Foreign Affairs CommitteeWritten evidence from Dr Richard Corbett, Dr Richard Corbett is an advisor to the President of the European Council, Herman Van Rompuy. This submission is made in a strictly personal capacity. Dr. Corbett has written widely on European matters, including “The European Union: how does it work?” (OUP 2012) and “The European Parliament” (JHP, 8th ed 2011). He was an MEP from 1996 to 2009 and was the Parliament’s co-rapporteur on the Lisbon Treaty. Member of the Cabinet of Herman Van Rompuy, President of the European Council

1. On Competences

The European Union is the framework that we and our neighbouring countries have built up, over a period of decades, not just to help secure peace, but to manage our interdependence. Cautiously, we and the other Member States have gradually enlarged the fields in which we work together at European level. It is worth remembering that EU competences concern subjects on which member states have by common agreement—duly ratified by each and every one of them—decided that it is in our collective best interests to work together, because of our interdependence or because of economies of scale or because of the leverage that it brings at world level.

And when something is within the field of competence of the EU, the exercise of that competence normally requires the agreement of the Council—that is of national ministers, members of national governments, accountable to national parliaments. These are not people who by definition want to limit their national margin of manoeuvre unless there is a good case for doing so. That case must convince a qualified majority of them (currently over 70% of the votes), and on many issues, where unanimity is required, all of them. For good measure, the approval of legislation by the directly elected European Parliament is also required, and most national parliaments are now taking advantage of the eight-week period, given to them for prior scrutiny before Council deliberates, to shape the position to be taken by their minister in the Council.

So, the idea that “Brussels” arrogates to itself powers and competences against the will of Member States must be taken with a pinch of salt. On the contrary, the EU only deals with subjects that all Member States agreed it should, and even then can only act when an overwhelming majority want it to.

In these circumstances, any discussion on devolving powers back to Member States is about reversing a very large onus. It can be done, but requires a big shift in opinion to secure either a qualified majority (and usually support of the EP) to repeal or modify legislation, or else unanimity (and national parliamentary ratification) to amend the treaties. This is true both for a general devolution of powers, or for unilateral opt-outs or derogations.

It has been done in the past, to a degree. Competition decisions below a certain threshold were devolved back to Member States’ competition authorities to deal with. Fishing policy reforms currently underway go in the same direction. The EU budget has fallen as a proportion of EU GDP (even ahead of the February 2013 agreement to reduce it in absolute terms) and now represents just 1% of GDP. There are other examples. But they are all collective devolutions, not specific to one country.

From time to time, Member States have embarked on new areas of cooperation in which not all wish to participate, most recently the common European Patent. But we have never seen a country retreat unilaterally from existing areas of cooperation. After all, they were all voluntarily embarked upon for good reason, and working together across different fields inevitably involves give and take, the sum of which is positive.

It is therefore understandable that there is reticence to the idea of countries leaving existing fields of cooperation. There is a genuine concern that, if every Member State were able to cherry pick those parts of existing policies that they most like, and opt-out of those that they least like, the Union in general, and the single market in particular, would soon unravel.

Indeed, such concerns explain what is widely perceived to have been the dynamic in December 2011, when the UK’s refusal to allow an amendment to the treaties for matters affecting the eurozone (and not affecting the UK) unless another change were agreed reintroducing unanimity for certain decisions in the financial sector, led to the eurozone countries signing a separate treaty among themselves (joined, in the end, by all others bar the UK and Czech Republic).

The perception that the UK wanted to retreat from the principle that single market rules (other than tax) are decided by QMV—the norm since the Single European Act signed by Mrs Thatcher—was quite a surprise to other Member States. Until then, the UK had rarely been out-voted on any important financial sector legislation. Reintroducing unanimity would give Britain a veto it rarely needs, but would give everyone else a veto too, which could be used to block things the UK wants. And if the UK successfully reintroduced unanimity for the financial sector, would others (perhaps more protectionist minded than Britain) not seek to do likewise in fields sensitive for them?

There is similar perplexity about the various suggestions currently being floated for UK opt-outs or “repatriations” of power. Why, it is asked, would the UK want to cease cooperation with its neighbours on police & justice matters (given the growing threat of international crime and cross-border evasion)? on fishing (given the unfortunate habit of fish to swim from one country’s waters to another, making the management of stocks impossible to do alone)? on the environment (where common norms are both more effective and also simpler for industry than 27 divergent national norms)? or on the social chapter (regarded by most—notwithstanding a willingness to re-examine individual pieces of legislation—to be part and parcel of the common rules for the common market)?

By contrast, on Britain’s pleas for reducing the regulatory burden, there is much sympathy in many other EU countries, and even in the European Commission. There is a focus on this that wasn’t there before. Importantly, it is a common interest, not a unilateral one. And the debate is tempered elsewhere by the appreciation that common rules for the common market, when we get it right, can be an exercise in simplification, cutting red tape. For businesses, replacing 27 sets of disparate and often conflicting national regulations with one common European-wide approach has usually been a huge exercise in cutting costs.

