Professor Gavin Barrett:

I thank the committee for the invitation to contribute on this interesting topic. There will be some overlap with what Professor Schön-Quinlivan had to say but a slightly different focus. I would like to do a little contextualisation, perhaps in a shorter framework as the professor has done so much to outline the overall context of subsidiarity and what it means.

The task force report is an important step along the road to completing the process begun with the March 2017 Commission White Paper on the Future of Europe. Other steps have been a series of Commission reflection papers on the social dimension of Europe, harnessing globalisation, deepening economic and monetary union, EMU, the future of European defence and the future of EU finances. The process of reaction to the Commission White Paper is still ongoing. It did not end with these reflection papers. It includes the future of Europe debates going on across Europe and this task force report. The process is intended to end with the European Council in Sibiu, Romania in May 2019 and the European Parliament elections one month later. It is a time-limited and rapid process.

If the task force report is a response, what is it a response to? This has been answered to some extent. In asking what the questions which triggered it are, let us remind ourselves that the Commission put forward five five courses for the future of the Union, namely, carrying on; retreating to doing nothing but the Single Market; letting those who want to do more to do more; doing less more efficiently; and doing more together. President Juncker put forward a purported sixth option in his State of the Union speech in 2007 but that was just a variant of carrying on, with a lot of emphasis on freedom, equality and the rule of law.

The task force report relates to the fourth option, doing less more efficiently. I have a habit of reading the end of books before I read the text so I will read a couple of conclusions on the report and then touch on the various recommendations. First, the group that produced this report was limited. It was entirely male, and comprised quite senior males. I am one of those myself so perhaps I should not object too strongly. The regions were perhaps overrepresented. There were three members of the committee of the regions on this group and one former member, which gave the committee a majority in producing this report. That is very much reflected in the report and its emphasis on regional concerns. Only Troika states were represented. There was no French or German representative, much less any Irish representative. It was compiled in a short period. The task force met only seven times between January and July. I realise there are other aspects to it, such as a COSAC working group which met Professor Dougan and so on. There was a certain degree of consultation although that process was largely limited to regional authorities. It has to be read in that light and it has limitations on that basis.

Interestingly, the task force rejects the idea of doing less more efficiently in the report's conclusion. Its first conclusion is to recognise the need for more EU action to address emerging challenges where the EU has added value in areas such as security, defence and migration, and intensified EU action on other areas like climate change and innovation. It is rather like the parish priest standing up and declaring himself an atheist, or an atheist standing up and declaring he has found God. It is an unusual start for a report on doing less. There is a great deal of focus on the interests of regions and local authorities. I do not want to detract from its recommendations in that regard. They are useful recommendations, but they are a little overdone.

There is also food for thought for national parliaments. The idea is "active subsidiarity". I will come back to what that means. The idea of using a common assessment grid for assessing subsidiarity is positive and useful. The third task force recommendation is especially interesting. There is a good discussion of national parliaments and subsidiarity, but a slightly facile analysis of the number of yellow cards. Some members of the task force wanted to increase this number by cutting the threshold needed to issue a yellow card, that is, the number of national parliamentary votes. The number of yellow cards is not necessarily a representation of the success or otherwise of the early warning mechanism.

The task force also calls on the Commission to ensure to always give timely, comprehensive and public responses to reasoned opinions. We cannot dispute that. It has not always been done. Some task force members wanted to hand parliaments a red card veto. Others feared the consequences of doing this, particularly in the absence of a uniform understanding of what subsidiarity is. Some members wanted a green card facility that provided for members to propose legislation at European level. The task force as a whole pulled back from that and just wants national parliaments to co-ordinate themselves a little more.

Some members wanted an extension of the time period for early warnings from eight to 12 weeks. The committee recommends that change when the opportunity arises, giving it a slightly lukewarm endorsement. There is a call for more flexibility regarding the eight weeks and the use of a so-called "common grid". It is true that there has been a variety of approaches to what subsidiarity means, with different parliaments taking different approaches. The idea of a common grid approach, modelled on a grid used by the committee of the regions and included in the annex to the report, is probably not a bad idea. The Commission has shown a little discretion on the eight-week period. For instance, it does not count August as part of the eight weeks, but it does count Christmas holidays and periods when parliaments are in recess for election purposes. There is room for flexibility. Perhaps that could also be endorsed. Some wanted proportionality and issues of competence to be covered by reasoned opinions as well, because parliaments raise these issues and it can be frustrating for them when they do not get any feedback. However, that did not meet with the overall endorsement of the group. There is a call for better co-ordination and information-sharing between national parliaments and regional parliaments; a lot of stuff that people can agree on and proposals for reform.

The fourth task force recommendation is also interesting. It advocates greater involvement in the Commission's annual work programme and the European semester. There are ideas that could be used to allow national parliaments and committees such as this to play a bigger role in such procedures.

In September every year, the Commission President delivers his State of the Union address, complements it with a letter of intent which is sent to the presidents of the various institutions and the national parliaments and the Commission work programme follows in October. The task force wanted more active engagement between the Commission, national parliaments and local and regional authorities between the publication of the letter of intent and the adoption of the Commission work programme. National parliamentary committees could invite in bodies like those and ask them to voice their concerns or views about the programme.

The economic policies of member states are now co-ordinated at European level in the European semester process. Some people from the budget office were handing out literature about that in the lobby upstairs as I was coming in. The Commission has encouraged greater participation in, and ownership of, the so-called country specific recommendations and the task force strongly backed that up. It wanted the inclusion not only of national administrations but also regional authorities, social partners and civil society generally. That might be a facility or an opportunity for committees like this, or perhaps other committees within the Oireachtas, to get involved in that process and play a useful role.

Before it made its recommendations, the task force offered five broad conclusions and, in both its recommendations and conclusions, there were a reasonable number that would be of interest to national parliaments.

