Examination of Witness (Questions 200
TUESDAY 26 FEBRUARY 2002
200. I think we should recall that we first
started hearing the wonderful word "subsidiarity" from
the Maastricht treaty, which I recall Bill voted quite a few times
against. Let's look at the history of it. We had a sense there
where the government of the UKa Conservative government
at the timewas claiming subsidiarity from Brussels while
it was centralised in its own country. It was not practising in
its own country its own subsidiarity. When we first heard of subsidiarity,
it was subsidiarity of decision making to Member States and not
down to the regions. We have moved on from thererightly
so. But one of the difficulties that we must look atand
I am sure you must appreciate itcoming from understanding
or trying to understand your point of view, is that we have 250
regions in the Union of 15 states now. We have got another 40
regions coming in. Therefore it is how you can effectively get
real subsidiarity, democratic devolutioncall it what you
willwith so many regions and how you administer that, what
sort of bureaucracy administers that, and how you get best value
from that. That is the challenge to us all. There are no easy
answers to how we do that. I think, in fairness, the way that
the Commission and the European Union is doing it at present is
helpful and encouraging, but I am sure the Convention will look
closely at it, and there is going to be no easy answer how you
achieve what you understand from your own political perspective
but understanding that there is another number of peoplemaybe
100, 200 regionsthroughout Europe arguing for the same
things that you are arguing for.
(Professor MacCormick) I think it is perfectly clear
in all my answers that if you want a democratic Europe that is
a Europe of equal citizenship, then your right to be heard in
the construction of laws at the European level should not be a
function of whether you live in X or in Y. That is absolutely
clear, as clear as a bell. Part of the trouble is that where the
regions are self-represented in the machinery of the Union, they
are done so on a very odd principle. The Committee of the Regions,
when you think of it, was set up to compensate for, in some degree,
to adjust for the fact that there are in big states significant
regions which are less significant in terms of most of the constitutional
architecture than small states. But what was done when the Committee
of the Regions was set up was they repeated that principle. It
is a very good idea, for example, that Luxembourg should have
six members of the European Parliament. The reason for it is that
if you have much fewer than that you cannot represent the political
diversity of a country. Luxembourg with six can have its different
party positions represented, just as the UK with 87 can. The UK
being a big state, it does not need proportionately exactly as
many as Luxembourg. If we had proportionately as many as Luxembourg,
practically the whole parliament would compose of the UK representatives
or it would be a parliament of several thousand. So that is a
good principle. In the same way, Denmark has five million citizens,
16 Members of the Parliament at the moment; Scotland has five
million citizens, eight Members of the Parliament at the moment.
Under the principle of degressive proportionality, that is as
it should be. Why does that principle apply to the Committee of
the Regions? Surely the opposite should apply, in order that the
regions as regions are fairly and proportionately represented.
That would be a situation which would make much more sense, saying,
"What is the population base of the different regions?"
For this purpose, is not Luxembourg a state which has regions
but a state which is a region? While Bavaria is a non-state which
is a region, or perhaps comprises several regions, depending on
how the Bavarians want to set their own principles of self-government.
You can do some arithmetic on that, by the way. If you say that
roughly 2.5 million people would entitle you to three seats on
the Committee of the Regions, with or without substitute arrangements,
but that no state should have fewer than three, you end up with
a Committee of the Regions a bit smaller than the existing Parliament,
comparable in size with the present one, but you would have some
equity among the regions of Europe. The argument from equality
of citizenship operates in exactly the opposite direction. If
you want the regions to self-represent on an equal basis here
in Brussels, you need to rethink the Committee of the Regions.
201. Two or three questions on the issue of
greater openness and transparency, something on which we have
touched a number of times today already. In your view, how much
difference would it make to the European Parliament and other
parliaments and assemblies if the Council actually met in public?and
I am only talking here as far as when it is legislating. How important
is it to open up the system of working groups, for example, and
"comitology" so that there is far greater public scrutiny
there? Finally, would you agree that the conciliation process
should be more public, without making the negotiations which take
place there much more difficult? Where possible, should it take
place in public?
