Wednesday, 26 November 2003

Subsidiarity and the Illusion of Democratic Control

John Bercow MP 

This article first appeared on the website of the Bruges Group.

Introduction

FOR OVER A decade, in response to anxieties expressed about the gradual
shift of decision making power from this country to the European Union, the
doctrine of subsidiarity has been hailed as the saviour of British
sovereignty. The Major and Blair governments alike argued that it would ensure
that decisions were taken at the level closest to the citizen and they have
been content to give the impression that it would halt the juggernaut towards
a centralised Europe.

In practice, there have been mixed messages from ministers about the
purpose of subsidiarity. Ultimately, it must be judged by its effect. At best,
it is a sop to those concerned with the preservation of self government; at
worst, it is a cloak which seeks to disguise the ever increasing arrogation of
powers to the institutions of the European Union.

The purpose of this paper is to examine the background to the debate about
subsidiarity and its younger blood brother, proportionality. Beginning at the
negotiations over the Maastricht Treaty, continuing at Amsterdam and now in
the discussions over the draft European Constitution, we see the chasm between
the safety valve which supporters said subsidiarity would be and the dangerous
deception that it has proved.

The Maastricht Treaty

As Prime Minister, John Major, not least because of his experience as a
Government Whip, knew that he had a tough task to persuade his own MPs that
the forthcoming Maastricht Treaty would not herald a large sacrifice of
British independence. He was also conscious of a growing public anxiety that
European Community diktat was becoming ever more widespread.
Attempting to reassure colleagues and voters alike, he pressed his
counterparts to include in the Treaty a clause on subsidiarity that could be
seen as a protection of the rights of national parliaments. In fact, the
doctrine of subsidiarity is not novel but, rather, it had been espoused by the
Vatican in Rome when Mussolini was in power. Enshrining the concept in Article
G(5)1 of the Maastricht Treaty, however, European Community leaders said it
meant that decisions should be taken at the lowest possible level. What does
the Article say and what does it really mean ?

“In areas which do not fall within its exclusive competence,
the Community shall take action, in accordance of the principle of
subsidiarity, only if and insofar as the objectives of the proposed action
cannot be sufficiently achieved by the Member States and can therefore, by
reason of the scale or effects of the proposed action, be better achieved by
the Community.”1

Two objections to this immediately arise. First, the Article is not saying
that action will be taken at the lowest level, as its supporters claim, but
rather that the Community shall act if it judges it necessary to do so.

Secondly, if there is a dispute between the European Union and a Member
State as to which should be empowered to act, it is justiciable by the
European Court of Justice. It is not an impartial arbiter but a body which is
committed to European integration and which prides itself on a ‘dynamic’
approach to EU law. In the Court’s hands, application of the law has often
been replaced by its invention. This hardly inspires confidence in the likely
efficacy of subsidiarity. Moreover, it can be argued that the notion of
subsidiarity, far from being a tool of decentralisation, is in fact an
admission that powers rest with the European state and that it will decide
which of them it delegates. Anyone tempted to dismiss such a notion as the
paranoia of euro sceptics should remember the verdict of the former President
of the European Commission, Jacques Delors, as long ago as 1991. Referring to
subsidiarity, he said “It only makes sense in a federal approach.”2

In any case, despite the conviction in some quarters that subsidiarity
would check the growth of European federalism, the tortuous wording of the
Article warranted the description of it by Lord Mackenzie Stuart, a former
President of the European Court of Justice, as “a rich and prime example of
gobbledygook”. 3 He averred that to regard
it as a constitutional safeguard showed “great optimism”.4

There was, ultimately, a test of the robustness of the provision. On March
12 1996, the Advocate General gave his opinion on Britain’s attempted
annulment of the Working Time Directive. He said:

“In view of the fact that the objective provided for in
Article 118A is harmonization, there is no doubt that the aim of the contested
objective can be better achieved by action at Community level than by action
at national level.” 5

This Opinion was reflected in the Judgement of the Court of Justice on 12th
November 1996. So those who entertained the hope that, courtesy of the
subsidiarity doctrine, we would be able to preserve sovereignty in respect of
our domestic working practices were rudely disabused of the idea. On the
Second Reading of the Bill to implement the Maastricht Treaty, John Major
claimed that the Treaty had begun to reverse the “centralising trend” in the
Community and he cited in support the insertion of “a legally binding text on
subsidiarity”. 6 This case punctured his
optimism.

