Of Red Cards, Democracy and Subsidiarity

When UK Foreign Minister William Hague made his Koenigswinter speech in Germany last week, his Red Card idea caught the media's attention. Currently if enough national parliaments get together, they can give a draft EU bill a "Yellow Card", which sends it back to the Commission to reconsider it on the grounds of subsidiarity (on whether or not the substance of the draft law is appropriate to be decided on the EU level or not). The Red Card idea is essentially an extention of this, with national parliaments being able to block draft legislation for proportionality and subsidiarity reasons.

So is it a good or bad idea? If it means each individual national parliament being able to block EU legislation, then obviously it's ridiculous. You cannot have national vetos for everything - the Single Market Act introduced qualified majority voting to make the project realistic in the first place. Indeed, the poor quality of the legislation from that period, with Member States adding on caveats, exceptions and exemptions to nearly everything means that it's practically much better that the EU operates in a more open and parliamentary manner than before.

Going back to national vetos will increase the emphasis on backroom deals and lead to poor legislation drafted more by diplomats than democrats. But I don't think that's what Hague was going for (after all, all his talk of furthering the single market would flounder in the face of 28 national vetos); it's more likely that he meant that it would take a number of national parliaments to block draft legislation. I both agree and disagree with Hague on the Red Card idea.

Here's a bit of what he said in his speech:

"The European Parliament plays an important role in holding European institutions to account. It can play a very positive role, as it has along with Commissioner Damanaki in the current reforms to the Common Fisheries Policy. But if the European Parliament were the answer to the question of democratic legitimacy we wouldn’t still be asking it

I think instead that the solution lies in promoting the role of national institutions in European decision-making – because ultimately it is national governments and national parliaments that are accountable to our electorates. They are the democratic levers voters know how to pull. I want to offer some thoughts on how we might do that in a moment

This idea of the right balance between national and European decision-making, and respect for the concepts of proportionality and subsidiarity, brings me to my third key challenge. How can we build a European Union that acknowledges and respects the diversity of its Member States? One that recognises that our national approaches to and ambitions for the European Union may sometimes differ?

[...]

We should explore whether the yellow card provision could be strengthened or extended to give our parliaments the right to ask the Commission to start again where legislation is too intrusive, and fails the proportionality test. And we should think about going further still and consider a red card to give national parliaments the right to block legislation that need not be agreed at the European level."

First of all, I disagree with him that strengthening national parliaments is the only way that democratic legitimacy can be increased (bear with me, I will get to the "agree" point eventually). The Eurozone crisis is a key example of this, with political battles going on within national parliaments, but little pan-European structures in which to express these political differences, debate them, and come to a majority approach while honing the policy to take account of criticism, you end up with an incoherent approach.

For the Cypriot bail-out, it was a clash of national parliaments and national leaders. Much of the resentment can be found in the ad hoc nature of the bail-outs, and how the battles are fought along national battle-lines, with little opportunity to be heard on an equal stage, and with no equal and systemic policy that applies fairly to all. This feeling of political inequality, the lack of political leadership at a European level, and the inability to properly debate and influence the central policy is the fundamental basis of disillusionment with the EU (at least in the Eurozone).

You cannot fix the democratic issues with the EU by adding more institutional complexity and blocking mechanisms. To have political accountability, you need a political space that you can influence to create policy that is accountable to voters. The European Parliament and the Commission, if tied closely to the Parliament, would be the best place to start, because it would give a focal point for debating and making policy that can be influenced via direct elections (even with the Council and national parliaments having checks on them).

Because greater instituional complexity and more blocking mechanisms in the system really leads to greater inefficiency and an inability to reach decisions. If the EU cannot make decisions, then that would lead to even greater disillusionment. (And the next European elections can be a good starting point for debating and influencing the big issues with the EU today - see this article by Simon Hix and Christophe Crombez).


That said, increasing the power of the national parliaments can increase democratic legitimacy in the EU when it comes to "...build[ing] a European Union that acknowledges and respects the diversity of its Member States...". At the moment subsidiarity is hard to define - not the idea that power should be exercised as closely to people as possible, but the day-to-day practice of it. The Yellow Card system was a great idea, but it needs reform (a longer time period for national parliaments to object, and national parliaments need to organise greater communication between them to make better use of the procedure).

