Examination of Witnesses(Questions 20-36)|
TUESDAY 28 JANUARY 2003
20. What about the best practice of scrutiny
for those countries which choose to employ it, especially when
we have 10 new countries who are unaccustomed to it?
A. I do not think there is any one system which
is the best system. It is quite interesting that if you look at
the original six countries or the larger six countries, they were
probably more relaxed about scrutiny than some of the later ones.
However, having said that, I rather like some of the methods employed
in Holland where MEPs and ministers go back and give evidence.
There are also different traditions as to how capable you are
of mandating new ministers, for example, and that is why we asked
COSAC actually to come up with some frameworks of best practice.
It was a test for COSAC, a challenge for COSAC, saying, "Here
is a serious job to be done which is outside the Convention for
which you are the best body. Can you do it?" Without reading
the minutes of yesterday's meeting, I gather we have not made
much progress on that either.
Chairman: There is always the House of Lords' report
on best practice with 70 recommendations which I hope will make
up for the deficiencies of some of our partner countries in this.
Baroness Park of Monmouth
21. When you said that a number of countries
have not availed themselves of the powers of scrutiny, one, do
you think that is because many of them simply have not got the
infrastructure to deal with, as you said, masses of information,
and, two, do you think that a time is coming when they are beginning
to realise the results over the years and those results are not
pleasing to them or their people and that that may have changed
their attitude quite a lot? One would expect, as I think was said
earlier, that the new countries like Poland are probably going
to be very determined to exercise their right to scrutiny, but
would you say that for some of the smaller countries it is, firstly,
a practical problem with enormous masses of papers and, secondly,
that they have not yet realised that they have needed to resist
perhaps in their terms one decision?
A. You are right in that analysis, but I would
add a third point to it and that is that the notion that Parliament
itself as an institution has a right to the decision-making process
is more entrenched in some countries than in others and it is
probably more entrenched in the United Kingdom because Parliament
is the highest court in the country. Therefore, we have an awareness
of the right of Parliament as an institution, but, quite interestingly,
even we have not yet found a way of having a voice of Parliament.
When I represent both Houses in the Convention, we have now come
to a point where we have these big committees so that I can distil
various views, but unlike the European Parliament, which has a
clear mechanism where it says, "This is our view as a Parliament",
we have not yet done that and I hope that part of the ripples
of the Convention work may be that we all become more aware of
the rights of Parliament as an institution.
Lord Woolmer of Leeds
22. You very generously and kindly remarked
on the interest of this Committee in the scrutiny of annual policy
statements. In your own report you recommended that the annual
policy strategy of the Commission on the legislative programme
and so on should be transmitted to the parliaments at the same
time as it went to the European Parliament and Council, and we
have ourselves already begun a scrutiny of those documents. Which
other parliaments that you are aware of show a similar degree
of interest at the current time and which are those which are
not showing an interest? You may know that our Committee also
recommended that parliamentary scrutiny should also take place
on the Council's strategic agenda, so I wonder if that particular
idea might appeal to you and if it is something you felt able
to take forward.
A. I am very grateful for that recommendation
on the Council's agenda and I think by implication we should take
it on board because the purpose of this recommendation was that
this was more strategic political planning. My thinking behind
this recommendation actually went further and we had quite lengthy
discussions about the word "transmitted" because I do
not actually want it to be merely transmitted. I felt quite strongly
that given we have one commissioner per country for a foreseeable
amount of time, there was no reason why we should not charge for
one week of the year a commissioner to come to each country, for
example, in our example, say, at Westminster Hall and answer questions
from Members of both Houses. Theoretically, there is nothing stopping
us in the current proposal from trying to move that way and I
gather that commissioners quite regularly visit the House anyway,
so I would like also to take that forward. The big, important
thing is that in that process of transmitting and visiting the
annual programme, if we as parliaments create almost a European
week where all the parliaments across Europe discuss their annual
strategic programme, it would be quite a unifying process and
would allow us to move in the same direction and would be politically
very significant. I think it would move us away from regarding
Europe and the commissioners as creatures with two heads and something
extremely dangerous, which is what you might think if you read
the British press no doubt, and get this more regular contact,
so on the commissioners' side, get them used to that regular contact,
but also to get the parliaments to engage with the Commission.
