European Scrutiny Committee - Minutes of EvidenceHC 109-II

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Oral Evidence

Taken before the European Scrutiny Committee

on Wednesday 12 June 2013

Members present:

Mr William Cash (Chair)

Mr James Clappison

Michael Connarty

Julie Elliott

Kelvin Hopkins

Stephen Phillips

Jacob Rees-Mogg

Henry Smith


Examination of Witness

Witness: Professor Simon Hix, London School of Economics, gave evidence.

Chair: Professor Hix, thank you very much for coming again. Can I say first of all that we have been very interested in your VoteWatch? You may or may not know this, but we have been advocating its analysis by all the people we go and see-we have just come back from Lithuania, and we have mentioned it in the Netherlands-because we think that it is very important for people to know what actually happens. For that reason, I thought I would use this opportunity to mention it to you.

Professor Hix: Thank you.

Q431 Chair: First of all, could you give us your view as to how national Parliament scrutiny systems across Europe have kept up with the changes in the EU decisionmaking process since the Lisbon Treaty? I will give you some examples. There is the increasing significance of trilogues and First Reading deals, and the greater use of qualified majority voting means that national Parliaments, even if they are mandated, can still be outvoted. There are two questions.

Professor Hix: I read through a lot of the written and oral evidence that you have already heard. There is not a lot I would add to what you have already heard, but there are a few things I might highlight in response to that question.

It is my impression, although I have not seen very good recent research on this, that there is a growing variety of different methods Parliaments are using to scrutinise what their Governments are doing in the EU. At one extreme is what the Folketing is doing, using a system it started developing in the 1970s, but that was really put together in the 1980s. It has been said that the Danish permanent representative feels the Folketing breathing down its neck when it is in Brussels. I do not think there is another Parliament in Europe that can make that sort of claim. I would hope that at some point most of the permanent representation offices of the Governments in Brussels would feel maybe not breathing down their necks, but certainly constraints or pressures from national Scrutiny Committees. Some other Parliaments-the Dutch, the Irish and possibly some others that I am not aware of-have moved to scrutinise European legislation not just by a European Affairs or European Scrutiny Committee of some kind. The argument there is twofold. The first is volume. There is a lot of paperwork and documents to get through. The other argument is expertise. A European Scrutiny Committee is primarily an expert on European issues and, in fact, a lot of the technical issues on the table in regulation of the single market are sectorspecific: if they are environment things, you would probably want input from environment experts. The Irish started to pioneer this during their Presidency with their Committees in the Dáil, the Dutch have been doing it for some time, and I expect that is a way that several others will be looking at.

You are right to point to the weaknesses of the aspiration that strengthening the scrutiny powers of national Parliaments over their national Governments is a way to close the socalled democratic deficit. One of the problems is that so many policy decisions in the legislative process are pushed back to First Reading trilogues; it is very difficult to get early information about what is going on. The European Parliament is in a similar situation, but under the new procedures for dealing with First Readings in the European Parliament, there is now a mini multistage procedure within First Reading, so the official role of Rapporteurs and shadow Rapporteurs is now represented. Parliament has a recognised delegation that goes and negotiates and reports back to the relevant Committee as part of the process of a lengthened First Reading. You are getting a mini codecision within First Reading as part of the European Parliament’s way. I am not sure how much that helps national Parliaments, but it does suggest that Committees in the European Parliament would be a very good source of information for national Parliaments. Rather than seeing that national parliaments have a connection to the Governments in the Council, it would be more helpful if national Parliaments saw that they had a role of scrutinising the legislative process of the EU in general, of which one point is the Government in the Council, but the other points are the MEPs and what goes on in the European Parliament. I saw that that was highlighted by several of the other people who have given evidence to you and the Committee.

On QMV, this has been a perennial problem. I do not see this as any more of a problem now than it was when the Single European Act was adopted. It is true that more decisions are de facto taken by QMV, but overwhelmingly decisions are still made by consensus in the shadow of QMV. What is clear from our VoteWatch data is that 90% of decisions are still made by unanimous decisionmaking. There are limits to what we can do in VoteWatch in that votes are not actually taken on a lot of issues; they are agreed by consensus and we just report them as "decision by consensus", therefore unanimity. There is not yet a culture in the Council of there being a formal position taken by a Government registered before a vote and then a vote being taken and that getting reported.

The Council I still think is an incredibly secretive institution. With VoteWatch, it is so much easier to track the European Parliament. Some of you are, understandably, sceptical of the European Parliament, but from our point of view as people interested in trying to provide information about what is actually going on in the legislative process, the European Parliament is streets ahead of the Council. The Council operates primarily very much as a diplomatic body, rather than seeing itself as a legislative body. I was in favour of separating out the Council to recognise a separate legislative Council. Economic and Monetary Union, Justice and Home Affairs, Common Foreign and Security Policy and Defence do a lot of executivetype business, but when the Council is operating as a legislature, let us recognise it as a legislature. Let us have everything out in the open; let us have all the documents and all the position papers of all the Governments. Let us see up front what coalitions are formed between what Governments. They have to share speaking time, for example. They have to cosponsor amendments. Has this Government ever admitted to you who they cosponsor amendments with? I doubt it. Why not? They have to do it. With 27 Member States and limited time, this is how they now organise the Council agenda, but we do not see any of that as citizens, and I think that is appalling.

