Subsidiarity and Proportionality

Jacob Rees-Mogg Excerpts

Monday 7th December 2015 General Committees

[The Chair]

Before we begin, it might be helpful if I remind Members of the procedure in European Committees. Proceedings must conclude no later than two and a half hours after we start. First, I shall call a member of the European Scrutiny Committee—I understand that it will be Mr Jacob Rees-Mogg—to make a brief statement about why the Committee decided to refer the documents for debate. Secondly, I shall call the Minister to make a statement, followed by questions for up to an hour, although I have some discretion to extend that period if there is appetite for it. Thirdly, the Committee will debate the Government motion. I will put the question on the motion when the debate or the time available—whichever comes first—is exhausted. Does a member of the European Scrutiny Committee wish to make a brief explanatory statement about the decision to refer the documents to the Committee?

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

May I say what a pleasure it is to serve under your chairmanship, Mrs Main? Although these two Commission annual reports are essentially factual documents, they were recommended for debate on the Floor of the House as their subject matter goes to the heart of the European Union debate: the democratic deficit of the EU. In the words of the Prime Minister in his Bloomberg speech of January 2013:

“It is national parliaments, which are, and will remain, the true source of real democratic legitimacy and accountability in the EU.”

It is notable that in the Prime Minister’s letter of 10 November to the President of the European Council, he also stated that he is seeking a new arrangement—a red card—

“where groups of national parliaments, acting together, can stop unwanted legislative proposals”

from the EU, and that he wants

“to see the EU’s commitments to subsidiarity fully implemented, with clear proposals to achieve that.”

The first report from the Commission sets out its assessment of how the EU institutions addressed compliance with the principles of subsidiarity and proportionality, including the operation of the formal reasoned opinion procedure whereby national Parliaments can raise objections to an EU proposal for legislation on the ground that it does not comply with the principle of subsidiarity and, if enough do so, they can force a reconsideration. The Commission concludes that the smaller number of reasoned opinions raised by national Parliaments

“must however be seen in the light of the decrease in the number of legislative proposals issued by the Commission towards the end of its term of office and not as an indication of diminishing interest of national Parliaments in subsidiarity matters. This conclusion is confirmed by the ongoing debate among national Parliaments concerning the subsidiarity control mechanism.”

It is noticeable that during 2014, 15 national Parliaments or Chambers issued 21 reasoned opinions covering 15 proposals. The highest number for any one proposal was three—well short of the lowest threshold for forcing a reconsideration of the proposal. This House issued three, proposing new measures concerning the presumption of innocence, animal cloning and undeclared work.

The second report sets out the Commission’s assessment of its relations with national Parliaments, focusing on informal political dialogue, rather than the formal reasoned opinion procedure. This vehicle can be used when it is not possible, because of the tight deadline, to issue a formal reasoned opinion. The Commission’s report records a drop in those informal opinions. In the analysis of key topics of dialogue, it identifies the discontent expressed by 10 Parliaments or Chambers, including this House, on the Commission’s reaction to the formal reasoned opinions against the proposal for a European public prosecutor’s office, in respect of which a yellow card was issued in 2013.

The report concludes by marking the commitment of the new Commission under President Juncker to forge a new partnership with national Parliaments, as evidenced by its early action in increasing visits and specifically inviting comments on its 2015 work programme. The European Scrutiny Committee originally called for the debate not just because of its analysis in these reports of relations between national Parliaments and the EU; as already indicated, they cover a subject that goes to the heart of the role of national Parliaments in the EU.

The European Scrutiny Committee’s report drew the House’s attention to the call, so far unanswered, of many national Parliaments and Chambers for the President of the EU Commission to set up a working group to look at the role of national Parliaments. It also welcomed the Commission’s efforts to improve its dialogue with national Parliaments, including its responses to reasoned opinions and the opportunity to improve parliamentary scrutiny arising from the early consultation promised by the Commission’s Better Regulation package.

Finally, the Committee’s report drew attention to the development of the informal green card procedure, whereby national Parliaments can suggest matters for which either new EU legislation should be brought forward, or existing legislation should be amended or even repealed.

[The Chair]

I call the Minister to make an opening statement. I remind the Committee that interventions are not allowed during the statement, although questions are allowed afterwards.

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[Mr Lidington]

I will try to respond as fully as I can within the constraints of time to the right hon. Member for Wolverhampton South East.