Of course, the EU, like any political system and every level of government, has its faults and makes mistakes. There are policies and legislation that need correcting, updating or adjustment. It is a common challenge to correct any mistakes, and ensure that they do not happen again in the future. But simple unilateral opt-outs (or requests to reinstate unanimity where qualified majority voting currently applies) will certainly be resisted.

All Member States can, and do, have particular requests and needs that are taken into consideration, provided that the interests of all are not unduly damaged. And every member country brings its own unique contribution to our Union of diversity. Britain’s contribution is greater than it sometimes seems to realise itself. It has been crucial in building the EU’s centrepiece, the single European market, now the largest market in the world, and the common rules for the common market that are necessary for it to function. British expertise in the fields of foreign policy, finance, and trade shape the EU’s policies in these fields. It has led the way on climate change and development aid. It has offered the English language, now in practice the lingua franca of Europe. And Britain, as a trading nation, has a particular interest in the success of this enterprise.

Britain is unique—but so is each and every one of the Member States. None has come into the Union in order to lose their character or their identity. The European Union is there to enable us to work together whilst preserving identities—hence the motto “Unity with Diversity”.

2. On a two (or more) Tier Europe

Of course, Britain remains outside the euro, and does not therefore participate in the increasingly close cooperation among those who need to jointly manage their common currency. That cooperation may be taken further (see below), but will probably not involve as much integration (beyond what has been agreed already) as some hope and others fear. As President Van Rompuy pointed out last month in London, it is far from certain that it will require further treaty change.

But, in any case, the bulk of EU decision-taking is still at the level of all 27 Member States. That will not change. Fields such as the single market, foreign policy, police & justice, development aid, research, the environment, student exchanges, transport links and others are for the whole EU.

Yes, there are some other exceptions. Denmark does not participate in defence cooperation; Ireland and the UK are not in all aspects of Schengen; Denmark, Ireland, and the UK have rights to opt-in, or not, to measures in the field of security and justice; the UK and Poland have a protocol with restrictive interpretation of how aspects of the Charter of Rights interacts with their domestic law; Denmark has an exemption from the single market regarding the acquisition of secondary residences on its territory; Sweden does not participate on cross border divorce procedures; Italy and Spain are not joining in on European patents; the UK and the Czech Republic did not sign the Stability Treaty (“Fiscal Compact”).

This list covers relatively few fields, and what is also striking is that, in each case, the number of non-participating States is small (and has a different configuration). Thus, every policy area involves the overwhelming majority of Member States. The general unity of the Union remains the rule, non-participation the exception. The reason goes back to what was said in the very first paragraph of this submission: EU competences concern subjects on which member states decided that it is in their collective best interests to work together, because of interdependence or because of economies of scale or because of the leverage that it brings at world level. Such an assessment generally applies to all, not just some, Member States.

And when countries have chosen not to participate, it was from the outset of cooperation in the field in question, not opting-out of an already existing policy.

Some have expressed a fear that the eurozone will be a “vanguard” for further integration or a cohesive block within the EU in other fields. This is not plausible. On most subjects, the range of views and interests among the 17 are as wide as among the 27: just think of foreign policy, the environment, or police & justice matters. In the one area where such a fear seemed plausible, namely banking regulation, a double majority (of ins and outs) arrangement was found to reassure the outs.

Any further eurozone integration will therefore be only about euro-related matters, not a vanguard for a deeper integration in other policy fields. But what is potentially dangerous, is the emergence of new procedures and bodies without every Member State (and not the UK) in the room.

Up until recently, a situation of not all Member States participating in a policy field did not entail any division in the institutional structures. For example, UK and Irish ministers sit in the Council and take part in discussions on Schengen related matters, and on the Justice & Home affairs issues they have opted out of, even if they don’t have a vote. In the Parliament, their MEPs do have a vote, and in the Commission too, there is no distinction made by nationality, nor in the Court. The only exception was the “Eurogroup” of finance ministers, but even then, the treaty described this body as “informal”, unable to enact decisions alone.

That is now beginning to change. As mentioned above, the British government’s refusal in December 2011 to allow an amendment to the treaties for matters affecting the eurozone (and not affecting the UK) led to the eurozone countries signing a separate treaty among themselves (joined, in the end, by all others bar the UK and Czech Republic). This Stability Treaty creates a partly separate structure, including formal “Eurozone Summits” at the level of Heads of State or government, without the UK in the room.2 It has also triggered discussion about whether non-euro MEPs should vote in the EP on euro related matters, or even whether a separate parliamentary body should be established. It may have made it less likely that a Brit will be chosen as President of the European Council or of the Commission.

This situation is, of course, entirely of the volition of the UK government. It need not have happened, and could be rectified if and when the Stability Treaty is integrated into the EU treaties, as intended by the signatories.

3. On Accountability of the Institutions and the Decision-taking System

Another important part of the discussion about the future of the EU relates to its democratic accountability—whatever its field of competence.