A "Red Card" system - with, say, a majority or qualified majority of national parliaments being able to block draft legislation - could be a good way of developing a culture of subsidiarity. When the Commission analyses draft laws for subsidiarity and proportionality, it considers the arguments, but there isn't a clear and objective answer to the question, and nor can subsidiarity be effectively defined in a day-to-day way by the courts. There needs to be a political culture of subsidiarity, based on an understanding between national parliaments (and citizens) and the Commission (and the rest of the Union legislature) about what should be done at the EU level and what should be done at a national or more local level. This can really only be done through political debate and contest, and a Red Card system could give national parliaments the tools to start marking that space.

Of course there will be clashes and debates between the EU institutions and the Member States/national parliaments over this - that's the point! But it's a more effective way of building an accepted idea of subsidiarity and decentralisation in the EU over time than relegating the question to impact assessments and wonkish policy documents.


(As a side-note, here's a graphic explaining how EU laws are made [via Kosmopolit]).

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.

Oireachtas Committee Report on National Parliament involvement in EU legislation

The Oireachtas (both houses of the Irish Parliament) Sub-Committee on Review of the Role of the Oireachtas in European Affairs has published its report (PDF) on how the Irish Parliament should adapt to the new European institutional setting after the ratification of the Lisbon Treaty. There was a sense during the Lisbon II Referendum that the Oireachtas wasn't making the most of its powers under the old system (though changes had been brought in after Nice to improve oversight), and this Committee was promised to ensure that the Oireachtas would make the most of the increased power of national parliaments under Lisbon.

Under the pre-Lisbon system, the Oireachtas committees relating to the EU had access to Green and White papers (plus government department notes), considered EU legislation and had reports from the government on EU affairs. Irish participation in the Common Foreign and Security Policy is subject to the triple lock (UN, cabinet and Dáil [lower house] approval for all military missions) and opting-in to Justice and Home Affairs legislation is subject to a Dáil vote. The report had several key themes: prioritisation (focusing on important legislation), early engagement, better oversight (of Council positions), better co-operation (between national parliaments), mainstreaming (making EU matters mainstream in the Oireachtas so they're not just handled by a few parliamentary members), and domestic impact (improving transposition work on EU laws so that they fit in better with domestic circumstances). Before the report, 3 areas were highlighted as weaknesses for the Oireachtas: involvement in decision making, lack of transposition oversight, and organisation of EU business in the Oireachtas.


Proposals (summary):

1. The interim procedures for the Lisbon-amended EU (powers for the Committees in examining Eu legislation and recommending motions of subsidiarity, etc.) be made permanent.

2. There should be a weekly report for parliamentarians on EU documents and draft legislation. This should be presented to the Houses and published online.

3. The Joint Committee on European Scrutiny should list proposals as limited or greater significance for Ireland. This prioritisation should help the Oireachtas maximise its role.

4. Annual reports are of limited value since thery're mostly historical. Greater use of 6-monthly reports designed to help the Committees prioritise the work ahead is necessary.

5. The Joint Committee on European Scrutiny should analyse the Commission's Annual Policy Strategy (APS) and the Annual Legislative Work Programme (ALWP), and send reports to the Oireachtas to be debated in plenary. JCES views on the ALWP should be circulated to the other committees.

6. Before a Council meeting, the relevant Minister should be questioned by the relevant committee (at the moment, only the JCES can interview Ministers before hand, but it is rarely practised, and only happens for the General Affairs Committee and Foreign Affairs Committee in the Council). No binding decisions on the Minister's vote would be taken - the aim is for better scrutiny.

7. There should be a Question and Answer session in the Dáil before European Council meetings.

8. The Dáil should debate the European Semester reports of Ireland before they are forwarded to the Commission.

9. There should be a scrutiny reserve, so Ministers cannot agree on legislation before the parliament has finished looking at and has made the government aware of its views. A Ministerial override could be set in place, with the relevant committees able to scrutinise its use.

10. More work should be handled by the relevant sectoral committee. The current 2 European committees should be merged in the next Dáil to streamline its work as other committees adjust to their new responsibilities.

