Select Committee on European Scrutiny Minutes of Evidence

Examination of Witness (Questions 24 - 39)



Mr Connarty

  24. Lord Norton, thank you for coming before the Committee and for your written submission. While I did not read your CV until I had finished reading your document, I might have been somewhat overwhelmed by your credentials, but it did make excellent reading and revealed a contrast to the submission we had from Professor Bogdanor. Can I start the process by quoting to you from your statement? You believe that "what is needed is not a grand scheme but modest and real action". Does modest action mean only minor improvements to a flawed system?
  (Lord Norton of Louth) I do not believe it does. What I was referring to there was particularly institutional arrangements as far as legislatures go. I would think that the answer is partly incremental or institutional change, if you like, a bottom up approach in terms of national parliaments playing a far greater role than they do at present. That should then be linked with the fundamental change at the top level because I think, fundamental to the democratic deficit, why there is a disconnection and how it can be addressed is that the peoples of the European Union are not altogether sure what it is about. One answer to addressing that deficit is through structures, through changing electoral processes. Another way would be to clarify what it is all about so that people have a greater awareness of what the EU is all about. That could be addressed at the next IGC. That is to some extent implicit in the intention, although the four things that have been enumerated in the annex to the Nice Treaty do not really go the whole way in addressing that. They are specific elements of it, but they do not get to the nub, asking, "What is this all about?" I think there is quite a lot to be done there which is fundamental, clarifying what the EU is about. Simplifying the Treaties may be relevant but what is intended there is not to change the meaning or content. One needs greater clarity as to what the EU is about, ensuring that the institutional arrangements are geared to that and then, having done that, trying for some sort of steady state situation. People are not clear what the EU is about and even if they try, just as they recognise what it is about, it changes. If you look at the past 20 years, most of the time there has been some negotiation going on for a new Treaty. It is complex and ever-changing. There needs to be greater clarity and there needs to be certainty once you have that clarity. At that level, I think it is quite fundamental that what can be addressed, in terms of a bottom up change in terms of national parliament, means there is an awful lot that can be done there in connecting people. I think it needs to be a connection with a union so that people are aware of what it is about and at the moment I think that is completely lacking.

Mr Steen

  25. Do you think there is a failure of the national parliaments to play any proper role in the decision making of the EU? Is that the reason that the EU has no legitimacy or little legitimacy?
  (Lord Norton of Louth) No, I think there are more fundamental reasons related to what I just said. The role played by national parliaments varies considerably and that partly reflects individual, national cultures in terms of the role of parliament and indeed different cultures as to how they see the role of the European Union and the level at which decision making should take place. Because there is that variety, I think you are going to have difficulty creating a uniform, institutional arrangement that will bring the national parliaments in. That is why I think the emphasis has to be more on the national parliaments themselves, individually, to work in relation to national governments. I do not think it is the fundamental reason because if you look at the United Kingdom, the way Parliament scrutinises government in relation to the European Union is in many respects superior to many other Member States. We should be wary of offering ourselves as an exemplar on how to do it. We could do much better than we do but we do considerably better than others and there is quite a nice complementary role between the two chambers. This Committee goes for breadth and the Lords Committee goes for depth. That is quite a nice relationship between the two. I think we do a reasonable job but that does not feed into how people perceive the European Union at all. I think national parliaments could do far more than they do.

Roger Casale

  26. Do you think, if there was greater awareness in this country of the work of the scrutiny committees in both Houses of Parliament, that would go some way to giving people more assurance about the level of democratic control that there is over European decision making?
  (Lord Norton of Louth) I think it could inform a greater awareness. The point I make in the paper is that it would be very ambitious to think that the work of the Scrutiny Committee or what Parliament does generally in relation to the European Union is going to have a wide audience out there and people are going to know that much, but where it can make quite a difference is in relation to what I call the attentive publics, organised groups out there who have some interest in what is going on or are indeed affected by what goes on in the European Union. I think one is reaching out to particular groups and far more can be done in that respect in relation to the European Union. As a more general point, in relation to all groups, in relation to government in this country, Parliament could do far better in disseminating its work, which is often very good, but it is reaching out to audiences out there and in that area Parliament is very poor, not just in relation to the European Union but generally. Far more could be done there to inform about what is going on. That does not mean you will necessarily elicit a more positive attitude if the institutions themselves, the structures, are not what people expect. In terms of making people more aware and leading to a better debate, that would help enormously in relation to affected groups. In relation to the media as well, Professor Bogdanor was saying yes, there is a problem with the media coverage, how the press in particular perceives the European Union and I think that is true but I do not think the problem is exclusive to the media. I think Parliament is part of the problem as well. If Parliament is doing its job better and is seen to be doing it better, the press will take the process more seriously than it does at the moment. One has to look at both sides of it.

