House of Lords - European Union - Twenty-Second Report

Select Committee on European Union Twenty-Second Report

CHAPTER 9: Observations and Conclusions

149. When the Commission's near-monopoly is considered, it should be borne in mind that the right of initiative is a power to propose, not to dispose. The EU legislature—the Council or, more usually, the European Parliament and the Council—determines whether a proposal will become law and how much of the original proposal will appear in the text finally adopted. Moreover, the European Council and the Council are powerful players in setting the agenda for legislation and, in some cases at least, determining the content of legislation. Multi-annual programmes agreed by the European Council (such as the Hague Programme for justice and home affairs) and the Council (for example, the 6^th Environment Programme) have provided both a framework for legislation in those fields and specific policy goals. The European Parliament, through its reports and other initiatives, has become increasingly influential in the development of legislation, as the example of the anti-discrimination proposal at Box 2 illustrates. When it makes a formal proposal, the Commission seeks to anticipate the positions that will be taken in the Council and the Parliament.

150. The power which the right of initiative confers in the EU institutional system should not be under-estimated, however. The Commission is a repository of knowledge received from a variety of sources and is likely to be in a position to use that knowledge to promote its policies. The right to wield the pen provides the power to select among the many ideas for legislation which come forward from other parts of the system and outside it, and to determine priorities. The European Council may give a lead by setting strategic priorities, but it often does so (and may do sometimes at the Commission's initiative) at a level of generality that leaves the Commission with considerable freedom of manoeuvre as to the detailed content of draft legislation. The Commission is not isolated from the preparatory work that goes into the conclusions and programmes of the European Council and the Council, and the President of the Commission is a member of the European Council. The Commission must necessarily take account of the expectations and wishes of the Council, even if expressed in informal Conclusions, and of the European Parliament, but is not bound to bring forward draft legislation. Unless the Commission proposes legislation, none can be adopted. Member States may need to expend political capital to secure the presentation of proposals in any particular case.

151. The Commission has greater power in the legislative system, therefore, than the analysis of sources of legislation given in the table in Chapter 2 suggests. But there is a limit to the usefulness of analysing the relative power of the institutions in the initiation of legislation. From the perspective of the EU as a whole, the constitutional framework established by the Treaties provides for a balance among the powers of the three institutions involved in law-making.

THE SOURCES OF IDEAS FOR LEGISLATION

152. The Commission has a near-monopoly of initiative, but that does not mean it is the sole source of ideas. The evidence gives a flavour of the inter-connections between the institutions and those seeking to influence them. There is a myriad of sources. The difficulty of identifying the sources of particular ideas which eventually emerge as legislation arises from the informality and complexity of the processes at work. That is not a criticism of the EU system. It is, rather, a reflection on the complexity of decision-making in any modern polity. It also points up the multinational, multilingual forum that is Brussels: we were struck by the extent of the overlapping networks and communities of interest, formal and informal, mentioned to us by those operating in and around the EU's decision-making process.

PLANNING

153. The institutions have processes for planning in place, and these have become increasingly important in the initiation and development of draft legislation. The European Council produces strategies; sectoral Councils agree multi-annual programmes, sometimes with the European Parliament; and the Commission publishes an Annual Policy Strategy and an annual programme of legislation. We heard criticism of a lack of coordination, from which it appears that the institutions have not fully achieved the improvement in coordination called for by paragraph 4 of the Inter-Institutional Agreement on Better Law-making. A degree of competitiveness among the institutions seems to us healthy, however, given the different interests that the institutions represent.

CONSULTATION

154. The Commission operates in a very open way, both in publishing information about its activities and in listening to views put to it. We welcome the steps taken by the Commission to enlarge the scope of its consultation processes to assist its analysis, and to improve its processes. The kind of large-scale consultation required for the strategic approach adopted by the Commission[51] requires organisational and coordinating skills which may not have been necessary for policy-makers at earlier times in the EU's history.

155. While we understand that it may be necessary to limit the number of stakeholders that the Commission consults in particular cases, it is clearly vital that the views of all interests are represented. We urge the Commission to take account of national stakeholders, such as professional bodies, as well as pan-European associations in its consultation, in particular where the subject matter is in an area where national law or practices are significantly different.