Q432 Kelvin Hopkins: I agree with everything you have just said. Going back to parliamentary scrutiny, is it fair to say that it is easier for the Folketing to take a strong line because there is a proEU consensus in that legislature, for all sorts of reasons, one of them being PR, and that it is something of a paper tiger, whereas if we had that kind of hold over our Ministers, it would be a lot more difficult for them?

Professor Hix: I do not think so, because for the 1980s and most of the 1990s, Danish public opinion was as sceptical as British public opinion. There has been a slight shift since. Denmark has become more proEuropean. That is partly a result of various referendums and a much broader debate; it is partly a result of much more effective scrutiny by the national Parliament. Because of the nature of the EU legislative process, the scrutiny of what Ministers are doing on highly technical issues related to the regulation of the single market tends to be less about "us versus them" or more or less integration, and more about, "Is this the right thing to be doing? Or questions of subsidiarity. Or does this affect negatively particular economic interests of Denmark"-or in this case it would be Britain-"in the single market?" I am not convinced by the argument that it would be different for Britain because we have a more Eurosceptic public and a more Eurosceptic legislature.

Q433 Chair: Could I ask you, then, this question? Under qualified majority voting, as you quite rightly say-because we have seen your VoteWatch conclusions-pretty much everything goes through. It is becoming, from your statistical base, increasingly obvious that although France and Lithuania vote for everything, for practical purposes, we in the United Kingdom vote for 90%.

Professor Hix: I have got the latest figures. It is a bit more than that. It is 96%. If you count abstentions, it is 86%.

Q434 Chair: For practical purposes, the proposals are put forward by the European Commission and, when they get to the Council of Ministers, although there has been a lot of discussion in the process of the analysis, including our European Scrutiny Committee engagement and debates and the rest of it, the reality is that 96%, you tell us now, go through?

Professor Hix: I would not put it exactly like that, for the following reason. Votes that are observed and recorded are usually only ever taken right at the end to acknowledge the acceptance of something. It is not true that 90% of proposals that come from the Commission end up being law. That is not the case at all.

Q435 Chair: No. The framework of what is proposed goes through, as amended in the course of the process?

Professor Hix: No.

Q436 Chair: Not that either?

Professor Hix: No. It can get thrown out earlier by the European Parliament or it can get thrown out earlier by the Council. If there is disagreement between the two, what can sometimes happen is that it gets blocked and then it gets withdrawn by the Commission, or it just does not get adopted and it runs and runs and runs and runs and nothing happens, or it gets watered down to something completely useless and then finally just gets adopted by the Parliament and the Council as something incredibly bland with not much consequence to it whatsoever. It is not quite the same as thinking about passing legislation through a national set of legislative institutions, where action gets proposed, gets adopted and gets implemented. There is a huge continuum at the European level, from things that never see the light of day because the Commission does not even bother proposing them to things that the Commission proposes and just get blocked and are eventually withdrawn-we have seen that with the family reunification directive, for example - to issues that get vetoed either by the Parliament or the Council and never see a vote, to issues that get so watered down that they are not worth the paper they are written on, to quote several Commissioners, and get adopted, but their consequences are minuscule. I would not infer too much from the number-that 90% of votes at the end of the day means 90% of significant things are getting adopted.

Q437 Chair: Do you not think, therefore, that it would be a good idea if VoteWatch addressed that question?

Professor Hix: We would love to if we had the resources to. We just cannot.

Q438 Chair: That does leave a big question, does it not, in helping public opinion to know just exactly what does go through, what is amended and what is effectively rejected?

Professor Hix: There are a lot of resources available on the internet, through the European Parliament’s own legislative observatory and through the Commission’s legislative observatory, EURLex. There is no way we could have the resources to compete with what is already out there to answer those types of question. Those things are already hugely available through the European Parliament and the EU’s legislative observatory. The added value of us is to show transparency over the positions of the actors and the decisions taken, which is not contained in either of those two institutional observatories.

Q439 Jacob Rees-Mogg: What you are saying about the votes coming at the end ties in very much with the next question, because it is about how you get scrutiny going at the earlier stage, when the negotiations are confidential and nobody really knows what is going on. We were discussing earlier "nonpapers", which seem to be becoming increasingly important. Do you think the European Scrutiny Committee could ever get into the position of scrutinising UK Government nonpapers?

Professor Hix: I would go even further and say, why just UK Government nonpapers? This is the legislative process: why can you not see all of the nonpapers in the Council? For the life of me, I do not understand why it is legal for these papers of our elected representatives, who are passing legislation, not to be public. The equivalent papers in a national Parliament, in the US Congress or in the European Parliament would be public.