Given the chastening effect of the test case, the author was surprised in
May 1998 to hear the then Foreign Secretary, Robin Cook, claim that “as a
result of the negotiations at Maastricht, 12 different regulations were
dropped” 7. He did not list the 12 and his
claim is flatly contradicted by an earlier Answer from Baroness Symons of
Vernham Dean to Lord Pearson of Rannoch. Asked to list the legislative
proposals withdrawn by the European Commission since 1994 on grounds of
subsidiarity, she replied “Each year the Commission withdraws a number of
proposals. There is no specific list of those withdrawn on grounds of
subsidiarity.” 8

In the five and a half years after the Maastricht Treaty came into force,
and before its supersession by the Amsterdam Treaty, a further 2,390 European
Directives, Regulations and Decisions were enacted. So much for the argument
that subsidiarity would restore national decision making.

The Amsterdam Treaty

The Blair Government knew that subsidiarity had not lived up to its advance
billing in the UK. Equally, those Continental federalists who feared that the
Maastricht version might yet prove a lever for decentralisation wanted to
revisit the issue. The result of these conflicting ambitions was the Amsterdam
Treaty’s Protocol on the Application of the Principles of Subsidiarity and
Proportionality
. This was sold by the Prime Minister to the House of
Commons as a provision with “real teeth”9
to safeguard our independence. In fact, it makes a bad situation worse.
Section 2 states:

“The application of the Principles of Subsidiarity and
Proportionality shall respect the general provisions and objectives of the
Treaty, particularly as regards the maintaining in full of the acquis
communautaire
and the institutional balance; it shall not affect the
principles developed by the Court of Justice regarding the relationship
between national and Community law, and it should take into account Article F
(4) of the Treaty on European Union, according to which ” the Union shall
provide itself with the means necessary to attain its objectives and carry
through its policies” “.10

This is a far cry from the blueprint for decentralisation which its
advocates, from the Prime Minister downwards, are wont to claim. It reaffirms
the primacy of the doctrines of the occupied field and the acquis
communautaire
. The latter currently runs to approximately 97,000 pages.
In any field of policy in which the EU has established a competence, it will
have a right to act again and anyone seeking to prevent it from doing so on
the ground of subsidiarity will face an uphill struggle.

Section 3 of the Protocol complements and reinforces Section 2. It
states:

“The principle of subsidiarity does not call into question
the powers conferred on the European Community by the Treaty, as interpreted
by the Court of Justice…The principle of subsidiarity provides a guide as to
how those powers are to be exercised at the Community level.”11

It goes on to refer to subsidiarity as a “dynamic concept” which allows
“Community action within the limits of its powers to be expanded where
circumstances so require, and conversely, to be restricted or discontinued
where it is no longer justified.”12

Apologists for the Protocol have sought to argue that the danger of
expanded Community action is avoided or minimized by virtue of the criteria
which should be met before Community action can be taken. However, closer
analysis offers little ground for optimism on this front. What are the
criteria? First, for Community action to be taken, an issue should be
“transnational” in character. Of course, there is for this purpose no
definition as to what constitutes transnational. For example, many would argue
that the regulation of working hours is not a matter of transnational concern
but, rather, an issue solely for elected politicians in their national
legislature. Others might contend that it is a proper preoccupation of the
European Union, especially since the establishment of the Single Market. As we
have seen, when the issue was put to the test, with the European Court of
Justice as umpire, the centralists won.

Secondly, in order for Community action to be taken, it should be necessary
for the requirements of the Treaty to be fulfilled. This is scarcely
reassuring because all that it appears to require is that those who want
maximum Community action should draft clauses in the treaties that are
sufficiently broad to require or allow such action. It is a matter of
historical record that the Community has devised objectives both noble and
wide which are enshrined in Community law and in Treaty obligations. Precisely
how those objectives are to be fulfilled is often left open because Member
States know that there are differences between them over how the objectives
would be interpreted.

The British have often been reassured, not least by the government of the
day, that there is no need to worry because the high falutin’ declarations in
the Treaty are simply in accordance with the Continental approach to law
making, rather than the British insistence on specificity. Yet, all too often,
at a later stage, as we discovered to our cost over working hours, we are told
that we signed the Treaty and the words clearly mean what most of the Member
States say that they mean. Therefore, when the Community legislates, we have
no success if we object that it should not be doing so.

Thirdly, the Protocol stipulates that there should be benefits in scale or
effect as a result of Community action. The British Government, when it lodged
an appeal in 1994, contended that there were disbenefits in scale and effect
of the Working Time Directive that should have prevented its adoption – but
they did not.

