Examination of Witness (Questions 480
TUESDAY 23 APRIL 2002
480. May I welcome you as well. Forgive me for
not being here right at the outset. The last example you gave
was a rather curious one because what you were saying, as I interpreted
it, was that being a good MEP allows you to see constituents and
raise questions with the minister. If there was not an MEP and
there were not all the European contraptions you would not get
any questions. The question is, is life better for people as a
result of joining Europe or is it worse, or is it indifferent?
The test will be, in my mind, are they more prosperous? That may
not be a right test but are they more prosperous? If they are
not more prosperous and they say they want to be equally prosperous
whether they are linked in with this whole caboodle or not, coming
to the MEP is a red herring because if there was not an MEP and
if there were not all the contraptions, they would not have to
come to it.
(Mr Bonde) On the parliamentary scrutiny question,
it is not a question of whether you are for or against. When we
made our concrete proposals in the European Parliament in our
interval, one day we made 19 proposals for reform. The European
Federalists agreed on 85 per cent of them. David Martin, the Vice
Chair of the European Parliament, coming from Labour, is a strong
Federalist. He accepted 85 per cent of our proposals. Joe Leinen,
the leader of the constitutional intergroup in the European Parliament,
accepted 85 per cent. If it comes to parliamentary scrutiny I
do not think it is a question of if you are for or against the
European construction that way or the other because there are
a lot of technical questions. On transparency we are involved
in the European Parliament. In fact, we are unanimous to have
transparency, and we have had a lot of results for the last two
months, more results than for the last 22 years.
481. Your papers contain something that make
me think for the first time seriously about one topic. The one
that struck me in your paper was the role of judges and the role
of courts. It always bothers me, even in our own judicial system,
when somebody goes for a judicial review and basically tries to
overturn the will of the elected democratic government, but this
seems to be a consistent theme of the European Union. The courts
are making more laws, and, as you put it, a law made by a judge
is called legal activism.
(Mr Bonde) That is the phrase of a Danish professor
in his dissertation.
482. I was going to say, I did not know if it
was your own individual phrase. I think I might be more negative
and say it was a legal dictatorship because they seem to say,
"Regardless of the democratic will of the people, we have
decided from our own internal discipline of the judiciary that
we want to re-interpret it". How do you relieve that influence
in such a way that you do not deny people the right to go somewhere
to tests their rights? How do you get the balance correct?
(Mr Bonde) The task of judges should be to decide
on concrete items. To make laws should be for elected people.
To make constitutions should be for the electorate. That is a
simple division of powers. In the US you have a tradition that
the judges have developed constitutional laws as well, and this
tradition has been taken over by the European Court in a much
more exaggerated way. If you take the famous decision from 1964
on the supremacy of Community law over national law, this was
explicitly rejected by those who formed the treaties. The four
secret votes to twowe do not know it officially; that is
the rumourintroduced a revolution, that if there is a conflict
between the national law and the European law then the European
law prevails over the national law. In a democratic society this
decision is so crucial that it should be taken by the electorate
and the national parliaments and never by judges. It has softened.
For the last five or eight years the judges are not so expansive
as they were in the past. But you have in my view some radical
decisions as well from the last years on human rights, good and
bad. A German woman soldier went to the Court in 1998 and got
her right to be a soldier in the same way as a man. It was the
principle of equality. But the question of defence is completely
outside the treaty. The whole topic was outside the treaty, but
it does not hinder that the judge is saying, "Here is an
area where the general principles on equality also shall apply
in areas which are outside the treaties", and then they make
themselves a constitutional court instead of being a concrete
court. This verdict has a big influence on how the Charter for
Human Rights will be looked upon. It means that it is decided
as a political declaration, that in reality you can expect that
the court has already said that they will behave that way and
they have done that in eight cases. They have taken sentences
from the Charter of Human Rights and said they will make that
European law. This is the way of establishing constitutional principles
where I would say it should be up to you to decide if it should
be legally binding or not. It should not be up to the judges to
decide. Then you could say, well, it has been accepted retrospectively.
Every time you make a new treaty amendment the former verdicts
have indirectly been accepted because the governments did not
reject it. But then we will need unanimity to reject a radical
idea from the judges, so I think we should come back to at least
the role of judges in normal states, that the judges only make
concrete solutions and do not make what I call legal legislation,
or soft law.
483. In your paper you appear to object to the
making of deals in principle.
(Mr Bonde) Deals?
484. Yes, agreements. Do you think even a restricted
version of the EU could operate without that, a minimalist version
of the EU?
(Mr Bonde) I would be very happy to vote in favour
of a minimalist version of the EU, a core corporation. It is clear
also that there are a lot of problems in this world that we cannot
solve on our own. If we cannot solve a problem on our own then
we need to have common legislation. If it is going to work we
need to have binding legislation and we need to find the right
level of legislation. If it is taxation the EU is not enough.
You need also to take Switzerland and the other tax havens on
board to help make the rules for taxation of companies. If it
is pollution in the air you are going to need UN solutions to
involve all countries in the world. A lot of the economic issues
can be dealt with in Brussels. I am not therefore for withdrawal
any longer. That is a past position. It is not the present position
in my country because of you. As long as you are in the EU we
will also be in the EU and therefore we have a common interest
in slimming the EU, putting it back to basics. If you look at
the Eurobarometer polls, they make very interesting reading about
the views of the different citizens. It is not that we are difficult
people in the UK, in Ireland, in Denmark, Sweden. It is not so.
The polls of the Eurobarometer show identical views towards Brussels,
in every single country, including Italy. If the question is,
Do you want decisions to be taken at local, regional or national
level, or at the level of Brussels so that they can be as close
to the citizens as possible?, you have 62 per cent of the population
in Europe calling for the local, regional and national level of
decision making, and only 18 per cent for Brussels. It is not
against; there is also a majority for having common defence, common
environmental solutions, etc, but the general feeling is that
Brussels decides too much and that decisions should be taken back
to the national parliaments and the electorate. That is the general
feeling in all European nations. What they missed in Ireland,
where they had a "no" vote so they had to have a referendumthey
could have had a much stronger "no" in France or even
485. Mr Bonde, that is probably the quickest
hour the Committee have experienced for some time. I am sure I
speak for my colleagues in thanking you. We have found your evidence
to be very interesting indeed. I would like to thank you for your
paper and for your answers to our questions. I am sure that you
will be interested in our report when we publish it in May. I
am sure you will appreciate that we feel that you have made a
fair contribution to our deliberations when we finalise our report.
Thank you very much. It has been very well worthwhile from our
point of view and I hope yours.
(Mr Bonde) Thank you very much. We have
a common general interest and it springs from the national parliaments.