This could be interesting

Do you remember all that talk about how national parliaments would be strenghtened under the Lisbon Treaty (something which the pro-Lisbon camp continuously banged on about, presenting it as a 'fact', when in reality it's anything but)?

We've looked at what post-Lisbon life is like for national parliaments many times before (and it ain't that pretty), but it now appears that national parliaments' "new powers" to challenge proposals from the Commission are being tested for the first time.

The Lisbon Treaty says that, in the event that a third of national parliaments - that's 9 - get together to oppose their governments on a piece of legislation, on the specific grounds of 'subsidiarity', and within an 8-week window, then the legislation would have to be reviewed, following which, it would be open to the institution which originated the proposal to choose whether to maintain, amend or withdraw the proposal.

Hardly practical. But the Swedish Parliament (the Riksdag) is determined to give it a try. The Treasury Committee of the Riksdag has raised objections against the Commission's proposed amendments to the Deposit Guarantee Schemes Directive. Under the amended Directive, deposit guarantee schemes must offer depositors up to €50,000, if their bank collapses. The schemes are to be 75 percent pre-funded from bank contributions, with the remainder coming from other sources. However, the Riksdag's Treasury Committee is opposed to a provision in the Commission's proposal which could see Sweden (or any other member state) being forced to lend money to other member states' funds, if these funds face a shortfall in cash.

The Riksdag, going against the Swedish government, said that such mandatory lending could lead to some member states under-funding their deposit schemes, knowing that someone else would be lender of last resort. It also argued that the provision represents a violation of the EU's subsidiarity principle. The Riksdag will now seek to spread the word amongst other parliaments in a bid to get the Commission to reconsider the proposal.

One tiny problem: many national parliaments around Europe are on recess at the moment - including the UK's. To muster the support of an additional eight will be a difficult task indeed.

This is one to watch.

Left waiting

It seems that the lack of scrutiny for Parliament since the Lisbon Treaty came into effect is not restricted to the SWIFT agreement.

Documents from the European Scrutiny Committee point that three additional measures have been limited to only four weeks scrutiny time because of the failure of Ministers to deposit the relevant documents with the Committee.

Two different agreements on the sharing of passenger-name records (with the US and Australia), and an extradition agreement between the EU and Iceland and Norway have both seen their scrutiny time cut short in January.

The Committee points out that this "contravenes the undertaking in Baroness Ashton's statement on JHA opt-ins that the Government will place an Explanatory Memorandum before Parliament 'as swiftly as possible and no later than ten working days after the publication of the proposal.'"

Maybe the relevant department took a holiday on 17 December, when the Memorandum was due to be deposited, but that doesn't explain why they failed to do so until 19 and 20 January respectively. While these measures are not as controversial as SWIFT, it would be nice to see the Government adhering on all these proposals to the assurances it made on Parliamentary scrutiny when it was ramming the Lisbon Treaty through.

This is important stuff, as it strikes at the very heart of national democracy and scrutiny in the wake of the Lisbon Treaty (which, on the whole, reduces the role of national parliaments in EU decision making).

A shame so few people are paying attention.

Ignorance is not bliss for Chris Bryant

The controversial EU-US anti-terrorism data-sharing deal, named the Swift agreement, came under further attack yesterday as an almighty row broke out in the Commons. Labour’s very own Michael Connarty accused the government of treating Parliament with "disdain and contempt" by choosing to bypass the standard eight-week period given to the European Scrutiny Committee to examine such agreements, with Treasury Minister Sarah McCarthy-Fry asked to justify the Government's decision.

The Swift agreement allows the US authorities to access EU citizens’ bank transactions under the name of anti-terrorism. But whilst the Government claims the agreement will protect us from the threat of terrorist attacks we are left wondering, who is protecting us, the citizens, against attacks on our civil liberties?

The Lisbon Treaty was sold with the promise that it would strengthen national parliaments' ability to scrutinse EU legislation. This is a particular concern for matters concerning justice and home affairs where the UK can decide to 'opt in' to a proposal or not. Let us not forget, the negotiated 'opt in' was used by the Government to justify its decision to abandon the promised referendum on the Treaty.

PA report that Connarty, the Chairman of the European Scrutiny Committee, said he had been assured by ministers, including Prime Minister Gordon Brown, that opt-ins would be subject to proper scrutiny. Connarty said that the SWIFT agreement was the first test of the Lisbon Treaty assurance and this was a "very bad start to the new process.”

But it's getting even worse.