11. That committees strengthen links with their opposite numbers in other member states and that the Oireachtas hosts inter-parliamentary meetings on an annual/biannual basis.

12. That MEPs meet with the European committees and sector committees to facilitate co-operation with the EP (via video conference if necessary). Sectoral committees should also consult the EP rapporteurs on relevant legislative proposals.

13. The European committees should give support to sectoral committees with EU proposals and ensure that these are properly examined by "policing" the committees (sectoral committees should report back to the European ones). Also, using rapporteurs for EU proposals (though not all of them) would widen the number of parliamentarians involved in the EU legislative process.

14. There should be regular plenary debates on EU affairs, and a week in May devoted solely to EU affairs (involving parliamentarians more and boosting the public profile of EU matters).

15. Information on Regulatory Impact Assessments and Statutory Instruments should be circulated among all parliamentarians and referred to the European Committees for scrutiny. A Seanad (Senate/Upper House) panel should be set up to monitor transposition of EU laws. There should be a study of transposed EU laws that have cause public concern and a comparison with how other member states have transposed the laws.

16. An information kiosk on the EU should be set up in Leinster House (seat of the Oireachtas) to help inform citizens about the EU. Also more formal links with the Commission and EP offices should be made and:

"Initiatives that could be considered include the establishment of a planned tour for students which encompasses a visit to Leinster House and a visit to the EU Offices; the organisation by the Commission and/or European Parliament of outreach programmes, meetings and competitions, particularly in schools, which TDs and Senators could be invited to provide input."

Analysis:

This is a really strong report. It has considered the key weaknesses of the Oireachtas in scrutinising EU proposals, ensuring a good transposition of laws that are sensitive to local circumstances, and dramatically increasing the oversight of Irish ministers in the Council (without pre-empting the government's vote). The Sub-Committee has also clearly thought long and hard about how to involve more parliamentarians in the European legislative process. It might take some time for these reforms, if passed, to pay off, as it will be a steep learning curve for some TDs and Senators, but with the right support it will pay off. I'm also impressed with the commitment to push EU affairs out into a more public light: dedicating a week to EU affairs in plenary plus having debates on the European Council will help in particular (though it's the regular debates and committee scrutiny which will really pay off).

Will these reforms be implemented? Ideally they would be in their entirety, but it would require more resources - particularly in the areas that would make the most difference (sectoral committees taking on EU work, rapporteurs, scrutiny of transposition). These are the most important elements of the report, so I hope that they won't be lost when it comes to reforming the system. There's also a clear need for more public information on the EU - especially with legislative proposals so people can get involved, talk to their TDs and MEPs and take greater control of European issues. European election campaigns would definitely be better if TDs and political party members had more experience with EU affairs and knew what they wanted to change. Over time, this could help the debate and make the European elections matter more. It will require a lot of time and effort, however.

An interesting question is: could the Council become more transparent through national parliaments? It wouldn't be satisfactory to have 27 different parts of the story in different languages rather than a single source which had multilingual information on the goings-on in the Council, but it would be a start. Transparency has never been the Council's strong point, and it is still letting us down, even after Lisbon. More inter-parliamentary contact will hopefully mean that subsidiarity becomes a bigger part of EU politics, and perhaps this contact will help national parliaments hammer out the "best practice" for dealing with the Council. It still seems like the inter-parliamentary aspect is lacking, though; it will be based on personal contacts, and, along with the language barrier, the lack of formal channels may make inter-parliamentary connections weak and vulnerable to personnel changes.

Tobacco on Trial

EUobserver has reported that a Belgian Court has referred questions to the European Court concerning a case taken there by anti-smoking campaigners fighting to get a judicial ban on the sale of cigarettes and the collection of tax on their sale. The case is being referred to the European Court because the campaigners are relying on the Lisbon Treaty, the Charter of Fundamental Rights and the UN Convention on the Rights of the Child 1989 in their case, so this case, if admitted, has the potential to have EU-wide effects. It's important to stress that this case has not yet been admitted, and if it is, it will be well over a year before there's a ruling. Still, the issue of tobacco bans and the EU reoccurs constantly.