Q440 Jacob Rees-Mogg: What are the equivalent papers in a UK context-Green Papers?

Professor Hix: It is a little bit different in the British context, because in the British context, once the Executive has made a proposal, it is then in the realm of Parliament. The analogy is closer to the US, or to the equivalent papers in the European Parliament. In my opinion, once the Commission has put out the door a draft directive or draft regulation, anything beyond that point that proposes amendments to it should be in the public domain, because these are legislative scrutiny documents. That is how it would be in Congress. That is how it is for anything the European Parliament produces as any report in a Committee or anything. That should be the equivalent standard for the Council. I do not understand why there is one standard for the European Parliament and one standard for the Council. The standards should be the same.

Q441 Chair: Have you had a chance to look at what Sir Jon Cunliffe said?

Professor Hix: Yes.

Q442 Chair: What is your view on that in this context?

Professor Hix: I just do not buy it. Which bit specifically?

Q443 Chair: It may have been in an informal meeting, but we were discussing the question of nonpapers. I think it would be fair to say that the argument that they put forward effectively was, "This is a diplomatic negotiating position. It is not really something that is part and parcel of the process as a whole. It is a position paper and there are things included in it that would not be the kinds of thing that would be helpful to have in the public domain at that stage because it is a position paper." I think that would be a fair way to put it.

Professor Hix: I am glad that you set it out like that, because I have heard that time and time again from Civil Servants of not just the British Government, but the other Governments in the Council. This is a problem. They operate very much as Civil Servants rather than as legislators. They are legislators. There is a big difference. What they are doing is not diplomatic negotiations between Governments. They think that is what they are doing, but I do not think that is what they are doing. I think what they are doing is amending law. There should be a clear distinction between when the permanent representatives are operating as diplomats and when the permanent representatives are operating as legislators. If they are operating as legislators, what they are doing in practice is setting out an opinion of a legislator-the British Government-as a negotiating position with other legislators. I do not understand why that should not be in the public domain.

Q444 Chair: UKRep, for example, whose evidence we did have formally, has a function within the framework of the legislative system. The results of what it is they discuss and decide before they give the issue back to Ministers, who make the formal decision, are effectively seriously affecting the outcome. Therefore, you are saying that that is part of a legislative process, whether or not they like to call themselves diplomats in the Foreign Office?

Professor Hix: Their modus operandi is the same whether they are discussing common actions in Common Foreign and Security Policy or whether they are discussing Second Reading of a codecision draft directive. Their modus operandi should be fundamentally different across those things. On the first, you can clearly say that these are executive actions between Governments that would be the realm of the executive branch of government and there is a good reason why you would want certain secrecy in diplomatic things behind closed doors. On the other, the modus operandi should be transparency. They are acting as elected representatives of the British people in a legislative process and therefore everything they do in that should be open to the public.

Q445 Jacob Rees-Mogg: I want to get clearer precisely what these nonpapers are doing to see why they should be public, which is why I was trying to tempt you into saying what they would be in the UK system. If you will forgive me trying to put words in your mouth, would you view them as being like amendments that are put down in the House of Commons to a Bill that has been presented and that therefore has churned its way through Whitehall and gone from the Government stage to the legislature and is being amended by the Members of the legislature? Is that a reasonable understanding?

Professor Hix: I think that is a reasonable understanding. I would put it slightly differently, though, because of the way the representation works in a multilevel and multiChamber system of government like the EU. It is more the equivalent of something going on in a Senate Committee in the US, where Senators on the Committee would be drafting their own opinions independently on a piece of legislation that is going through the House. I think of a nonpaper as a statement of the position of the British Government in the middle of a legislative process, of the following type, and I have read some of these things: "These are the key issues we care about in this document. These are the things we would reasonably consider are possibilities within this area or within that area." I can understand why they would not want us to see it, because some of these things are highly sensitive, but being highly sensitive is not a good enough reason.

Q446 Jacob Rees-Mogg: Do you think it is possible that Governments want to keep them secret because the positions they take publicly about how strongly they are negotiating in Europe may be different from what they are actually saying in these nonpapers?

Professor Hix: No, I do not think so. I think it is more to do with the fact that if some of the positions they are taking come out, the consequences would be uncertain and that could compromise them in their negotiations. One of the things I have heard said by Civil Servants in Brussels when challenged on these things in the Council is, "We would feel so much more constrained in our negotiations. We could not trade. We could not say, ‘I am willing to give in on this one if you are willing to give us that on that one’. We would not be able to do that trading across issues-‘we care about this issue more than that one; you care about this other issue’-that can help us come to an agreement." That is a reasonable argument.

Q447 Mr Clappison: Do you think there is possibly an element that the Ministers do not want it to be known that they are not obtaining all that they set out to obtain and they are having to grant to other people things that they did not want to grant them, which could be construed as a defeat here and something that would upset public opinion?