In a public lecture at the LSE yesterday evening we asked Chris Bryant, the UK's Europe Minister, to comment on the day's debate in the Commons. And yet, to our surprise (and his), he wasn't even aware that the Commons debate had happened, remarking:

"What on earth does this have to do with Sarah McCarthy-Fry, I don't think this is right". Then calling to an assistant, he asked "Did Sarah McCarthy-Fry answer a question today?". He continued "I'm really perplexed about it because if anyone would be answering EU [questions] it should be me...I don't know if I can say much more."

With the Government so quick to ignore due Parliamentry process and the Minister for Europe totally unaware of what's going on, it’s sure time to recognise that democracy has not been strengthened by the Lisbon Treaty.

Luckily enough we have the episode on the dictaphone, so click here for a listen. Chris does sound very confused...

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.

Who said giving the EP more powers was a good thing?

A new report from the cross-party House of Lord's EU Scrutiny Committee will make yet more uncomfortable reading for all those Yes campaigners who are still, against all the evidence, operating under the illusion (or lie more like) that the Lisbon Treaty will be good for national parliamentary democracy.

The report looks at the meaning and implications of the so-called 'co-decision' procedure, whereby EU ministers meeting in the European Council have a more or less equal say over decisions as the European Parliament. Those decisions which are not subject to co-decision are usually taken by the Council acting alone.

The Lisbon Treaty proposes to extend the use of the co-decision procedure to 40 more policy areas, so that just about all decisions made by the EU are decided jointly with the European Parliament (as oppposed to about 75% currently).

But the House of Lords report finds significant problems with exercising national parliamentary scrutiny of EU legislation under the co-decision procedure, which could be set to worsen if it is extended under Lisbon.

The report reads, "Should the Lisbon Treaty come into force, these difficulties will be magnified by the expansion of codecision into new areas: notably agriculture, fisheries and justice and home affairs."

The report finds that, under co-decision, more and more legislative proposals are reaching a first-reading agreement in the European Parliament and Council, or an early second-reading agreement (as opposed to going to proper second and third readings). This reduces the amount of time that the legislative process takes, but also consequently reduces the (already meagre) amount of time that national parliaments have to scrutinise proposals and give their feedback to government ministers, in order to inform national positions on amendments and negotiations.

Even pro-Lisbon ex-MEP Richard Corbett (who gave evidence to the Committee) admitted that first reading agreements "limit" the "advantage" national Parliaments have, saying second and third reading agreements make Parliamentary scrutiny potentially easier.

'Informal trilogue'

The report finds that, when first-reading agreements are reached, they are often the result of "informal trilogue" meetings which take place before the official readings, in order to negotiate an acceptable text. These trilogue meetings contain representatives from the Commission, the Council and the European Parliament. The French Deputy Permanent Representative to the EU who gave evidence to the committee said, "the real negotiation takes place in the trilogue" and the Lords committee says the use of these has increased to the point that they are now the primary form of negotiation between the European Parliament and the Council.

The problem is that, as the Lords report found: "informal trilogues, whilst helpful to expeditious agreement of legislation, make effective scrutiny of codecided legislation by national parliaments very difficult."

If national Parliaments receive a Commission proposal, they may be scrutinising it while it is already being negotiated and amended by the Council and the EP. Unless national Parliaments receive up-to-date information about how the proposal is changing, scrutiny becomes even more of a redundant exercise, as it fails to reflect what the final outcome of the negotations will look like.

In that respect, the report is critical of both the Government's track record in keeping Parliament in the loop about the development of EU proposals, and the speed of co-decision negotiations, which make updates difficult.

The Lords EU sub-Committee on environment and agriculture said that "the emerging consensus between the European Parliament and Council can be almost impossible to determine. Updates from the Government are usually too infrequent, and negotiations proceed too rapidly and opaquely for accurate tracking of the inter-institutional negotiations."

The same sub-Committee also found that DEFRA was "sluggish" in providing updates on the progress of inter-institutional negotiations, sometimes giving them only when prompted. Notification on the Common Position (the Council's position on the European Parliament's amendments to a proposal) reached on the Plant Protection Products (Pesticides) Regulation was not received until three months after the vote in the Council. This particular proposal was modified in co-decision and subsequently became more controversial in its implications for the UK.

The report also cites the EU's Climate Change Package as a prominent example of how early agreements are being sought on important, and controversial proposals, in order to push legislation through.

The report concludes that the expansion of the scope of the co-decision procedure and the use of these informal trilogues makes national Parliamentary scrutiny increasingly difficult.

Since this is exactly what Lisbon proposes to do, things can only get worse.