Examination of Witnesses (Questions 20-39)
Professor Steve Peers and Professor Anne Rasmussen
23 APRIL 2008
Q20 Lord Rosser: I read your paper,
Professor Rasmussen, with interest. I think you made the distinction
between the formal powers that the Commission has and the way
non-formalised powers have grown up as far as the Parliament is
concerned and as far as the Council is concerned and one or two
other bodies. You use the expression about leverage and this is
about the ability to get your own way from the powers that are
there. It does not really matter, as you argue in your paper,
whether they are formal or informal, it is not the theory that
matters, it is what happens in practice. What I could not glean
from your paper was whether you felt that with—what, as
I understood it to be arguing about—the growth in reality
of informal powers, which the Council and the Parliament now have,
vis-a"-vis the formal powers which the Commission has, and
the leverage it gives both sides—and I will use it in that
expression, because it is about who has got the influence and
power—are we, if I can use a sporting analogy—and
I will put on one side the Council and the Parliament and the
other institutions, and on the other side the Commission—are
we talking about Manchester United and Barcelona, i.e., roughly
equal, in football, or are we talking about, in cricket, England
and Australia, where it is hopelessly one-sided, i.e., am I asking
the question in favour of one part or the other?
Professor Rasmussen: I do not know enough about
football, but I think I can still get the point. We can have different
games. If we say we have a game between the Council and the Parliament,
I would probably still say that the Council is the most powerful.
In relation to the Commission, you have to be aware that there
are significant developments over time. You have just heard the
example about Delors and what he was able to do with the single
market programme. I would say that the Commission in recent years
has been a much weaker body. It is not the case generally now
that the Commission would table quite pro-integrationist proposals
and hope that the Member States go along with it. Even if it is
the Commission that has the right of initiative, it very often
screens what it will be able to get adopted later on in the policy
process. It is absolutely true that the Commission determines
the contents of those proposals. At the same time, the Commission
is very cautious about putting forward proposals that will not
get adopted in the end. We know, based on rumours, that the Barroso
Commission decided not to move ahead with certain proposals that
were in their initial planning stages, under the Prodi Commission,
exactly for the reason that it would be very difficult for the
Commission to get these proposals through the Council. I think
it is very important to be aware of these changes over time in
the strength of the Commission.
Q21 Chairman: Can you identify specific
areas in that regard? Are there specific areas where there has
not been progress?
Professor Rasmussen: There were some concrete
proposals, but I have to be honest with you and say that I do
not know which proposals they were, but there were proposals,
yes.
Q22 Lord Lester of Herne Hill: I
am very troubled about some of this. The European Committee of
the Bar Council of England and Wales, in their evidence to us,
said that the process of deciding the topics, subject to a legislative
proposal is, at best, ad hoc. The Law Society of England and Wales
talk about coherency in policy-making and definition being a matter
of concern. The example that has been brought to my notice by
Lady Ludford in the European Parliament and by Gay Moon of the
Equality and Diversity Forum, seems to me to be a really good
one to take simply as a specimen. The example is that in the Work
Programme for 2008, published in November 2007, the Commission
proposed a generic anti-discrimination directive that would cover
all the main grounds beyond employment, and they gave a list of
extraordinarily powerful reasons as to why that was a good idea.
Then the European Parliament and various NGOs pressed very firmly
for that to happen. The documents that I have seen, which can
be circulated later, indicate that for purely internal political
reasons, the Barroso Commission retreated from that and is now
considering only a disability directive on largely political grounds
and grounds partly about the Council. The result of that will
be more piecemeal ad hoc legislation of an incoherent kind. It
troubles me that—and here is my question—there is
no real public consultation process and no real accountability
when something like that occurs, which does not seem to me to
benefit the citizens of Europe. Is that summary—and I apologise
for its length—a fair example of one of the problems?
Professor Rasmussen: Your summary shows that
the Commission takes into account what the political situation
is in the Council.
Q23 Lord Lester of Herne Hill: In
the Commission, the allegations that I have seen indicate ways
in which individual Commissioners have been exercised.
Professor Rasmussen: This may be the case, but
we do not know if those individual Commissioners have taken into
account what their Member States would be willing to agree to
later on or not. We have to take into account here that it is,
after all, the Member States which appoint the Commissioners.
We also know that when the Barroso Commission resigned office,
many of the Member States indicated that they were very keen on
getting a Commission president of the same political colour as
the majority of the governments in Europe. So, even if we are
talking about separate institutions, we have to be aware that
there are political links between the different EU institutions.
