European Union Subsidiarity Assessment: Electoral Law of the EU (EUC Report)

Baroness Kennedy of Shaws Excerpts

Thursday 4th February 2016 Lords Chamber

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[Baroness Kennedy of The Shaws]

That this House takes note of the Report from the European Union Committee on the European Parliament Proposal for a Council decision adopting the provisions amending the Act concerning the election of the members of the European Parliament by direct universal suffrage (7th Report, HL Paper 87).

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I shall speak to both the Motions in my name on the Order Paper. Before I begin, may I place on the record my thanks, and that of my committee, for the work of the incredible staff who serve the committee—particularly Tim Mitchell, a truly talented lawyer, who drafted this report?

In 2009 the treaty of Lisbon introduced new procedures that gave national parliaments the responsibility of policing the application to European Union legislative proposals of the EU’s principle of subsidiarity. It is a responsibility that I, and my colleagues on the EU Select Committee and its six sub-committees, take very seriously. The draft report that forms the basis of this debate was produced by the European Union Justice Sub-Committee, which I chair, and subsequently approved by the European Union Select Committee.

The report recommends that the House should submit to the European Union institutions, under Protocol 2 of the EU treaties, a reasoned opinion stating that it considers that the European Parliament’s proposal for reforming the EU’s electoral law does not comply with the principle of subsidiarity. This is a rather timely matter, coming just after the recent debate.

This is the eighth time since 2009 that the European Union Select Committee has recommended this course of action to the House. Unusually, though, this is the first time that the committee has recommended that a subsidiarity reasoned opinion be issued against a legislative proposal brought forward by the European Parliament. That has never been done before.

As the report explains,

“The principle of subsidiarity provides that, in policy areas which do not fall within the exclusive competence of the European Union, but where competence is shared with Member States, the Union can act”—

the following words are a quotation from Article 5 of the Treaty on European Union—

“‘only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States’”.

That, of course, is the principle of subsidiarity. In this way, in order to comply with the principle of subsidiarity, European Union action must be both necessary and add value, as compared to action at the member state level.

The European Parliament agreed this particular significant legislative proposal on electoral reform on 11 November, and sent it to the UK Parliament on 11 December. The intention behind the proposal is to reform the European Parliament’s electoral procedures before the 2019 elections. To this end, the European Parliament has proposed a number of new rules and a range of amendments to the existing EU legislation governing elections to the European Parliament. Somewhat surprisingly, given the power in the treaty under which the proposal has been brought forward, it also includes provisions seeking to clarify the Parliament’s role in appointing the President of the European Commission.

The proposed legislation has been brought forward by the European Parliament under a specific legal basis in the EU treaties calling on it to do so. In late November, as required by the treaties, the European Parliament sent its proposal to the Council. The member states must now agree to the proposal unanimously. Therefore, national vetoes will apply. Key aspects of the proposal are summarised briefly in paragraphs five and six of the report.

In addition to the committee’s two substantive subsidiarity concerns, to which I will turn in a moment, a number of important procedural requirements have not been followed by the European Parliament. These include a requirement to communicate legislative proposals to all national parliaments. This, in turn, sets the timetable for the issuing of reasoned opinions by national parliaments. But it appears that the Dutch Tweede Kammer, the House of Representatives in the bicameral Dutch Parliament, has only very recently received notification of this proposal—indeed, in the last few weeks. Therefore, the application of the usual eight-week window within which national parliaments can issue reasoned opinions is unclear. Does it date from then or back to the date when we, the UK Parliament, received it? Nevertheless, in the interests of issuing a reasoned opinion in the time, we are proceeding on the basis that the deadline expires tomorrow—5 February.

In addition, the European Parliament has failed to accompany its proposed legislation with a,

“detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality”.

That detailed statement is a requirement by the subsidiarity protocol to the treaties. To our mind, that is a significant omission and makes it very difficult for individual national parliaments to undertake their treaty-imposed obligation to assess the compliance of EU legislative proposals with subsidiarity. I say that as someone who is supportive of the European Union, but it really does fail to live by the standards it has set itself. The absence of a detailed statement should be a matter of real concern to this House.

The assumption underpinning the principle of subsidiarity is that decisions to legislate should be taken as closely as possible to the European Union citizen. The report notes:

“Any departure from this presumption should, therefore, be justified with sufficient detail and clarity so that EU citizens, and their representatives in national parliaments, can understand the”,

reasons for EU action. The Parliament’s failure in this instance makes any assessment virtually impossible. That was the view taken by my committee and endorsed by the full EU Select Committee of this House.

The report argues in paragraphs 12 to 15 that,

“this omission constitutes a clear failure to comply with the essential procedural requirements in the Subsidiarity Protocol”.

The report notes that such a procedural failure is also,

“a ground for judicial review under EU law”.

