The UK government’s proposal for a “red card procedure” for national parliaments to stop EU policy proposals would have affected less than two percent of votes in the EU Council of Ministers — and that’s assuming governments lose the plot
Earlier this month the President of the European Council Donald Tusk proposed several measures aimed at addressing British concerns about continued EU membership.
One of these measures was a new ‘red card’ procedure for national parliaments, whereby 55% of national parliaments could challenge proposed EU measures, with a strong presumption that these measures would be withdrawn unless amended to meet parliaments’ concerns.
Most discussion of this “red card” proposal has compared it to the existing “yellow” and “orange card” procedures, which also allow parliaments to register their discontent. These procedures have lower thresholds (one third of parliaments in the case of the yellow card, one half in the case of the orange card), but have been very rarely used.
The red card procedure is likely to suffer the same fate. By assumption, suppose that any proposal which is opposed by a member state government will also be opposed by the parliament of that member state, and vice versa. From this, it follows that any proposal which is opposed by 55% of parliaments will also be opposed by 55% of member state governments. Under EU decision-making rules, any proposal which is opposed by 55% of member state governments will be rejected in the EU Council. Hence, no proposal that would be blocked by this new red card procedure would not have been blocked in the Council anyway.
However, this analysis relies on the assumption that the positions of the EU governments are the same as the positions of their parliaments. The parliament of a member state will often have the same view of European legislative proposals as the government of that member state, either because the government enjoys the support of a majority in the parliament, or because both government and parliament are ultimately responsible to national voters, who will have their own views on European integration. It is not true, though, that governments and parliaments always agree. For example, there are at least four ways disagreement can occur:
- bicameralism: some governments are not responsible to the upper chambers of their parliaments, who might have divergent views. (Under the red card procedure, each chamber gets a vote, except in unicameral systems, where the sole chamber gets two votes. The red card procedure thus requires 55% of 56 = 31 “votes”).
- minority government: governments might be responsible to a chamber of parliament, but not have the support of a majority in the parliament.
- intra-government conflict: the government as a whole may be responsible to the parliament, but individual ministers (including Prime Ministers) may have positions which do not enjoy support.
- backbench conflict: the government may depend for its support in parliament on backbenchers who have very different views on Europe.
Here, we concentrate on the first two of these possibilities. Although intra-government and backbench conflict are important, we think it unlikely that ministers or governments would be so maladroit as to permit parliament to send such a visible signal of opposition through use of the red card procedure. Such a government would not be long for this world.
To assess whether bicameralism and minority government open up a space for the red card procedure, we proceed as follows:
- First, we concentrate on the years since 2009 (when the Lisbon Treaty was implemented and further extended the Qualified Majority Voting rules) and identify all 703 measures which achieved a qualified majority in the Council between 2009-07-07 and 2015-12-03, and count the votes of the parliaments of the member states who opposed the measure.
- Second, we identify those member states which supported the measure, had a bicameral system, and where the government lacked a majority in the upper chamber. For these countries, we assume the upper chamber opposes the motion and “votes” accordingly.
- Third, we identify those member states which supported the measure and had a minority government. For these countries, we assume the majority of parliament opposes the motion and votes accordingly. In systems which are both bicameral and have minority government, we assume both chambers of parliament vote in opposition to the measure.
- Fourth, we add up the votes from the first to third stages, and ask whether the measure would have been opposed by 55% of national parliaments.
These are favourable assumptions for the red card procedure — yet applying these assumptions suggests the proposed red card procedure could only have made a difference in 9 out of 703 votes (1.3%) (see Figure 1). This does not mean that the red card would in fact have made a difference had it been in place: upper houses can agree with governments, and minority governments need not always face the opposition of parliamentary majorities. This figure should therefore be interpreted as an upper limit on the use of the red card procedure.
Figure 1: Number of member states voting against legislative proposals in the EU Council, 2009-2015
Though, this figure might not represent an upper limit if votes are a poor guide to what member states really think – for example, if an observed voting consensus in the Council is in fact “in the shadow of a vote”. To address this issue, we can repeat the above exercise using member states’ statements in anticipation of a vote. Member states often use such statements to signal opposition to a measure, without subsequently voting against the measure.
We therefore interpret every member state statement as de facto opposition to a proposal, equal to if it had been a vote. This changes slightly the number of proposals which achieved a qualified majority, from 703 to 674. Nevertheless, when we apply the same assumptions as above, using member state statements as if they were votes, we find that the red card procedure would only have made a difference in 12 out of 674 votes (1.8%) (see Figure 2).
Figure 2: Number of member states expressing opposition to legislative proposals in the EU Council, 2009-2015
In short, our analysis suggests that the red card procedure would therefore only ever be in play in less than two percent of Council votes, even assuming that upper chambers systematically vote against their governments and that parliaments systematically go against minority governments. In practice, we suspect the red card will be only ever be used once or twice over the next twenty years. It would therefore make very little difference to decision making in the EU.