Professor Hix: There is definitely truth to that, but it would be more helpful for the legitimacy of the EU if this was transparent and we learnt that you win some and you lose some and this is part of the process. We could stick all this up online, we could look at it, we could analyse it and we could see whether it is true that we lose more than other member states. We do not know that. Nobody knows that.

Q448 Mr Clappison: There is a question of doing what people vote for, is there not? The public might well be horrified to see this spectacle. Are you aware of what happened during the Constitutional Convention, for example? Our Government apparently moved amendments and lost many votes on constitutional amendments and then came back to the House of Commons and said, "We think this is marvellous," even though they were defeated on it, without telling people that they had been defeated on it in the first place.

Professor Hix: MPs have to go home to their constituents and explain that they lost votes in the House of Commons.

Q449 Chair: That is not quite what happens, is it? For practical purposes, it is just a vast array of paperwork, which goes on the entire time. The point that James Clappison was making I very much agree with, which is that people vote for policies. When you have a general election, they vote for a particular person and/or party, which sets out a whole series of promises in a manifesto. In many cases, as you are putting it, a completely blind system is operating, because people do not know what these nonpapers involve, even though you then move on to a new phase later when it becomes a public document and you have a scrutiny process and decisions are taken in the Council of Ministers. Even then, to come back to my question about the greater use of qualified majority voting, the reality is that for all the scrutiny processes in the world, they not only need to be improved, but the qualified majority vote, in many cases, in terms of policy and future legislation, given Section 2 of the European Communities Act, means that whatever a person has voted for at the ballot box will be overridden by the decision of other countries in this European Union because the decision that has been taken under the treaties is that every county has to abide by the majority vote where that is prescribed as the treaty base.

Professor Hix: If the Council of Ministers was the only legislative institution in a unicameral legislative system I would worry more about that. If there was a governing majority that governed against a minority across all issues I would worry even more about that. That is not the case. The way I understand and the way I teach the EU is that part of the decision to move to qualified majority voting in the Single European Act was logically counterbalanced by increasing the power of the European Parliament as a check. We have a bicameral legislative system in Brussels, and within that bicameral system, as in any bicameral system, coalitions are built across both institutions. It is very unlikely that you will have all the British MEPs losing in a vote and the UK Government on the losing side, and that is happening repeatedly across a wide range of areas. It just does not happen, with the British Government or anybody else. From a political theory point of view, the whole point of a bicameral system is that the people you vote for might be on the losing side in one institution, but on the winning side in the other institution.

Q450 Mr Clappison: Surely the purpose of casting a vote is to elect a Government that carries out the policies in its manifesto.

Professor Hix: You do not elect a Government; you vote for your MP. Your MP might not be in the Government. I disagree with that completely. You might think that is what the British electoral system does, but I can tell you it does not.

Q451 Mr Clappison: If people continually vote for something and they are told, "We have a majority. We can achieve this," and then the Government has to come back and say, "No, we could not get it," they might think, "What is the purpose of voting at all?"

Professor Hix: Would you not say that in any constituency if people elect somebody from a party that is going to be continually on the Back Benches and never in government, you would say, "Why bother voting?"?

Q452 Mr Clappison: You can change the Government through your vote. You cannot change anything through this.

Professor Hix: You cannot change the Government through your vote; you are just electing an MP in a single constituency. It is a very odd way of thinking about how democratic politics works to think that what we are doing all the time when we are voting is electing Governments. We do not elect Governments in Britain; we elect MPs.

Q453 Kelvin Hopkins: I slightly disagree. One of the reasons I so strongly support the firstpastthepost system is that, in effect, we can choose between Governments. If a Government becomes unpopular, effectively the opposition party can become the Government. With PR systems you do not get that; you get different patterns of allegiances and coalitions, and sometimes you get a quite big shift in opinion and you do not see a change in Government because the centreleft and centreright combine yet again to do things.

Professor Hix: We can get into a whole discussion about electoral systems and I can tell you my views about the British electoral system if you like, but that is probably not what we should be talking about today.

Q454 Kelvin Hopkins: Yes. My question is really this. The Bagehot principle operates in politics wherever we are: there is an effective part of the constitution and a decorative part. What happened under New Labour was that the Cabinet became part of the decorative part-in Bagehot’s time it was the effective part-and the effective part became the sofa in Tony Blair’s drawing room. That is where things were decided. It strikes me that two things are crucial: where these decisions are really made and who is involved in making those decisions. If all the Sherpas, the UKRep officials and whatever are all of a mind to push a thing forward, it will happen in a particular way. Having people who are prepared to stand out against the European Union, the Commission or whatever is very different. I met a previous head of UKRep, now long since gone, and asked what would happen in such a case. It was quite clear he was a very strong proEU official, who saw opposition to and scepticism of the European Union as just a hurdle he had to overcome and something he had to deal with-a pain, if you like. He was really proEU. It is those two things. Where are the decisions really made? What is the nature of the people who make them?