Mr Connarty

  27. You said Parliament; are you talking about the national parliament or the EU?
  (Lord Norton of Louth) In this context, I am talking particularly about the national parliament. I was relating it particularly to this Parliament in relation to the work that the Committees of both Houses do.

Mr Tynan

  28. You accept that involving Select Committees would give some impetus as regards information in Europe to an attentive public but there must be an end result to it. If the Select Committees are not able to influence or are not taken account of by Europe, what sense would there be in having Select Committees dealing with European issues?
  (Lord Norton of Louth) That is a very good question because for committees to be more involved—indeed, the same point would apply for creating a second chamber—what is the incentive for parliamentarians to be involved in the process? As far as I can see, the incentive for Select Committees to take a greater role would simply be the same incentive that exists at the moment for the European Union Committee in the Lords producing the reports it does. That is to inform the debate at a fairly early stage. That can be very important. What research has been done on Select Committees suggests to date that Select Committees are at their most effective in influencing outcomes when they get in at a formative stage of debate on an issue, especially where the issue itself is new to the political agenda. There is scope for committees to come in, if they are coming in early, providing information, having some input in terms of recommendation at the gestation stage of proposals and there is a prospect of informing the debate. That is probably all one can hope for in terms of the existing structures and relationships.

Mr Cash

  29. You say—and I am sure this is true—that the structure of the European Union is sui generis. It is but it does not mean very much, if I may say so, because all it tells us is that it is different from an awful lot of other democratic institutions which are perfectly simple and transparent. This is not. The problem is that we are a half-way house and there may well be legitimate arguments for saying the whole thing should be absorbed into a federal system or whatever, but this sui generis is because it is a half-way house process and therefore it is neither fish nor fowl. On the other hand, there are much more important questions which are not whether or not you move into a bigger and grander continental system but what are the intrinsic elements within it which guarantee that there is a connection between the voter and the government. It is at that point that the system falls down. It seems to me that the question of the lack of democratic accountability, which is what we discussed with Professor Bogdanor, is the key question. It is not a difficult one and it is precisely because the existing arrangements which are being proposed and the lack of intrinsic and deliberate lack of democracy in the system which is built into it presents a problem which is impossible to resolve unless people return to the democratic accountability of the kind that they had in the Westminster Parliament and Denmark, as you mentioned. How do we resolve this question, where there is a movement towards something which is not going to deliver democracy in any real sense, on the one hand, and the need for greater cooperation within Europe on the other?
  (Lord Norton of Louth) I do not think it is going to resolve the problem and I think that is going to remain the situation. I recommend the speech made last week in the Lords by Lord Dahrendorf, who has a very significant track record in this respect, who was saying that we have never really managed to achieve a properly, wholly democratic system beyond the nation state. I think that is going to remain the case. We are going to continue in a situation where it is neither fish nor fowl and one has to adapt to that situation. I do not think there is scope for moving wholly away from it, unless you get rid of existing structures.

  30. Is that not very dangerous?
  (Lord Norton of Louth) There are inherent dangers in it obviously, which I think have been realised.

  31. If we move into European government and you start taking in matters relating to defence, for example, and then you have the neither fish nor fowl situation there, you are creating a monumental problem because you will have indecision and chaos.
  (Lord Norton of Louth) You are indeed creating a problem. If you take decision making further, you have to ensure some sort of parallel development that ensures that process is at least to some degree accountable, even though the accountability will not be exactly the same as that which we are used to at the level of the nation state. You are quite right; you have identified a very significant problem indeed.

