Examination of Witness (Questions 1-57)
Professor Simon Hix
8 December 2010
Q1 Chair: Good afternoon, Professor
Hix. It is a great pleasure to have you here this afternoon. You
may have noticed that despite the—as I described it in the
debate yesterday—eerie silence of the BBC, the reality is
that a lot of other people are taking a considerable interest,
including the House itself. I will ask the first question. How
do the referendum and legislative requirements in the Bill compare
with corresponding regimes in force in other member states?
Professor Hix: They are completely
unique. Several other member states have provisions, either statutory
provisions or constitutional provisions, for referendums on major
treaty changes—Denmark and Ireland in particular. But in
Denmark, the referendum is triggered only if there isn't a parliamentary
vote of a four-fifths majority in favour of treaty reform. So
they can override the referendum requirement with a particular
oversized majority in the Folketing. In Ireland, the constitutional
practice that has now been established is that there is a referendum
on any major EU treaty reform.
Several other member states have used referendums
in the past for ratifying treaties, but do not have specific constitutional
provisions that require them to do that. It has become established
practice in France, for example, and I think it will be very difficult
in the future for any French Government to deny a referendum.
In the Netherlands, following the referendum on the draft constitutional
treaty—or the promise of a referendum on the draft constitutional
treaty—the expectation is that in the future there will
be referendums. Again, I think it will be difficult for a future
Dutch Government if there is a significant treaty change.
But no other member state of the EU has introduced
any particular requirement, either for the passage of a Bill through
Parliament or for a referendum in respect of the items covered
under clauses 4 and 6 in the Bill relating to the passerelle clauses
or the special amendment provisions in the treaty.
So the assumption is that referendums are really
required only for major treaty changes. I am not saying this could
not happen in the future; it may well. I think that several other
member states might well copy some elements of what the UK is
doing, and what the UK is doing in the Bill is being watched closely
by several other member states.
Q2 Chair: Thank you very much.
In your submission at paragraph 12, you refer to the paradox of
weakness—the idea that if there are significant domestic
constraints on a Government in international negotiations, then
the Government can credibly threaten that an agreement will be
rejected domestically if they do not gain sufficiently in those
negotiations. As a result, the greater the constraints on domestic
Governments in EU negotiations, the more likely they are, you
say, to gain in bargains that have to be reached unanimously.
Does the research back that up?
Professor Hix: Yes it does.
Q3 Chair: Can it be seen that
certain member states punch above their weight as a result of
domestic constraints on their Governments in EU negotiations?
Professor Hix: Absolutely. There
is plenty of evidence that that is indeed the case. That is indeed
the case in the cases of Denmark and Ireland that we just mentioned.
Denmark, historically, has done very well out of the EU budgetary
bargains and out of treaty negotiations because of the high domestic
requirements for the passage of treaty reforms.
You can argue that in the negotiations on the
Convention on the Future of Europe, France and Britain strengthened
their hands in the midst of the negotiations after the referendums
were announced in the two countries. In a sense, France announced
that it would have a referendum in response to the announcement
that there would be a referendum in Britain, because it perceived
very much that if Britain was going to have a referendum, it equally
wanted to increase the domestic constraints.
There is plenty of research that has studied
exactly what happened in negotiations and how those announcements
actually changed the way things were moving in favour of a treaty
that is largely perceived in the rest of the continent as quite
a British treaty. So, it is interesting how it is perceived very
differently in the UK. It seems that a lot of other member states
look at it and think that the Brits got a lot of what they wanted
in the treaty as a result of these very high promises back home.
Having said that, what I also point out in my
written evidence is that there are two conditions with which raising
domestic constraints can increase your bargaining position. One
is that there aren't alternatives that the other member states
can use to exclude you. If the threshold is very high and you
are threatening to veto, they will start to look for other ways
to skirt around this. It only really works as a credible threat
when there are major treaty negotiations.
I don't think it works as a credible threat
in the passage or the usage of some of the provisions covered
by the Bill relating to passerelle clauses, for example, in the
treaty. If the UK is expected to have to hold a referendum, and
I will come to that in a second, I think that the other member
states would then just assume that Britain would not be in favour
of it and then also assume that they will have to try and go ahead
without the UK. That may well be a good or bad thing from the
point of view of the Committee, but I think in practice that will
be what will happen.
The other condition is that the threat has to
be credible. There is a question about whether it really is credible,
because can we really envisage there being a referendum on a lot
of these small issues? Can you really expect a referendum on the
movement from the special legislative procedure to the ordinary
legislative procedure for the passage of an EU carbon tax? I doubt
it. It wouldn't be taken seriously by British Ministers and I
don't think it would be taken seriously by the other member states.
So in that sense, it wouldn't be credible.
Q4 Chair: So following on from
your remarks about them punching above their weight, if you are
right, why hasn't there been a growth in the adoption of these
domestic constraints by member states? There does not appear to
have been.
Professor Hix: Well, there has
been. There were many more referendums promised on the constitutional
treaty than in any previous treaty ratifications. I think 11 member
states were due to have referendums on the constitutional treaty.
Once one or two had announced, then they all started to announce.
So exactly that happened.
Q5 Chair: Lastly, what is the
point at which you get gridlock? How many member states can do
this before you get gridlock?
Professor Hix: Well, you don't
get gridlock in a sense with these unanimous negotiations. The
reason why you don't get gridlock and still manage to get an agreement
is that not everybody wants the same thing. So each member state
will come to the table saying, "These are the three or four
things that really are top priority for us"—the equivalent
of the British red lines—"and we want a referendum,
and the referendum will probably focus on these things so you'd
better give us what we want on these issues." The point is
that not everybody names the same issues, so you can put package
deals together in treaty reforms where you give the Brits what
they want on the things they care about, the Czechs what they
want in their area and the Irish in their area and so on.
So that is how you manage to get these unanimous
deals. It's going to be harder. The real uncertainty and the uniqueness
in the Bill, which is not replicated and we have not seen at all
anywhere else so it is hard to generalise from, is the provisions
for an Act, or for an Act and a referendum, on the usage of the
passerelle provisions in the treaty. There is large uncertainty
about the implications of those things for Britain's position
within the EU and, more generally, for the functioning of the
EU as a whole.
If other member states copy those sorts of things,
what does that mean for these very issue-specific negotiations?
Issue by issue by issue there will be gridlock, but in a treaty
negotiation there are a whole lot of issues on the table and so
you can do a package deal.
Chair: Thank you.
Q6 Chris Heaton-Harris: Is that
a bad thing?
Professor Hix: Well, it depends
on what you want. If the idea is that you would like to strengthen
the hand of the British Government in negotiations—and,
of course, that is a worthy thing to do—is requiring a referendum
on each of these specific things the way to do it? I am not sure
that it is, because I think that most of the other member states
would see this as faintly absurd.