Professor Hix: I am very strongly supportive of the European Union, but equally very critical of the way it works as a semi or nondemocratic institution. It has lots of checks and balances, so it is very difficult for the EU to do anything unless there is a very broad consensus across Governments, across different political parties and across multiple institutions, with the checks at the end of the day being the national courts and the European Court of Justice. It is a system of über checks and balances. It is diametrically opposed to the dictatorship of the Government we have in the United Kingdom. It is at the other end of a continuum, way beyond the United States in terms of a Hamiltonian/Madisonian system of government. Having said that, it is not clear who is responsible for what. It is not clear what coalitions governed on what issues, what the majority was on what issues, or who were the winners and losers. That is what I think is essential for us to be able to see as parliamentarians, from your point of view, and also as citizens.

Q455 Mr Clappison: To what extent do you think the scrutiny reserve affects the behaviour of UK Ministers in Brussels? What can we do as a Committee to maximise this area of our influence?

Professor Hix: I do not think it affects them very much at all, as compared to other Parliaments-the Danes, for example, at the extreme I discussed earlier. I do not see why, if you request documents, the Government would not feel that it had to give them to you. Are there not judicial proceedings that should require them to provide these under Freedom of Information? What is the argument they have against the provision of these early documents, or nonpapers-not just their own nonpapers? My understanding is that during the Finnish Presidency of the Council a few years ago, under Finnish freedom of information laws, they put every working document of the Council on their website. The other member states complained until the Finnish Government agreed that they would only do it in Finnish, so then their own Eduskunta could read everybody’s documents going through the Council, but nobody else could because nobody could read Finnish. That did not cause a complete breakdown in the legislative process during the Finnish Presidency of the EU, so I do not believe that providing much wider access to publics, the media and parliamentary Scrutiny Committees would necessarily lead to a breakdown in the process.

Q456 Kelvin Hopkins: More generally, I just want to ask a fairly open question. What do you think are the particular strengths and weaknesses of the House of Commons scrutiny system? There are, for example, our Committee, debates in European Committees, policy discussions that take place in departmental Select Committees and debates on key matters on the Floor of the House. They are the four subsections of my question.

Professor Hix: There are two different challenges. One challenge is scrutiny of legislation. The EU as a legislative system is only one part of what is happening right now in the EU. The way I think of the EU now, one set of things that our Government does in Brussels relates to the regulation of the single market, primarily through legislation and primarily through the codecision procedure. Gradually, mechanisms are being put in place to prise open what the Governments are doing, and I think the Committee here is getting much more effective at doing that. I think it would be more effective if it could bring in expertise from some of the other Committees, particularly on policy issues. It could be more effective if you thought creatively about how you could use the expertise of a relevant Committee in the European Parliament, dealing with the Rapporteurs or the shadow Rapporteurs on the legislation. Why could you not have a systematic connection with the relevant British MEPs on the relevant Committee in the European Parliament dealing with the legislation? I do not see why your connection should purely be through the Government. The role of national Parliaments is to scrutinise the legislative process as a whole, not just the connection to Government. That would be some way of doing that.

The other challenge is what else is going on in Brussels. What is happening in the EU is increasingly not legislation, but the building of deeper economic and monetary union in the Eurozone plus prospective Eurozone states. This is a big challenge for not just the British Government, but for this Committee, in thinking about what the implications are of that for Britain’s position in the single market and generally for Britain’s role in the legislative process. I do worry about this issue of QMV related to this. I am sympathetic to what Lord Lawson wrote. With deeper integration within the Eurozone plus the prospective Eurozone states, I would expect that part of what will happen is we will see Britain on the losing side more systematically on key issues in the single market that affect Britain’s interests.

Q457 Chair: Some of us, if I may say, have been saying this for about 20 years, but that is another story.

Professor Hix: Yes, but I think that raises issues. It was interesting to read the Foreign Affairs Committee report yesterday. I wrote a piece this morning on the LSE website, saying that I think Britain should be asking for clearer guarantees of safeguards of its interests in the single market. I would be in favour, for example, of a new Luxembourg Compromise of some type that says that they will endeavour to reach unanimity on any question that is of vital interest to any member state whose interest in the single market would be affected by deeper integration, as one of the minimum conditions-or red lines, if you like. I think it is going to be much more difficult for you as a Committee to scrutinise those types of development.

Q458 Kelvin Hopkins: We do have our Clerk advisers, who do a superb job of providing papers-you have seen these papers-every week. They reflect a very professional approach and the sorts of thing we want to be told. This is the report you are talking about. When the Foreign Affairs Committee discusses economic matters, it should really be with the Treasury Select Committee, one suspects, but that is another matter. Would it not be a mistake if we depended upon advisers from other Committees, rather than our own Clerk advisers who are responsible directly to us?

Professor Hix: I do not think it would necessarily be a mistake. Correct me if I am wrong, but I do wonder whether or not, on some technical issues related to regulation of financial services, regulation of services of general interest in the single market or environmental regulation, advisers from other Committees in the Commons might have more specialist expertise that could be useful to you. That is all I am saying.