Looking at the conclusions first, it recognised the need for more EU action, not less - an unusual way to begin a report about doing less, more efficiently. It recognised the need for more action in some areas and intensified EU action in others. Second, the task force pronounced it essential to remedy weaknesses in current policy making processes, meaning more involvement of national, regional and local authorities, a better shared understanding of subsidiarity and proportionality and improved participation of national parliaments and regional authorities. I will come back to what is meant by more active subsidiarity, but there is not a lot to disagree with there. There were some good ideas. It proclaimed the need for a better shared understanding of subsidiarity and it noted, with some puzzlement, which I share, that the Amsterdam treaty definition of "subsidiarity" was wiped out of the Lisbon treaty. I do not know why that happened and it should go straight back in there. The task force recommendations were based, to a certain extent, on the Amsterdam understanding of subsidiarity.

A fourth conclusion was that EU legislation in some areas is too dense and complex but the conclusions here were nuanced. The report realised trade-offs are necessary and recommended a Commission process building on the refit simplification process that would take into account subsidiarity and proportionality and other issues. That would involve going back through all the legislation that has ever been adopted by the Union and checking it for all these issues. That is a big exercise. I do not know how useful it would be, but that is what was recommended. Its fifth and final conclusion was that its findings should not be the end of a process but the beginning of a more active engagement with subsidiarity and proportionality. There is not much to disagree with there.

It had eight recommendations about active subsidiarity. I will not go into all of them. I will mention four of them which concern national parliaments. It recommended promoting opportunities for national parliaments and local authorities to participate at an early stage to shape new initiatives and signal concerns. It recommended more effective control by national parliaments, meaning more time for national parliaments in the change from eight weeks to 12 weeks. Better co-ordination and more information sharing between national parliaments was also recommended. There are Monday morning meetings in Brussels but the task force wants more than that. It also wants co-legislators to better reflect national parliament and local authority concerns about subsidiarity and proportionality and more active engagement between national parliaments and other parties to shape the Commission's work programme. This would mean an enhanced role for national parliaments in shaping the agenda.

The task force had nine recommendations in all and I will touch on them briefly. The first was that there be a common assessment grid used by EU institutions, national parliaments and everyone involved to assess subsidiarity, proportionality and legal basis issues. There is not a lot to disagree with there. One of the problems with subsidiarity has been that different parliaments have taken different views of what subsidiarity actually involves. The absence of a clear approach to subsidiarity is something we can live without and, if a common grid approach would help, it would be a happy development.

Task force recommendations Nos. 2 and 3 were concerned with more effective subsidiarity control. The task force recommended certain non-treaty changes that the Commission should apply flexibility regarding the eight-week deadline. I checked this in Philipp Kiiver's book about subsidiarity because, as far as I could recall, the Commission had shown flexibility but it is true that it does not take Christmas breaks and recesses for elections into account so there is room for more flexibility there. That must be balanced with efficiency at European level. I am not sure if there can be as much flexibility shown as they want, but perhaps, for example, taking into account Christmas breaks would be welcome.

The report also recommended a change to the treaty by extending the eight-week period for reasoned opinions to 12 weeks. One must think about the efficiency of the legislative system at European level, but the feeling among the task force was that eight weeks is too short. I do not know if the committee has a view in relation to that but it is something worth thinking about.

Recommendation No. 4 addressed better involvement of national, regional and local authorities in policy making, so this is included the annual work programme and European semester recommendations, which I have mentioned.

Recommendation No. 5 was about the Commission's impact assessments. Impact assessments generally accompany legislative proposals by the Commission and the task force recommended that it ensure they systematically consider their impact on local and regional authorities. There is significant emphasis on local and regional authorities in the report.

Recommendations Nos. 6 and 7 referenced the legislative procedure at EU level and wanted the European Parliament and the Council to use this subsidiarity and grid proposal. The report suggested hearings of local and regional authorities. That made me wonder why there would not be hearings of national parliaments as well. That is biased in favour of regional authorities. The idea of taking more seriously and upgrading the level of involvement of national parliaments, particularly in view of the kinds of democratic concerns that we have heard from Professor Schön-Quinlivan, is certainly worth thinking about.

I looked at the penultimate task force recommendation, No. 8, which is that the Commission should develop a mechanism to identify and re-evaluate existing legalisation in light of subsidiarity, proportionality and simplification concerns, and the role of local authorities. All the existing body of legislation, the entire European Union acquis communautaire, should be reviewed. It sounds like a big exercise. I doubt if it is worth it, but the existing refit programme has been useful, so perhaps this might also be useful.

The final task force recommendation, No. 9, is limited. The next Commission should reflect on rebalancing its work in some policy areas towards delivering more effective implementation, rather than initiating new legislation, and it might do this in areas where the existing body of legislation is mature or has recently been substantially revised. That is certainly not going to set the place on fire with controversy.

The task force noted concerns of national parliaments that delegated Acts and implementing Acts fall outside the early warning mechanism. At national level, legislation is adopted via the Oireachtas but statutory instruments also do a huge amount. At European level, there is not just normal European legislation, there are delegated Acts and implementing Acts. They fall entirely outside the early warning mechanism. The task force noted the concerns expressed to them by national parliaments. I presume this happened at COSAC. The task force did not respond to those concerns but noted that there is a four-week feedback period via the Commission website on the use of such legislation and it encouraged the Commission to be more sparing in its use of delegated legislation.

We have had similar issues at domestic level, as regards how does one control the use of "sub-legislation", if I can call it that, and how does one reconcile the practical need for such legislation with democratic controls. We have issues like that here in Ireland. We have issues like that at European level as well.

I do not really have any conclusions because I already gave the committee the conclusions at the beginning. That is it from me.