Mr David

  32. I think you are correct in saying that there are very few people in the Member States of the European Union who are quite clear what the European Union is all about. The next Inter-Governmental Conference does offer an opportunity for there to be a fundamental clarification of what the European Union is all about. I am not wholly convinced that that is going to happen because there are too many people who adopt a simplistic attitude. I think we need to clarify what Europe is all about, especially in the context of enlargement. The second point is that I think also there is a need for a period of stability. There is almost a contradiction there, that we do need to clarify but at the same time we do not want to get into the business of looking for institutional fixes every few years as a matter of course. That is why I am inclined to think that there is a great deal of merit in some of your apparently modest suggestions but entirely practical ones. The reality is that transnational political parties are more apparent than real. There is confusion about the role of different institutions and things will be changed to some extent there but in terms of what we can practically suggest, as far as this Committee is concerned, is an enhanced role for the process of scrutiny. One way we could do that more effectively than at the moment is if we link in with other national legislators to make sure those kinds of relationships are established and information is exchanged. Also, I was wondering if you see any role for members of the European Parliament being involved in some of the deliberations of this House and vice versa? That might seem a more practical course to follow in which we increase understanding, rather than talking about creating a new institution called a second chamber.
  (Lord Norton of Louth) May I first of all agree with your observations about the next IGC? I share your view as to whether they are likely to realise clarification of what it is all about. Lord Dahrendorf made a very similar point last week, that you should have the IGC, if you like, having a vision of what it is working towards but not believing that that will be produced in 2004. On national parliaments, as I argue in the paper, I do think there is a role both for greater horizontal cooperation between national parliaments and vertical cooperation between national parliaments and members of the European Parliament. One has to have a base on which to build. There have already been meetings between members of the national parliaments and members of the European Parliament in looking towards the proposed Convention in preparation for the IGC. There is scope for cooperation vertically and horizontally. At the moment, both the German and French parliaments are collaborating and have already agreed a joint resolution about the shape of the Conventions. We should be getting in on the act and having that degree of cooperation. In terms of bringing MEPs in, there is clearly an argument for that both at the collective level, where you have the members of national parliaments and also members of the European Parliament to discuss matters; and individually, at the national level. The question of course is whether one can prescribe something for the national relationships or whether you should leave it to each nation state itself to decide what that relationship should be. The logic of my paper would be that you leave it to each nation state to determine what is the most appropriate relationship, rather than trying to enforce something. My belief is you leave it to each nation state to decide what would come more naturally to it because that would be more acceptable and they would feel they had ownership of the process. There is a case for that; I think it will vary from country to country. There is scope for exploring it in this country. I am developing my ideas on that at the moment. I have not reached a fully rounded conclusion but I hope to do so shortly and perhaps I can put something in the public domain as to how that cooperation could be taken further forward.

Mr Casale

  33. I am very much in sympathy with what you have just said. Different countries will have different demands in terms of what level of accountability they need for effective public scrutiny. Do you not think that there needs to be some over-arching, strategic vision within which those developments take place, because while it must be up to individual countries to decide how they are going to strengthen that accountability at national level, a general increase in the level of accountability through national parliaments surely would be desirable for many of the reasons that we are discussing in relation to the development of Europe as a whole.
  (Lord Norton of Louth) I agree with you. In order to get parliaments working, there are two ways to do it. One is just by observation, where they realise others are collaborating and want to get in on the act. You are quite right. There is also the value of realising what they are working towards, so if you like it is exhortation in order to reach that particular goal, which is enhanced scrutiny of governments in terms of feeding into the Council of Ministers. That is the thrust of my paper, that there is that realisation. The example I gave was designed to indicate what could be achieved by national parliaments if there was that recognition of what they could achieve by greater collaboration. You can work towards that goal but you realise the goal by the bottom up approach rather than top down.

Tony Cunningham

  34. We have touched on the lack of awareness, the lack of understanding of the role of the EU that the vast majority of people have in this country but at least as far as the European Parliament is concerned people have some idea of what it does. Can I move on to the Council? The Council does not even publish minutes of the meetings that it has. You are suggesting perhaps that the Council meet in public. I think that is an excellent suggestion but I am wondering how long it will take for that to come about. One of the problems that we have with the Council is that, because it has this culture of deal making behind closed doors, this disconnects the general public from the EU institutions and that is particularly clear as far as the Council is concerned.
  (Lord Norton of Louth) On your first point, I would challenge to some extent whether people do know what the European Parliament is about. There is a perception that there is a parliament. We know that because we have elections to it but what it the European Parliament actually for? This question was put to Professor Bogdanor. There is a problem with the European Parliament and certainly has been in that it has never had the core defining function of a legislature which is to give assent to measures that are to have binding applicability within a particular society. You can argue now, with the extension of codecision, that in effect it is moving in that direction, but for most of its history it has never qualified as a legislature given that core defining function. That is not to say it has not been powerful; it has been more powerful than many national legislatures. In practice, the legislatures have fulfilled tasks other than simply giving assent. The core tasks tend to be those of legislative revision and approval, and administrative oversight. It is not clear to me that people are that aware of those functions and certainly have no idea in what way the European Parliament fulfils them.