Last year the Commission promoted a recommendation advocating an EU-wide ban on smoking in public places. I criticised this, because it was bandwagon politics: the EU does not have the power to legislate for such a ban. Worse, for the EU bandwagon politics backfires spectacularly, almost without fail: these kind of wishful, "wouldn't it be nice...?", recommendations devalue the perceived worth of the EU, and raise fears, or hopes, of European action that cannot be fulfilled, cumulatively leading to disillusionment and resentment of the EU that tars the European idea by implication.

So is the position different under the Lisbon-amended TFEU? The old Article 152 and the new (and renumbered) Article 168 both exclude the harmonisation of the laws of the Member States. Paragraph 5 of Article 168 states:

"The European Parliament and the Council... may also adopt incentive measures designed to protect and improve human health... [highlights cross border issues]... and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding any harmonisation of the laws and regulations of the Member States." [Emphasis mine].

Case law also states that legislation cannot try to harmonise laws in an area that has been explicitly excluded from harmonisation in the Treaties by relying on a different article (say, on the free movement of goods). It's hard to see the Court circumventing this purely on the Lisbon-amended treaties to bring in such radical change.

When it comes to the Charter of Fundamental Rights and the UN Convention, I'm unsure of which specific articles to look at as I haven't read the actual case that the campaigners are putting, and how far the Charter and Convention could be considered applicable. From a quick glance over the Charter, the articles dealing with health, child rights, private life, etc., are, as you would expect, general rights that don't give much scope for the positive interventionism that a smoking ban would imply. The Convention is not an integral part of EU law, but could be drawn on as a part of the legal culture of the Member States (though it's hard to see this having a huge bearing on any ruling - at least any ruling as decisive as that the campaigners are hoping for).

Health policy should largely stay at the Member State level: it consists of a large chunk of public expenditure and would be best dealt with at the national level - particularly as dealing with health policy on any scale beyond what is necessary to deal with cross border matters and low-level integration logically implies a shift to what would be a high level of social and economic integration (to eliminate inequality of health care between all EU citizens), and there simply isn't the political will or political engagement to support such a project. Banning smoking isn't of this scale necessarily, but it would entail a significant extension of EU law.

The health and taxing policies of Member States when it comes to drugs such as tobacco and alcohol, etc., are very culturally sensitive. There are different drinking and smoking cultures in different states; Ireland was the first EU state to adopt a smoking ban in public places and in the work place, and Sweden and Denmark have high alcohol taxes. If the European Court was to look at the legality of the sale and/or tax collection of these drugs as something the EU and EU law should deal with, it could set precedent for the expansion of EU competences (which could lead to a clash with the German Bundesverfassungsgericht).

I have not been able to read the cases lodged with the Court yet, and they will be very interesting to follow should they be admitted, but on first glance I cannot see anything approaching the radical imposition of a ban being the result. This is for 3 main reasons:
1. I think that the exclusion of harmonisation, and the supporting case law, is strong enough to prevent such extreme judicial activism - it would require too many stretches of judicial imagination and intellectual squaring of circles.
2. A ban, or a ruling that implies that the Court/EU has more rights in this area than would seem to be the case on the face of the Treaties could risk a backlash from the Bundesverfassungsgericht, which has renewed its claim to the right to police the competences of the EU in its ruling on the constitutionality of the Lisbon Treaty.
3. The area is just too radical for judicial activism. Surely the argument that this is a matter for law-makers rather than the judiciary will weigh heavily on how the case, if considered, would be decided. Laws and taxes on drugs are well debated and discussed; how justifiable could it be, for instance, that the European Court could make such decisions on drugs on health grounds, when their place in society is regularly debated in each Member State? What about the liberal drugs laws in the Netherlands? Could the work of public debate and cultural considerations be overturned by the extension of principles established under a radical tobacco ruling?

Again, it will be interesting to see how the court deals with the cases, should it be admitted, and perhaps I'm judging it too much on face value and it will become clearer to me upon a full reading, but I think that the Court would be wise to resist the radical wishes of the anti-smoking campaigners.

Klaus, and levels of decision making

Czech President Klaus addressed the European Parliament yesterday, to tell them that the directly elected body is essentially anti-democratic.