(Professor MacCormick) I am certain about the Council
of Ministers acting as the primary legislative house of the European
Union, that it should deliberate in public. Of course everybody
around this table is awaremost of you much better aware
of than I amthat even a legislature which deliberates in
public cannot get its business done unless there is a fair amount
of talking in private places. That is also right. The idea that
people should be allowed to do deals in private and talk to each
other is obviously sensible, but, at the end of the day, when
you stand in front of the citizen body and say, "These are
the laws we propose to make and these are the reasons why we propose
to make them," it is outrageous that that be done behind
closed doors. So, as far as the Council is concerned, that seems
to me to be perfectly clear. I think at the comitology level there
is a presumption, though it is less overwhelming, provided that
there are recall mechanisms, and I think that the recall mechanisms
should be to the Parliament (rather in the way in which the Houses
of the UK Parliament can exercise reasonably effective control
over statutory instruments and other legislation), and I think
the European Parliament, not the Council, is the right one to
do that task. So there should be greater publicity. As far as
conciliation is concerned, I have only taken part in one, but
it was an epic. It was the one about the take-over directive which
ended up 8:7 in the Conciliation Committee on the Parliament sideand
I was the eighth, I am glad to sayand then became a vote
of 273 to 273 in the Parliament and the thing fell at that point.
Two Members of a certain political party had forgotten that the
vote was happening and were secreted in the Members' bar talking
to a journalist at the time. But that is a private grief.
202. Not now it is not, Neil.
(Professor MacCormick) I am sorry . . . But I do think
that the case again for the final stage of the Conciliation Committee
being public would be a good idea, although there is actually
a less compelling case. It is the third reading in Parliament
and the final deliberation in Council whether to accept the result
of conciliation, and I do not think conciliation is as compellingly
requiring the full glare of publicity, and I am not sure whether
it will do any particular good. I equally do not think it will
do any particular harm. I do not have a strong view on that.
203. Could I ask as a supplementary whether
you would go as far as me in saying that repeat offenders should
be made to watch comitology meetings and look at conciliation
(Professor MacCormick) A cruel and unusual punishment.
204. Should the Commission President be elected
by the European Parliament?
(Professor MacCormick) There is quite a case for it.
There is absolutely no case at all for a Europe-wide election
for the Executive President. There is no country, not even France,
in the Union which has a tradition of electing an executive president
in the full American sense. If there is a need to elect the President
of the Commission, it should be done through Parliament, not otherwise.
I am more favourably inclined than most people are to the existing
arrangement which is indirect election and direct dismissability.
The fact that direct dismissability works is sufficiently demonstrated
by its having been done once. It has had a transforming effect
on the relations between the Commission and the Parliament. Why
I think there is a good case for the existing set up, is that
I think it actually is favourable to representative democracy
in a kind of Burkean sense. The European Parliament is a parliament
in which no part of it sits on purpose to keep a government in
office. It therefore follows that Members of the European Parliament
have a liberty of action unknown to Members of the House of Commons.
There are Whips, but the Whips are relatively weak and even in
the big parties they are divided, at least in part, along national
lines. It follows that there is no continuous standing majority
in the Parliament over the hill there. On each issue a majority
forms. That really does mean that a critical power of scrutiny
is exercised by the Parliament collectively and by its members
as individual Members. This is an advantage, because the role
which the direct elected house plays here is actually, when you
reflect upon it, the role of the second chamber. The primary legislative
chamber is the Council of Ministers, and, if you like the idea
of the European Union as a confederationand I doyou
should keep that primary legislative house, the Council of Ministers,
with some agreed basis of majority voting, qualified majority
voting, but then your house of Scrutiny should not be cluttered
up with the task of keeping a government in power. The difficulty
about it is that it turns out that relatively few European citizens
know about or believe in Burkean democracy. The idea of an elected
legislature whose members exercise critical scrutiny on behalf
of their electorate and come to a wise judgment about the interests
of the body politic turns people off in huge numbers. The task
of closing the democratic deficit is somehow, I honestly think,
a task of getting people to appreciate that at the Continental
level that is the kind of legislature you should have, but you
do not know that you need.
205. Burke would not have approved of part of
this, if I could just challenge you on that question. I do not
think it is Burkean in that sense at all. I mean, a constituency-based
organisational direct line to the constituency itself is quite
(Professor MacCormick) I think I would meet you half
way. If Burke had known of single transferable votes and multi-member
constituencies, he probably would have been even more enthusiastic
206. They had them but they were all owned by
(Professor MacCormick) It is unfortunate that the
Marquis of Salisbury owned them all.
207. Neil, thank you very much. Unfortunately,
we have run out of time. Thank you very much. I hope you have
enjoyed it as much as we have.
(Professor MacCormick) I think probably more.
208. I would congratulate you on your responses
to our questions and I am sure they will be helpful to us when
we form our report.
(Professor MacCormick) Thank you very much.