Division of Labour: Subsidiarity and National Parliaments

Subsidiarity. If you're still reading, congratulations; your courage in the face of EU jargon is impressive.

Subsidiarity is the principle that decisions should be taken at the closest possible level to the public, where that decision can be meaningfully taken. It's a principle that everyone will find attractive and agree with - how could you possibly be against? I support the idea, but when Nosemonkey asserted that giving subsidiarity true meaning and force would improve the EU and its legitimacy during the first Bloggingportal event panel, my first thought was a bit sceptical:

"Subsidiarity is probably one of the most tricky #EU legal concepts - how can you define it?"

Jon Worth replied:

"@EuropeanCitizen Subsidiarity is a conveninent cover for doing what you want to do, at whatever level #EU #EUuk - or am I too sceptical?"

Keeping decision making power at the lowest level possible where it would be effective is clearly a political ideal, and how to impliment it in practice causes a lot of difficulty. Since I study law, my mind immediately jumped to the European Court of Justice - after all, it is the institution which interprets the Treaties and which would rule whether or not the EU was acting within its competence or not. To my knowledge, the ECJ has not once found a breach of subsidiarity, and I am not aware of there being a test for subsidiarity, simply because it is so political it defies easy judicial interpretation.

I don't want to be misquoted here that subsidiarity is meaningless and the ECJ does nothing to limit EU power, because there are other, better, legal tools for doing so. The other 2 legal principles are those of conferral (the EU only has powers given to it by Treaty) and proportionality (EU actions must only so as far as is necessary to achieve their aims). (See Article 5 TEU). The Tobacco Advertising cases (I & II) are good examples of these principles being used (though arguably proportionality should have been more thorough), and the key point was that the internal market concerns cross-border trade, so the EU can only rely on those law-making powers to create laws that ease cross-border trade, not for health or for goods that would be fixed and not cross borders. These principles are either straight-forward or there is good judicial experience in the Member States to draw on to inform how they should be used. But when it comes to subsidiarity, what does it add to the judicial decision-making, and how could it be applied?

Subsidiarity is political, so it would be best enforced through political channels. The Lisbon Treaty gave the national Parliaments the ability to force the Commission to reconsider proposals if enough of them (at least 9) considered the proposal to breach the principle of subsidiarity. (See Protocol 2 of the Treaties). The time limit of 8 weeks is too short for it to be very effective, however, given the amount of co-ordination and co-operation that needs to take place among national parliaments. It does give them a useful tool which could be used effectively when the national parliaments organise themselves (which will take time and depend on their political will), but the time limits need to be extended. Open Europe has made this point, and it's a good one.

At the moment the Commission does a "check" on its proposals - do they conform with the Charter of Fundamental Rights, do they conform with the principle of subsidiarity, etc. The ECJ is likely to take political decisions on subsidiarity as being within the legislative discretion of the EP and Council and focus on other legal questions, but challenges from the national parliaments may force the ECJ to take it into account more (though it will be a long time, since it will more likely decide on procedural issues and on other legal grounds rather than face the difficult and politicised task of defining subsidiarity). Effective political channels are the best way of making subsidiarity more meaningful.

A last point on the role of national parliaments in the EU. At the Bloggingportal event, Mat Persson of Open Europe remarked that their role should be expanded beyond subsidiarity checks. To me, and I'm open to correction, this means national parliaments having a legislative role in place of or parallel to the EP. I'm completely against this. It would be good for national parliaments, through their committees to keep tabs on and control the votes of the national ministers in the Council, but becoming the "second chamber" of the EU would be damaging to transparency and accountability. Though the EP is not loved and turn-out is falling, it does, at least, provide an open, full-time forum for debates on EU legislation and scrutinising the executive.

National parliaments, on the other hand, tend to have little time of EU affairs, and their effectiveness varies from country to country on the powers they do have regarding the EU. Separate debates in 27 (or more) arenas in different languages would mean that the debates will become harder for the public to follow. Inter-parliamentary deals (alliances and deals made in now smokeless rooms) would be even more decisive for the legislative process. Though the EP has a low turnout and political organisation on a continental scale is more difficult, at least it provides the possibility of influencing the way EU legislation is dealt with and of expressing opinions more directly to the EU institutions about what they should be doing. Having the national parliaments take over would damage the transparency and accountability the EP provides (or potentially provides), and could even reduce the EU's legitimacy.

Blairs' Backers are making a Fundamental Error

Media attention is back on the possibility of Tony Blair becoming the President of the European Council. Many arguments surround his - possible - candidacy: his supports think he will be a strong, recognisable figure who would give the EU a greater voice on the world stage, and shape the office into an agenda-setting focal point in the EU's institutional structure. His opponents oppose him simply because they consider that Blair just isn't the right man for the job given his attachment to the US over the EU and the failure to make the pro-European case in the UK.