The conclusion is irresistible. The talk of tests that have to be met
before Community action can be taken offers cold comfort. There is none that
is absolute, dependable or even encouraging to those who believe that Britain
has often been misled and betrayed by the process of EU treaty making.

Fourthly, under the Protocol, the Commission is required to “consult widely
before proposing legislation and, wherever appropriate, publish consultation
documents”. This is a procedural nicety but no more than that. It constitutes
no check on the legislative ambitions of the Commission whatsoever. All the
evidence is that the Commission will continue to do in the future what it has
done in the past – namely, to identify new policies and proceed to implement
them.

Fifthly, there is a difference, as significant as it is little noticed,
between subsidiarity and proportionality. In paragraph 5 of the Protocol,
subsidiarity is linked to the “objectives of the proposed action”.13 If, therefore, a nation state were able to show
that it could, legislating and acting domestically, sufficiently achieve those
objectives, it could throw out, or free its own citizens from, a European
Directive on the subject. Any such hope is removed by Paragraph 2 of the
Amsterdam Protocol, if a proposed European action could be shown to be based
on the existing acquis communautaire. Moreover, any objection to a
Directive would also fail if it could be shown that it was consistent with, or
based upon, the principles developed by the European Court of Justice as
regards the relationship between Community and national law. Most seriously,
proportionality is not defined by reference to the objectives of the proposed
action but, instead, it is the principle “according to which any action by the
Community shall not go beyond what is necessary to achieve the objectives of
the Treaty.”14 The trouble with this is
that the objectives of the Treaty are invariably judged to be of such grand
intention and so wide in scope as to justify any action considered necessary
to fulfil them. The author is not aware of any instance in which the
Commission has considered or proposed a Directive only to learn that the rule
of proportionality would prevent its implementation.

Between 1st May 1999, when the Amsterdam Treaty came into force, and 31st
January 2003, when it was overtaken by the Nice Treaty, a further 1,269
Directives, Regulations and Decisions were enacted.

When challenged on the floor of the House of Commons in May 2003 as to
whether he could identify a Directive or Regulation that has been repealed
under the terms of the Amsterdam Protocol, the answer of the Foreign Secretary
was in stark contrast to the breast beating triumphalism of the Prime Minister
on the same issue in June 1997. Jack Straw replied “No, and the practice has
been unsatisfactory.” 15 Realising that
there was no mileage in seeking to defend the indefensible, he immediately
sought to shift attention instead to the possibility of securing an
improvement in subsidiarity in the negotiations over the draft European
Constitution. As we shall see, praying in aid that forthcoming document was
probably as unwise as it was portentous.

The European Constitution

What is striking about the Protocol on subsidiarity in the Draft European
Constitution is not its difference from the text of the existing Amsterdam
Protocol but the similarity to it. There is no acknowledgement of European
over-regulation. There is no acknowledgement of the need for decentralisation.
There is no acknowledgement that the EU has done too much too badly and should
do rather less rather better.

The new draft Protocol specifies that the case for action at Union level
“must be substantiated by qualitative and, wherever possible, quantitative
indicators.”16 The Amsterdam Protocol
said much the same.

The new draft Protocol requires the Commission to take account of the need
for any burden of a proposal to be kept to the minimum necessary to achieve
its objective. The Amsterdam Protocol said much the same.

The new draft Protocol stipulates that “before proposing legislative acts,
the Commission shall consult widely.”17
The Amsterdam Protocol said much the same.

The main difference in the new draft text is the suggestion that where an
objection, supported by at least one third of the voting strength of the
Member States, is made to a Commission proposal, “the Commission shall review
its proposal”.18 Ministers have trumpeted
their backing for this idea. Yet the idea amounts to very little for the text
of the draft Constitution goes on to state that “after such review, the
Commission may decide to maintain, amend or withdraw its proposal”, limply
adding that “the Commission shall give reasons for its decision.”19 It is no wonder that the European Scrutiny
Committee – being properly sceptical in the best sense of that much maligned
term – described the proposal as “inadequate because objections by the
specified proportion of national parliaments could simply be overridden by the
Commission”.2020

Subsidiarity – Mixed Messages and a Record of
Failure

The brief history of subsidiarity recounted above is not auspicious. None
but the most gullible believer in Prime Ministerial assurances could view it
as a trusty safeguard against the EU ratchet. To do so would be a triumph of
hope over experience.