There isn't really going to be a referendum
in the UK on each of these relatively small things—and anyway,
wouldn't some future British Government just try to amend the
Bill to delete that provision if they were in favour of it, and
couldn't we put pressure on them to do that anyway? After all,
a majority in Parliament can't bind a future majority in Parliament.
Yes, there may be a public debate about that, but really would
the public take any notice? Would the media take any notice?
My expectation is that if a future British Government
are in favour of moving, for example to QMV from unanimity in
a particular area such as environment taxes, and they want to
move because they feel it is being blocked and there is a policy
that they are in favour of, I bet that they would then say, "Let's
just amend the Bill and move it to another part of the Bill where
we can just pass an Act of Parliament." So I do not necessarily
see it as credible. So it would not strengthen the hand of the
British Government in those situations.
Q7 Chair: On the question of what
is important and what is not, by any reasonable standards one
might have thought that the financial stability mechanism was
a massive issue—the Irish bail-out, the possibility of going
down the route to Portugal and Spain and so forth. So would you
not have thought that that was the kind of thing, because it combines
a treaty which were told about in Hungary the other day and it
was confirmed yesterday that there is going to be a treaty?
Secondly, there is the question of whether it
would be temporary or permanent. In addition, the extension of
the prospect of the British taxpayer bailing out Portugal and
any other country, including Spain, becomes an extremely big issue.
Would you not have expected in those circumstances, given that
the Minister said last night that they already intend to operate
as if these provisions were in place, that the question of a treaty
for extending the financial stability mechanism would be ideal
for both the treaty and the referendum?
Professor Hix: Any major treaty
reform—if you consider this to be a major treaty reform—
Q8 Chair: I think I said "treaty";
I meant to say "the Act and the referendum".
Professor Hix: Okay, but I think
there are other options. The point is whether you feel it is feasible
to hold a referendum, how the referendum is going to be seen by
the public and whether there is going to be sufficient turnout
in such a referendum. If it is on a specific issue that is regarded
as relatively technical, I cannot imagine that there would be
high turnouts.
Do you want the majority in the Commons to be
bound by the outcome of a referendum with a very low turnout?
Is it not better to think about some other mechanism that would
raise the bar over which a Government have to pass before they
can sign up to something like that? There are plenty of other
mechanisms for doing that. One thing I mentioned in my evidence
is a two-thirds majority requirement in the Commons.
Q9 Chair: We'll come on to that
in a minute.
Professor Hix: Yes, because I
can see how a referendum would be a useful tool to give a mandate
and resolve a significant issue for a generation, for example.
It would bind the hands of a majority in the Commons either one
way or the other on a major issue and a major change. I just don't
see how in practice a referendum could do such a thing on a relatively
minor issue.
Q10 Chris Heaton-Harris: I wonder
whether that is not disproved by what goes on in California and
many other American states, which are constantly holding ballots.
There are referendums or questions asked about individual political
issues, and in California, although there was a dip some five
years ago, turnout has never been so high as it is now. So perhaps
people quite like being asked questions.
Professor Hix: Okay, if you are
asking whether we should fundamentally transform the nature of
British democracy into a referendum-based society, I would say
yes.
Chris Heaton-Harris: So would I.
Professor Hix: Because I do not
like parliamentary sovereignty.
Chris Heaton-Harris: I do.
Professor Hix: But if you think
that parliamentary sovereignty is the basis of British constitutionalism,
I do not think we should go down the Californian route.
Chris Heaton-Harris: I think the two
can go hand in hand.
Professor Hix: My question back
to you would be: if a majority in the Commons take one view and
the majority in a referendum take another view, which of those
two things is sovereign?
Q11 Chair: The Whips. That is
the problem with a two-thirds majority—we have already had
this in the debate on fixed-term Parliaments—because in
reality a two-thirds majority is not what it seems; it is actually
driven by the leadership, which imposes the Whip and generates
votes.
If we were to have a referendum on a big enough
question, I would accept your point. If, for example, we were
expected to pay £30 billion for Portugal and Spain, or whatever,
there would be a conjunction of circumstances in which people
would be asked a very big question attached to an Act that endorses
a treaty. So you're right to ask the question on the importance
of the issue.
When you get a conjunction of enormous economic
consequences that follow a decision in the European Union, and
you get the problem of whether or not you get it through the House
of Commons, perhaps you get a different answer to your question
on a two-thirds majority. We will come on to that a bit later.
Professor Hix: Can I say another
thing about that? There is a fundamental difference between the
way our democracy works and the way democracy works in California.
I used to live in California, so I know. California has an election
day once a year, and on that day they have a lot of elections
and a lot of referendums all at the same time. So there is an
established practice of an election day, which is the third Tuesday
in November, and that is how it all works.
We don't have such a political culture or such
a political set-up, so I think it will be very difficult and very
challenging to set up regular referendum practice in the British
environment. If we do set up regular referendum practice, it raises
serious questions about the legitimacy of the majority of the
Commons versus the legitimacy of the majority of the public. My
bet would be that the public and the media would accept the legitimacy
of the majority of the public over and above the majority of the
House of Commons, which would be the end of parliamentary sovereignty.
Chair: Right. Moving on.
Q12 Jacob Rees-Mogg: Can I just
ask something before we move on? I actually agree with your definition
of how parliamentary sovereignty comes about. It comes from the
British people to the Parliament. Therefore, I don't think the
two are contradictory. They work very neatly, hand in glove. But
you have to defend parliamentary sovereignty within each five-year
term, which is why it is so important to have referendums if Parliament
is trying to give away its base power to Europe.
Professor Hix: If you have a referendum
on an issue that results in a no, can the majority in Parliament
say yes several months later?
Q13 Jacob Rees-Mogg: That would
be absurd.
Professor Hix: You might say that
it would be absurd, but what would the courts say?
Chris Heaton-Harris: The courts don't
have to go to the public, whose minds they have changed, to try
to regain their vote a couple of years later.
Jacob Rees-Mogg: Parliament cannot oppose
the people.
Professor Hix: I'm with you on
that, but I think the courts would take a different view.
Q14 Chair: By the way, there is
another factor: you can't have a referendum without an Act of
Parliament in the first place. It is about Parliament, as I said
last night, abdicating its position because it realises that it
really is not something that should be left to the whim of the
Whips or the leadership, and taking the view that this is so large
that it should go to the people.
After all, as Jacob Rees-Mogg makes quite clear,
ultimately we are representatives of the people and we therefore
have the implied—and, I believe, absolute—necessity
to go to the people for a referendum if it is impossible to get
a decent answer out of the House of Commons.
Professor Hix: I'm with you on
that, but I should point out that all the other places that have
regular referendum practices—whether it is Texas, California,
Switzerland or Italy—have had repeated and ongoing difficult
constitutional debates.
California, for example, has seen the courts
take one view, the public in a referendum take another, and the
majority in the state legislature take a third view, followed
by an ongoing debate about which of those three things is sovereign.
