it is highly political. There are those here who think that a number of things should be dealt with in Wales and Scotland and not at the national level, while I wish that the principle of subsidiarity was better applied in England than it is at present. This is part of the way we play politics between different levels of government.

[Lord Wigley]

My Lords, can the Minister clarify how this procedure works in practice, bearing in mind the comments made by the noble Lord with regard to the power being with the Chambers and not with the Government themselves? As the UK has two votes on the basis of being a bicameral system, one of which is allocated to this Chamber, what would be the outcome if there was a difference of opinion between the House of Commons and this Chamber? Would we have to defer to the House of Commons as it is the elected Chamber?

[Lord Wallace of Saltaire]

My Lords, no, we would not. It would be interesting if, for example, the House of Lords decided on one side while the House of Commons decided on the other. I think it is unlikely, but I should say that there have been occasions on which some national Parliaments have issued reasoned opinions objecting to particular proposals while one or two others have issued opinions that are strongly supportive.