Subsidiarity Assessment: Seasonal Workers (EUC Report)

Baroness Neville-Jones Excerpts

Wednesday 20th October 2010 Lords Chamber

[The Minister of State, Home Office (Baroness Neville-Jones)]

My Lords, along with the Benches opposite, I am grateful to the committee for its report and for the unusual degree of unanimity and agreement that has arisen in consideration of a matter concerning the European Union. As the noble Lord, Lord Roper, said, this is a first and our debate is about an important issue—the test of compliance of the draft directive with the principle of subsidiarity. Indeed, as he pointed out, the fact that something is desirable is not enough to meet the principle of subsidiarity; it has to be necessary.

I start by responding to the important points raised by my noble friend Lord Inglewood. The Government are a strong supporter of the Lisbon treaty arrangements for national parliaments to be given a direct say in the application of what we regard as the crucial principle of subsidiarity in EU lawmaking. That is defined in the treaty and the Government respect the right, irrespective of their own view, of the Houses to take their view on the European institutions to ensure that the Commission’s application of the principle remains within the bounds of the treaty. We believe that this constitutes an important step towards the democratic legitimacy of the European Union.

I was asked about the relationship between subsidiarity and the policy objective. When considering any directive, the Government’s policy is to assess as a matter of course the proposal on the grounds of subsidiarity irrespective of its substance. The Government carry out the subsidiarity test by checking whether, where the treaty allows for action by both the Union and member states, the objectives of the proposed action cannot be sufficiently achieved by member states by reason of the scale or the effects of the proposed action and so could be better achieved by the Union. That is the high test. Should the Government conclude that the action cannot be better achieved at the Union level, they would submit their views to the Commission. I hope that that makes it implicitly if not absolutely explicitly clear that the Government’s view is that subsidiarity takes precedence.

Before moving on to the specific issues raised by the committee, I should like to set out the Commission’s position on this directive. As a number of speakers have noticed, the Government have decided that the UK will not opt in to the measure. The UK’s immigration system does not currently provide for the admission of seasonal workers and our view is that our seasonal labour needs can be met from an expanded EU labour force. The seasonal agricultural workers scheme was closed to third-country nationals on 1 January 2007 by the previous Government and within the EU it is now open only to nationals of Bulgaria and Romania. We have no reason to suppose that that supply of labour will be inadequate. The Government have proposed setting a limit on the future volume of non-EU migrants allowed to enter the UK and are carrying out consultations on the options for implementing this policy.

Against that background, it would not have made sense for the UK to participate in an instrument that provides for common rules for the admission of third-country nationals for seasonal work, nor would it be sensible to lock ourselves into a directive that limits our freedom to decide what kind of controls we might want to apply to seasonal workers in the future.

The subsidiarity test is not always as straightforward as it seems, as it depends on an assessment of whether the proposal would have the results that it sets out to achieve. It is clear that in given instances it is possible for lawyers to disagree on these matters and for legal advice to be different, as implicitly noted in the contribution of the noble Lord, Lord Richard. The Commission’s view is that the need for seasonal workers is a “common occurrence” in most member states and that the terms on which one member state admitted such workers could distort migratory flows; it suggests that decisions by one member state could affect other member states. The committee argues that the need for seasonal workers may nevertheless differ between member states and that the treaty on the functioning of the EU recognises that volumes of admissions are for determination by each member state.

The Commission argues that the action is needed to reduce overstaying and illegal entry in an area without internal borders. The committee rejects this view on the basis that it does not see why having common rules would reduce this risk. The Commission’s proposals include provisions that would facilitate repeated re-entry as a seasonal worker on the basis that those admitted as seasonal workers would be less likely to overstay if they had some certainty that they would be able to re-enter after they left.

The Commission’s third argument is that exploitative working conditions need to be addressed by a,

“binding and thus enforceable EU-level agreement”.

The committee has objected that national measures may be equally binding and at least as effective. The test in this case, therefore, depends on whether we think that the intended result is better achieved through collective action.

Finally, the Commission suggests that the measure is crucial for effective co-operation with third countries. The Government share the committee’s assessment that this is unpersuasive given that nothing in the measures provides leverage for negotiation of wider agreements with specific third countries.

The Government take the view that the case for compliance with the subsidiarity principle is arguable, as noble Lords on the Benches opposite have noted, in respect of migratory flows and the risk of overstaying. However, the fact that there is a divergence between the applicability of compliance with this directive and the principle of subsidiarity does not detract from our belief that the view of the House on the European institutions and their duties should take precedence and should not be trumped by the Government’s view on compliance with given articles. The earnest of our view is that we give precedence to the committee’s view despite our differing opinion on the application of subsidiarity in relation to a couple of the clauses.