Lord Cavendish of Furness
23. I have picked up the surprise and the shock
to the attitude that some countries take towards scrutiny and
one must be right not to tell people how to scrutinise. That said,
however, would it be fair to say that if scrutiny deteriorates
throughout Member States and scrutiny with aspirants, the whole
thing would become threatened?
A. Yes, it would become threatened. The reason
why I think it would become threatened is that the biggest challenge
we would face is we would have to find a way of anchoring European
decision-making in national institutions because it is still the
national institutions that people relate to most closely and if
that gap between those who make the decisions and those the decisions
relate to widens, then it would be bad for democracy across the
whole of Europe. However, having said that, I would still deeply
resist any suggestion that the European Union should tell a Member
State, or impose a duty on a Member State, to scrutinise.
24. Paragraph 95 of our scrutiny review report
called for the European Parliament to produce a cost analysis
of the effect of its proposals on Member States in EU law. Has
the suggestion found any support?
A. As I understand it, they are taking forward
the proposals in terms of impact analysis and cost analysis both
in the Commission and the European Parliament. I would probably
need to check the precise details, but, as I understand it, there
are all the processes in place to take that forward to some level
which is certainly receiving support across the board.
Lord Williamson of Horton
25. There is another element of scrutiny which
of course we have been looking at in quite a lot of detail. We
have suggested that there should be a bigger scrutiny role in
relation to the budget and also in relation, a different point,
but I think a very important point, to subsidiary EU legislation,
and that is comitology on which I am always invited to speak,
as you know. It is a very significant point and I do not think
it is something you should write in the Treaty, but if we could
get in the Convention some element about the scrutiny of the lesser
legislation, I think it would be important because, as we all
know, a lot of the decisions which are unpopular or difficult
are in effect subsidiary legislation.
A. COSAC is the one institution which troubles
me most. The concept of comitology is the one concept which I
find absolutely mind-boggling.
26. I will come and help you any time.
A. From what I can gather from the discussions
there is a real feeling that there is a problem with comitology,
it is something which I think the Convention needs to engage in
and it will engage, or it does to some extent, when we look at
simplification and that whole process. It is an area where everybody
steps, very, very carefully. Comitology is probably, as I understand
it, the most delicate expression of the kind of political balance
which needs to be struck. There is agreement that comitology as
it is operated at the moment probably should not continue that
way and we need to open it up and simplify it. Quite a number
of us are struggling about how to take it forward, it is always
the one subject which when it gets mentioned we all nod and say,
yes, we must do something about this. I think we will have to
face it. I think it will be faced when the whole debate about
the powers of the European Parliament, their ability to call back
legislation, the Lamfalussy Process and all those very precise
details are discussed more, comitology will raise its head, but
we have not faced up to it yet.
27. The key point is that in the comitology
system, the Member States, for example in a Management Committee
see it all. There were over 900 votes when I was over there, 900
votes on comitology issues. The next step is that the proposal
becomes law because the Commission makes regulations. There is
no intervening committee scrutiny, even of the more important
points. I do not want to make too much of it but I think looking
ahead in five or 10 years' time we will need at some stage to
get a better grip on some of the subsidiary legislation in the
A. May I make a plea and say I would welcome
any precise practical thoughts on how we take this forward, I
would really welcome them.
Chairman: Some months ago we had a very short but
very intense and interesting debate in the Chamber on what we
considered to be Government abuse of the 6 week scrutiny rule
and Lord Scott played a prominent part, I would like him to raise
this issue with you.
Lord Scott of Foscote
28. Ms Stuart, paragraph 17 in your Report makes
clear the importance of strict observance of the six week period
for scrutiny before any decision is taken in the Council of Ministersthe
practice to which the Lord Chairman has just referredand
while scrutiny reserves were still outstanding there was what
was called a preliminary agreement. The vice of that so far as
scrutiny is concerned is it appeared to indicate a view had been
taken before the advantage of listening to any scrutiny objections
had been available and given proper attention. It is much easier
to influence the view that is going to be taken if views are not
firmly expressed, if nobody jumps down off the fence too early,
so an objection was taken in the practice of preliminary agreements,
there was an agreement that preliminary agreements were not going
to be dealt with and that is dealt with in paragraph 17. The language
has caused a little concern, in the middle of the paragraph it
says, "The Working Group considers no preliminary agreements
should be acknowledged in the Council", that is to say within
the six week period. Of course they should not be acknowledged,
the fact of the matter is they should not be made. Is "acknowledged"
just another way of saying they should not be made. It cannot
be right they can be made but not acknowledged. If they read it
as I suggested, they should not be made within a six week period.