The courts say, "We protect fundamental rights in the constitution,
and they are sovereign." The public say, "We are sovereign,
because we are the popular sovereignty." And the state legislature
says, "We are sovereign until the end of our term, so we
can do what we want."
Chris Heaton-Harris: Which in the American
constitution would be right.
Professor Hix: So the question
I would be asking is: do we want to go down that route?
Q15 Chair: I don't think that
many people, judging from last night's debate, were over-enthusiastic,
to put it mildly, at the idea of our big constitutional questions
relating to democracy being decided by judges, but that is a separate
question. Can we move on to the next point, which relates to your
example of a referendum on the means for adopting an EU carbon
tax?
I don't know whether you noticed, but the Minister
replied: "What the proposition before people would be is
that not just for a particular measure to do with carbon tax,
but permanently, in the future, decisions about environmental
taxation at European level could be taken by qualified majority
and the United Kingdom outvoted on measures that would impose
new or additional taxes upon the population of the United Kingdom,
without the United Kingdom electors being able to get rid of the
politicians who had been responsible for imposing them. That seems,
to me, to be something that would attract the public to the ballot
box."
What do you make of his reply? Are these issues
really as low in salience as you suggest? What would you estimate
as the turnout in such a referendum?
Professor Hix: I think there is
a big difference between a referendum on a procedural issue and
a referendum on a policy issue. Any referendum on a procedural
issue will ultimately turn into a debate about policy. A referendum,
quite rightly under the rules of the Bill, can say that it is
not about a policy issue, but about a procedural change that could
allow policy in the future. But inevitably, it would come down
to a debate about whether you are for or against a particular
policy; about whether that policy is more likely or less likely
as a result of the change; and about asking why would we be making
this change anyway and what are its policy implications.
I don't agree with the Minister that it is possible
to separate things so neatly to say that it's not about whether
there would be a carbon tax, but about whether or not we could
have the possibility of deciding whether we could have a carbon
tax plus some other things by QMV or the ordinary legislative
procedure. I just don't think that the public, the media or politicians
will be able to have a debate on those terms, because ultimately
the public wants to know, "What are the policy implications
of this? What am I actually voting on here? What are the consequences
of this?" It will ultimately come down to that sort of debate.
Even then, I would be very surprised if, on
a specific issue like that, which can be constrained to those
narrow issues, you would have a high turnout; I can imagine that
it would be a very low turnout—far less than 50%. Potentially,
it could be less than 25%. The only way in which it could become
larger than 50% would be if it gradually turned into a debate
about Britain's place in the EU. Ultimately, I suspect that the
first such referendum would come down to that; it would ultimately
come down to a debate, and that is how it will be portrayed in
the press and how the public platforms will end up being portrayed.
Whether or not that is a good or bad thing is a separate question.
My expectation is that that is what will happen.
Chair: You have just anticipated the
next question—exactly and in precise terms. I will ask Chris
Kelly to move on from question 4, which you have already answered.
Your prescience is so great that you actually got that question
completely right. I have no doubt that your answer will be taken
on board by all concerned. Chris, would you like to ask the next
question?
Q16 Chris Kelly: Professor Hix,
what is the experience of referendums in terms of a minimum turnout
being required for the result to be regarded as politically binding?
Professor Hix: It varies considerably.
In France and Ireland, there were no requirements on that. Switzerland
has gradually introduced requirements—not just for turnout,
but for certain majorities; I mean majorities of people plus majorities
of the particular count in the regions of Switzerland. A provision
could be put into the Bill, or into some Act that then calls a
referendum, to say that the results would only be binding if there
is a certain turnout in the vote, which has been the practice
in the UK in the past—in the Scottish Devolution referendum
in 1979, for example.
Sorry, what was the second part of your question?
Chris Kelly: For the result to be regarded
as politically binding.
Professor Hix: That is more of
a political question than a legal one. Even if you meet a certain
threshold, whether or not that is politically accepted as legitimate
relative to a particular majority size in the Commons, it is a
separate question that is very difficult to answer.
Q17 Chair: Turning to the Scotland
devolution vote, Michael and I were engaged in the debate on the
question of turnout on the alternative vote Bill. My amendment
said that it should be 40% of turnout, which I thought was rather
a modest and fairly low threshold. However, as Michael remembers
only too well, the George Cunningham amendment was 40% of the
yes vote.
Professor Hix: The yes vote had
to represent at least 40% of voters.
Chair: That is right. The yes vote had
to represent 40%.
Professor Hix: That is quite a
high threshold.
Q18 Chair: Yes, and
that had a significant impact on the outcome of the Bill. In fact,
it was the reason that the Bill was lost. Do you have any thoughts
on whether or not the percentage should be geared to turnout or
to the "yes or no" question?
Professor Hix:
I think that it should be geared to turnout. The practice in most
other countries that have such a system is that there is a trigger
that says the result is binding if the overall turnout is above
a certain size.
Let me say one other thing that I forgot to
say in response to Mr Kelly's question, which is when you trigger
a referendum, there is an ongoing debate among the people who
research and study referendums across the world over whether the
public answers the question in referendums or some other question.
That is particularly the case with European referendums—even
the very big major European referendums on big issues, such as
joining economic and monetary union. A great example of that was
in the two referendums on the Maastricht treaty in Denmark. The
first one was against, and that was largely seen as a vote against
a very unpopular Government who were then defeated and who then
triggered an election campaign. The new Social Democrats won the
election, called a second referendum and then won the referendum
on exactly the same question. That is the example to which people
point to say that even on a major issue, the result was really
driven by domestic political considerations, and it had nothing
to do with the question.
Having said that, research on the referendums
on the constitutional treaty and the Lisbon treaty—not only
in France, the Netherlands and Ireland, but in Spain and Luxembourg—has
indicated that the biggest predictor of how people voted individually
was their individual attitudes towards Europe, not their attitudes
towards the Government. In those examples, the referendum campaigns
were organised in such a way that there was a big information
mobilisation, particularly in the French case, which meant that
they were not just about the unpopularity of the Chirac Government,
but about the question on the table. It is not that the Government's
unpopularity did not matter, but you can think of it like this:
40% of the answer was related to people's attitudes towards Europe;
30% was related to their attitudes towards the Government of the
day; and the other 30% was related to some other factors.
Q19 Chris Heaton-Harris: I think
that this is a pretty bogus argument, because surely the same
case can be made for local, parliamentary and European elections
in the United Kingdom. I was elected to the European Parliament
on a 28% turnout. In fact, that was on the same day that Bubble
was evicted from the Big Brother house with more votes than my
party achieved nationally. I don't buy the argument that you can't
have a legitimate result on a small turnout.
Professor Hix: I'm not saying
that you can't, but that it raises questions about the legitimacy
of those outcomes. People certainly do raise questions about the
legitimacy of the majority in the European Parliament because
of the low turnout in elections.