[Lord Hunt of Kings Heath]

I am sure that the House will be gratified to learn that the Government are not going to disagree with the Motion being put forward tonight, which is the implication of what the noble Baroness has said. Yet the fact is that the Minister clearly said, at least to the Commons scrutiny committee, that he believes the draft directive complies with subsidiarity. If that is the case on that particular aspect, to what extent does that create a precedent in relation to the Government’s approach to the EU’s clear wish to develop a comprehensive immigration policy? For instance, if the Government are unwilling to argue with the Commission on subsidiarity in relation to this order, does it go wider than that?

[Baroness Neville-Jones]

The noble Lord grossly overstates what I have just said, which was that in these two instances there was an arguable case. Every single proposition put forward by the Commission will be treated on its merits by the Government and, as I have indicated, it will certainly be subjected first and foremost to the test of subsidiarity. The general position of the Government is well known; we regard immigration as something which is in the purview of the United Kingdom.

[Lord Hunt of Kings Heath]

I am sorry to interrupt the noble Baroness again, but when she says it is arguable that that is the Government’s case, that is not what the Minister in the other place told the scrutiny committee. I have already read out what he said. He does not say it is arguable, but that he is satisfied that the draft directive complies with subsidiarity. I would have thought that that sets a precedent for other areas of immigration in which the Commission may wish to involve itself in future.

[Baroness Neville-Jones]

I am saying that we will treat each of these proposals as put forward by the Commission on its merits. I hope that it will be discouraged from putting forward further proposals by the reaction from member states. It does not follow that, because we have taken a view on a couple of these articles, we will take a wider view of the rights of the European Commission or the competence of the European Union in immigration policy.

I turn for a moment to the questions raised by the noble Lord, Lord Pearson of Rannoch. He asked what was likely to happen next. As a student of these matters, he will know quite as well as I do that if one-third of national parliaments object on subsidiarity grounds, the proposal is sent back to the Commission. That is the yellow card; if a majority of parliaments oppose a Commission proposal, it gets the orange card. I do not know how many cards there are on the table, but we certainly regard this process of showing the European Commission what position the national parliaments take as being an important part of the process—and well said that this is a direct intervention in the legislation process of the European Union.

The noble Lord’s other point was about financial supervision and the progress of what the Commission is doing. I am afraid I will have to write to him on that, as it is not something on which I have been briefed. I think it is something in the purview of the Treasury, but I undertake to write to him.

[Lord Pearson of Rannoch]

I think the noble Baroness rightly said that one-third of national parliaments would be necessary before the Commission had to think again. As I understand it, we have only five houses of parliament, so there is the difficulty of our being a long way from what is required to make the Commission think again, is there not? Riding over and above that, there is surely the question of the law. Assuming that the committee is right—I think that your Lordships are taking that view this evening—my question was: what hope is there that the law will prevail, or will the juggernaut carry on regardless, as usual?

[Baroness Neville-Jones]

I would hope, given that this is the first test for the European Commission, that it would take note of the reservations being expressed in a number of parliaments of the European Union, irrespective of whether there are enough for it to be obliged to take notice. There needs to be further discussion in the European Union. If we have one of those situations in which the formal requirement has not been fulfilled but nevertheless it is clear that there are reservations, this is a moment when the Commission should be given pause to think again about the direction in which it is trying to go. I cannot anticipate what the result of that debate might be, but I hope that there would be one.

I can say that, irrespective of what that discussion would lead to, the United Kingdom will not be bound by this directive. We have not opted in and we have no plans to consider so doing after adoption. In the rather unlikely event that there was some consideration of that possibility at a future date, there is no doubt that the Government would take full account of the committee’s view on subsidiarity at that time.

[Lord Stoddart of Swindon]

Will the Minister clear up one point? As I understand it, the Government are not going to oppose the Motion of the noble Lord, Lord Roper, today. Undoubtedly, the Motion will therefore be passed. But suppose that the Government did not agree with the amendment of the noble Lord, Lord Roper—then what? The Lisbon treaty refers to national parliaments, not national governments. Can we have an assurance that if the Government disagreed with a Motion coming from the European Select Committee, Parliament would be allowed to make the decision unwhipped?

[Baroness Neville-Jones]

My Lords, clearly I did not make myself clear enough; I hoped that I had dealt with this point in response to the noble Lord, Lord Inglewood. It follows from the Government’s position on the sovereignty of Parliament that Parliament’s view on subsidiarity would trump—would come ahead of—the view that we would take on substance. I hope that that is clear.