The report addresses, further to these procedural matters, two aspects of the proposal that my sub-committee believes are difficult to justify in subsidiarity terms—a difficulty exacerbated by the Parliament’s procedural failures. The proposed rules governing the selection of candidates for election to the European Parliament, in particular the imposition of a gender balance requirement, have caused us some reflection. I should make it clear that most of us are wholly supportive of gender balance and want to see that come into being, but this is not the power in the treaty with which to do it. In our view, it really should not be done at the European Union level but by member states in a way that is appropriate for the different nations.

The other matter of concern is the proposed expansion of the existing right to vote in European elections for all EU citizens resident in the EU, to encompass all EU citizens regardless of where they live—in or outside the EU. This seems to be creating an unlimited right to vote in the European Union for citizens, wherever they live in the world, for ever. As we know, European Union citizens who are nationals of a member state are usually confined to a 15-year limit when living abroad to exercise the right to vote. We feel that that incredible extension should be taken at the national level.

The report argues that the European Parliament’s failure to produce the requisite detailed subsidiarity statement, taken in conjunction with the two provisions I have just mentioned, justifies this House’s conclusion that the proposal does not comply with the principle of subsidiarity. Once the preliminary issue of subsidiarity has been concluded, my sub-committee will soon begin its formal scrutiny of this proposal.

[Lord Garel-Jones (Con)]

What is the opinion of the noble Baroness—I am not sure of this myself, which is why I am asking the question—on the process of renegotiation the Prime Minister is currently involved in, whereby what is now called the yellow card would be substituted by a red card? Would it mean that national parliaments could block this proposal if they deemed it the right thing to do?

[Baroness Kennedy of The Shaws]

The situation is difficult to imagine. What should be happening here is very clear: a statement should normally be made explaining the justification, but subsidiarity is the primary principle that should be applied. Our concern was that not only was there a failure in terms of the normal proprieties, but that some of the proposals did not fit with subsidiarity at all in any event. We have not moved on to the second stage, but for the moment, I would rather leave the question of whether introducing a red card would somehow mean that one would be able to prevent it automatically. I am sure that my advisers would have an answer to that. We feel that this is precisely the kind of failure that gives the European Union a bad name. We are calling them on it, because if anything upsets citizens in the member states, it is the failure of the Union itself—here, it is the Parliament—to live by its own rules. Really, it is about conforming to the rulebook and that is the reason for this Motion today.

Once the preliminary issue of subsidiarity has been concluded, we will scrutinise the proposals in the normal way. But we are really concerned about the EU’s failure to live up to the standards it has set itself. That is the sort of thing that discredits the Union and causes alarm to many people within the United Kingdom just now—and I say that as someone who is a great supporter of the European Union.

I commend this report to the House and I beg to move.

--- Later in debate ---

[The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)]

My Lords, the noble Lord, Lord Cashman, did not ramble at all. He was very eloquent. I thank the European Union Committee for its report and, much more importantly, for its work in the round. The list of your Lordships who devote time and energy to its work is long, but I thank them all, in particular my noble friend Lord Boswell and the noble Baroness, Lady Kennedy of The Shaws. This committee is a shining example of this House at its very best, picking to pieces legislation and exorcising the devil from the detail.

Before turning to the specific details of this issue, I shall put it in context—context of critical importance. Over the weekend, I reminded myself of public opinion of the European Parliament, since this seems to be the nub of the issue that the proposals are trying to address. The European Parliament is, according to the Parliament itself, suffering from a problem: declining participation rates in its elections. In the early 1980s, voter turnout was over 65%; in the last elections, it had fallen to beneath 42%.

It is worth noting, too, what voters think of the Parliament. Over the weekend I spent a few hours looking in the bowels of the European Parliament’s website. According to its November Eurobarometer survey, while seven out of 10 voters think that it plays an important role in running the EU, just one in four voters has a positive view of the Parliament. Those who do not trust the European Parliament outnumber those who trust it. The main reason given for not trusting the European Parliament is that it is,

“too far away from ordinary citizens”,

as the noble Lord, Lord Judd, said. I say this without any glee or satisfaction, but this is the worrying backdrop to the proposals for the reform of European law that the Parliament has itself proposed.

As has been said, these are proposals from some of those in the European Parliament. They believe that this voter apathy and mistrust can be tackled in part by changing how the elections themselves are conducted. They are perfectly entitled to their views and I do not wish to impugn their motives. It is always worth considering whether voter engagement might be improved by changing electoral processes. However, I question, gently, as did the noble Lord, Lord Judd, whether this should be the priority of the European Parliament now, with all the other enormous problems that we are facing.

Consider what voters across Europe have told the European Commission are their priorities. According to polls conducted for the Commission itself last year, immigration, the state of the economy and unemployment are voters’ top three priorities. A relentless focus on identifying credible solutions to these problems in a way that respects national sovereignty is the way to increase public engagement and trust in the European Union.