Chris Heaton-Harris: When voters turn
out in local elections they tend to be answering national questions.
God knows why some people voted for me—some have been questioning
that in my constituency since May. Some people voted for me on
one particular policy area. I do not think that you can define
the question that people are answering when they put a tick on
a ballot paper. We just have to accept that the majority of people
will be doing the right thing in their own mind. We have to get
used to the fact that democracy evolves. Surely in an evolving
democracy referendums have a place.
Q20 Henry Smith: Briefly, I want
to take you back to threshold limits. Are there many examples
where the threshold for acceptance is 50% of those eligible to
vote? Granted, it is a high threshold.
Professor Hix: I do not know off
the top of my head and would have to look that up.
Q21 Henry Smith: Nothing leaps
out at you?
Professor Hix: Nothing.
Q22 Michael Connarty: On the question
of scale and importance in determining what is the legitimate
use of referendums, the most recent referendum in Scotland was
on whether to set up a Scottish Parliament and, in a second question,
whether to give it tax-varying powers. Where does that fit in
the scale of what is salient and, therefore, justifiable in using
a referendum? Would that fit your model of something that is large
enough in scale?
Professor Hix: My basic view about
this is somewhere between that of Chris Heaton-Harris and that
of others. Referendums are a legitimate tool, but often they are
not regarded as legitimate unless they are on major constitutional
questions. In a democracy we believe that ultimately sovereignty
resides with the people, so it is legitimate that referendums
should be used for major constitutional changes. Examples of such
major constitutional changes include the transferring of policy
competences to the European level; the transferring of policy
competences to a lower level of government, as is the case with
devolution; changing the way our electoral system works; and whether
or not we should elect an upper House.
I see a range of issues that I would categorise
as being clearly of a fundamental constitutional nature and that,
therefore, would only be regarded as legitimate by future generations
if they are ratified in some way through a referendum. I think
that those questions are inherently and fundamentally significant
enough to answer all the other questions that have been raised
about whether there would be sufficient turnout, whether there
would be a proper debate on the issue, whether people would really
form their opinions on the questions that were on the table and
so on. I think that they do by their nature.
You can, of course, have referendums on a whole
range of other minor issues, but questions will always be raised
afterwards about whether there was a legitimate outcome. For example,
California recently had a referendum on the legalisation of marijuana,
but I imagine that there will be another referendum next year,
and another one the year after that and so on. In Texas, they
have referendums in local communities on whether they should ban
smoking or ban alcohol. You have a referendum every year on the
same issue, because people question any one binding outcome on
whether it was the right question or whether the turnout was high
enough or whether people were voting on other things. When you
have a fundamental constitutional question, however, the issue
gets resolved for a significant time, because of its nature.
Q23 Chair: Of course, they don't
have such referendums in the United States on major constitutional
issues.
Professor Hix: Not at the federal
level. They do at the state level.
Chair: That's the point.
Q24 Michael Connarty: I'm trying
to get the scale, because I think I lean in the direction that
you go with it. Clause 4 and clause 6—
Professor Hix: I think they're
too minor.
Michael Connarty: They are likely to
be too impenetrable for people, and they will become referendums
should they ever be used on other things. On the scale, you are
basically saying that you think the Scottish referendums for devolving
power and to give tax-raising or varying powers were significant.
Would you, therefore, conclude that, should we go to a second
Scotland Bill and do as is recommended by Calman, for example,
and give 10% of tax-raising powers to the Scottish Government,
that would require a referendum?
Professor Hix: If you have the
principle that any major transfer of sovereignty that relates
to a significant policy competence requires a referendum, that
would fit my description.
Chair: I think we ought to be a bit careful
and to stick to the European Union.
Q25 Michael Connarty: Yes, I know
that. Finally, should Lisbon, therefore, have had a referendum?
Professor Hix: I think Lisbon
should have had a referendum, but the Lisbon treaty is the least
significant treaty that the EU has ever signed.
Q26 Chair: But the Maastricht
treaty was not.
Professor Hix: The Maastricht
treaty was not what?
Chair: Was not insignificant.
Professor Hix: I think all of
the EU treaties are significant. If they fit my description, as
I say, it's perfectly legitimate to say that any major treaty
reform requires a referendum.
Q27 Chair: So you would have said
yes to a Maastricht referendum.
Professor Hix: I think there should
have been a referendum on Maastricht, on Amsterdam, on Nice, on
the constitutional treaty, on the Lisbon treaty, on whether Britain
should join EMU or on any other major question like that.
Chair: That's very helpful. Thank you
very much. Now, you go on to say that domestic constraints have
to be credible in the eyes of other member states in the Council.
On that basis, you call into question the likelihood that a UK
Government would in fact hold a referendum on the less significant
issues, which arise under clauses 4 and 6 of the Bill, because
on most of these issues there are alternatives for the other member
states. Penny, you were going to ask the next question, I think.
Q28 Penny Mordaunt: Can you elaborate
on what those alternatives for other member states would be?
Professor Hix: There are two sorts
of alternatives. There is one alternative within the mechanisms
of the treaty, and there is one alternative outside the treaty.
Within the mechanisms of the treaty, there are provisions for
enhanced co-operation. Those provisions are written in such a
way that they could apply to most of the areas in the treaty that
are covered by this so-called passerelle, which was put into the
Lisbon treaty to make it easier. You can even read that that element
of the Lisbon treaty was in response to an increase in the usage
of referendums by member states to ratify treaties. As member
states increased the threshold for passing treaties, the elites
negotiating such things said, "It's going to be more and
more difficult in the future for us to get treaty reform, so let's
figure some other way we can amend the treaties." That was
the reason why they came up with this sort of simplifying treaty
mechanism.
My reading of the treaties is that most of those
simplifying mechanisms could be covered by enhanced co-operation.
Enhanced co-operation cannot be invoked if it undermines the basic
elements of the single market, but it could be used in a lot of
these areas. If they then feel that, legally, they cannot use
enhanced co-operation, they can always use some separate intergovernmental
deal among themselves to act in a particular policy area, and
we have seen, historically in the way the EU works, that being
used a lot by member states if they feel that they cannot get
it through the normal treaties.
Talking to colleagues in other member states,
and, interestingly, reading the evidence from the retired legal
adviser to the Council, Mr Piris, I think that a lot of other
member states will look at the Bill, if it is passed and if an
issue comes up, and either say, "If a British Government
is in favour of us making this change, they will find some way
to amend the Bill relating to those provisions, so that they can
get on with business in Brussels." or, "I don't expect
that they're going to have a referendum on these things, and therefore
they will have to vote no." or, "There will be a referendum
on these things, and it will inevitably be a no, so therefore
we have to think about ways to get around the British position."
Any of those scenarios weakens the hand of any British Government
in negotiations, because the assumption is either, "It is
not a credible threat and therefore we don't take you seriously,"
or, "It is a threat but you're binding your hands already
to say no. Whatever we come up with you are going to say no, so
therefore we won't negotiate at all with you."