For their part, Ministers have used different and contradictory arguments
to justify subsidiarity. First, successive Ministers for Europe have held that
the purpose of it is not to give decision making rights to national
parliaments. In a Written Parliamentary Answer, Keith Vaz told my colleague,
Peter Lilley, “subsidiarity is not about the repatriation of powers to Member
States. Rather, it is about ensuring that where the Treaty already allows for
action at both EU and Member State level, the most appropriate level is chosen
each time action is required.”21

In similar vein, responding to a Question from my colleague, Sir Teddy
Taylor, Peter Hain observed “subsidiarity is not about returning powers to the
Member States”, but about choosing “the most appropriate level”22 for action. Finally, on 11th March 2003, Denis
MacShane told my colleague, John Redwood, that “The UK Government have not
tabled any proposals in the Convention to return powers from the EU to the UK.
We are content with the existing division of powers. We have, however, tabled
proposals to strengthen the subsidiarity and proportionality principles to
ensure that the EU only acts where it adds value to national action.”23 This downbeat stance is a long way from the
optimism of Tony Blair in 1997, the boast of Robin Cook in 1998 and the
admission of failure of Jack Straw in May 2003.

A second defence propagated by Ministers is that subsidiarity has succeeded
in that the volume of new EU legislation has reduced. Let us be clear. The
argument here is not that there has been a net reduction in the huge load of
European law or that areas of public policy have been handed back to Member
States to control. It is the altogether more prosaic claim that the rate
of increase
in the number of EU laws has been reduced. Even this
contention is highly debatable. For example, Pollack reports continued
regulation in environment, consumer protection and the collection of
statistics. Moreover, studying the gamut of regulation in six issue areas,
namely the internal market and industrial policy; the right of establishment
and freedom to provide services; environment, consumer protection and health;
free movement of workers and social policy; science, information, education
and culture; and economic and monetary union and the free movement of capital,
he demonstrates that the pace of EU regulation during the latter half of the
1990s “has been consistently greater than the period between the adoption of
the Single Act and Maastricht”.24
Pointing out that the EU is now “an active legislator across a full range of
issue areas”25, and from studying the
legislative record, he concludes that “EU regulation has continued its
relentless growth throughout the last four decades – even in times of
political crisis and economic austerity”26.

It is clear that repatriation of powers to the United Kingdom has not
happened, cannot be expected and, in all probability, was never seriously
intended. The 106 words of Article G(5) of the Maastricht Treaty were replaced
by the 1,261 word Protocol on Subsidiarity and Proportionality in the
Amsterdam Treaty and the Protocol in the Draft Constitutional Treaty
consists of a further 742 words. In essence, it has been the lot of national
parliaments to put up with words, words and more words which are but a cover
for the legislative imperialism of the European Union. As if this were not bad
enough, two further factors give cause for concern amongst all who believe
that further losses of sovereignty would be against our national interest.

First, the Draft Constitutional Treaty for the European Union27 lists the areas of proposed legislative
competence. It reaffirms that the Union shall have exclusive competence over
competition rules for the Internal Market, and over monetary policy for euro
zone members, common commercial policy, customs union and the conservation of
marine biological resources under the Common Fisheries Policy. Furthermore, it
proposes that the Union shall be granted exclusive competence for the
conclusion of international agreements.

It proposes that shared competence shall apply “in the following principal
areas”28:

  • internal market
  • area of freedom, security and justice
  • agriculture and fisheries, excluding the conservation of marine biological
    resources
  • transport and trans-European networks
  • energy
  • social policy, for aspects defined in Part III
  • economic, social and territorial cohesion
  • environment
  • consumer protection
  • common safety concerns in public health matters

In addition, the Union will have limited competence in research,
technological development and space, development co-operation and humanitarian
aid.

Article 16 of the Draft Treaty also lists areas of supporting,
co-ordinating or complementary action, including industry; protection and
improvement of human health; education, vocational training, youth and sport;
culture; and civil protection.

It is clear from the above list that the Union proposes to act across a
vastly increased canvas of public policy. For example, Article 14 of the Draft
Treaty proposes that the Union shall have “competence to promote and
co-ordinate the economic and employment policies of the Member States.”29 Although the Union has previously regarded
aspects of such policy as matters of common concern, the new Article and the
reference to competence, offer the clearest signal yet to students of European
Treaties that our partners intend a step change forward in the extent of their
decision making powers.

