Subsidiarity Assessment: Seasonal Workers (EUC Report)

Lord Roper Excerpts

Wednesday 20th October 2010 Lords Chamber

Moved By

[Lord Roper]

That this House takes note of the Report of the European Union Committee on the Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment (COM(2010)379, Council Document 12208/10) (First Report, Session 2010–11, HL Paper 35).

[Lord Roper]

My Lords, I beg to move the Motion in my name on the Order Paper. With your Lordships’ leave, I shall also speak at the same time to the second Motion in my name.

The report before the House is the first of its kind. This is the first occasion on which this House is being asked to exercise new powers under the Treaty of Lisbon that allow it to communicate to the European institutions a formal opinion that, on a particular topic, legislation by the European Union is unnecessary. I stress that word “unnecessary”. Legislation may be desirable, but if so, the member states could enact it at national level. It is not necessary for the European Union to legislate. That principle of subsidiarity has been part of Community law for a long time and was first enunciated in the Treaty of Maastricht nearly 20 years ago. The Treaty of Amsterdam added a lengthy protocol on the application of the principle that included the words:

“The Community shall legislate only to the extent necessary”.

However, it was only on 1 December last year, with the entry into force of the Treaty of Lisbon, that national parliaments were granted the right to give, in a reasoned opinion, their view that a particular proposal for European Union legislation did not comply with the principle of subsidiarity and that the Commission—the originator of the proposal—should have an obligation to review it if enough parliaments did so.

The procedure for the House to deliver a reasoned opinion was suggested by the Procedure Committee in its second report of last Session. Its recommendation, which the House agreed on 16 March, was that, when the European Union Committee comes across an EU legislative proposal that in its view does not comply with the principle of subsidiarity, it should produce a report with a reasoned opinion to that effect for debate by the House. That report is debated as usual on a Motion to Take Note, as we are doing tonight, but alongside that, as noble Lords will see, is a free-standing Motion inviting the House to support the reasoned opinion and to instruct that it should be forwarded to the presidents of the three European institutions. That second Motion, which we are debating along with the first, is of course amendable and divisible.

I turn now to the substance of the matter before us. Most countries rely to a greater or lesser extent on immigrants as seasonal workers, in particular for agriculture and tourism. Nationals of member states are of course allowed to enter other member states as seasonal workers, but that has nothing to do with it. The committee’s report concerns a proposal from the Commission on the entry and residence as seasonal workers of persons who are not citizens of a European Union country. Such people are referred to as third-country nationals. At present, the number of third-country nationals entering each member state and the conditions under which they enter and reside are matters for the national laws of the individual member states. The numbers remain a matter for national law because the treaties so provide, but the Commission’s proposal is for a directive that would unify the laws governing the conditions of entry and residence.

Because immigration is one of those matters on which the European Union and the member states share a 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. The view of the European Union Committee is that such matters can be regulated at member-state level and therefore should be regulated at member-state level; the Union should not be legislating in this field.

The committee’s reasons for believing that are set out in the report that we are examining tonight. I do not propose to go into the details of them now, but suffice it to say that the European Commission gave four reasons for thinking that action at EU level was necessary. However, none of the four convinced our sub-committee or the full European Union Committee. I am not totally convinced that they persuaded the Government either. In their Explanatory Memorandum, the Government set out the four Commission reasons and stated that,

“the UK would agree that on the basis of (i) at least, the principle of subsidiarity is met”.

Therefore, it seems that they were not very impressed by the other three reasons either. I look forward to hearing from the Minister whether that is the case.

Our committee is not alone in having concerns about subsidiarity. One House of the Austrian Parliament and both Houses of the Czech and Dutch Parliaments have already issued reasoned opinions, and other Parliaments have expressed doubts without going as far as issuing a reasoned opinion. The European Scrutiny Committee of the other place also has concerns. It has not issued a formal reasoned opinion but its chairman has written to the European Union institutions to voice that committee’s concerns.

I think that I should point out one other thing about the directive. Immigration measures, of course, do not apply to the United Kingdom unless we choose to opt in. When we considered the directive on 12 October, the three-month period for opting in still had three days to run. Therefore, when your Lordships’ committee agreed the report, we were not certain whether the Government would opt in. We now know that the United Kingdom has not done so. The fact, however, that an EU measure on these lines would not apply to the United Kingdom does not, in my committee’s view, in any way affect our power, and perhaps our duty, to make the House’s views on the subsidiarity issue known to the European institutions.

Unfortunately, the long Summer Recess has caused problems with the timing of our debate today. The treaties allow national parliaments eight weeks within which to issue a reasoned opinion. For this proposal, the eight weeks expired on 15 October, a large number of the weeks having occurred during our Recess. I make no complaint at all about the timing of this debate. The committee is very grateful to the usual channels for arranging it at such short notice. However, the committee was faced with the choice of sending a report to Brussels which would be in time but which would not be a reasoned opinion of the House, or of waiting until today’s debate so that, if the House were so minded, what went to Brussels was the view of the House and not just of the committee.

The Commission has also said that it will not rely on technicalities in giving weight to views of national parliaments, so we chose the second course. That means that, if the House agrees to issue a reasoned opinion today, it will not count towards the threshold for triggering the formal Lisbon treaty procedures. That threshold could not have been met even if we could have had our debate last week. Therefore, I am confident that the political weight of the opinion of this House will not be in the least diminished.