Q29 Chair: So basically you don't
take a very sanguine view of the practical consequences of all
these provisions set out ad nauseam.
Professor Hix: I don't, and this
is why I think there are other mechanisms that could—I think
it is legitimate, given the fact that I don't like the way the
treaty is now designed to allow essentially the elites sitting
in Brussels to make significant constitutional shifts in the way
the EU works without them being ratified by national Parliaments.
I am not happy with that. I think that is a breach of the tradition
in which the EU has been built through voluntary sanctioning by
national Parliaments and by national publics. I think there should
be some more constraints, but I am not convinced that the referendum
is the appropriate way to do it.
Q30 Mr Clappison: Can I take you
back to the point you have made about enhanced co-operation, so
I understand this correctly? You are saying that—as you
have put it—the elites in Brussels could get round the various
constraints that there are on doing things in the EU Bill by using
enhanced co-operation as an alternative to one of the mechanisms
that is covered in the Bill that would trigger a referendum. Is
that what you are saying?
Professor Hix: Not in all those
areas, but certainly in some of them.
Q31 Mr Clappison: Enhanced co-operation
would be a way of circumventing the referendum blocks that are
in place. Presumably, you have studied the EU Bill. If they went
for enhanced co-operation, what would be the process under the
EU Bill as it stands? There would not be a referendum, would there?
Professor Hix: It doesn't look
like there would be a referendum. My assumption would be that
the other member states would want to do this without Britain,
so in that sense they could go ahead without Britain's agreement.
Q32 Mr Clappison: Suppose a British
Government wanted to take part in enhanced co-operation, which
is on the table from other member states, what process would be
followed to bring about that enhanced co-operation?
Professor Hix: So far as I as
I can see, I don't see that as being covered right now.
Mr Clappison: It's
not covered in the Bill as it stands. So it wouldn't be covered
by a referendum.
Professor Hix: That's a good point.
Q33 Chair: I think Professor Dougan
makes that point as well in his evidence. Do you think that enhanced
co-operation in this context would be more inclined towards creating
an association of nation states. You have Schengen; you have opt-outs;
you have enhanced co-operation—
Professor Hix: Defence co-operation,
which doesn't apply to every member state.
Q34 Chair: Yes; what I'm saying
is that increasing evidence is emerging that a diversity and a
flexibility is penetrating the assumption that everything has
to be a one-size-fits-all, uniform policy within one legal framework
and an acquis. You know where I am coming from; for practical
purposes, although they won't admit it, there is an increasing
tendency to go down the route of an association of nation states.
Professor Hix: I'm not sure that
the second of your statements follows logically from the first.
I think it is true that there have been increasing usages of what
people call flexible integration, so several sub-clubs of the
EU moving forward in particular policy areas because the other
member states are not willing to go along. We can see that with
the euro, with defence, with Schengen and so on. Whether or not
I think that is leading to an association of states; I think that
is not true. I think that an association of states is saying that
all these mechanisms are intergovernmental, but they are not.
You cannot make the argument to me that the euro is an intergovernmental
mechanism when you have delegated significant powers to an independent
central bank, where ECOFIN is deciding by majority vote how it
manages its macro-economic policies in relation to the euro. It
doesn't logically follow that an association of states is the
consequence of flexible integration.
Q35 Henry Smith: However, Switzerland
is a member of Schengen, but obviously it is not a member of the
European Union. That might be a weaker example, and I accept the
points relating to the euro, although there are nations that use
the euro that aren't members of the EU. I thought I would just
throw that out there.
Professor Hix: Okay, on Switzerland
and Schengen, as far as I can gather in the development of the
area of freedom, security and justice in the EU and how that relates
to Schengen, Schengen is gradually being hollowed out in what
it is used for. In a sense, Schengen is the treaty just for agreeing
rules on the removal of borders. Everything else on the policy
that covers what you do with the movement of peoples is now being
done through the area of freedom, security and justice. You can
see that one of the major significant growth areas in European
legislation over the past decade has been that of freedom, security
and justice—whether that is to do with common refugee policy,
asylum policy, common visas, or family reunification, and so on.
That is where it is a quasi-federal political system. The Commission
has an agenda-setting power. It is a bi-cameral system; the European
Parliament has co-equal power with the Council. It is not an association
of states.
Chair: Henry, would you like to ask the
next question?
Q36 Henry Smith: Yes, I think
this has probably already been answered. Is there evidence from
the domestic checks in other member states that these forms of
constraints are taken seriously by member states?
Professor Hix: They are, as I
mentioned in relation to the treaty negotiations, and there are
other types of checks which are taken seriously. The classic example
is the check of the Danish Parliament on Danish governance—the
check that the committee in the Folketing gives to the binding
of the hands of Ministers before they negotiate in Brussels. That
has a particular effect in the Danish context, because most Danish
Governments are minority Governments, so the Folketing has significantly
more power than in any other Parliament where the Government are
sitting in a majority. That gives one particular context. One
of the things that I mentioned in my evidence, which I think is
missing from the Bill, is anything more detailed on what our Ministers
are actually required to do and to give to the Committee when
negotiating on day-to-day legislation in Brussels.
Q37 Chair: So you're recommending
that there should be some form of a mandate, as well as a scrutiny
reserve.
Professor Hix: I think there should
be some form of mandate, and I also think there should be much
tighter restrictions and requirements on what has to be provided
to the Committee in terms of documents. It is not sufficient just
to say that the Committee sees what the Commission proposes, and
then, if it wants to, the Committee sees anything that is available
to the public from the Council. The Council is still a largely
secretive organisation, despite its claims to the contrary. There
are a lot of things that you and I don't see, but Ministers do.
Chair: Just before James comes in, you
may or may not be aware that, in relation to the task force and
the whole of that business about European economic governance,
it was only because I happened to be at the COSAC meeting and
was given a copy of the document that I was able to ask an urgent
question the next day.
Professor Hix: Exactly.
Chair: If that doesn't make your point,
nothing does, and the whole argument has gone on from there.
Q38 Mr Clappison: Perhaps I should
be giving evidence myself; I would say amen to what's just been
said. On the Danish point, I had the opportunity to go to Denmark
fairly recently to speak to members of their committee. It seemed
very popular with them, it seemed to work very well, and it had
been in place for a number of years. Is that your academic view
as well?
Professor Hix: Yes.
Q39 Michael Connarty: Can I just
clarify the traction that the two-thirds majority has? Have you
had any indication that the UK Government are in any way thinking
about anything other than referendums? They have always said that
they didn't want to have qualified majorities, but they are about
to introduce a Bill on fixed-term Parliaments, which would bring
in a two-thirds majority Government. We have that in Scotland,
because the electoral system is deliberately and inherently designed
not to have a majority, and therefore you must have a stability
clause. However, this is the first time that I have known the
British Parliament to bind itself. So is that unique to that particular
circumstance?