Lord Lester of Herne Hill: My concern
is about the lack of citizens' participation in producing a coherent
programme, but I suppose one could make the same criticism of
the way in which our national Parliament and Government introduce
legislation.
Q24 Chairman: I think you have also
drawn attention to the fact that framework programmes have been
developed, both at the Council level and at the Parliament level,
there has been encouragement to the Commission to take action
in specific general areas, and in those areas the Commission has
tried to come forward with proposals.
Professor Rasmussen: Yes.
Q25 Lord Burnett: May I follow up
Lord Rosser's question—a very good question, I thought.
Why has the Commission lost a little power? Is that a temporary
phenomenon?
Professor Rasmussen: I do not have the definitive
answer to your question, but some would say that one reason that
it has lost a little bit is partly something to do with the fact
that the Parliament has gained. That is something worth speculating
about. The Commission was a very important institution earlier.
Even when the Parliament was involved under the consultation procedure,
negotiations would often go through the Commission. With co-decision,
the Parliament and the Council have started interacting much more
with each other. It is often the case that the Commission still
participates in negotiations, but it plays much less of a role
than it used to; there is much less need for a mediator.
Q26 Lord Burnett: Has the Commission
got the inherent power to reassert its former, rather more trenchant
and strong position?
Professor Rasmussen: Again, I do not have the
definitive answer to the question, but one of the reasons that
the Commission has sometimes had difficulty is that the criticism
of it has been that it does not have the same democratic legitimacy
as the Parliament or the governments in the Council of Ministers.
The other concern that should be taken into account, which relates
to the reasons we just talked about, is why did we give the right
of initiative to the Commission in the first place? As Professor
Peers said, it was because we need an independent body that can
define the European interests and think broader than the national
interests. I hope we will get the opportunity to talk about the
experiences within the field of justice and home affairs, where
the Member States have had a right of initiative. These experiences
are not necessarily positive. There are good and bad experiences,
but I think it is acknowledged, even by the Member States themselves,
that it creates certain challenges if they give themselves the
right of initiative. We have seen a tendency for certain Member
States to present proposals that were dominated very much by national
interests and perhaps did not always take the interest of the
Community as a whole into account. Both systems have advantages
and disadvantages, but it is worth being aware of the disadvantages
of alternative systems, which may be one of the reasons why we
have not seen any changes to the Commission's right of initiative.
Q27 Chairman: Going back to the point
about the relationship with the European Parliament. The European
Parliament is a body that has a European perspective. Speaking
anecdotally from instances I have seen, it takes active steps
in co-decision procedures to make Commission legislation more
European in outlook and to extend its scope—just dealing
with the point that Lord Lester of Herne Hill was making, I can
certainly think of examples. Does that correspond with your impression
that the European Parliament is quite often prepared to say nowadays,
"this does not go far enough, you ought to cover this, and
you ought to do that"?
Professor Rasmussen: Yes, absolutely. Now it
is perhaps a bit less clear than it used to be but, in earlier
Parliaments, that was a very clear trend. Political scientists
have conducted studies of the preferences of the institution in
a large number of legislative proposals.
The Committee suspended from 5.05 pm to 5.20
pm for a division in the House
Q28Baroness O'Cathain: I want to deal with the
question of how the Commission's ideas for future legislation
area generated. You have answered much of that in your very informative
replies and in the information you have given us. But, is it the
case that a Member State, deciding that they want such-and-such—whoever
shouts the loudest and has the greatest lobbying power—can
get it on to the Commission's agenda?
Professor Peers: I can think of a couple of
examples of when Member States have or have not been able to influence
the Commission. One of which is very recent when Gordon Brown
was Chancellor in one of his later budgets, he said he was going
to pressure the Commission to make proposals on raising the threshold
of the amount of goods which you can bring back from outside the
EU without facing customs duty—there had been an example
of Wayne Rooney's girlfriend spending £10,000 in America.
That was of general public concern because the threshold had not
been raised for many years. So he was successful. Perhaps the
Commission was considering a proposal along these lines anyway,
but the Commission shortly afterwards made a proposal along these
lines and it has been agreed by the Council. Going back to 1998-1999,
there was a Council Directive that had been agreed back in 1992
to give a seven-year reprieve to the duty free industry for flights
within Europe and that was about to expire in 1999. The duty free
industry kicked up a huge row and got one Member State and then
another, and eventually the United Kingdom and Germany and others,
to ask the Commission to make a proposal and the Commission resolutely
refused to make a proposal to extend that period. Had it done
so, it would still have had to convince unanimously all the Member
States—because this is tax legislation—to extend it
and it might not have been able to do that. Some of those Member
States were not even serious about pressuring the Commission,
they just thought it was the populist thing to do, but they never
expected the Commission to make a proposal or for the proposal
to be adopted if they had made the proposal, so you get a few
votes by pretending to be in the interests of duty free passengers,
while being reassured that the treasury is still going to get
that extra income in a few months time because there is no chance
of it happening. So, maybe there was a political game being played.