Q459 Julie Elliott: Is the scrutiny of Commission communications, Green Papers and White Papers truly upstream scrutiny? Is this already too late to influence thinking? How effective can scrutiny of these papers be when they are often a string of general views and statements rather than concrete policy proposals?

Professor Hix: The role of national Parliaments in the legislative process and the debate about it I do not think has changed fundamentally as a result of any of these documents or reports. All national Parliaments are facing similar sorts of challenge. You are right in that most of these proposals are very vague in details and what they are proposing does not really get to the heart of the matter in terms of helping national Parliaments be able to put pressure on not just their Governments, but also the legislative process as a whole. You see so often, "The solution is to involve national Parliaments," or, "We want national Parliaments to be involved earlier in the process," or, "We will provide documents to national Parliaments," or, "The Commission will send its reports to national Parliaments," or, "National Parliaments will be provided with access to documents." This is all cheap talk.

Q460 Henry Smith: Professor Hix, do you think that more could be made of the Commission work programme to provide a framework for a more coherent scrutiny process? In addition to that, how do you think we can resolve this problem of generality, which you were alluding to a few moments ago?

Professor Hix: The annual work programme has gone through different cycles. It was more clearly used by Delors and has been less used by Commissioners since him. I can imagine that if there are rival candidates for the Commission Presidency next spring and a Commission President is then chosen through this mechanism, the Commission President will feel that he or she has a much clearer mandate. I then think you will see the work programme take on a different characteristic. The work programme would fit into a broader strategy of a particular Commission, which was the case under Delors: "Here is the broader strategy of what we as a Commission would like to achieve in the next five years, and here is how this annual work programme fits within that." If that is the case, then I think the work programme could be much more useful as a tool for national Parliaments and Governments and the European Parliament to hold the Commission to account on the types of promises of the things it wants to deliver. Currently, the work programme, as I see it, is a much blander document. The Commission negotiates what it puts in the work programme in cooperation with key Governments and in cooperation with what it thinks it can get through the European Parliament. It also cherrypicks a few owninitiative reports from the European Parliament to keep the European Parliament sweet. I do not think it is particularly useful as a document right now, but I think it has the potential to evolve into that.

Q461 Stephen Phillips: On a related note, if we look at international trade agreements, which the Committee has also examined, the only depositable document comes right at the end: the draft decision to sign. We are told that everything before that-the negotiating mandates and the revisions-are simply too confidential to deposit for the purposes of scrutiny. Can you think of a way around that in the particular context of these international trade agreements concluded by the EU, other than our simply relying upon ministerial good will to keep us informed of the things that they think they can tell us?

Professor Hix: I have had a similar conversation with Klaus Welle, the SecretaryGeneral of the European Parliament, who has been making the same sorts of argument in Brussels. The European Parliament is now asked under international treaties to ratify only at the end of the day. How can they have any influence over this if they are just given a "take it or leave it" document negotiated already by the Commission, some key Governments, the Council and the bilateral negotiating partner? They are thinking about how they use their powers of calling officials before Committees and trilogue meetings to try to influence the positions in the negotiations. In fact, the European Parliament has gone already to Washington to speak to the Senate Committees about how the two legislatures-the Senate and the European Parliament-will deal with EUUS free trade negotiations. They will speak directly to each other as legislative institutions to try to put things on the table or resolve certain conflicts at the legislative level, rather than leaving it purely to the Executives.

You might ask how that helps you. Again, I would say that I would not just rely on the British Government to be able to provide you with this sort of access and information; there are other actors in EU institutions-namely, the European Parliament and the British MEPs in the European Parliament-who may be more willing to share information with you about the state of things going on in Brussels than the people in the British Ministries here.

Q462 Stephen Phillips: The function of this Committee is to scrutinise European matters, to report on them to our colleagues, to ensure proper debate and then to release them from scrutiny where appropriate. Having contact with European parliamentarians is not going to assist us in doing that.

Professor Hix: Why do you think that?

Q463 Stephen Phillips: They are not going to see, are they, the negotiating mandates and the revisions to them at any time before we do? Those are the documents that we need to see if we are going to effectively scrutinise and influence EU trade negotiations at a much earlier stage.

Professor Hix: The Rapporteurs and the shadow Rapporteurs in the Trade Committee in the European Parliament will see those documents before you will.

Q464 Stephen Phillips: But they will not be able to tell us anything about them. Would that be right?

Professor Hix: I do not know.

Q465 Chair: Is it not also true in the context of these EU free trade agreements, on which we have had a legal analysis-we will be considering this further-that the exclusive competence of the European Commission on the one hand and of the qualified majority voting system and the Committee that is already in process to look at these things will in itself determine the whole future of the trade arrangements between the EU and the US, Japan-the list is endless?

Professor Hix: It is already the case with EUKorea.