Professor Hix: No, I think there's
something fundamentally different between rules that relate to
how Parliaments can dissolve themselves and call elections and
rules that relate to the passage of certain Acts or pieces of
legislation. In the former, I can see some very difficult issues
relating to raising the hurdle for calling an election and what
that does, in practice, for the sustaining of what could be potentially
a very unpopular minority Government. Across the world, a lot
of democracies—such as Germany and several other states
in Europe, and elsewhere in the world—have different majority
requirements relating to the nature of the legislation that is
being passed. For example, there are different rules in Germany
relating to whether or not the legislation relates to a federal
competence or a Land competence, and then what majority is required
to get it through the two chambers.
Q40 Michael Connarty: Can I come
back to you? We had a rather interesting debate with Professor
Craig and Professor Allan about whether there was such a thing
as a hierarchy of law, and if there were such things as constitutional
laws that were at the top of the hierarchy and therefore could
never have an implied repeal by passing another Act that contradicted
it. Are you saying that there are such constitutional laws that
are, in fact, part of a hierarchy and therefore require different
circumstances?
Professor Hix: I think there are.
I am persuaded by a recent book by Professor McLean at Nuffield
college, Oxford, in which he makes exactly that case. He says
that in the British system there is, in practice, a difference
between Bills that are quasi-constitutional in that they have
set up and set out the fundamental powers that exist in Britain.
You could say that the devolution Bill is one of those, that any
Bill on the electoral system is one, that the European Communities
Act 1972 is another, and so on. So I think there are certain categories
of Acts which are of a constitutional nature. His recommendation
would be that the amendment and repeal of those Acts should require
a higher threshold than a simple majority.
Chair: I am rather keen to stick to the
European Communities Act.
Professor Hix: But I think that
is logically consistent with the idea that you could have similar
sorts of requirements for these sorts of issues relating to the
EU treaties.
Q41 Michael Connarty: That raises
the question of implied repeal. If an Act were passed by the UK
Parliament that contradicted an EU law, given that the 1972 Act
is, in your assessment, a constitutional Act and so there could
not be an implied repeal immediately, a British court would therefore
be required to strike down the enactment of the new law passed
by a British Parliament if it contradicted the European law that
we agreed to in the 1972 Act, because it cannot be implied to
have been repealed.
Professor Hix: I am not a constitutional
lawyer, and I would defer to my colleagues who are that exact
thing. I am just talking about the establishment of political
practice and what that would logically mean for the majority requirement
in a Parliament.
Chair: I think we are moving down the
territory of constitutional law and McCarthy versus Smith, Diplock
and Garland and all the rest of it. Henry, did you want to ask
a question?
Q42 Henry Smith: This is a fascinating
area. I agree with your contention about a hierarchy of certain
Acts. Do you think they should be more explicitly in a written
constitution, for example? I highlight that because obviously
it is a subject of academic debate as to whether there is a hierarchy
or not and whether such Acts should only be amendable by referendum.
Professor Hix: We could be here
all afternoon talking about whether we should have a written constitution,
so I will answer this very briefly. I think there have been fundamental
constitutional changes in Britain over the past 20 to 25 years,
whether that relates to European integration, devolution, mayors,
whether we have an elected upper House, or the Human Rights Act.
We have a new constitution that is not the same constitution we
had 30 years ago. It would be appropriate for us to sit down and
think about what this means in the long term. Therefore, I would
be in favour of some sort of convention that draws up a proper
written constitution for Britain that includes exactly these sorts
of things.
Q43 Chair: On the question of
the two-thirds majority, it is a fact—Jacob Rees-Mogg had
this very much in mind—that in the 19th century Gladstone
had, I think, 100 votes as a minimum. Some people, including
myself, have made a suggestion about 150 MPs deciding to call
for a motion on the question of whether there should be a free
vote on the European issue. In other words, the idea of percentages
and some degree of majority is already around.
Coming back to something we were discussing
earlier, do you think that part of the problem is that the whipping
system distorts the apparent purity of a percentage majority because
people are told, "You're going to do this"? Two thirds
of the seats was the criterion for the Fixed-term Parliaments
Bill, but going back to the European Union, in the context of
the German constitution, it is two thirds of those voting on constitutional
questions that is the determining factor, not just two thirds
of the seats. When we are talking about two-thirds majorities,
we would be quite clear that it would be with regard to the number
of those voting, not merely the number of seats.
Professor Hix: For me, the actual
threshold is a secondary question. The primary question is: why
would you have a higher threshold? For me, the argument about
why there should be a higher threshold is that you want broad
political consensus. In Denmark, broad political consensus is
four fifths—80%. It would be up to the House of Commons
to decide what it thought was broad political consensus, but the
whole point is that you would want to prevent the particular majority
of the day from being able to make what could be fundamentally
constitutional decisions, so you want a higher threshold that
forces a broader political consensus, meaning that the major political
parties would all have to get together and agree to something.
This would be a constraint on the Conservatives as much as it
would be on a constraint on Labour or the Liberals. So two thirds
might not be high enough. In Denmark, what they think is sufficient
to guarantee broad political consensus is interpreted as four
fifths. Two thirds might not be thought of as significant.
Under first past the post, where swings are
magnified—the electoral swings are magnified in seat shares—I
can imagine that a party could get close to a two-thirds majority
in the Commons with significantly less than 50% of the votes.
If we stay with our current electoral system, I can imagine that
the threshold should be significantly higher than two thirds to
guarantee that there is broad political consensus.
Chair: Finally on that point, there are
those of us who strongly believe that a majority of one suffices,
but I'll pass on to Michael Connarty.
Q44 Michael Connarty: It does
in the elections I've lost.
One thing that strikes me about this Bill—I
made this comment when it was announced in its outline—is
that the Government have said that there will not be a referendum,
or even in fact the specific requirement of an Act of Parliament,
to allow an accession treaty to go through. Is that consistent
with part 1, which refers to treaties excluded from the referendum
requirements; as is clearly mentioned in clause 4(4). Could the
accession of Serbia or Turkey be considered a significant enough
a transfer of power to require a referendum?
Professor Hix: I think you could
definitely make that case with Turkey. It would be harder to make
the case with a smaller state like Croatia or Serbia. If you are
going to establish a principle that says that any significant
transfer of powers, or anything which significantly changes the
balance of powers between the institutions or between the member
states in Brussels, requires a referendum, I cannot understand
how you would not include the accession of member states above
a certain size. I think size is significant here, because with
the way that majority voting on legislative issues now works under
the ordinary legislative procedure—or will work after 2014
and 2017—the accession of a state like Turkey to the EU
will fundamentally change the influence that the UK has on legislative
decision making in the EU legislative process. It will significantly
weaken the voting power of the UK and the ability of the UK either
to want things through that it would like or to block things that
it doesn't like—either of those two things. In a sense,
Turkish accession to the EU is, for me, a much more significant
shift in the influence and power of the UK in Brussels than the
majority of things that are mentioned under clauses 4 or 6.
