The Lisbon Treaty and national parliaments: In practice

The true effect of Lisbon, the practice not the theory, is beginning to come to light and, as some of us warned, it is far from pretty.

The House of Commons' European Scrutiny Committee, the body charged with sifting through EU legislation and holding the Government to account, has published its annual report today and has some quite interesting things to say about the Lisbon Treaty's impact on Parliamentary scrutiny of EU proposals - a largely unexciting process but, if it can be effective, one that is key to maintaining a link between our national representatives and the Brussels legislative machine.

Lisbon Treaty advocates have always argued, which we have refuted here, that it would improve national parliaments' scrutiny of new legislation and even increase their powers to enforce subsidiarity - the principle that actions should only be taken at the EU level if they cannot be achieved at the local, regional or member state level.

However, as politicians, the public and the media are starting to realise, the Lisbon Treaty is desperately failing the Ronseal test.

The Committee notes that under the Lisbon Treaty's so-called yellow and orange card procedures, which in theory give member states' national parliaments the right to ask the Commission to withdraw a proposal on the grounds that it infringes subsidiarity, "the legislative decision on subsidiarity would continue to rest with the EU institutions." I.e. the Commission is still free to ignore the views of national parliaments (for more on this see here).

The Committee therefore concludes:

There is, in our view, less to the provisions on subsidiarity than meets the eye. In our experience it has been rare for the entirety of a proposal for legislation to be inconsistent with the principle of subsidiarity. We do not therefore expect frequent use to be made of the yellow and orange cards. Indeed it would be surprising if the mere existence of such provisions gave rise to a growth in the number of well-founded subsidiarity cases.

The point is that subsidiarity is a politically subjective concept and that for as long as the Commission makes the decisions they are only likely to go one way. The European Commission will always find a way to justify EU action if it wants to and, needless to say, it usually does.

These are the challenges facing the Conservatives in their pledge to introduce a Sovereignty Bill which could give the Government the teeth to actually say No when it believes the EU is over-interfering.

The Committee's report raises two more important points. The first is the Government's increased overriding of the Committee's scrutiny reserve. Among other things, the scrutiny reserve obliges ministers to provide the Committee with requested information before they sign up to EU proposals. Between July and December 2008 there were 23 overrides compared with 12 during the corresponding period in 2007. If scrutiny is to be effective, MPs must curb the Government's willingness to circumvent Parliament.

Secondly, the report suggests that the growing use of 'first reading deals', often negotiated in confidentiality between the Council, the European Parliament and the Commission, make it "well nigh impossible" for national parliaments to scrutinise any amendments made to an original Commission proposal in the process. With the Lisbon Treaty now in place this is only going to become more problematic as it has dramatically increased the number of policy areas to which co-decision between the Council and the EP applies.

Stay tuned for more of what they failed to tell you about the implications of the Lisbon Treaty in practice.