Of course, EU institutions will always be more distant from people than are national or local institutions. That is a good reason not to do things at European level unless there is a good reason to do so. But to the extent that we do—and we do—it must be done in as accountable as democratic way.

EU laws are not “diktats from Brussels”. The European Commission in Brussels only has the right to put forward proposals (and to implement what has been agreed). The actual adoption of legislation is done by the elected governments of European countries through their ministers meeting in the EU Council of Ministers. The Ministers are scrutinised by their national parliament. In addition, EU laws also require the approval of the directly elected MEPs in the European Parliament.

But does this double check—of needing both a qualified majority (or more) of national ministers in the Council and a majority of MEPs in the Parliament—have its weak links? Are national ministers genuinely accountable for their actions in Brussels to their national parliament? Are MEPs sufficiently representative?

On the first question, there is certainly a trend to strengthen ministerial accountability. The requirement for an eight week period to allow national scrutiny to take place before Council deliberates on EU legislation gives national parliaments more time. Some have organised to take advantage of this and genuinely shape the position to be taken by their minister before he or she goes to a Council meeting, rather than just hear about it afterwards. Several national parliaments have revised their procedures on this. There is no doubt scope for further improvement, but this is a matter for each national parliament. They do now compare notes, and many find that the parliaments of the Nordic countries are an example to be followed, with ministers appearing before the appropriate committee before they leave to Council meetings. Whether others should follow is a domestic decision—the EU cannot tell national parliaments how to organise themselves.

One aspect of this prior scrutiny by national parliaments is, however, a European matter: the “yellow card” and “orange card” procedures whereby a national parliament can object that a Commission proposal violates the principle of subsidiarity. Given that the first time that even a “yellow card” was shown (by over a third of national chambers), the Commission withdrew the proposal in question (even though it disagreed that the objections were genuinely about subsidiarity), it can be argued that the yellow card (and certainly an orange card, where over half object) is de facto a “red card”. All the more so, as a proposal is very unlikely to receive the support of a qualified majority in the Council if there are so many national parliaments opposed to it. So why not recognise this? It would not require treaty change: if the Commission were to make a solemn declaration that it would, as a matter of course, withdraw any proposal that had triggered an “orange card”, and normally do so in response to a yellow card, then there would be a more visible and (for national parliaments) reassuring guarantee.

The second question, about the effectiveness of the European Parliament, is also frequently raised. But the existence of a body of full time elected representatives, coming not only from governing parties (as in the Council) but also from opposition parties in each Member State, able to query, question and confirm or reject, is surely a guarantee of pluralism and additional scrutiny of everything the EU does.

The fact that it is elected on a lower turnout than we are used to in national elections does not detract from that, any more than does the similar turnout for US Congressional elections (or the even lower turnout in local elections) render those institutions invalid. Its turnout is lower than national elections because less is at stake than in them. And most national parliamentary elections in Europe also have a visible impact on the choice of the government or head of government, whether it is closely linked as in the UK or only generally, as in Belgium or the Netherlands. It will be interesting to see if this begins to change with the treaty provision that the EP will henceforth “elect” the President of the Commission, and the stated intention of the main European political parties to have candidates for this post as part of their election campaigns. In any case, this is more realistic and more appropriate than ideas to have a direct presidential election on the American model.

The strengthening of both parliamentary dimensions (national and European), which has been the trend for over twenty years, means that we now have an EU that is subject to more checks and balances, and far more parliamentary scrutiny, than ever before and more than in any other international structure. It needs to be highlighted, not denigrated.

To sum up:

The fields of EU competence are ones where Member States have, for good reasons, all chosen to act jointly at European level. When they then do so, specific actions have to be agreed by an overwhelming majority of national governments.

In a few cases, cooperation has been established in certain fields without one or more Member States, who chose at the outset not to join in. However, none have unilaterally retreated from areas which they have chosen to join. Attempts to do so are unlikely to be treated sympathetically, especially if they involve the common rules for the common market—the bulk of what the EU does. They would need genuinely good reasons, which are hard to discern.

Multilateral devolution of competences (or loosening of existing requirements) is possible, and has been done—though it requires winning an argument reversing the burden of proof from the original decision to act jointly at European level.

On the other hand, reform and updating of existing EU legislation, for instance to lessen the regulatory burden, is perfectly possible and is on-going.

Further pooling of competences in the eurozone (which in any case may not be as far reaching as some think) does not detract from the fact that the bulk of EU competences and decision-taking will remain at the level of the whole EU. The UK should not encourage any duplicate institutional structure. Its policy should be to be in the room and in the discussions.

Democratic accountability in the EU has been improved in recent years, by strengthening both the European and national parliaments. Further progress can be made on enhancing national parliamentary scrutiny over the minister representing them in the Council and on recognising that “orange cards” and perhaps “yellow cards” are in practice a “red card”. It remains to be seen how the election of the Commission President by the EP will work in practice, with the stated intention of the main European political parties to propose candidates ahead of the EP elections.

19 March 2013