Q45 Mr Clappison: You have helpfully
mentioned some of the constitutional changes that will come about
as a result of, say, the accession of Turkey but, obviously, there
will also be political consequences about which people might wish
to express an opinion one way or another. Migration springs to
mind, but there is also economics, spending by the European Union,
distribution of funds within the European Union, and so on. You
will have studied the Bill on this point. As the Bill stands,
if there were a stand-alone treaty just on Turkish membership—to
continue to take Turkey as my example, although it could be anyone
else—it would not trigger a referendum.
Professor Hix: No.
Q46 Mr Clappison: A referendum
on that particular treaty would be triggered only if something
else of a constitutional nature were tacked on to the treaty.
And the same would apply to any other candidate member state that
becomes a full member state by acceding?
Professor Hix: That is correct.
Mr Clappison: There is no provision in
the Bill as it stands for even a vote of Parliament on whether
there should be a referendum. There would not be a referendum.
Professor Hix: The Bill explicitly
states that accession treaties are excluded from its provisions,
which is one of the things that I remember highlighting as I read
through it—I thought that it seemed absurd. It is clearly
politically pragmatic. Reading the Bill, it is clear that there
are very strong political preferences. The Conservative-Liberal
Government would like Turkey to be a member of the EU, and they
would not want the British public to stop it. Such a provision
is therefore excluded from the Bill; the issues that they don't
want are therefore included in the Bill. For me, either you are
going to be logically consistent or you are going to be political.
Make your choice.
Q47 Michael Connarty: You have
almost exactly anticipated the question I might have asked you,
so it is interesting that you have made that judgment, which some
people may say is a political assessment as well as a constitutional
assessment. The whole question of excluding the accession treaties
clearly implies that one major item of constitutional change across
the European Union has been left out of this Bill because it suits
the Government to do so.
Professor Hix: I think that's
right.
Q48 Michael Connarty: Those of
us who have sat on this Committee for a long time are also concerned
that the Government have left out any reference to how the opt-in
process will be proceeded with. We seem to get notified "opt
in" or "don't opt in" according to the whim of
Government Departments or perhaps their Ministers. There is nothing
in the Bill about that at all—it is a complete omission.
You talked about scrutiny, but the Bill doesn't give any indication
of what the threshold is for opting in or opting out. In a sense,
that is of concern to the British public and it has been coming
up for many years. Could you think of any other omissions that
you would include in the Bill if you genuinely wanted to create
a mechanism for scrutiny and accountability on decisions related
to the European Union?
Professor Hix: There were two
things that I highlighted in my evidence, and one related to accession.
I think there will be referendums on Turkish accession because
Turkey is so significant in terms of its size and what it means
for the nature of the EU. There are various other political, economic
and social consequences of Turkish accession. It is a serious
enough issue that I can imagine there being calls for referendums
and pressure for referendums in a lot of member states, including
France and Austria, and, potentially, the Netherlands and Denmark.
We could well find ourselves among the states that are not having
referendums on that issue.
Q49 Henry Smith: I think you are
absolutely right. There are many European nations in which the
populace will demand referendums on Turkish accession, which is
why I don't think that Turkish accession will ever come about,
because I don't think Austria or Germany will agree to it. Do
the laws or constitution of any member state say that there has
to be a referendum for accession?
Professor Hix: No. Not currently.
There was one other thing that I was going to
say, because there is a second area that I feel was excluded from
the Bill, but which I think could have been included. I read at
least part of the Bill as trying to hold our Ministers and our
civil service more to account when they are doing business in
Brussels. I can see a logic behind that, but if that is part
of the aim of the Bill, there could be extra provisions on what
the British Government provide for the way in which legislation
is scrutinised. The EU passes approximately 150 to 200 pieces
of legislation a year, and the way in which that legislation is
negotiated in COREPER—as far as I understand the way in
which decision making works now in the Council—is that the
Council presidency puts forward a proposed draft and the member
states propose amendments. They have to put together composite
amendments and co-sponsor amendments, because with 27 member states,
the practice of how things works has changed. They have got rid
of the tour of the table, in which every member state had its
right to make a proposal. Now there is a need to club together
to have joint speaking time and joint amendment time. I want to
see the texts of the amendments that our Governments put forward,
who they co-sponsored them with, and whether they are passed or
fall. We see this in the European Parliament; why can't we see
it in the Council? This Committee should have the right to see
that, and that should be in the Bill.
Q50 Chair: And without it, it
is thoroughly undemocratic, because majority voting equals laws
that are imposed on the people of this country, and we haven't
the faintest idea, and nor can we ask the questions of anybody
who is making the decisions.
Professor Hix: That is right.
Q51 Chris Heaton-Harris: I want
to go back to Turkey, if I may. I have been waiting to ask a
question and I think that you might be the right witness to answer
it. Another part of the Bill means that we are getting another
MEP—very exciting. When Turkey comes in, there will be a
reduction in the number of Members of the European Parliament,
because the number of seats in the Parliament is capped and we
will all take a hit. That will probably affect Northern Ireland
and the north-east; in fact, probably one seat from every region
of the United Kingdom will be going down. Is that diminishing
representation not something that we could worry about in a constitutional
way?
Professor Hix: Do I want to speculate?
I don't know whether Turkey is going to come in. I am probably
of the view that it raises significant hurdles. By the way, by
the time the EU has decided whether it wants Turkey to be in,
Turkey will have probably decided that it doesn't want to be in.
I didn't put this in my evidence, because I
was asked to focus on part 1, but if I were to comment on the
issue relating to the extra British MEP and how they are allocated,
I would have thought that, given the commitment in the Conservative
manifesto to have open lists in European Parliament elections
in the UK, which I would be in favour of, this would be an opportunity
to change the way in which European Parliament elections work
in the UK. That could easily be in this Bill. It would not be
too difficult to make that shift from currently closed party lists
to open lists. I would have thought that that could have been
put in the Bill.
Q52 Chris Heaton-Harris: I didn't
know that was a commitment of ours.
To change tack slightly, in response to yesterday's
debate and in evidence the day before, the Minister for Europe
told us how binding this would be for future Governments. In fact,
he said you can't bind a future Parliament. How binding is this
on a future Parliament? I know that a future Government could
repeal these provisions under pretty much any circumstance, but
what is your view on that?
Professor Hix: The promise that
there should be a referendum on major treaty reforms is probably
difficult for any future Government to overturn, because that
is the sort of thing you can ask in an election debate: "We
have committed to have a referendum on treaty x. Are you committed
to that?"; and, "Are you going to change the EU Bill
to prevent us from doing that?" The political salience of
that issue in effect binds a future majority.
I don't think that's the case with the smaller
issues. I can't imagine that a leader's debate would include the
question, "We are committed to a referendum on a shift from
unanimity to QMV in social policy. Are you committed to that?"