Blair's personal background and qualities can be (and have been) picked over: a good speaker and deal maker, experienced on the global stage, has a reputation burdened by a war legacy, is generally pro-European in outlook, failed to bring the UK into the Schengen and Euro zones, comes from a major yet largely Euroskeptic member state... However, while this is an important debate, behind it lurks the idea that the post can really become a strong executive post - and it can't.

It's not really a surprise that this impression has surfaced - the EU is incredibly fond of creating presidential titles. The heads of the Commission, Council, Parliament, ECB, etc, are all Presidents. The European Parliament even has a Council of Presidents (the party group leaders) who collectively agree on the Parliament's agenda. The European Council is also the highest level of the most powerful institution in the EU, the Council, so in many ways it's natural to assume that any presidential role emerging from this institution could become quite powerful. But while it's true that a strong first President could make the post stronger and more influential, he or she won't be able to force his or her decisions through or play a strong executive role.

First of all, the role will be that of a chairperson. There's no doubt that this could be an influential position; the Parliament has its president, so it can present an institutional voice, even if the political sands are constantly shifting in the chamber itself. In some ways the Council, by virtue of its sheer power, doesn't really need a strong spokesperson. However, a rotating presidency and the intermittent attention of member states to some issues mean that a chairperson could significantly boost its coherence. Being able to organise agenda and shape the debate will make the role important and influential - but not strongly executive.

Institutional arrangements will prevent the emergence of an overpowering President. The Commission retains the power of legislative initiative, and the Parliament has been strengthened under Lisbon so laws require a high degree of support across the EU institutions to pass. Within the Council, it's important to note that the rotating presidency doesn't disappear - when the Council is in it's "committee" forms (agriculture, etc.), it will still be chaired by the rotating presidency, except for the foreign relations circle, which will be chaired by the High Representative for Foreign Affairs (who will also be the Vice President of the Commission). So the President of the European Council is more likely to emerge in a similar (but slightly stronger) form to the US Vice President: influential and visible, but with limited institutional reach.

The desire for a strong European Council Presidency is quite strange when it comes from the member states. Barroso's main strength in getting nominated by the Council in July was his relative subservience to state interests - is it really politically likely that member states will weaken counterbalancing leadership roles in the EU only to set up a rival in their own institutional backyard? The President of the European Council won't be able to act without the backing of the Council, so it's likely that any President to tries to be too activist would be cut down to size.

A strong Presidential role would be undesirable for several reasons: it would favour big states at the expense of smaller states who depend on the Commission to ensure the equality of states, the post wouldn't be under the scrutiny of the European Parliament unlike the Commission President, it would diminish transparency and accountability. But the fundamental error of Blair's backers is that they seek to change the office to be more than it can be; an exercise that could end up obstructing law-making when the Lisbon was supposed to streamline EU decision-making.

Blair has a well-known ability to shape the office he occupies - he was famous for his "sofa government" in the UK. An over-activist President like Blair would continuously clash with the Commission and the semi-Commission-semi-Council High Representative. A drawn out political battle for influence, while it my draw more attention to EU politics, will hinder progress on issues that actually matter. And in the end, the style of Council Presidency may end up effecting the power relationships outside the Council more than the position of the Presidency itself, since the war for influence isn't one the Presidency can win outright. How would the High Representative, Commission President and the European Parliament react to such an activist President? Would the European Parliament and Commission draw closer to offset the Council? Would the High Representative be a Trojan horse for the Council or for the Commission - or would he or she play at both? Would Barroso try to concentrate power in the Commission in his hands further?

Blair is not just the wrong man for the job, but the vision of a Presidency that he represents is simply wrong for the office. Trying to create a strong President won't create a strong EU.

Democracy, Legitmacy and Sovereignty

Inspired by some of the issues raised by Nosemonkey's recent series of posts, I thought tht I would try to examine some of the issues behind the three title words and the impact of the European Union. This will be a "contents page" of sorts, with the links to the posts that I'll hopefully come up with.

Vague provisional outline:

- Sovereignty:
(1) Concepts
(2) Nations, States and Sovereignty
(3) the EU and Sovereignty
- Legitimacy
- Democracy and Union

Commission and legitimacy

Joan Marc Simon as a good article explaining how it is almost impossible for the Commission to be a source of strong leadership in the current political system - especially without a clear choice in the EP elections.

Also, Sarkozy has recently reiterated his argument that the Commission President should not be picked before the second Irish Referendum.