Margarida Vasconcelos: A red card is not a fundamental change

David Cameron has been saying “It is national parliaments, which are, and will remain, the main source of real democratic legitimacy and accountability in the EU”. However, according to Brussels the “democratic accountability must be ensured at the level where decisions are taken” which means that it is mainly ensured not by national parliaments but by the European Parliament. In fact, according to Mr Barroso, former president of the European Commission, “the European Parliament is the basis of the European democracy” and Mr Juncker reiterated in his 2015 State of the Union speech that the European Parliament “is the heart of democracy at EU level, just as national Parliaments are the heart of democracy at national level”. One can therefore say that such statements represent a challenge to national Parliaments, despite all the pledges to enhance their role.

As a result of the EU integration process, and the transfer of substantial competences from national to the EU level, national parliament’s traditional law making power has been seriously eroded. The EU has progressively stripped away the decision making power of Westminster in favour of unelected and unaccountable institutions. Yet, the EU is by design undemocratic in its decision making procedures and institutional arrangements and it lacks democratic legitimacy.

The European Commission has almost the exclusive right of initiative over all EU legislation however it has no democratic mandate and it is not directly accountable to citizens. The so-called Spitzenkandidat is not a democratic process but a defeat for democracy and it has not provided Mr Juncker with democratic legitimacy.

The European Parliament is the only EU institution directly elected but it also lacks democratic legitimacy, as it has been confirmed by the outcome of the European elections. Since the first elections the European Parliament has been acquiring more powers but at the expense of voters and at the cost of removing key decision-making powers from national parliaments, whilst the voter turnout has been declining from 63% to 42.54% in 2014, the lowest-ever turnout since 1979. The European Parliament does not carry out the core task of any parliament, namely to adequately represent its electorate. In fact, the MEPs most of the time represent the EU and hardly represent the popular will of the national electorates which vote to elect them. The European Parliament wants ‘more Europe’ and a bigger EU budget, and this is not what British people want.

The EU decision making process, in itself, erodes the importance of sovereignty and weakens the democratic nation state. British people should be made aware of the operation of the ordinary legislative procedure, and qualified majority voting, as these are matters that go to the heart of member states’ democracy.

In the Council of Ministers decisions can be made either by unanimity or by qualified majority voting but the latter is the rule. In fact, we have been told that most of the time the Council decides by consensus, which does not mean that all member states agreed to it. The European Parliament has the power to change the outcome of negotiations by introducing amendments which can make a substantial difference to the content of the legislative proposal, to the detriment of member states, while national Parliaments have little or no insight into the bargaining and compromise-making that takes place among member states and within the European Parliament. The so-called informal trilogue meetings and early agreements, whereby compromise deals are negotiated behind closed doors, weakens the overall democratic scrutiny of EU legislation and undermines Westminster.

The UK government is not always able to form political alliances to introduce changes to prevent disadvantageous amendments that other member states or the European Parliament might try to introduce to a proposal, during the negotiations, let alone to stop damaging legislation. The text ultimately adopted takes into account the EU interest as a whole, while member states are required to uphold such interest above their respective national interests. Due to the ordinary legislative procedure and QMV, ministers have been forced to accept EU measures against the national interest. The EU decision making process challenges state sovereignty, as the EU legislation, adopted by a qualified majority voting, is bidding on the UK, even if the Government voted against it. It is unacceptable that EU measures are binding upon Westminster but without MPs having any opportunity to stop them or change them.

The European Communities Act 1972 provides for the incorporation of European Community law into UK’s domestic legal order. All EU regulations and all provisions of EU law that have direct effect are automatically incorporated and binding in national law without the need for a further Act of Parliament, regardless Government policy. The other EU law measures, not directly effective, are implemented by secondary legislation. Under the principle of supremacy of EU law over national law, established by the CJEU, the UK’s courts are required to override national legislation deemed incompatible with EU law. Likewise, Parliament has always accepted the obligation to amend national law to comply with the CJEU rulings, which entails the obligation to override laws that were passed according to voters’ wishes, as decided in general elections.

The Government wants national Parliaments to have a greater role in the EU decision-making process and to repatriate powers to Westminster. But, would the introduction of green and red cards be enough to reassert Westminster sovereignty?

Despite what has been said, national Parliaments have no significant influence on the early stage of the EU legislative process as well as on the development and formulation of EU policies. They are secondary players within the EU law making. It is the EU legislators, not Westminster, who has the last word.

The so called Barroso initiative, under the political dialogue framework, is an informal and non-binding commitment of the Commission; consequently it is exclusively dependent on its willingness to take the opinions of national Parliaments on board. In fact, there is not even one clear example of a policy being shaped or a proposal being withdrawn or amended in direct response to parliaments' concerns.

