Select Committee on European Scrutiny Minutes of Evidence

Examination of Witness (Questions 480 - 485)



Mr Steen

  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.

Mr Connarty

  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 two—we do not know it officially; that is the rumour—introduced 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.

Jim Dobbin

  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 referendum—they could have had a much stronger "no" in France or even Italy.


  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.

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