  35. They have a vague idea in comparison to the Council.
  (Lord Norton of Louth) I am not even sure that would be the case. Why do people not vote in the European Parliament elections? They are not sure what it is all about, what it is there for. They are not choosing a government through the parliament and they are not sure what the Parliament is doing in between elections. If they are told what the Council is, which is ministers coming from the various states to reach agreement, that is fairly straightforward to understand. In terms of decision making, there is an elite discussion as to its role, whether it is an executive body or an equivalent of a second chamber. There is confusion as to the Parliament and indeed the Council. I am not sure there is greater awareness of the Parliament over the Council. On the point about the Council, yes, you can see the argument as to why its proceedings should be open but the point I make as well which is intrinsic to your question is of course there is going to be resistance to that because the ministers, the governments, want to maintain some degree of privacy for doing deals, which is always the argument about why committees should meet in private. Therefore, it will take time to wean them off that, to accept that transparency should take priority over effectiveness from their point of view. You have identified a very real problem to which I call attention in the paper in that you have to distinguish between the ideal and the real. If you are trying to reach the ideal, it is very difficult when there are vested interests in place. That is the whole problem, I think, with the structure because you are not starting from scratch. You cannot start from scratch. You have to work with what is and therefore it is going to be very difficult to move the Council in that direction, for the same reason that the second chamber idea is probably not feasible, however desirable. I think the interests at work mean it is not going to be achievable. You have put your finger on what I think is a very real problem because you see those contending pressures. I would not expect things like the IGC to suddenly say, "The Council should meet in public" but that is not to say it should not be identified as a goal to which one should work towards and start to put pressure on in order to move further forward in that direction. Sometimes you have to keep building up the pressure to move in that direction, rather than expect it to happen suddenly. It is a process of combined pressure that produces that result.

Miss McIntosh

  36. Could I revert to the second chamber in a moment? You say in your written evidence that most Member States do have a more formal scrutiny, particularly for set up European committees. A number of us on the Committee, as you will probably gather, have served as MEPs. I had the distinction of being probably the last dual mandate MEP and I was very taken by your example of Florus Wijsenbeek who I know very well because we sat together on two or three committees during the course of that time. Do you believe that, if we are seeking to have a more orderly consideration of European draft legislation as a national parliament in this way, we should look again at the structure of our regular committees? We sit here as the Scrutiny Committee on European legislation but all we do is take note and ask another committee, the European Standing Committee A, B or C, to consider that. The biggest difference, having served on committees in the European Parliament, is they are performing a dual role of both scrutinising legislation and the in depth policy formulation of a particular directorate general. Would you think there is any argument for either inviting the Select Committees of the national parliament to consider the draft EU legislation or inviting those members who serve on the relevant European Standing Committee?
  (Lord Norton of Louth) I think that latter suggestion is certainly worth exploring. I am not averse to exploring ways in which one can move further forward. Indeed, the way this Committee has changed over time is a good indication of the direction in which one can go. This Committee itself is now moving into looking at topics such as this which I think is a move forward. The more one can do to encourage Select Committees to engage in that prelegislative scrutiny, that would be a move forward. The problem here is not that they are precluded from doing that. It is providing them with an incentive to engage in that particular exercise. How do you get committees more interested in looking at proposals going to the Council? It is not necessarily a change in their terms of reference. It is more to do with incentives. How do you create incentives for committees to be interested in the work of the European Union, given that committees have alternative things to do? How do you make sure it takes greater priority than the other areas that Select Committees have to look at? The importance cannot be understated of ensuring that structures are in place so you can play a much greater role at the prelegislative stage. On needs incentives for committees to make a greater link between the committees and the floor of the House, so there is a greater opportunity for issues to be raised where they are significant. If documents are cleared, fine; if something is referred to one of the European Standing Committees, then the work of the European Standing Committees should be far more tied into what goes on in the chamber, as we recommended. If a motion is agreed by a European Standing Committee, it is that that should be put before the House, not the motion chosen by government. If the European Standing Committee recommended against approval of a document, that should then be debatable on the floor of the House. There are various things to build in incentives and make the work of the committees more relevant in that respect.