"Are you really convinced that every time you take a vote, you are deciding something that must be decided here in this hall and not closer to the citizens, that are inside the individual European states?" Mr Klaus asked.

Subsidiarity is a very important concept for the EU, and it probably needs to be considered more, though of course it would be a political minefield, since "subsidiarity" is the EU's term for the distribution of power to where it is as effective and as close to the people as possible.

So subsidiarity poses 2 questions: is the European or national level best for [a certain power], and is the national or the local level best for [a certain power]?

This includes taking power from the national level and devolving it down too:

"[EP President Poettering] did concede one point to the Czech president, saying that decisions should be indeed taken closer to the citizen, but that it was also the responsibility of national government to devolve powers to regional and local authorities."

The EU institutions work mainly with the Internal Market; for the EP this is especially true as it has little to no input in the more sensitive areas of Justice and Home Affairs and the CFSP (Pillars 2 and 3). Now I would say that the best level for legislating for a transnational market is, well, the transnational level, so I would say yes, the decisions the EP take are generally best decided at EU level.

The implication of Klaus' speech is that he would prefer decisions to be taken at a national level. With regard to the internal market this is done to some extent through the ECJ's doctrine of Mutual Recognition (if it's legal to be sold in one member state, then ditto for the other member states, unless there's good reason for this not to be the case). But then Klaus has been positioning himself to avoid signing the Lisbon Treaty into law in the Czech Republic if the Czech Parliament ratifies it by saying that he won't sign it unless the Irish vote Yes.

On the basis that the closest level of decision making for the Czech Republic, is, in fact, Ireland? (....If only more countries would give us a veto on their parliamentary decisions.... In their own interests, of course. In fact, we should elect the Czech President to make sure s/he doesn't get any strange ideas about bowing to the will of the Czech Parliament).

So is the Czech Parliament an illegitimate vehicle for governing the Czech Republic? (Surely the President is even more removed than the parliament from the people, and, since the post can only be filled by one person, even less representative).

Klaus also makes the "EU is not just undemocratic, it's anti-democratic" argument. The composition of the EP cannot make a difference because it cannot form a government and an opposition, he explains.

Then, realising that this is just an argument for giving the EP more power to ensure the accountability of the Commission and (even more shockingly) the member states in the Council, he quickly moves on to the "polity" argument - that giving directly elected politicians more power won't be very democratic either, since people won't identify with them.

Personally, I've never heard of people identifying with national politicians, never mind European ones, but I think that the polity argument takes a very narrow-minded view of human identity: that we can only identify with one thing at a time. (Interestingly as media and economies have grown in reach, so human identity has been pushed up to higher levels while remaining to some extent at each level: family - tribe - city-state - nation state - ?) It also assumes that identity is essential to legitimate decision making, whereas I would argue that having a fair and open arena where ideas are discussed and voted on lends its own legitimacy. The EP needs to engage the people more, no doubt, and the media needs to do its duty in informing the public and holding the EP up to close scrutiny, but these are practical problems that can be addressed - we don't need to give up democracy here as a lost cause. (Jon Worth has a good article on this).

The conclusion would logically seem to be, for Klaus, to pull out of the EU, yet he rules this out as a viable alternative. He says there is no alternative to EU membership. (Grahnlaw disagrees). So does Klaus have a solution? Not really.

The thinking seems to be that powers should be taken back from the EU to national level, but the internal market remain in place. Some powers of the EU aren't essential to the workings of the internal market, but the vast majority are. So how should they be set? They can't be done nationally, and just agreeing to them in an intergovernmental fashion (i.e. just have the Council) is even less democratic than the EU we have now. Surely people should be involved in deciding how we run our common market? But apparently this wouldn't really be democratic?

Unless he doesn't want the internal market, but merely free trade (which is the term he uses), which is much, much less than an internal market - just the end to tariff barriers, with all the non-tariff barriers to trade still in place (no true free movement of goods, people, and services). If so, does that mean that Klaus is actually quite protectionist? I doubt he wants an end to the internal market, which is why he has recognised that there is no alternative to the EU when it comes to the internal market.

So why not come up with some solutions to what he perceived are the EU's problems? Far from providing the debate he claims to want, he merely perpetuates the same old tired arguments.