As the Prime Minister said in his letter, the level of a threshold to trigger a red card that would amount to a block on legislation would be a matter for the negotiation itself. I cannot pre-empt those detailed discussions, but we envisage that at a certain point what is currently a power for national Parliaments to require the Commission to review a particular initiative should become an outright bar to further progress.

As for the yellow card, to my mind a change that would be particularly welcome would be an extension of the timeframe allowed beyond the eight weeks permitted under current law. That would enable national Parliaments to consider proposals more closely and to co-ordinate with one another. I would also like to see such a change to the yellow card take into account the very creative proposal from the Dutch Parliament for what it termed a “late card”, so that in the event of a legislative measure changing significantly during its progress through the various institutions it would be possible for national Parliaments to come back and have another look at it, because at the moment that opportunity is forbidden to them regardless of how far-reaching any amendments might be.

Finally, the Government support the green card, but it is also an initiative that is actively being taken forward by national Parliaments at the moment. Yes, we support it, but if it can be achieved through Parliaments working together in COSAC, persuading the institutions to take that change on board, then we are happy simply to support the work that the Parliaments themselves have initiated.

[Mr Rees-Mogg]

May I ask the Minister a bit more about the red card? Is it fair to assume that the number of countries that would be required to send in a red card would be lower than the number required to vote against it in the Council of Ministers to provide a blocking majority under qualified majority voting?

[Mr Lidington]

The difference between the two arrangements, as my hon. Friend knows, is that to assemble a blocking majority in the Council of Ministers one has to assemble that majority on the basis of weighted votes, with the most populous countries having greater weight, in the calculation of a majority or minority, than the smaller member states, whereas in the case of the yellow card system each parliamentary chamber in the EU has a single vote. I suppose that it operates a bit like the way that the US Senate operates, with no regard to the relative populations of the different countries.

The answer to that question would therefore depend very much on what the comparator was in terms of the blocking minority among member states. I certainly envisage that a red card would have to involve a higher threshold than a yellow card would, since it would be a more far-reaching measure.

[Mr Rees-Mogg]

I am grateful to the Minister for his answer. However, could the red card serve any useful purpose if it were harder to get than a qualified majority vote against a proposal coming from the Commission, because all Governments are responsible to their Parliaments, and therefore to make it a workable proposition, the assumption would have to be that a matter had a qualified majority in favour but the Parliaments sought to stop it?

[Mr Lidington]

Having served as a Minister both in the last Parliament and this one, I have to say that I do not think that Governments can automatically assume that they have the majority in Parliaments, particularly on European matters. So, while the circumstances that my hon. Friend describes would be unusual, it would nevertheless be worth while to have that democratic back stop. Also, a strongly expressed parliamentary view would perhaps, in the case of a number of member states, put greater backbone into a Government resisting a measure to which their Parliament had declared itself opposed.

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[Mr Rees-Mogg]

The very idea that Governments will have backbone in the face of Europe is a novel one, but I hope that we might see it one day.

Moving on to yellow cards, does my right hon. Friend think that part of the reason for the number of cards going down, apart from the lower number of proposals coming forward, is that once the decision was given about the EPP, Parliaments thought there was little point? The Commission did absolutely nothing regarding that important proposal. What is the purpose of this House or any other Chamber passing resolutions if they are just ignored?

[Mr Lidington]

As I said in my opening remarks, that might be part of the explanation. One would have to go back and talk to parliamentarians from the 27 other member states to have a clear analysis. I suspect that with some countries the lack of yellow cards might be down more to domestic political circumstances—perhaps a general election and a change of Government—than to anything happening at the EU level.

It is also fair, however, to take account of the changeover of the Commission. The Juncker Commission’s track record of launching many fewer new initiatives than the Barroso Commission, even in its first term, inevitably reduces the number of targets for national Parliaments. That too is part of the explanation. Frankly, if the Commission is going to stick to that approach and take account, in advance, of what national Parliaments and national Governments would regard as the right priorities, that is a change we should all welcome.

[Mr Rees-Mogg]

On that very point, the Commission has tended to respond even when a majority has not been reached, but it has often been pretty stubborn in pushing forward with its proposal anyway. Indeed, in one of the documents we can even see that it wanted to bring forward a more ambitious proposal rather than sticking with the one it already had. To date, therefore, the yellow card has not been hugely successful, as far as one can tell. Does the Minister accept that? Does he also accept that the time limit he mentioned, which it has been argued ought to be extended, can be extended only through treaty change? Is that part of the Government’s intended renegotiation?