  37. It is a question of time. Individual Members of this Committee take our responsibilities very seriously and we are badly let down by a number of our own departments in this country. You may want to consider that at some future date. On the question of the second chamber, you do refer very positively to the role of COSAC which has now been extended and formally recognised as an advisory, information-sharing body. You give the example of Florus Wijsenbeek and you say it is probably best left to exploring voluntary cooperation as the most fruitful way forward. Why would you not suggest making COSAC a more structured body? If we accept that perhaps a second chamber, for a number of reasons that I do not disagree with, is a red rag to a bull to MEPs and we are not going to see committees sitting in a second chamber, would a more logical way, as it is now recognised by Treaty, not be to give COSAC teeth? I had my first experience of COSAC and I found it very illuminating but it is a very big, amorphous body. Would it not be better to formalise meetings between the chairmen of each European committee at least twice a year, if not three or four times a year, using that as the vehicle? Everything you have said flows from that, developing formal communications between the national and European committees.
  (Lord Norton of Louth) On the first point, members are very busy people; they have other tasks to do. I recognise that completely. What we were doing was trying to look at proposals which had to be seen in relation one another. If you are going to give greater tasks and a greater burden to members, you have to provide some way of relieving the burden elsewhere. There is tremendous difficulty in looking at these proposals in isolation. One has to look at them more widely, not just in relation to European business but the business of the House as a whole. On COSAC, I am not against developing the role of COSAC to some extent. Its role has been extended and recognised in the Nice Treaty, building on its strengths. I am not averse to taking that further but I do not think you could have COSAC fulfil altogether what I am suggesting, because COSAC is not a continuously meeting body. Even if you built in further meetings, you still have a problem. We have these institutionalised relationships. Because you have meetings of the chairs of different committees as well a couple of times a year, it would not be sufficient to meet the point I am making which is you need fairly instant contact to know what is going on at the moment and the technology is there to keep in touch with national parliaments.

  38. What mechanism would you propose using?
  (Lord Norton of Louth) At the moment there is some link between the clerks so at the official level you can build up some contact, particularly where committee have officials who specialise in European affairs. There is a mechanism of regular contact and through that could be feeding through to the European affairs committees. Parliaments now have committees dealing with European affairs, which is a product of the 1980s. I do not think it would be too problematic building that up. You have the technology for instant communication. What I am looking at is that sort of immediate link when something suddenly blows up and national parliaments want to know how each is responding. That is the value of it. At the same time, one can certainly play to COSAC's strengths which is doing excellent work, but it cannot be the body that looks at what is happening on a continuous basis. You are always going to have the problem as well as to the extent to which COSAC is representative of the national parliaments. How do you ensure that the delegations going from each country are fairly representative of opinion within national parliaments? That will limit it but I do not see them as conflicting goals. You allow COSAC to build on its strengths, and I am all for that, but at the same time you build up linkages between national parliaments. How aware is this Committee of what other national parliaments are doing when you are scrutinising European documents? I was on sub-committee E of the European Union Committee in the Lords and we were doing excellent work and we acquired a handle on what the Commission was doing and we took evidence from MEPs but there was no awareness as to whether there was a similar discussion going on within other national parliaments and whether they got information that we did not. I would have thought that sort of collaboration would strengthen national parliaments enormously because information is power. If you are sharing that information, it prevents governments in effect dividing and ruling. What I am proposing is supplemental or additional to that, rather than challenging it.

Mr Steen

  39. I want to ask you about subsidiarity because it is a very fashionable phrase and we went a long way down that road, but now we are talking about the limitation of powers. People in this country might be very much happier if they understood the limit to Europe and they felt it was not going any further. Could you amplify that?
  (Lord Norton of Louth) You are absolutely right. That is the point I was making in terms of people knowing what the European Union is about. You could do that in a positive sense and say that it is for achieving this and that, but one of the problems at the moment is that there is this perception that it is ever-changing and ever-growing. People are not sure where it is going to reach into next. In that respect, I think the acquis is part of the problem.

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