Chair: And Peru. Do not worry; we have been looking at this. At the moment, it is at a minimalist stage, but it is moving into the big territory now, with India to come. In the light of what Stephen Phillips was saying and the questions he was asking about the extent to which we would be in a position on behalf of our national Parliament, by questioning our national Government, to identify whether these trade deals are in the interests of the British people, which is our main concern-it may not be yours, but it is ours-

Professor Hix: Ouch!

Chair: No, I am simply putting it to you that you think that, by discussing this with the European Parliament, we are more likely to arrive at an answer that would be-

Professor Hix: No, what I am saying is that you would have the same sorts of challenge if Britain was negotiating free trade agreements outside the EU-for example, a bilateral UKUS free trade agreement done by the Ministries here negotiating directly with the US Government and insisting it has got to be fasttracked and put as a "take it or leave it" to the Senate and the same thing has got to happen with the House of Commons. I am not sure that would be so different, on the one side. On the other side, I see citizens, Parliaments and elected representatives of the people across Europe as not necessarily being in competition with each other. They have similar interests in common: to find out what is going on, to have information and to have the Executive provide access so that these things are more transparent and so that Parliaments can consider whether or not they are in the interests of the people they represent.

Q466 Chair: I was not trying to be rude to you at all, but can I simply say that the objectives of those in the European Parliament and those in the European Union as a whole are geared towards arrangements that are said to be of benefit to the European Union and, by definition, if it is an exclusive competence, it is to exclude the specific interests of a particular member state? We happen to have the job, as Stephen has said, of looking at it from the point of view of the national interest. It follows, does it not, that if we were to engage in the process that you were inviting us to, which was a dialogue with the European Parliament over this, then it is possible that we would end up having a discussion that would take us away from our role as national parliamentarians looking at the interests of British trade and British interests?

Professor Hix: Not necessarily, if they are British MEPs. British MEPs are elected by the same people you are elected by-the British people-and are elected to represent the interests of the British people in the European Parliament. Even if it was not the British MEPs and it was the other MEPs, it would be up to you to take a view about whether or not the way certain negotiations were going was against the interests of the British people. Getting access to that information about what is happening inside the negotiations is a collective interest.

Q467 Chair: You did mention the qualified majority voting point, and the question of qualified majority voting is embedded in the arrangements for the EU free trade agreements. Therefore, by definition, there is every reason to suppose that we would be unsure as to how the outcome of those negotiations would take place. Would you agree with that?

Professor Hix: I would agree with that.

Q468 Chair: What do you think the Prime Minister meant when he was talking about a "bigger and more significant role for national parliaments"?

Professor Hix: It is a very easy thing to say. I cannot speak for him, but my reading of that speech is that he meant national Parliaments playing a more active role in engaging with the whole decisionmaking process of the EU. That is not just scrutinising legislation; that is the European Parliaments much more actively involved in debating the future direction of the European Union and helping to influence the positions that Governments take over the future direction of the European Union. Particularly in the next few years, we are going to see, I would guess, a new IGC and a new set of treaty negotiations, probably starting in 2015 and concluding, perhaps, in 2017-perhaps after that-and a lot will be on the table. In national Parliaments, there have always been hearings and reports written on these issues. I recall this Committee writing a very robust report on the Maastricht Treaty negotiations. The national Parliaments taking a role in fostering and promoting a wider public debate about those issues is what I would hope the Prime Minister was envisaging. I am not sure how that would come about.

Q469 Chair: What implications could his statement have for the role of the European Parliament?

Professor Hix: Only positive. I do not at all buy the idea that there is competition between the European Parliament and national Parliaments. This was a very popular belief in the UK in the 1980s, that it is a sort of scale: if we increase the power of the European Parliament, we are inevitably reducing the power of national Parliaments. I do not see that at all. It is in the interests of the European Parliament for there to be much broader understanding, debate and discussion about the EU-the direction of the EU, what the EU does and how it works-by elected representatives. Whether those are elected MPs in the House of Commons or elected MEPs is for me neither here nor there. The European Parliament will inevitably benefit from national Parliaments taking a more active and stronger engagement role in EU politics.

Q470 Chair: Are you not aware of the attitude of most of the Members of the European Parliament in terms of their manifestoes? They-and the European political parties in different countries who advocate this, which is an issue that is under consideration at the moment-are all aimed at a different objective, which is most emphatically to move towards a greater and more integrated European Union, rather than to put the focus on national Parliaments.

Professor Hix: Why is strengthening the power of national Parliaments contradictory with a deeper European Union?

Q471 Chair: You are arguing that the role of the national parliamentarian, by inference, is somehow distorted by the attitude of the individual national parliamentary process? Is that what you are saying?