The instruments introduced by the Lisbon treaty, namely the reasoned opinion procedure and the early warning system (EWS) have not enhanced the role of national Parliaments in the EU decision-making machine. The Protocol on the application of the principles of subsidiarity and proportionality provides national Parliaments with an eight-week period, from the date of transmission of a legislative proposal, to submit to the Commission a “reasoned opinion” stating why they consider that a draft legislative proposal does not comply with the principle of subsidiarity. However, national Parliaments do not have powers to enforce the principle of subsidiarity, as they are only allowed to ask the Commission to reconsider its proposal.

Under the so called “yellow card procedure” the Commission must review the draft legislative proposal if the reasoned opinions represent one-third of the total votes (56) allocated to national Parliaments (19) or one-quarter (14) for proposals relating to police and judicial cooperation in criminal matters, but they are free to retain the proposal, as they “may decide to maintain, amend or withdraw the draft.” In fact, the yellow card threshold was met in just two cases, on the Monti II proposal, whose withdrawal had nothing to do with subsidiarity but due to lack of sufficient support in the Council and the European Parliament for its adoption, and on the proposal on the establishment of a European Public Prosecutor's Office (EPPO) where the Commission completely rejected the subsidiarity concerns raised by national parliaments and decided to go ahead.

Under the so called "orange card", a legislative proposal, put forward under the ordinary legislative procedure, must be reviewed if the reasoned opinions represent at least a simple majority of the votes allocated to national Parliaments. The Commission may decide to maintain, amend or withdraw the proposal but if it chooses to maintain it, it is then required to issue a reasoned opinion justifying why it considers that the proposal complies with the principle of subsidiarity. The European Parliament and the Council, before concluding the first reading, are required to consider whether the legislative proposal is compatible with the principle of subsidiarity, but it would only be withdrawn if, by a majority of 55 % of the member states or a majority of the votes cast in the European Parliament, the legislator decides that it is not compatible with this principle. Unsurprisingly, the orange card threshold has never been reached.

Hence, the national parliament’s involvement through the subsidiarity control mechanism is ineffective and had no impact yet on legislative outcomes. The Commission is not obliged to change the proposal, let alone to withdraw it; consequently the legislative proposals can be adopted regardless opposition from national parliaments. It is just laughable development that has done nothing to increase the democratic legitimacy of the EU and cannot possibly compensate for the loss of legislative power that Westminster has been suffered in the course of EU integration. The required thresholds for the so-called yellow and orange card cards are very high and difficult to achieve. Moreover, national parliaments have different interests and concerns over different EU policy areas therefore their arguments and conclusion whether the principle of subsidiarity has been reached is different.

There have been several proposals aimed at strengthening the "yellow card" procedure, namely that the deadline for submitting a reasoned opinion should be extended as well as the scope to include the principle of proportionality and legal basis, and that the threshold should be lower. There are other legal constraints and limits to the use of this instrument, as it can only be used as regards subsidiarity concerns and on proposals, not on existing EU law. It is important to note that the key elements of these procedures, including scope, deadlines, and effects are set out in the Protocols on subsidiarity and national parliaments consequently they could only formally be changed through a revision to the Treaties.

The introduction of a green card has been suggested by the Dutch and Danish Parliaments and it has been identified by several national parliamentarians as a suitable way to increase their influence on the development of EU policies and legislation. The green card would allow a number of national Parliaments, working together, to make policy or legislative recommendations, including proposals to amend or repeal existing legislation, which would then expect the Commission to give a formal response, within a given deadline, explaining whether or not it intends to take the proposed action.
It is important to recall that national Parliaments already have the possibility to write to the European Commission expressing their opinions on existing and future legislative proposals, which have been ignored.

It is not clear yet whether the introduction of a green card would be part of the renegotiation package. Nonetheless, the green card procedure would be informal and would not give national parliaments the right to initiate, amend or repeal EU legislation, legally forcing the Commission to present a legislative proposal, which would not be possible under the existing treaties.

The green card, as presently proposed, would solely give to a group of national Parliaments the right to invite the European Commission to put forward legislative proposals, which the Commission would be under no obligation to reply let alone to pursue. The green card is not foreseen in the EU treaties thus it would just entail a political commitment from the Commission to respond to national parliaments. Hence, without amending the treaties the Commission would be under no obligation to formally reply to the requests and to justify why it has not taken action. The European Commission might put forward legislative proposals if there is widespread support from national Parliaments and if it agrees, obviously, with their views. The European Parliament, which does not have the right to propose legislation but to ask the Commission to submit a new legislative proposal, won’t be willing to accept that national parliaments would have a similar role. As any proposal suggested by national parliaments would be subject to the ordinary legislative procedure it is likely to be substantially changed by amendments tabled by MEPs.