--- Later in debate ---

[Lord Stoddart of Swindon]

My Lords, I thank the noble Lord, Lord Roper, for introducing this debate and for his Motion, which I shall support if there is a vote tonight. It is not my usual practice to congratulate the committee of which he is the chairman; I usually have a lot of criticism. I think that the last time I was able to praise it was for its masterly report on the Maastricht treaty—or it may have been on the Single European Act. However, I congratulate it on its watchfulness and on being prepared to use the one clause of the Lisbon treaty that was any good to put the point of view of this House on the directive.

The directive is long and detailed, so the noble Lord’s explanation of it was very useful. It is entirely correct that he and the committee should challenge it on the grounds that it does not comply with the principles of subsidiarity. His Motion should receive support from all quarters of the House.

The admission of third-country nationals is surely a matter for nation states and not the European Union. The trouble with the Union is that it seems increasingly to want to intervene and interfere in every nook and cranny of national life. It must be confronted on this and I am glad that we are doing something about it tonight. Who comes to this country or any other country, where they come from, why they are here and what they can do is none of the EU’s business; it is absolutely for national Governments and national law. I am glad to hear that the Government are not acceding to the directive, because it would place restrictions on employers and transfer to the European Union powers that it does not already have.

I hope that the Select Committee will continue to get tough. It has a wonderful opportunity to do so. In the face of the welter of initiatives and power grabs that have been coming from the European Commission and the European Parliament since the implementation of the Lisbon treaty, it will be more than ever necessary for it to be watchful. As it now recommends, it should be tough and use the provisions of the Lisbon treaty that allow national parliaments, in particular this Parliament, to make comments and to try to alter or have withdrawn matters that are coming from the Union.

Unfortunately, this debate does not allow me to make a protest about scrutiny override—or perhaps it does. I was concerned that the Government used the scrutiny override to accede to the European investigation order.

[Lord Roper]

The Government have decided to opt in to the matter, but that was not an override of the scrutiny. We have not completed scrutiny. Scrutiny of the directive is continuing. It has not been agreed yet.

[Lord Stoddart of Swindon]

I see. Perhaps it is to be agreed. That means that Parliament will have a say beforehand. I am very pleased to hear that.

There is plenty more that I would like to say in this debate, but it is a specific debate and I hope that we will be able to discuss the European Union and our future in it when the sovereignty Bill comes forward. We will have a lot to say but, in the mean time, I hope that the European Union Select Committee will keep up its observations, control and what have you of all the matters coming from the European Union that are not in this country’s interests.

--- Later in debate ---

[Lord Roper]

My Lords, I should perhaps begin in response to something that was said by the noble Lord, Lord Pearson of Rannoch. The noble Lord, Lord Hannay, the chairman of the sub-committee who was responsible for this report, was unavoidably detained and unable to be here today, but he asked me to let the House know how sorry he was that he could not be here. I am glad that the noble Lord, Lord Pearson, reminded me.

This has been an historic occasion in more ways than one. Not only have we had people who have gained medal honours on one side of the European debate being in favour of this matter and a former Member of the European Parliament, a former Secretary-General of the Commission and a former commissioner all supporting the position, but people who have gained medal honours for taking different positions on Europe over the years have also shown their support for the work of this committee. The committee must therefore be very pleased. I will report that back, and those of my colleagues who are here will have noted it. We appreciate that the work that we have done has been taken so seriously.

I shall comment on one or two of the things that have been said. On the question of the 14th report on the future of European Union financial supervision, I should let the noble Lord, Lord Pearson of Rannoch, know that our Sub-Committee A is doing further work on this subject and will be producing a report to the House before long. The matter is under active attention.

On the question that was raised by the noble Lord, Lord Stoddart of Swindon, congratulating us on our watchfulness, perhaps I can let him into a secret: another of our sub-committees adopted a reasoned opinion this morning that it will be sending to the full committee. This is not a one-off matter; it something that your Lordships will hear about again, although not necessarily too often. My estimate is that there will probably be six or eight occasions in a year, but we will see. It is interesting that we have already had so many.

One of the reasons I am tackling the matter in this way is to ensure that a formal reasoned opinion will be sent by the Clerk of the Parliaments to the various authorities. It is important to get this on the record, let other Parliaments know what we have done in this regard and offer them encouragement, even though it is now too late to act in terms of the threshold.

The noble Lord, Lord Hunt of Kings Heath, referred to timing. This is a particularly difficult case. The original Council proposal is dated 15 July. The Government’s Explanatory Memorandum is dated 28 July—the very beginning of our Summer Recess. We could not have had a more difficult case as regards timing. However, we considered this matter in this House when we considered the original procedure. The Procedure Committee report, to which I referred in my opening remarks, said that new procedure was,

“subject to review if the timetable proves unworkable”.

In my view it is too early to say whether this is the case but that undertaking is obviously very important.

I have not seen the letter that Mr Green sent to the Commons subsidiarity committee; I have seen only the views on subsidiarity in the Explanatory Memorandum which was sent to both Houses, where the Government seem to hang mostly on the first of the four. We appreciate that different legal interpretations are possible. As the Minister knows, we disagree with the legal interpretation of the Commission’s case and consider that the matter should be queried. However, we are extremely grateful to the Government for giving their opinion but then allowing the House to come to its own conclusion. This is a case of Parliament having an opportunity to act. As I said at the beginning, this is an historic occasion. I am very pleased that we have had this debate and that consensus has been reached on all sides of the House.

Motion agreed.