Select Committee on European Union Minutes of Evidence

Examination of Witnesses(Questions 20-36)



  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 European Union.

  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 Ministers—the practice to which the Lord Chairman has just referred—and 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 not happen.

  A. Yes. This habit which has grown up is one which is not helpful and we should get out of that habit as quickly as possible.

Lord Scott of Foscote: Everyone will be very reassured about that.

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?

  31. Yes.

  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 you said.

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.

Lord Brennan

  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 presence—it is not just Her Majesty the Queen arriving for the Queen's Speech, it is hugely symbolic—which 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 it.

  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.

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