I just don't see it ever happening. So, with the minor issues
under clauses 4 and 6, if any future Government want to change
these things, or if they are under pressure from the other member
states, I think they will just whip their majorities to back an
amendment to the Bill. I think it is much harder for them to overturn
a referendum requirement related to a major treaty reform.
Q53 Chair: May I ask the final
questions? Do you think that a referendum as a result of any of
the trigger clauses in the Bill would ever be successful? If so,
what does that tell us about the legislative intent of part 1
of the Bill? Following on from that, is it consistent with part
1, in your view, that an accession treaty is excluded from the
referendum requirement, so that, for example, the accession of
Serbia or Turkey could be considered as a significant transfer
of power?
Professor Hix: My reading of this
was that the assumption is that the British public will vote no
to whatever you ask them relating to Europe and, therefore, the
view is "Let's not talk about accession, because we are in
favour of it." Asking me to speculate about whether the public
will vote in favour of any of these things is an impossible question
to answer. I think referendum campaigns can change significantly.
The attitude of the British public towards Europe has hardened,
but the level of information and understanding of European issues
is relatively low. I can imagine, at some point in the future,
people's attitudes changing if something comes up that they are
particularly in favour of. Right now, if there were going to be
a referendum any time in the next year on any of these issues,
I would speculate that the answer would inevitably be no, but
five or 10 years down the line—who knows?
Q54 Michael Connarty: Evidence
was given by the Minister for Europe about the carbon tax, basically
saying that we must have a referendum on a carbon tax. Surely
we face a dilemma in that it seems to be contradicted by the fact
that at the most recent Environment Council a carbon tax on lorries
heavier than 12 tonnes was agreed to, including an option for
a daily charge of £11. That is a tax, and we argued that
that was a tax, but the Minister seemed to fold on it and agreed
that it was a transport policy. But it is clearly a tax; you ask
anyone who has a 12-tonne lorry or above when they come to have
to pay it whether it is a tax. That was just slipped through by
the process of the Government deciding to cave in and accept that
it was a transport matter, and therefore that it was qualified
majority voting and we couldn't veto it. Is it not likely to be
the scenario in clauses 4 and 6 that every time it comes to the
crux of a decision, the Minister will find some way of folding
and saying that it is not important enough to require a referendum?
I agree with the Minister that getting anyone interested in a
carbon tax would be quite difficult; it would become a question
about taxation from Europe. I am sure if we had put the Eurovignette
to a referendum people would have said, "It is a tax from
Europe, and we are not having it."
Professor Hix: I think that's
right, but there is a limit to how far that sort of strategic
behaviour by officials in Brussels is possible. There are constraints
under the treaty on what's possible, and I think the Court of
Justice has actually upheld those things. For example, on tobacco
advertising, where the directive on tobacco advertising was passed
under free movement of goods, the Court of Justice struck it down
on the grounds that it wasn't relating to the free movement of
goods but was a public health issue. Public health requires unanimity,
and of course it was never going to pass. They managed to finagle
it under free movement of persons. There are limits on the possibility
of doing that, but I think there is plenty of precedent that already
the Commission and the member states are used to finding some
other way of getting stuff that they want passed if there are
constraints in the treaty.
Q55 Chair: One last question in
general. Is part 1 really designed to provide power to the people,
as is claimed, or is it really designed, in your opinion, to strengthen
to the United Kingdom negotiations in Brussels?
Professor Hix: I don't think it
is designed to do either of those things. I think it is primarily
designed to put a brake—to bind the hands of the current
Government or of future Governments—on what Britain can
sign up to in Brussels, on the understanding that there would
never in practice be referendums on most of these things. That
is how I read it. My question is how credible it is in that aim,
and frankly I don't find it that credible.
Q56 Kelvin Hopkins: I apologise
for being late; I have been at a speaking engagement. I have just
one question before you go, and you may have dealt with this already.
In your paper you have said "If the EU collapses, and I genuinely
fear that this is a possibility, this would be a disaster of historic
proportions for Britain." I proposed, when speaking last
night, that a rational deconstruction of the euro, rather than
letting it collapse, would be the sensible way forward using the
resources. It's a looser arrangement of nation states with powers
repatriated, the end of the common agricultural policy and the
end of the common fisheries policy. We would still have good relations
with our neighbours—better relations with our neighbours,
I suspect. I just wonder what your case is for it being "a
disaster of historic proportions for Britain".
Professor Hix: There is often
a fiction in the UK that we could just have a single market without
any of the bells and whistles that go with it and that, therefore,
that could just be done through an association of states with
the repatriation of most powers. That is a fantasy. The great
achievement of European integration, which is taken for granted
by current generations, is the creation of a continental-scale
market.
I have been invited to various other regions
in the world to talk to policy makers, and I was recently involved,
in a project for the Asian Development Bank, in trying to design
a single market for east Asia—modelled on the EU. They would
love to have one. The big stumbling block is that they cannot
have one without there being sufficient political integration
to have the necessary institutions to create and regulate that
market. You cannot have a market on a continental scale unless
you have a certain degree of political integration. It just does
not happen. It is a fiction to assume that we can have this and
not have anything of the politics that go with it.
You have to have a way to adopt common rules
and regulations on the production, distribution and exchange of
goods, service, capital and labour. The best way to do that is
to delegate some agenda-setting power and to have certain checks
and balances through a system of government in Brussels. The EU
has more checks and balances than virtually any other system of
government in the world. Nothing can be passed without a majority
in the Commission, a qualified majority in the Council, a majority
in the European Parliament and judicial review by the Court of
Justice and by national courts. It is a super-checks and balances
system.
I don't believe the idea that Brussels is some
sort of runaway bureaucracy that does things that we don't really
sign up to. I don't believe that we can have all of the benefits
and freedoms that we now have and take for granted as a result
of this market of half a billion people without there being a
certain level of political integration. That is not to say that
I think the CAP should not be torn to pieces or that other elements
of the policies of the EU should not be changed—I think
they should be—but I don't think that it is possible to
have a continental-scale market and an association of states.
Those two things are completely incompatible. That is what other
regions in the world are finding, and I think we would find the
same in Europe.
Q57 Chair: But is it arguable
that the system that is going on in the euro and the low growth
and the high unemployment and the rise of the far right and all
the rest of it are indicative of the fact that this great bureaucratic
system is not, and should not, be entirely institutionally run
and, really, does not work as well as some people hoped it would?
Professor Hix: I absolutely agree.
That is exactly what I argue in my book, What's Wrong with
the European Union and How to Fix It, but the answer is not
to tear it to pieces; the answer is to think creatively about
what we do with it and how we make it more democratic and more
dynamic. The two things go hand in hand. It cannot be more dynamic
without being more democratic.
Chair: I am delighted that we finish
on the word "democratic". That's very helpful. Thank
you very much, Professor Hix.
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