IMPACT ASSESSMENT

156. We commented on the use of impact assessment in the development of EU policies in our Report, Ensuring Effective Regulation in the EU.[52] We note that the Commission's internal processes are evolving. The developments in Commission practice—in particular, the emphasis on consultation and the introduction of impact assessment—are positive. The preparation by Member States of impact assessments as an integral element in policy development is relatively recent, even in states which are in the forefront of better regulation practice, such as The Netherlands and the UK. It is not, therefore, surprising that, within the Commission, some parts of the administration are more advanced than others. We emphasise the importance of impact assessment, especially good quantitative analysis, and we welcome the Commission's intention to embed best practice throughout its organisation.

DRAFTING

157. The Commission acknowledges that there can be problems with the quality of drafting of legislation. It is taking steps to address this issue and the associated difficulties of operating in many languages. The issue of drafting quality should not be exaggerated: lack of clarity often arises not in the original proposal but from the changes introduced as a proposal goes through the legislative process. The Commission should give serious consideration to the creation of a cadre of specialist legislative drafters.

LOBBYING

158. Lobbying is a fact of political life. It is often seen as simply a means by which influence is unduly brought to bear, particularly by those with deep pockets, but in a complex world, it can be a useful source of information and advice to policy-makers and those developing legislation. Lobbying is both inevitable and useful to the initiation and development of legislation. However, the practice of lobbying should be transparent and appropriately regulated. We agree with the witnesses who told us that well-run lobbying organisations would welcome such regulation. We note that the European Parliament has a de facto mandatory register for lobbyists and a Code of Conduct backed by sanctions, whereas the Commission has introduced a voluntary register. We doubt whether purely voluntary arrangements will provide the necessary degree of public confidence, in particular in relation to lobbying organisations which are in receipt of funding from the EU budget.

159. We initially found it surprising that the EU provides funding for interest groups who are engaged in lobbying the Commission. There is plainly a risk that such an arrangement results in a tendency for funded groups to support the Commission's views. But we were reassured that, in practice, NGOs are not afraid to bite the hand that feeds them by providing information which may contradict that of the Commission and unpalatable submissions. We understand the viewpoint that, where some organisations are well-funded, a financial contribution for relatively impecunious organisations may help to ensure that all viewpoints are represented in consultations on issues, frequently of considerable complexity and controversy. On balance, we consider such funding arrangements may be justified so long as they are transparent. We draw attention to this issue as meriting further consideration.

NATIONAL PARLIAMENTS

160. The parliaments of the Member States are engaged in the scrutiny of proposals for legislation once published, as well as in the procedures for transposition of EU legislation into national law. Those parliaments, including our own, should take advantage of the opportunities provided, for example, by the Barroso initiative[53] and the publication by the Commission of consultation papers, to contribute to the development of EU legislation. The Minister's suggestion that greater attention should be given to multi-annual programmes merits further consideration.

DIFFERENT LEGAL SYSTEMS

161. There appears to be a problem in developing legislation in the area of justice and home affairs which takes proper account of the differences between the legal systems of the Member States and the particular position of the common law systems. The Commission is aware of this and seeks to ensure that its proposals take account of the differences. We doubt that the same can be said for proposals put forward by Member States.

162. The Government should do all they can to ensure that the common law approach is taken into account in developing legislation on justice and policing, including making common cause with the other common law countries. We welcome their intention to press ahead with plans to second good personnel to those directorates of the Commission dealing with these issues, and their involvement in promoting training for Commission officials.

MEMBER STATES' INITIATIVES

163. The Member States' right of initiative in the third pillar has been a mixed blessing. It was understandable that, when powers in relation to justice and home affairs were initially conferred on the EU, the Member States wished to retain some control over the draft legislation that came forward. In principle, the sensitivity of the subject matter warrants the continuation of the current position. But the experience of proposals made by groups of countries, compared with those of individual Member States, suggests that a requirement for sponsorship of legislation by a minimum number of states would result in better prepared initiatives.