The very meaning of shared competence, as devised by the treaty makers, is
bizarre. The Draft Treaty proposes in Article 11 that where power is shared,
“The Member States shall exercise their competence to the extend that the
Union has not exercised, or has decided to cease exercising, its
competence.”30 In other words, if the Union decides to legislate on a subject,
the Member States are prohibited from doing so. The word “sharing” seems
peculiarly inappropriate to describe the power relationship between the Union
and the Member States in these circumstances.

Secondly, on top of the expected relinquishment of the national veto in at
least30 areas, a threat is posed by the
so-called passerelle clause (Article 1-24 (4) ).31 Under this, the European Council would be able
to agree to abolish all that remains subject to the national veto, decreeing
that it be subject instead to qualified majority voting. Neither the House of
Commons nor the British people would have any say in the matter.

As if all the above were not damaging enough to the autonomy of nation
states, Article 17, the infamous “Flexibility clause” further strengthens the
Union relative to them. It prescribes that “if action by the Union should
prove necessary…to attain one of the objectives set by the Constitution, and
the Constitution has not provided the necessary powers, the Council of
Ministers, acting unanimously on a proposal from the Commission and after
obtaining the consent of the European Parliament, shall take the appropriate
measures”.32 It does not require a vivid
imagination, but merely a basic familiarity with the legislative track record
of the European Union, to envisage circumstances in which this Article would
be invoked. Democratically elected Members of national Parliaments would be
impotent to do anything about it as the Article implicitly acknowledges in the
highhanded statement that “the Commission shall draw Member States’ national
Parliaments’ attention” to proposals under this procedure. The effrontery is
breathtaking, yet the British Government remains untroubled by it.

Conclusion

Subsidiarity and proportionality have failed. The growth of EU law making
continues unabated. Too much power has been taken over too long a period for
too little benefit or justification. It is hardly surprising that there is a
pervasive public cynicism about politics as millions of people see the EU
developing in a way that they had not expected, that they do not want, but
that they are largely powerless to resist.

It is time to stop and to reverse the ratchet whereby the United Kingdom is
drifting towards a European State. There is a noble alternative – to develop
the European Union as a partnership of free trading, outward looking nation
states, which co-operate with each other when it is necessary and compete with
each other when it is not. To fashion such an arrangement will require vision,
courage and leadership. Such qualities have not been displayed in abundance in
the first three decades of our EU membership. Make no mistake. We need them
now.

Notes and References

  1. Article 3b of the Treaty Establishing the European
    Community
  2. Jacques Delors colloquium entitled Subsidiarity -
    Guiding Principles for the Future of EC Policy and Responsibility
    – March
    1991
  3. The Times – 15 June 1992
  4. Ibid.
  5. Advocate General Leger in European Court of Justice
    Case C-84/94; Common Market Law Reports Vol.77 1996 pp.671-723 (1996) 3 CMLR
    671
  6. Official Report, 20 May 1992, vol. 208, cols.
    265-266
  7. Official Report, 12 May 1998, vol. 312, col.
    148
  8. Official Report, 26 March 1998, vol. 587, col.
    255
  9. Official Report, 18 June 1997, vol. 296, col. 314 -
    Statement by the Prime Minister on the European Council in Amsterdam
  10. Protocol on the Application of the Principles of
    Subsidiarity and Proportionality in the Treaty of Amsterdam
    Cm. 4434 -
    August 1999
  11. Ibid.
  12. Ibid.
  13. Ibid.
  14. Ibid.
  15. Official Report, 21 May 2003, vol. 405, col.
    1023
  16. Protocol on the Application of the Principles of
    Subsidiarity and Proportionality in the Draft Constitutional Treaty for the
    European Union
    CM 5897 – August 2003.
  17. Ibid.
  18. Ibid.
  19. Ibid.
  20. European Scrutiny Committee 24th Report The
    Convention on the Future of Europe and the Role of National Parliaments
    ,
    HC 63-XXIV- 16 June 2003
  21. Official Report, 9 January 2001, vol. 360, col.
    508w
  22. Official Report, 27 November 2001, vol. 375, col.
    801w
  23. Official Report, 11 March 2003, vol. 401, col
    157w
  24. Mark A Pollack “EU Policy-Making Since Maastricht” in
    the Journal of Common Market Studies Vol. 38 (3) September 2000, p.
    529-536
  25. Ibid.
  26. Ibid.
  27. Cm. 5897 – August 2003
  28. Ibid.
  29. Ibid.
  30. Ibid.
  31. Ibid.
  32. Ibid.