Subsidiarity Assessment: Seasonal Workers (EUC Report)

Lord Hunt of Kings Heath Excerpts

Wednesday 20th October 2010 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, this is a most important debate and I am indebted to the European Union Committee and to its Home Affairs Sub-Committee for the work that they have undertaken. I say to my noble friend Lord Richard that I am delighted that the views of the committee have been made known to us in this way. As the noble Lord, Lord Roper, has indicated, this is the first occasion on which the House is being asked to exercise new powers under the treaty of Lisbon. But I would also suggest that it is one of the first occasions on which the new Government’s policy towards the EU has been put to the test.

I disagree fundamentally with the noble Lords, Lord Stoddart and Lord Pearson, when it comes to matters European, but they are right to put the approach of Her Majesty’s Government under the spotlight. The matter arises from Europe’s need for third-country seasonal workers. The Commission believes that there is a need for low-skilled and low-qualified workers, which will continue expanding; that there is a more permanent need for unskilled labour within the EU; and that these gaps are unlikely to be filled with EU-national workers because, as we well know, such seasonal work is often unattractive.

We are also informed in all the useful documentation that we have been able to see that the Commission sees the proposals before us as part of the EU’s effort to develop a comprehensive immigration policy. It cites in its defence a number of political mandates to justify such action and sees its proposals as contributing to implementation of the EU 2020 strategy and to what it describes as effective management of migration flows for seasonal temporary migration.

As the noble Lord, Lord Roper, has already suggested, because immigration is a matter where the Union and the member states share competence, the Union can act only if and to the extent that the member states cannot use their national laws to govern the conditions of entry and residence of third-country nationals as seasonal workers. As the noble Lord said, the committee’s reasons for believing this are set out in the report. They do not need repeating. In my view, they are substantive and persuasive.

It is significant that a number of other national parliamentary legislatures have also expressed concerns. Substance to the Select Committee’s reasoning is also given by the House of Commons European Scrutiny Committee, first, at its meeting on 15 September where it concluded that, while there is an appropriate legal basis for the draft directive, the committee was less certain that the measure respects the principle of subsidiarity. At its subsequent meeting on 12 October, the House of Commons committee undertook what can only be described as a very careful analysis of the draft directive and the Commission’s rationale for its actions. It concluded that there were continuing reasons to doubt whether the draft directive complied with the principle of subsidiarity.

It is rather surprising that the Minister for Immigration, Mr Damian Green, did not appear to share that concern. He told the committee that he believed that the draft directive is consistent with the principle. In his argument to the committee, he said that he believed that it complies with subsidiarity on the basis that decisions taken by one member state on the rights of third-country nationals could affect other member states and distort migratory flows. He also suggested to the committee that labour mobility within the EU, especially from new to old member states, may cause or aggravate a shortfall in seasonal labour in the source countries, which needs to be met from outside the EU, and that this inter-relationship argues for EU-level measures to manage the admission of seasonal workers from outside the EU.

I found that a rather surprising analysis by the Minister. As the Conservative Party manifesto seemed to suggest that it would be rigorous in its efforts to prevent,

“further extension of the EU’s powers over the UK”,

one would have thought that one might have had a rather more convincing argument from Mr Green as to the approach that the Government took. It would be helpful to the House if the noble Baroness could define what the Government consider subsidiarity to be. I thought that the questions asked by the noble Lord, Lord Inglewood, were extremely important in that context. I agree also with the noble Lord, Lord Roper, that simply because Her Majesty’s Government have decided not to opt into the directive, it does not detract from raising the serious question about their judgment and response to the subsidiarity question.

I end by coming back to the point made by my noble friend Lord Richard, who raised the issue of timing. As the noble Lord, Lord Roper, has explained, the long Summer Recess has caused problems. The timing also exercised the Commons European Scrutiny Committee. In its letter of 13 October to the president of the European Parliament, the chairman of the committee, Mr Cash, pointed out that the parliamentary timetable did not permit the Commons to issue a reasoned opinion by 15 October, when the eight-week deadline expired. I know that the committee was aware that the former Commissioner for Institutional Relations and Communication Strategy had already said that the Commission would listen to the views of national parliaments even if there were an insufficient number of reasoned opinions to require the Commission formally to review its draft legislation. However, ideally one should not have to rely on the good will of the Commission in that respect.

I should like to put this point to the noble Lord, Lord Roper. In view of the timetabling difficulty and given that this might arise again in the future, particularly in the circumstances of the Summer Recess, will he consider, in conjunction with the Commons European Scrutiny Committee and the Leaders’ Group in this House which is looking at procedures, whether there is a way of avoiding this problem in the future? Overall, however, from the Opposition Benches, I have no hesitation in supporting the Motions tabled by the noble Lord, Lord Roper.

[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.