Is that something that Member States generally agree should be
the position so that there will be a bar upon the preliminary
agreements of the sort described being reached or being made at
all within a six week period?
A. On reading that line I can see why you may
have been alarmed by the word "acknowledge" and thought
this may have been a deliberate way of not using the word "agreement".
Paragraph 17 was one of the paragraphs about which there was very
little debate when we came to drafting it because there was very
common consensus that this simply should not happen. There was
a common view that they should not be made. I would not read anything
into the word "acknowledge".
29. There was general agreement that should
A. Yes. This habit which has grown up is one
which is not helpful and we should get out of that habit as quickly
Lord Scott of Foscote: Everyone will be very reassured
Chairman: Let us hope it happens. Thank you very
much. Second and third pillar scrutiny.
Lord Scott of Foscote
30. This Committee is going to be considering
over the next few months what improvements we can make in the
scrutiny which we carry out on second and third pillar matters.
It is in the back of our minds that this may all turn out to be
pointless if the pillar system collapses. Are we wasting our time
investigating what better scrutiny is to be carried out at this
stage? Can you help us on this?
A. Yes and no. If the recommendations to work
on the simplification of legal instruments are acceptable then
the pillar structure goes. One of the consequences of this, which
we need to take very careful note of, is that will enable us within
pillar two and three to use legally binding instruments in relation
to justice and home affairs and you will review the instrument
and will not have to rely on conventions. That is helpful in some
areas but may be problematic in others. Once the pillar structure
has disappeared the way forward is an acknowledgment that some
areas will remain intergovernmental, and the most obvious one
is ESDP and defence. Then we have the challenge of, how does Parliamentary
scrutiny occur in those areas?
A. Without wishing to make the story even more
complicated there is then also the related issue of if we accept
in the Treaty, the WEU 5 Article there is a question mark about
the future of the European Union Parliamentary Assembly, how do
we take that forward? I would almost urge your Lordships' House
to give some thought to that. How do you ensure parliamentary
scrutiny in those areas will remain intergovernmental rather than
looking at something within the pillar structure? I do think there
is fairly strong consensus that the pillar structure as such does
not have a future.
Chairman: Thank you. We take very much to heart what
Lord Howell of Guildford
32. Can I follow that question, is there not
even a bigger dilemma in what you have just been talking about,
which is if the pillars are all to collapse into one, there is
to be one over-arching Treaty, how is that to be reconciled with
the very strong commitment of the British Government and others
that, as you just hinted, defence and foreign policy should continue
to be broadly intergovernmental? Once things are in one Treaty
and there is only one pillar surely the whole judicial umbrella
of the Community has to extend over it all, how is that reconciled
with bits of it still being intergovernmental?
A. I think you will find within the Treaty structure
defence and security and foreign policy have separate articles
in the Treaty and will be very explicitly excluded. I am still
currently slightly uncomfortable about the fact that in the structure
foreign policy is one Treaty article and defence is another one
and I would wish to see them as one to make it much clearer that
this is an intergovernmental area. I also think we need to watch
the area of justice and home affairs very carefully because in
some areas they will remain intergovernmental and they are precisely
defined. It is something which I and the lawyers are watching
very carefully in the Treaty drafting so that it will protect
those areas quite clearly and explicitly without allowing them
to move in to that through the back door.
33. With regard to justice and home affairs
is there a real prospect of the pillar system collapsing and Brussels
devising and implementing criminal justice law for the Community
in which national Parliaments will not have played a part? It
seems to me individually that this is a matter of the highest
political sensitivity When you said a moment ago there may be
areas in justice and home affairs which are reserved for intergovernmental
decisions could I recommend to the Convention to make sure that
people are fully aware of that and are sensitive to it and the
Convention's ultimate recommendations because that particular
area could be seized upon by the euro-phobic to undermine the
effect of the Convention.
A. You are absolutely right. In my mind things
like the criminal justice system of a country go to the very heart
of a nation and therefore, you are quite right, it is politically
very sensitive, in those areas we all accept there are some areas
where we really have to work together. This is one area where
we simply have to be extremely careful in drawing up all of the
legal advice to be sure we end up with a Treaty wording that truly
reflects the political intention.