Professor Hix: No. I will give a concrete example of this, which is the debate about the design of the banking union and the design of the scrutiny of the supervisory mechanisms and the supervision of the ECB. This is where the European Parliament Committee had a very clear position, which was that there is a limit to how much national Parliaments can play a direct role in this, because this is being done by the ECB and by a Committee of national representatives sitting in a supervisory arrangement in Frankfurt. It is appropriate that national Parliaments are informed and take an active role in this, but there is a limit to how much they can have direct scrutiny over the collective decisions of this body that is being built. It is appropriate the European Parliament should have an active role in doing that. You cannot just rely on national Parliaments to do that alone. I do not see that necessarily as being antinational Parliaments. It is an empirical recognition of the physical abilities of national Parliaments to hold institutions like the European Central Bank or the European Commission to account. As you keep saying, you can hold your national Government to account. You cannot hold the German Government to account, you cannot hold the ECB to account and you cannot hold the Commission to account. I do not see it being a conflict of interest between national Parliaments, their role and the type of people and processes that they feel they would like to hold to account, and the European Parliament and the type of processes and people they would like to hold to account.

Q472 Chair: Are you arguing this from the point of view of the treaties, which prescribe the arrangements for the European Union as a whole, or are you saying that in the modern world, in your opinion, the fact that the European Union happens to have certain treaties is a legal question, but, in practice, it is much more efficacious to have a more generalised regional approach to decisionmaking, including the legislative process?

Professor Hix: The treaties themselves are incomplete documents. They are incomplete contracts, like any constitution or set of rules of the game. A lot of the details of how exactly scrutiny mechanisms work out are filled in. You can see this with how First Reading and the trilogues have developed. These are not part of the treaties. There is nothing in the article on the codecision procedure that says, "You are going to have these First Reading trilogues." A lot of this is filled in by the practical way it gets played by national Parliaments and by the European Parliament. That is inevitably the case. Treaties cannot possibly write down everything, although they do a lot. It is a good thing that EU treaties are very long and detailed, because there is a lot that they regulate and define very clearly. If they were much vaguer and shorter, there would be a lot more room for people to make things up as they go along.

Q473 Stephen Phillips: While we are on the subject of democratic accountability, can I ask you a very discrete question? Should the head of UKRep be subject to preappointment hearings before this Committee?

Professor Hix: I would not see a problem with that. I do not know whether that would be contradictory with existing practices or processes from the UK Parliament’s perspective, but in terms of my own view of how I think accountability mechanisms work, I think that would be entirely appropriate.

Q474 Stephen Phillips: The advantage you identify is accountability. Can you see any disadvantages?

Professor Hix: I cannot see any.

Q475 Kelvin Hopkins: I have taken part in three preappointment hearings-very interesting they are too. It is quite obvious that Downing Street at a point was very nervous about even these far less- Do you not think that the Foreign Office would go hairless at the thought that we should have a role in appointing the head of UKRep rather than have them-

Professor Hix: They probably would. From the Foreign Office’s point of view, UKRep is like the Ambassador to Washington, the Ambassador to Moscow and the Ambassador to Beijing. Then there is the Ambassador in Brussels. It is all part of the moving of chairs. I think UKRep is qualitatively different, because UKRep is doing something different. UKRep is negotiating legislation. It is doing something fundamentally different. There is a reasonable argument to say that this is a different process. This is a person who is a representative of the British legislature in Brussels.

Q476 Chair: Going back to Stephen Phillips’s original question, your answer is perhaps getting a little more emphatic. You seem to be more or less saying that because of the legislative nature of this process he really should have a preappointment hearing, because if they are going to do it for Washington and the rest, then it follows that this has a special quality to it. Is that putting the position more clearly?

Professor Hix: If you have preappointment hearings to the other key diplomatic posts in the Foreign Office, there is no argument against it, but there would be an even stronger argument in favour of it, which is exactly the one you have just outlined.

Q477 Mr Clappison: I take it that you are not entirely happy with the current level of debate about Europe, because you say in the introduction to the 2012 VoteWatch Europe Annual Report that you look forward to promoting "better debates and greater transparency in EU politics". How do you think that could be done?

Professor Hix: In lots of different ways. One of the ways is providing more information about what happens in the decisionmaking process, which is what we are trying to do with VoteWatch. Here is where the European Parliament elections have been tragic in their failure. If you read what the commentators were saying in the late 1970s, there was this big expectation that there would be a democratic moment for Europe, with elections all across Europe. Of course they failed. Trying to think creatively about providing arenas through which citizens and the media can engage with European issues would be a way to do it, whether that is setpiece debates in national Parliaments or public hearings that are more open to more direct public engagement. I am in favour of these rival candidates for Commission President. It is not the solution, but if there starts to be coverage in national newspapers of who these people are and what they stand for, maybe profiling in the media of whether we love them or hate them, and a background story, and if they make statements that will be described as "manifestos" about what they want to do for Europe, this at least will open up the possibility of more citizens across Europe knowing who this person is when they become Commission President and vaguely what they stand for. The EU was far more accountable when Jacques Delors was Commission President, whether we loved him or not.

Chair: Thank you very much indeed, Professor Hix. We have already had one set of evidence from you and now we can mull over the second. Thank you very much.

Prepared 27th November 2013