Moreover, the so called green card is likely to enhance more the position of the Commission than the role of national Parliaments. In fact, it has been seen not as an opportunity to withdrawn damaging EU legislation but as an opportunity to say yes to further EU integration. It is important to note that the reason behind Brussels’s alleged interest in involving national Parliaments in EU legislative process is to ensure greater acceptance of EU legislation as well as it smoother implementation.

The Government wants “a new arrangement where groups of national parliaments can come together and reject European laws which are not in their national interest.” The so called red card is a key demand of the renegotiation package. However, Brussels is afraid, in the words of Manfred Weber, chairman of the EPP, "If we grant each national parliament a veto right, Europe would come to a virtual standstill." The Government agrees with such statement and made clear that it is not proposing an individual veto for national parliaments. According to the foreign secretary, a unilateral red card “…will not work in a European Union of 28” and “If such a system was in place… Britain would have a great deal to lose from it.” Hence, the question is whether a red card system, as the Government is proposing, would be enough to bring powers back to Westminster?

The government is proposing a red card procedure that would allow national parliaments, above a given threshold, to collectively veto EU legislative proposals “which are not in their national interest.” It seems the government is proposing a red card that would apply to all EU legislative proposals and not just to proposals that raise subsidiarity concerns, but it remains to be seen whether the other member states would accept this. The Government is also suggesting using a red card system to repeal existing EU legislation. However, Westminster would have to work collectively with other national parliaments and jointly decide with them which EU legislation should be reviewed so that powers can be repatriated from the EU to member states.

There are several issues with the Government’s red card system. The red card would not entail a unilateral but collective veto. Consequently, if Westminster, individually, wants to veto “unwanted proposals” or repeal existing EU legislation, on its own national interest, won’t be able to do so. Westminster, or any other national Parliament, must be enabled to decide that a particular EU legislative proposal should not apply to them, and should not be obliged to accept an EU measure just because other Member States want it and a given threshold cannot be reached. Yet, in order to a red card to be triggered, to veto or repeal existing EU legislation, it would be required a group of national parliaments working together and, although the number still has to be defined, this would be very difficult to reach, even if it would be lower than a third of national chambers, nineteen under the exiting yellow card threshold. But, it seems that a clear majority of national parliaments would be required. As the foreign secretary said “The idea of the red card is that a group of national parliaments…where they clearly represented a substantial strand of national parliamentary opinion in the European Union, could block a measure coming from Brussels and was clearly unwanted by a significant portion of the elected representatives of the European Union.”

Moreover, the deadline for submitting a red card would have to be extended, as the existing 8 weeks for the yellow card is hardly long enough to complete the procedure in one parliament, let alone to build a coalition of national parliaments. It is extremely difficult to coordinate the actions of national parliaments, as there are no suitable coordinating mechanisms in place. National Parliaments have different political interests and concerns over different EU policy areas. Westminster might have a strong interest against a particular measure but then there is nothing it can do if it is not able to persuade other national parliaments to apply a red card on that measure. It would be very difficult for Westminster, almost impossible, to secure the agreement of a number of national parliaments to block measures against the national interest or in favor of repealing a measure, particularly within a short timeframe.

As the Government said in its response to the House of Lords European Union Committee Report on The Role of National Parliaments in the European Union, “A red card would likely only be used very rarely, and we do not assess that this would impact negatively on the EU’s legislative capacity.”

The Prime Minister says “We believe that if powers don’t need to reside in Brussels, they should be returned to Westminster.” However, the red card system that the Government is proposing would not give Britain the power to veto EU laws against the national interest and to disapply exiting damaging EU legislation as well as it won’t give powers back to Westminster.

Is it possible to reform the EU and give more powers to national parliaments?

David Cameron said that the EU “needs greater democratic accountability to national parliaments.” However, Brussels has always taken the view that the main role of national parliaments in the EU is to scrutinise their governments’ actions in the Council and it will continue to address the issue of lack of democratic legitimacy and accountability of the EU institutions by increasing the role of the European Parliament.

The so called five Presidents' Report that proposes further integration for the Eurozone and ultimately a political union, directly targets the Eurozone countries nonetheless, as noticed by the European Scrutiny Committee, its proposals will inevitably have implications for non-Eurozone Member States, including in relation to democratic accountability and legitimacy. This report contains far-reaching proposals to deepen the EMU which will have a serious impact on national parliaments’ constitutional rights, as their decision making power over fiscal and economic policies would be substantially restricted. Yet, the report reiterates the idea that the role of the European Parliament is essential to increase democratic legitimacy and accountability, and proposes its closer involvement as well as an intensification of the political dialogue.