Chairman: Thank you very much. One last question.
Lord Maclennan of Rogart
34. I think in answering an earlier question,
Lord Chairman, Ms Stuart said very clearly that she was hostile
to the creation of any new institution and indeed I think we perhaps
agree that that hostility was very widely chaired when this proposal
emerged and, so far as I am aware, persists. It has resurfaced
in two ways, first within the skeleton Treaty there is a reference
to it and secondly when pressed in the Convention as to what its
function might be the President of the Convention seemed to indicate
that it might have the role of electoral college, and the second
concept is one that seems to be surfacing in a number of different
places. There has not yet been a conflation of the idea of an
electoral college for the President of the Commission and Congress
but there is clearly some overlap. I think it is helpful to clarify
where you think the Praesidium has got to in dealing with these
connective issues and particularly whether your hostility to the
new institutions runs to the new institution of an electoral college
involving national parliamentarians? Electoral colleges do not
seem to me to carry the strong approval in the United States of
America at this time. There is another aspect of the college which
people have talked about and that is the possibility that it might
be used as what might be called a grand clamjamfrey to expose
members of national parliaments strategic discussions perhaps
on an annual basis, and a third possible role revising the Convention
at a future date, to look at future amendments to the new constitutional
Treaty. Where do you think this is going?
A. When the President suggested this Congress
of the People without defining what he meant it to be at the end
of July he was very clever in that he provided us with a title
in an envelope but failed to put anything into it. Everyone put
their worst fears and their greatest aspirations in it. That was
one dynamic. The other dynamic is as we move into a negotiating
period no one feels strongly enough about this Congress to expand
any political capital to opposing it outright, that is why I think
it is still in limbo. If I make a few observations about where
my view lies, and I think it has some support, Giscard's original
idea was that ideas require institutions and those institutions
occasionally require a physical presenceit is not just
Her Majesty the Queen arriving for the Queen's Speech, it is hugely
symbolicwhich allows people to relate to an institution.
If at the moment the Congress of the People met when the European
Parliament had an election once every five years to elect the
Commission president, if they had an event which gives a physical,
visible shape to the people of Europe I am fairly relaxed about
that but would still need a bit of persuading. Of course then
we start struggling with what do we give it anything to do. I
have a problem with an electoral college to elect the president
of the Commission because I do not like hybrid bodies who make
decisions, if hybrid bodies make decisions accountability goes.
Instinctively I do not think national Parliamentarians have a
role, it might be tempting but it is not its role. I also think
the election of the Commission by the European Parliament is an
overrated mechanism because I think the really crucial point is
who is nominated president of the Commission. If you want to have
the Convention method renamed the Congress of People and we call
it such and when it is needed, again the notion that you create
a grand coming together on a regular basis without having anything
new to discuss, again I do not have a real problem with that.
My view would be that if the minimalist congress is a celebration
or a coming together for no other purpose than to mark the election
and the new life EP I can probably support it but it would not
be a new institution that would make decisions. Just as you experience
problems with the rest of the Convention I do not think anybody
has a serious, real appetite, other than a handful of French colleagues,
to give to us that powerful decision making body.
35. Thank you very much indeed, that was an
interesting discussion. I am very grateful to you for spending
so much time with us. We do wish you well in your continuing work
in the Praesidium and we will send you a transcript of this discussion.
It has been most helpful to us, and all of us very much appreciate
A. May I make one final observation, I have
noticed that the Finnish Parliament of the Grand Committee has
actually put together a submission to the Convention as a Convention
submission on some of the points raised in the discussion. We
have always made available the reports from both Houses and the
Working Group has used them but neither House has as yet taken
the opportunity, as the Finnish have, to have a very specific
view to the Convention itself, which would be made available to
Convention members. Should your Lordships' committee wish to do
that I would be very happy if one of the members of the Committee
might submit that. I simply raise that as a possibility which
may not have been apparent.
36. That is a very good idea. Can you give us
some idea of what the time limit would be for it to be taken into
account or considered by the Convention?
A. I think probably until the end of March things
will be still very much in the melting pot. The crux of the negotiations
will start properly after Easter.
Chairman: We take your proposals seriously, thank
you very much indeed for that. We will think hard about that and
hopefully we can act on that.