This brings me to the proposals themselves. As I was reading them, the wise words of the Dutch Government,

“European where necessary, national where possible”,

were ringing in my ears. It is not necessary for Europe to micromanage the system for European elections, whereas it is both possible and desirable for national governments to do so. Unsurprisingly therefore, the Government do not agree with these proposals as they stand. For example, there is no public support for details of European political parties to appear on ballot papers, or for harmonised quotas of women candidates at European elections. Such provisions on electoral law should be a matter for national parliaments and individual political parties.

The Government therefore share the concern of the committee that the proposals do not comply with the principles of subsidiarity and that the issues that they are designed to address should be decided at a national level and not at European level. As the members of the committee have pointed out, there are concerns with the level at which the action is proposed, concerns on whether the measures suggested are proportionate to the issues being addressed and concerns as to their added value.

I shall focus briefly on two particular proposals that the committee has highlighted. The European Parliament has proposed that the lists that the political parties put forward at European elections should ensure gender equality. Like the noble Baroness, Lady Kennedy, the Government believe that democratic institutions make the best decisions when they have a mix of people with different skills, backgrounds and experiences from across the country. We must ensure that women are better represented across all walks of life. The proportion of women in the British MEP group and that among MPs at Westminster have risen steadily over the years and I hope and expect that they will keep rising in the future. The Government do not, however, consider that it would be right to mandate a legal quota in order to effect change. Nor would it be right to install a one-size-fits-all solution for all countries and all political parties within them.

It is also proposed that EU citizens, including those living or working in a third country, should be able to vote in European elections. Of course, UK law already provides that British citizens living abroad—whether in another member state or otherwise—may register to vote in European elections in the UK for a maximum of 15 years after they were last registered to vote in the UK. The same time limit applies to voting in UK parliamentary elections. The Government are committed to scrapping the rule that bars British citizens who have lived abroad for more than 15 years from voting and will introduce stand-alone legislation to deliver this as a permanent change in due course. However, the Government share the committee’s concern that this sort of issue should be decided at a national level.

I shall also comment briefly on the European Parliament’s proposed changes to the way that the President of the European Commission is selected—the so-called Spitzenkandidaten process. The position of President of the European Commission is obviously important, so changes in this area need to be forensically scrutinised. If there are to be changes to the way the President of the Commission is selected, these changes must be seen as wanted and necessary by all member states. Consensus among member states is absolutely vital. The Government remain of the view that selection of the Commission President should remain a European Council decision and based in current EU law. The European Parliament has the right to draw up proposals under Article 223(1) of the Treaty on the Functioning of the European Union regarding the election of its members and it is within its rights to propose measures relating to that. However, it is the scope of these measures, both individually and as a whole, that is problematic where they breach subsidiarity.

Finally, there is the issue of the veto. All member states would need to approve the proposals in order for them to take effect. Perhaps anticipating some nations’ opposition to these proposals and their tenor, draft Article 14 proposes to remove the veto for these matters. This, too, is unacceptable, as it would be wholly inappropriate for issues such as these to be decided by QMV.

Therefore, the Government wholeheartedly share the committee’s concerns on subsidiarity, both in terms of the content of the proposal and as regards procedural aspects. An important part of ensuring compliance with subsidiarity is the requirement for EU institutions to provide a robust assessment and justification for why an objective can be better achieved at EU level. As the committee has highlighted in its report, the case has not been made.

It is worth noting that the UK Government are not alone in having reservations regarding these proposals. During early discussions, other member states have expressed concerns on these proposals. Some 16 chambers from 10 member states have signed a letter to the European Parliament expressing their concerns on procedure regarding national parliaments. Similarly, a number of parliaments are considering issuing reasoned opinions on these measures.

All too often, the EU has exercised power in areas where decision-making could and should be done at a national, regional or local government level without interfering with the operation of the single market or the effective functioning of the EU. The EU must respect the layers of government that are closest and most accountable to European citizens, and national parliaments have a key role to play in ensuring that happens.

In conclusion, politicians across Europe wish to increase political engagement and trust in politics. This Government believe that the way to do this is by strengthening the role of this Parliament and of all national parliaments. Europe should focus on advancing our prosperity and security—the issues that citizens care about. For these reasons, the Government cannot and will not support the draft proposals that the committee has so expertly scrutinised.

[Baroness Kennedy of The Shaws]

My Lords, I thank all my noble friends for their participation in this debate. We have learned a lot about the importance of dialogue, which is the message that comes through from the Motion.

My noble friend Lord Davies mentioned to me last night that he would be opposing the second Motion. We did not have any discussions about it, because I was speaking to amendments to the Immigration Bill and it was not a time when I could enter into a discussion with him. However, I hope that, having been absent from the discussion in the Select Committee, he has been persuaded after having had the benefit of hearing the good reasons why we reached the conclusion that there should be a reasoned opinion and why the report was created in the way that it was.

As the noble Lord, Lord Boswell, said, this is not about being antagonistic towards the European Parliament but about pointing out why procedure matters. It is very important for the relationship between member states and the Parliament in the European Union. These ways of working are important and it is how you inspire trust. I hope that the House will support the Motion and that my noble friend Lord Davies will, too.

Motion agreed.