It shows that even if several large and small Member States pressure
the Commission, sometimes it is willing to say, "No, we think
it is wrong in the interests of Europe, we are not going to make
a proposal for legislation". In that case, they could at
least point to a unanimous agreement of the Member States to adopt
legislation several years before that abolished the duty free
exemption after the transition, so at least they could say, "We're
just going to stick to the Council's original position".
In that sense, they could link themselves to the legitimacy of
the Council's original decision. You can find examples of pressure
being successful and pressure not being so successful. There is
also a specific issue with justice and home affairs where there
was a greater role for the European Council in defining the parameters
of future legislation in other areas.
Professor Rasmussen: If I were a Member State
government, I could lobby the Commission but if I really wanted
to be successful, I would lobby my colleagues in the Council.
If I could manage to persuade the Council to ask the Commission
to do something, or even better, the European Council, then I
would have a very high chance of being successful. Whereas, if
I came as an individual Member State to the Commission with an
interest that was regarded as a national one, I would probably
have a much harder time.
Q29 Chairman: You have been concentrating
on the influence of other actors on the Commission; I would be
interested to know to what extent the Commission may be driven,
if at all, by internal pressures—this has been described
as the "motor" of Europe in the past. Its role is obviously
to promote the development of Europe and European initiatives;
individuals who join the Commission are committed to that. How
far do individuals within the Commission need to put forward proposals
in particular areas in order to justify their existence and promote
their careers? This may, of course, be subject to constraints—I
see that from what you have said—you could not put something
forward that was obviously unacceptable externally, but as a matter
of fine tuning, is it right that individuals can influence the
particular direction in that way?
Professor Rasmussen: That is extremely difficult
to answer. What I can do, which might be relevant to the question,
is to refer you to studies that have been done of the attitudes
of senior Commission officials and the Commissioners themselves.
Work has been done by Professor Liesbet Hooghe, who has conducted
survey research of the attitudes of these senior Commission officials
and the Commissioners themselves and to find out whether socialisation
occurs once these people get to Brussels. What she finds is that
national factors play a very strong role in the socialisation
of these actors. Even if it is fair to say that most of those
who work for the EU institutions are more pro-European than an
average citizen would be of his or her country, it is not the
case that they cut their ties to their national context once they
start working in Brussels. National socialisation factors are
still very important—that is what research shows in the
latest survey of these Commission members and officials.
Q30 Baroness O'Cathain: Could we
have a copy of that survey, My Lord Chairman?
Professor Rasmussen: Yes.
Q31 Chairman: Yes, I hope we have
the name, I did not catch it.
Professor Rasmussen: Liesbet Hooghe. She has
for example published a book and an article in the prominent political
science journal, International Organization. I can give
you the reference.
Q32 Chairman: That would be very
helpful. I was simply drawing on a particular instance, which
I will not identify, where it could be suggested that most of
the project was spent working out what it was for, what it should
be targeted at and what it was aimed at. There was a slight impression
that the project had developed simply because some project was
necessary in the area and there was a certain amount of money
and there were people willing to do it. Are any examples that
you can think of that bear any resemblance to that?
Professor Rasmussen: I can say now for the current
Commission, as you know, one of the criticisms of the Barroso
Commission is that it has not launched many entirely new proposals;
that much of what is going on is related to the simplification
agenda, where we see a lot of simplification and codification
of existing legislation. At the moment, at least, it would be
very hard for a Commission official sitting in a DG, speculating,
"If I launch this new proposal, I would promote my career",
because there is not much ground now for new proposals; this is
not what is on the agenda at the moment. Whether that was the
case earlier, I would not be able to say.
Q33 Lord Lester of Herne Hill: That
is why I was putting forward my equality example, because here
you have the Commission itself putting forward a coherent proposal,
rationally motivated, a European Parliament which seems to be
in favour, and then a complete retreat from it to something that
is not apparently justifiable as a piece of coherent legislation.
I am trying to get my mind round the democratic principles in
this area. Obviously, in a national parliament, a government is
elected and it can decide on its programme. It has a democratic
mandate; there is parliament that is accountable, which is also
in evidence in the other House. Here we have a situation where
the Commission, with the right of initiative, has decided on the
public interest; a parliament seems to agree with it; the Parliament
and the Commissioners in their different ways have different kinds
of mandate; and the citizen has a very weak involvement in the
process. Can this be described in terms of the Law Society and
Bar Council's concern as more than ad hoc and somewhat incoherent,
without any real democratic input or ultimately transparency?