[Mr Lidington]

I agree that although there is innovation in the Lisbon treaty—which was an advance, and better than not having any such process—it has not been particularly successful so far. It has certainly taken time for the culture of the Commission leadership to respond to what is necessary. The fact that someone such as First Vice-President Timmermans, who has been an elected politician in a country that has given a high priority to the opinions of its national Parliament, is now a key authority within the Commission has been an important contributing factor to the change we have seen on the part of the Commission in the past year and a bit.

Whether treaty change is needed is something that we are addressing in the course of the detailed negotiations. The technical talks that took place over the summer between UK officials and the secretariats and legal services of the institutions have, on that issue and on the others on which we seek reforms, fleshed out a menu of legal and procedural options for leaders to select from, depending on what deal leaders eventually succeed in negotiating. It would be wrong of me to go further than that, when those negotiations still lie ahead.

[Mr Rees-Mogg]

I am grateful for that because footnote 16 on page 12 of the document gives the Commission’s view that the deadline is enshrined in the treaty and therefore would require treaty change, but the Commission can err, so I hope the Government are right.

Finally—although I may have two questions on this point, depending on the Minister’s answer—I want to ask about the green card issue. Are the Government supportive of a situation in which the Commission loses its exclusive right to propose legislation?

[Mr Lidington]

That is not part of our set of proposals and it would probably be very hard to negotiate that. My word of warning to my hon. Friend is that if that issue were opened up, we would probably see a lot of institutional pressure from the European Parliament to have a right to initiate legislation, and that there would be quite a lot of national Governments around Europe, particularly those of smaller member states, that would be quite attracted by that idea.

As for my hon. Friend’s earlier point—alas, I have lost my thread, so perhaps he could just remind me.

[Mr Rees-Mogg]

Prior to the green card issue, I asked about the treaty change and the Minister answered me.

[Mr Lidington]

That is right, and if I have not satisfied my hon. Friend, at least I have replied to him. I will rest it there, Mrs Main.

[Mr Rees-Mogg]

I am a bit puzzled by the Minister’s last answer. I thought the whole point of the green card was to give a group of member states the ability to propose changes to, amend, alter or even repeal EU legislation. Now, if it is not giving them the right that is otherwise the exclusive right of the Commission, I do not see what it is doing and whether it serves any purpose.

[Mr Lidington]

The distinction is this: the green card proposal would permit the national Parliaments acting collegiately to propose changes and to seek reviews, but it would leave it then for the Commission, having reviewed the matter, to decide whether to bring forward particular amendments.

That is perhaps analogous—not exactly the same as, but analogous—to the European Parliament’s powers to propose an own-initiative report, which can put forward ideas either for new legislation or the amendment or repeal of existing legislation but which cannot bind the Commission to act in a particular way. What one has found in practice, however, is that the Commission has taken very seriously those reports and frequently acted upon them. I hope that if we got a green card accepted, we would find that the Commission responded in the same way to well-evidenced, well-argued proposals from national Parliaments.

I now recall the point on which I was going to respond to my hon. Friend earlier. He expressed doubt as to whether, in the absence of treaty change, having a red card would mean anything. Of course the Commission, while it has the sole right of initiative, can always choose whether to initiate or to persist with a particular piece of legislation, so it faces a certain political choice when it is in receipt of objections from national Parliaments.

[Mr Rees-Mogg]

You are being very generous today, Mrs Main; I promise that this is my last question. Is the Minister therefore saying that the democratic deficit will be addressed by the good will of the Commission when it feels like listening to national Parliaments?

[Mr Lidington]

What I am saying is that the democratic deficit needs to be addressed by a number of different and complementary reforms. Those will include some in the culture of the institutions, which we are starting to see, such as a focus on a rigorous selection of limited priorities where the European Union can genuinely provide value-added to all its members from European-level action, rather than leaving it to member states.

I believe that our proposals on national parliaments are not a panacea, which I have never claimed for them, but will help to reconnect electors with what the European Union is doing on their behalf. Obtaining some kind of mechanism for turning the Laeken commitment into institutional reality in the EU would be a further way in which to bridge the democratic deficit.

At the end of the day, bridging the democratic deficit will be about cultural change as much as about legislative and institutional change. It will be about the EU and its institutions demonstrating through their choice of actions that they are attuned to the policy priorities that matter to the people—the citizens whom they claim to represent.

