Whatever happened to Subsidiarity?

Scruton discussing the European Union and the nation state, November 2015

Back in the ‘90s, I remember having a forthright conversation with a mover and shaker in a pressure group called the European Movement. I expressed my concern that the principle of Subsidiarity was in danger of being honoured only in the breach because power, by its nature, tended to coagulate rather than disperse. Exactly! he replied. That is why it needs to be “guaranteed”. Me: Guaranteed with what? A piece of paper?

In his indispensable book, “The Uses of Pessimism” (2010), Sir Roger Scruton dissects and illustrates a series of fallacies instinctively assumed by bureaucrats, rent-seekers and other such riffraff who magnanimously let the proles eat cake. His chapter, The Planning Fallacy, is a timely reminder of everything that is pernicious about the EU law-making process from which we shall shortly be extricating ourselves (or not).

“Subsidiarity” originated in Catholic social thought and was given its modern sense in an encyclical of Pope Pius IX in 1929. It meant that decisions should always be taken at the lowest level by the communities that then take charge of the matters decided.

The term was later adopted by the economist, Wilhelm Röpke, to describe the bottom-up social organization in Switzerland. In the Swiss context, it is the local community that takes the initiative to refer a matter upwards to a higher level forum.

In the Maastricht Treaty, the term Subsidiarity denotes not the means by which powers are passed upward from the bottom but – in a textbook piece of Orwellian semantics – the means by which powers are allocated from the top. It is the EU institutions which decide where subsidiary powers begin and end – which means that the boundaries of a national government’s competence are deliberately kept blurred.

The asymptotic policy of “ever-closer union” can be translated into nothing cogent except more laws, more regulations and more powers to the centre. This is what the Planning Fallacy essentially means. Law in the EU does not stand higher than those who make it and does not hold them to account, both of which the common law at least aspires to do.

Common law, to press the contrast, works inductively drawing out generalities from argumentation of particular cases. Someone once described it to me as growing like coral, which is a picturesque way of conceiving its unplanned character. Common law is binding on the sovereign since it consists in the remedies that the courts have offered in the sovereign’s name (more about this in Scruton’s latest book, “Where We Are”). Common law is discovered incrementally rather than promulgated.

The edicts of the Council of Ministers are issued after unminuted discussions held in secret, on the basis of proposals made by the Commission, guided by principles in which limits to legislation are not clearly stated or publicly rehearsed.

It is the doctrine of “shared competence” that prescribes that where the EU and a Member State both have the jurisdiction to legislate in a certain area, the Member State’s right ceases just as soon as the EU decides (arbitrarily?) to exercise its competence. Laws passed as the result of EU regulations are not merely “adopted” by national legislatures but are subsumed under the Treaties that constitute the EU. This is how they become effectively irreversible – precisely what the term “acquis” communautaire implies. There is no legal machinery to correct mistakes.

So much for the theory, which at least proves, I hope, that “guaranteed” Subsidiarity is not really a thing, whatever a weaselly European lawyer might tell you to the contrary. Now for a concrete illustration of the Planning Fallacy.

A Directive was issued in response to the slight (theoretical?) risk that diseased animals might enter the food-chain, to the effect that all slaughter must take place in the presence of a qualified vet, who must inspect each animal.

Vets demand extremely high fees for attendance, with the result that small abattoirs go to the wall. This has had knock-on effects both on small pasture farms and animal welfare – since the livestock must now travel for several hours to a large processing plant with a permanent vet on site.

The last occurrence of foot and mouth disease was carried all over the country by animals on their way to a distant abattoir. Otherwise, it could have been contained in the locality in which it broke out.

And the moral is: When bureaucrats legislate for others and suffer no cost for getting things wrong, they have no incentive to follow through concatenations of risks and weigh the social costs. They just take a single problem in isolation and seize on a single and inflexible principle in order to solve it. And that, to take an indicative example, is what happened to Subsidiarity.

© Bark Kantatas 2018