Professor Peers: I suppose that might beg the
question as to what would be the process of having the Commission's
discretion as regards its legislative agenda endorsed, approved
or controlled in some way by the Parliament and the Council. If
you wanted to ensure that those sorts of proposals were made more
often, perhaps you should have the European Parliament put forward
a legislative agenda each year and insist the Commission endorse
it. It would be difficult to do within the existing Treaty because
of the Commission's right of initiative. Or, perhaps you should
have the European Council, or the Council, or all of these bodies
together having that role. If you go down that road then the Commission's
right to initiative effectively ceases to exist and probably would
end up eventually being removed from the Treaty in favour of some
different process by means of which the other bodies will agree
between themselves on a list of legislative proposals and give
it to the Commission as a secretariat to draw those proposals
up. Perhaps that is the way that we should exploring or going
down. But if you really want to object to what seems to be happening
with that proposal, you would have to ask yourself the question,
do we want to give the Commission discretion to draw up a list
of legislation and to take into account whether it would be difficult
to get unanimity in the Council, as it would be on a broad discrimination
proposal extending beyond employment, or do we want the institutions
to draw up that list between them? If you give the Council or
the European Council the role, you would still have the problem
of getting unanimity on that proposal as a concept so it would
be rejected at that stage, rather than the stage of the Commission
taking into account the difficulty of getting the legislation
approved. The basic problem is unanimity on that particular area
of law. That is the problem at issue.
Q34 Lord Lester of Herne Hill: I
am not going to follow you down that road. What I am suggesting
is much more modest. Ought there not, at the very least, to be
a form of accountability when the Commission behaves, for example,
in the way I have just tried to describe, at least reason-giving
or some process vis-a"-vis the Parliament and Council, so
that the citizen can be satisfied that there is not horse trading
of an undesirable kind, where the Commission itself has decided
the public interest, produced a coherent proposal and for no public
reason, withdraws from it. That is really what I was getting at.
Professor Rasmussen: I do not know about that
concrete case. A good guess would be that the Commission has refrained
from introducing it because it does not expect to be able to get
it through the Council. On the more general question of whether
there is accountability, it may also be relevant to look at whether
the Commission gives reasons when it does not live up to requests
by the democratically-elected institutions, no matter whether
we are thinking of the European Parliament or the Council of Ministers?
Here we see an interesting change in the Lisbon Treaty in the
articles where it is stated that the Parliament and the Council
can invite the Commission to put forward legislative proposals.
A couple of lines have been added to the articles now stating
that in case the Commission decides not to live up to these requests,
it will have to provide either the Parliament or the Council with
the reasons for not doing so. That is not a significant change
in practice because, as you probably also know, the Commission
has already agreed to do this with the Parliament in the Framework
Agreement that it has with the Parliament so, in practice, if
the Parliament has used its formal treaty power to invite the
Commission to put forward a legislative proposal, the Commission
would inform the Parliament in writing if it does not live up
to that request. That rarely happens, but in case it happens,
the Commission will do that. Informally, the Commission has always
responded to requests by the Council by indicating to the Council
in the very few cases where it has not presented a proposal, why
that has been the case. So, we have some sort of accountability.
Q35 Baroness O'Cathain: Are those
reasons published?
Professor Rasmussen: I have to admit that I
do not know. I know that the Commission will respond in writing;
to the Parliament; whether it is publicised, I am not entirely
sure.
Professor Peers: I am thinking of one recent
example. As Professor Rasmussen said, it is quite rare for the
European Parliament to make an official, formal, request for legislation.
One case I know of where that happened recently was a unanimous
vote in the Parliament to suggest a very detailed proposal for
legislation, amending the legislation on access to documents.
In that case, the Commission produced a White Paper last year,
in which it barely mentioned the Parliament's proposal and certainly
did not respond to it promptly or in detail as it is required
to do by the Framework Agreement. The mere fact that you have
this essentially political agreement in place does not mean that
it is actually applied, and that is a graphic example of it not
being applied. We will see a legislative proposal soon from the
Commission on this issue and I guess we will see whether they
have taken the Parliament's position into account. I suppose since
that is a co-decision area, the Parliament can always use its
co-decision powers, once it gets the proposal on the table, as
it will do in a week or so, to influence the legislation. But,
it has to get the proposal on the table first and that is perhaps
the biggest issue here for Lord Lester of Herne Hill. But to take
your example, if there is a proposal extending Community equality
law to more areas in relation to disability, the Parliament could
always try and get an amendment to extend that to other areas
as well, but at least it would have the disability proposal on
the table and it can then seek to expand it. So that might be
an approach that the Parliament would wish to take, but it does
not have so much power in that area. It does not have co-decision
powers so it is obviously going to be harder for its position
to be successful.
