National parliaments and the Lisbon Treaty

The Treaty of Lisbon ostensibly gave national parliaments a greater role in Europe. It gave them, in particular, a specific role in monitoring whether EU proposals comply with the principle of subsidiarity (that is, whether action at EU rather than national level is necessary). Any national parliament or any chamber of a national parliament of a member state may send a reasoned opinion to the Council, Commission and European Parliament stating why it considers that a proposal does not comply with the principle. Bicameral parliaments have one vote per chamber; unicameral parliaments, two votes. Where reasoned opinions on the same proposal received within eight weeks amount to at least one-third of all the votes allocated to national parliaments - one-quarter for proposals in the area of freedom, security and justice - a yellow card is said to have been played, and the Commission has to review its proposal and give a reasoned decision.

So far, this threshold has been reached twice, once in 2012 for proposals relating to the rights of workers ‘posted’ to another member state by their employer, and in 2014 in respect of the establishment of a European Public Prosecutor’s Office. There is also provision for an orange card, with a more stringent review requirement on the Commission, if reasoned opinions are issued in respect of more than half of the allocated votes - a threshold that has not been reached to date. If either the Commons or Lords committees decide that a proposal infringes the subsidiarity principle, they recommend a text and the respective House debates a motion on whether or not to issue a reasoned opinion (in the Commons, the debate may take place in a European committee, although the motion then must be approved - without debate - on the floor of the House). The House of Commons has issued 14 Reasoned Opinions since Lisbon; the House of Lords, 7. Finally, national parliaments can challenge EU legislation before the Court of Justice for non-compliance with the principle of subsidiarity.

In 2014, five years after the Treaty came into force, the low overall number of yellow cards, and the lack of any orange cards, is fuelling debate on whether the current system works. A factor may be that, although most parliaments of member states have some form of scrutiny process, relatively few have the means (or, perhaps, the will) to make it effective. There have been suggestions for a longer time limit (perhaps three months). Furthermore, the Commission seems to act with little regard to the views of national parliaments when they disagree with legislative proposals, and reacts slowly to correspondence; and some Commissioners have carved out personal fiefdoms, within which draft legislation reflects only the views of that Commissioner and of no one else.

This perceived lack of accountability from the Commission, and the democratic deficit present in the structure of the European institutions, has not only made the role of national parliaments even more crucial in European affairs, but is likely to have contributed to the rise in Euroscepticism in the recent era of financial crisis and imposed austerity.

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