There is no serious commitment neither at the European Commission or Council level to give national Parliaments a meaningful role in the EU decision-making, let alone to give powers back to them. The European Commission has just pledged to launch a new partnership with national Parliaments, which is mainly focus on the Commissioners’ willingness to appear before national Parliaments, when invited, to explain and discuss EU proposals and initiatives. There are therefore solely plans to enhance the political dialogue, which is a win-win solution for the Commission as it is seeking to increase the legitimacy of its legislative proposals with national parliamentary participation without having to compromise its policy choices while, in fact, national Parliaments just have a symbolic say. The Strategic Agenda for the EU in Times of Change, adopted by the European Council in June 2014, contained only one reference to national Parliaments and it has not even suggested that they should have a role in the decision-making process let alone David Cameron’s Bloomberg vision for national parliaments.

What can be done to ensure that, as the Prime Minister says, “national parliaments... remain the true source of real democratic legitimacy...”?

Some member states want national parliaments to have more say in the EU decision-making process but they are mainly calling for an enhanced ‘yellow card’ system and they are not willing to amend the treaties. It should be stressed that without amending the EU Treaties it would only be possible to achieve technical adjustments and an enhanced political dialogue. Nonetheless, it has been said that Treaty changes are not necessary to enhance the role of national Parliaments in the EU and that substantial and important improvements could be achieved in the form of an informal inter-institutional agreement, or a political commitment from the Commission to national Parliaments. However, a political agreement to respect the red card system and a European Commission’s commitment that would withdraw any legislative proposal which is opposed by group of national parliaments on subsidiarity or national interests’ grounds is unlikely to make any meaningful difference, as the Commission would not be legally bound to do it. The red card can only be introduced by amending the treaties, namely the Protocol on Proportionality and Subsidiarity, so it can have a biding effect upon the EU institutions. Unless the treaties are amended a red card has no biding nature, and there is no obligation upon the Commission to withdraw or repeal legislation if a given number of national parliaments say so and it is not enforceable in the ECJ. The ECJ has the last word on the validity of EU acts and it would never declare an EU act void because a red card was not observed if this is not provided in the treaties.

It is already known that Treaty changes are not on offer, and Donald Tusk’s letter to David Cameron made no reference to the red card proposal but just said “There is also a largely shared view on the importance of the role of national parliaments within the Union as well as strong emphasis on the principle of subsidiarity.” Hence, as a legally binding and enforceable red card system can only be achieved by amending the treaties, it seems that the Government would only be able to get the so called enhanced yellow card procedure.

It is important to recall that the original White Paper in 1971, which preceded the European Communities Act 1972 stated in a promise to the British people that the veto would be retained because to do otherwise would not only damage UK democracy but would also imperil the very fabric of the European Community itself. The abandonment of the veto has entailed a grave threat to democracy and the so-called red card it is no substitute for Parliamentary sovereignty, and would not be enough to protect national interests. As the European Scrutiny Committee pointed out “The red card as it is proposed represents a practical threat to the exercise of UK parliamentary sovereignty as it makes the will of the UK parliament in a particular case subordinate to the differing collective view of a group of parliaments.” Westminster must be repositioned as the main law making power authority in the UK.

In order to ensure, as David Cameron said, “that national parliaments, which are, and will remain, the true source of real democratic legitimacy and accountability in the EU”, Britain needs to be able to disapply EU legislation, notwithstanding the European Communities Act 1972, where it is in the national interest to do so and a unilateral veto, as recommended by the House of Commons European Scrutiny Committee, which would ensure that legislation passed in Westminster is what people wanted and voted for. This would protect voters’ right to make their choices at the ballot box, regardless of qualified majority voting, of the undemocratic ordinary legislative procedure and irrespective of the European Court of Justice damaging rulings. Under the doctrine of Parliamentary supremacy, the UK has the facility to use Parliament’s sovereign power to amend or repeal EU legislation by using the formula "notwithstanding the European Communities Act 1972".

Would British people be able to govern themselves by their own consent in general elections?

The Government renegotiation package offers nothing to restore democracy and accountability to national Parliaments, as it does not offer a fundamental change in the relationship with the EU. The EU system functions in favour of EU institutions as against national Parliaments and the only way to change this is to fundamentally change the EU Treaties. There is no answer to the question of democratic legitimacy but to fundamentally change the existing Treaties and deal with the fundamental structure. However, there has been no recognition that the foundations of the treaties must be changed. Britain must regain the right to legislate for and govern the British people through the authority of the Westminster Parliament. We must repatriate our democracy and reaffirm our parliamentary sovereignty. As the EU cannot be reformed the UK has no option but to leave.

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