Q36 Chairman: How far does it ever
occur that the Parliament invites a member of the Commission,
or a Commissioner or the President to attend either before a committee
or the plenary in relation to a legislative proposal to explain
why it is not being put forward, or why it is being put forward
in the form that it is? Has that ever occurred? It is theoretically
open.
Professor Rasmussen: The Commission always participates
in the internal deliberations of the European Parliament when
they are debating legislation that is on the table, but whether
a Commissioner or a high-level civil servant would appear and
explain to the Parliament the reasons for not living up to a request,
I do not know.
Professor Peers: I have heard a number of press
reports about plenary sessions of the European Parliament, where
members asked when a proposal was coming and MEPs' questions to
the Commission are published—though not in every language
now—which have appeared in the past—I used to read
them regularly—that it is a common thing for MEPs to ask
the Commission, "When is this proposal you promised coming?"
or "Where is this proposal, which we think is a good idea,
coming?" So, it is not unusual to put pressure on the Commission
that way.
Lord Bowness: Looking at the evidence
from a member of the European Parliament, are they not able to
use the sessions on the Annual Work Programme to ask the questions?
It may be there to discuss the Annual Work Programme, but according
to this evidence they hold a series of bilateral meetings with
the relevant Commissioners, the results of which are assessed
by the Chairs of the parliamentary committees and the Commission
Vice-President, so presumably parliamentarians have an opportunity
to ask questions at that time, about why something is or is not
in the Work Programme.
Q37 Lord Lester of Herne Hill: The
issue that I have raised is exemplified by the fact that in the
new Work Programme it is no longer in the form it was in the previous
one last year, so there is a mismatch and therefore, presumably,
that could be raised in a question and answer form.
Professor Peers: Yes, I do not know when the
European Parliament would be able or would want to ask that question
of the Commission. Perhaps it would wait until the actual proposal
is made in a few weeks' time and then a question could be put
to the relevant Commissioner in the plenary session when it is
presented, or shortly afterwards, "Why, having made this
commitment for a very broad ranging proposal, have you cut it
back to disability?" That would be a good opportunity for
them to ask the question. But, at least, since they will have
a legislative proposal on the table, they can seek to expand it.
Another issue, since the Treaty of Lisbon, if it is ratified,
will come into force quite shortly, this could well be a subject
for a citizens' initiative. If we only have a proposal on the
table and it gets adopted dealing with disability, perhaps NGOs
interested in discrimination issues should make a subject of citizens'
initiative the issue of asking the Commission to make a more broad-ranging
equality rights proposal. Perhaps the Commission would politically—and
perhaps the Council politically—would also then feel that
they had to respond to the citizens' initiative and that might
change the political dynamics of the issue because of the perceived
necessity to respond to public opinion in the form of a citizens'
initiative.
Q38 Lord Lester of Herne Hill: Is
that the same thing as a petition? There has been a massive petition
already on that issue. Is that what we mean by a citizens' initiative?
Professor Peers: Yes, the Treaty already provides
for petitions. But the Treaty of Lisbon would provide for a citizens'
initiative, which is where there has to be legislation first adopted
to set up an official procedure and at least one million citizens
would be needed across Europe to sign it, the details of which
would be set out in the legislation. That would then be a formal
citizens' initiative, so perhaps that would have a higher profile
than petitions. Even though you could say that it is a similar
thing, it is likely to have a higher profile. The Commission and
perhaps the Council as well, more importantly, in the case of
unanimous voting, might well be more likely to pay attention to
something that has been requested of them in the form of a citizens'
initiative.
Q39 Lord Tomlinson: During my time
in the European Parliament, I was very much of the view that the
European Parliament was somewhat schizophrenic between those who
sought power in a political sense and those who sought powers
in a juridical sense. The European Parliament has used their political
power particularly effectively in relation to the Council of Ministers
where, for example, they put the budget for comitology into reserve.
Do you see any evidence of a willingness in the Parliament to
use power over the Commission, in the same way as they have begun
to exercise it in relation to the Council? Do you see any evidence
of them building the confidence, the competence, and the coherence
to use their political power, rather than become concerned about
juridical powers?
Professor Peers: Do you mean in the particular
context of pressing for legislative initiatives, or more generally?
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