Lisbon and the Repatriation of Powers

Euractiv report that the majority of Tories (responding to an on-line poll) think David Cameron should do more to repatriate powers to the UK. Perhaps they are looking in the wrong place. Lisbon, that much maligned treaty, particularly unpopular with Tory voters, contains provisions which allow national parliaments a greater say in the legislative process than hitherto.

The problem had been that quite often proposals were only received by national parliaments pretty much at the point at which political agreement had been reached at the EU level, (whether this was the fault of the EU institutions or the respective national governments) meaning that primacy and the obligation to cooperate resulted in those proposals being transposed whether or not the national parliament agreed with them. Effectively, the actions of the executive in areas falling within the ambit of the EU were removed from effective supervision by national parliaments. Although the European Parliament has had an increased role in the legislative process at EU level, it does not operate to hold individual executives to account and, moreover, might be seen as having a vested interest in the transfer of further powers from national to EU level.

So what does Lisbon do? The Preamble to the Protocol to the Lisbon Treaty on the role of national parliaments in the European Union states that the Lisbon Treaty aims to

“encourage greater involvement of national parliaments in the activities of the European Union and to enhance their ability to express their views on draft legislative acts … as well as on other matters which may be of particular interest to them”.

Article 12 TEU puts this aspiration into practice. Amongst other things, it specifies that the national parliaments are to have legislative proposals forwarded to them in good time, reiterating the terms of the 1997 9th Protocol to the EC Treaty, Article 2, and are to ensure that the principle of subsidiarity (first introduced into the treaties by the Maastricht Treaty) is respected. Subsidiarity is a principle dealing with the question of which level of government is the most appropriate level at which to take action and is now found at article 5(3) TEU. While the terms of Article 5(3) more or less reflect the previous versions of this provision, there is one innovation:

National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in [the Subsidiarity] Protocol

which seems to reflect the provisions in Article 12 TEU.

Details on how the national parliaments are to achieve this are set out in Protocol on the application of the principles of subsidiarity and proportionality. Each national parliament is deemed to have 2 votes (one per chamber in a bicameral system such as the UK). Within 8 weeks of the transmission to a parliament any chamber of any national parliament may send a reasoned opinion to the European institutions saying why it considers that the proposal does not comply with the principle of subsidiarity. Where national parliaments representing one-third of the votes agree there is a subsidiarity issue, the European institutions are required to review the proposal and maintain, amend or withdraw the proposal, giving reasons for its decision. This is the ‘yellow card’ procedure. There is also an ‘orange card’ procedure which can apply in the case of a Commission proposal to use the co-decision procedure. Here, if a majority of national parliaments gave reasoned opinions explaining why they believed that the draft legislation was not compliant, it would be open to the Commission to maintain, amend or withdraw the proposal. If the Commission decided to maintain the proposal, the reasoned opinions should be referred to the Council and the European Parliament and if 55% of either of these institutions supported the position of the national parliaments, the proposal would fall. The matter would be justiciable (Article 8, Subsidiarity Protocol), but ultimately the question is decided at the EU level.

At the time the Lisbon Treaty was agreed, commentators took different views as to the likely impact this change was to have. It now seems that the UK Parliament at least is going to try to exercise its powers. Both the House of Lords and the House of Commons have issued reasoned opinions in relation to recent proposals: the House of Lords in relation to seasonal workers and distribution of food products to the most deprived persons in the Union; and the House of Commons in relation to seasonal workers and to financial services. What is interesting in the seasonal workers proposal is that the UK government had accepted that the proposal was consistent with the principle of subsidiarity, but the House of Commons Select Committee, in its reasoned opinion challenged that view. Although the House of Lords Select Committee seems to agree with the Commons that the seasonal workers proposal is problematic from a subsidiarity perspective, it has done so independently and has provided its own reasons for finding it so. (Note that the House of Lords Select Committee has helpfully published a summary of its approach to subsidiarity assessments.) It has also raised questions about another proposal that the Commons do not seem to have addressed. This, then shows that the two chambers may work independently of one another and, presumably, when it comes to voting, vote against one another. It remains to be seen what the outcome of these reasoned opinions are, both in relation to the response of other national parliaments and from the European institutions.

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