Motion made, and Question proposed,

That the Committee takes note of European Union Documents No. 10651/15 and Addendum, a Commission Annual Report 2014: Subsidiarity and proportionality, and No. 10663/15 and Addendum, a Commission Annual Report 2014: relations with national parliaments; recognises the importance of the principle of subsidiarity and the value of stronger interaction between national parliaments and the EU institutions; welcomes the Government’s reform agenda and efforts to ensure that the Commission responds to future objections under the yellow card scheme by substantially amending or withdrawing the proposal that has been put forward; calls on the Commission to respond to the request of 29 national parliament chambers to establish a working group to consider reforms to strengthen their role; is encouraged by the Commission’s announcement of its intentions to forge a new partnership with national parliaments; and calls on the Commission to set out its plans to do this.(—Mr Lidington.)

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[Mr Rees-Mogg]

I am very sympathetic with the point that the right hon. Member for Wolverhampton South East makes that this might be the wrong issue to discuss, and that the real issue is how the nations of Europe can co-operate together. My answer is that they should do so through the nation state, because the nation state has validity and the European Commission does not. What we discover in today’s debate is that it is actually all about the validity of the European Commission, and that national Parliaments will be given a bauble here and a bauble there. They will be given a red card, a yellow card and a green card—they will have a three-card trick. They will have a whole deck of cards, but they will not be able to do anything with it because everything goes off to the European Commission, which may—if it is feeling benign—condescend to listen to the national Parliaments.

The Commission may take the Parliaments into account, and it may make proposals. How enormously generous. How thoughtful of somebody unelected, who was appointed against the will of the British Government, who has no mandate and who represents one of the smallest countries in the European Union. It is going to be up to Mr Juncker whether he listens to the German Parliament, the British Parliament or the French Parliament, all of which were elected by millions of people across Europe. One grand panjandrum in Brussels will decide whether he will take any notice of those cards at all.

The Government are great in their way—they push back a bit and say, “Oh, well, we’ve got a backbone, so therefore we’ll be tough and stand up to this. We’re going to put Britain first, the United Kingdom first, and make sure that we have our way.”

[Mr McFadden]

I appreciate the hon. Gentleman’s strength of view, but he is in danger of forgetting the existence of the Council of Ministers, on which sit the elected representatives of all of us—the Prime Ministers and Presidents.

[Mr Rees-Mogg]

The right hon. Gentleman is right. The Council of Ministers used to operate by unanimity, so our interests could be protected. At the heart of this is the question of who has the right to initiate legislation, because that is where the real democratic deficit is located; it is not the Council of Ministers but the unelected Commission that does that. That is a most extraordinary power. When one considers the power of this House, one sees that our right to initiate money Bills dates to 1407, and the power of this House grew because of that right of initiation and that right to control finances, which leads to control of the legislative programme.

The Commission’s right of initiation is central to its authority, and how sensitive was the Minister on its behalf when I said that this green card might interfere with that noble right of the Commission to initiate legislation—“No, that could not happen at all. It would upset the Commission too greatly, and the European Parliament might be a bit jealous.” The European Parliament is a body that has modest democratic legitimacy. A few people occasionally vote, but no one feels that it is their Parliament. People occasionally turn out to vote when they have to vote for something else. Even a police commissioner is more exciting to vote for than the European Parliament—well, not by very much, although it is a little more exciting. The democratic deficit is addressed not by the European Parliament, but by national Parliaments that represent individual citizens.

To return to the right hon. Gentleman’s excellent point about how Europe addresses such problems, it addresses such problems if it has validity, and it has validity if it is based on democracy. The European Union is facing problems at the moment because it has become so remote from that democracy. The President of Portugal is saying that a new Government cannot come in because that might upset the European Union, even when, in a coalition, the Portuguese Government have more support than any other nation. [Interruption.] We are saved by the bell.

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On resuming—

[Mr Rees-Mogg]

We were not quite saved by the bell, as some had hoped. There is one final point that I want to make, which is that in the European Union Act 2011 the Government included a section clearly stating that sovereignty resides in this House and that we are only members of the EU because of that. It was a very good section that reminded us of what had been the perceived wisdom under the European Communities Act 1972: that the sovereignty of the British people is vested in this House and that only this House can use it in a fundamental way. If this House or this Parliament decides not to use it, we would be able to withdraw and restore all our democratic accountability. That underpins the importance of national Parliaments. Without their willingness or acceptance of a supranational body, and without the delegation of authority, there is no authority in the Commission. It does not exist in a vacuum. It is not a body created by God—the divine right of Commissioners—to rule over the whole EU; it is a body whose authority is drawn from us, but that is a drawing that can be withdrawn and perhaps may be.