If the red card procedure is recognized to make little difference, voters in the UK may think less favourably of the deal David Cameron has all but secured, and thus may be less likely to vote for continued British membership. However, it is important for voters who care about the issue of ‘sovereignty’ – which is the headline which the role of national parliaments and the red card procedure have been presented under – to understand the reasons why the red card proposal is of limited value. The red card makes very little difference because decision-making in the EU is generally characterised by an extensive set of checks-and-balances where national politicians already have a number of ways to influence policy proposals: they can do so through their governments in the Council and through their embassies (Permanent Representations) in Brussels and through their embassies (Permanent Representations) in Brussels; through their nationally elected Members of the European Parliament; and through their senior officials in the EU Commission. Hence, it is difficult to see what a veto to a group of national parliaments should add to the process as their opinions would already be voiced through these other channels. If the red card is never put to use, it may not be because the referees are timid, but because there’s a high level of fair play already
Appendix – proposals which might have been affected by the red card procedure, taking votes as votes
- Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1083/2006 concerning general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund as regards simplification of certain requirements and as regards certain provisions relating to financial management (2010-06-03), opposed by Czech Republic, Malta, Poland, Slovenia, Slovakia, UK
- Position of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality (2010-07-26), opposed by Bulgaria, Czech Republic, Denmark, Germany, Austria, UK
- Draft amending budget n° 1 to the general budget for 2011, Section III – Commission, mobilisation of EUR 182 388 893 of the EU Solidarity Fund to cover damages caused by heavy rainfall and flooding that hit Poland, Slovakia, the Czech Republic, Hungary, Romania and Croatia during the months of May, June and July 2010 (2011-03-15), opposed by Belgium, Latvia, Austria, Portugal, Slovenia, Finland, Sweden, UK
- Proposal for a Decision of the European Parliament and of the Council on the mobilisation of the EU Solidarity Fund (2011-03-15), opposed by Belgium, Latvia, Austria, Portugal, Slovenia, Finland, Sweden, UK
- Directive of the European Parliament and of the Council amending Directive 2006/116/EC on the term of protection of copyright and certain related rights (2011-09-12), opposed by Belgium, Czech Republic, Estonia, Luxembourg, Netherlands, Austria, Romania, Slovenia, Slovakia, Sweden
- Proposal for a Directive of the European Parliament and of the Council on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (2011-11-24), opposed by Denmark, Ireland, UK
- Proposal for a Directive of the European Parliament and of the Council on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted (recast) (2011-11-24), opposed by Denmark, Ireland, Malta, UK
- Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (2012-06-07), opposed by Denmark, Ireland, Malta, UK
- Directive of the European Parliament and of the Council establishing a single European railway area (Recast) (2012-10-29), opposed by Germany, Estonia, Luxembourg, Austria, Poland, Slovakia
Appendix – proposals which might have been affected by the red card procedure, taking statements as votes, excluding proposals listed above
- Regulation (EU) No 438/2010 of the European Parliament and of the Council of 19 May 2010 amending Regulation (EC) No 998/2003 on the animal health requirements applicable to the non-commercial movement of pet animals (2010-04-26), opposed by Ireland, Malta, Finland, Sweden, UK
- Directive 2010/76/EU of the European Parliament and of the Council of 24 November 2010 amending Directives 2006/48/EC and 2006/49/EC as regards capital requirements for the trading book and for re-securitisations, and the supervisory review of remuneration policies (2010-10-11), opposed by Finland, UK
- Regulation of the European Parliament and of the Council laying down the obligations of operators who place timber and timber products on the market (2010-10-11), opposed by Czech Republic, Italy, Lithuania, Luxembourg, Portugal, Romania, Slovenia, Finland, Sweden
- Directive of the European Parliament and of the Council amending, as regards pharmacovigilance, Directive 2001/83/EC on the Community code relating to medicinal products for human use (2010-11-29), opposed by Belgium, Bulgaria, Ireland, Spain, Malta, Slovenia, Finland, Sweden
- Regulation of the European Parliament and of the Council setting emission performance standards for new light commercial vehicles as part of the Union’s integrated approach to reduce CO2 emissions from light-duty vehicles (2011-03-31), opposed by Denmark, Ireland, Greece, Cyprus, Netherlands, Slovenia, Sweden
- Regulation of the European Parliament and of the Council on amending Regulation (EC) No 1060/2009 on credit rating agencies (2011-04-11), opposed by Ireland, Spain, Luxembourg, Hungary, Netherlands, Austria, Portugal, Finland, Sweden, UK
- Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1083/2006 as regards repayable assistance, financial engineering and certain provisions related to the statement of expenditure (2011-12-12), opposed by Czech Republic, Latvia, Lithuania, Hungary, Netherlands, Portugal, Slovenia, Slovakia, UK
- Regulation of the European Parliament and of the Council establishing technical and business requirements for credit transfers and direct debits in euro and amending Regulation (EC) No 924/2009 (2012-02-28), opposed by Bulgaria, Czech Republic, Estonia, France, Austria, Sweden, UK
- Directive of the European Parliament and of the Council on energy efficiency and repealing Directives 2004/8/EC and 2006/32/EC (2012-10-04), opposed by Germany, Spain, Austria, Portugal, Finland
- Regulation of the European Parliament and of the Council establishing, as part of the Internal Security Fund, the instrument for financial support for police cooperation, preventing and combating crime, and crisis management [First reading] (2014-04-14), opposed by Bulgaria, Estonia, Greece, Croatia, Hungary, Poland, Slovakia, Finland
By Sara Hagemann, Assistant Professor in EU Politics at LSE and UK in a Changing Europe senior fellow, Chris Hanretty, Reader in Politics and Simon Hix, Harold Laski Professor of Political Science, LSE and UK in a Changing Europe senior fellow. This piece was co-published with The Guardian.