Examination of Witnesses (Questions 40-53)
Professor Steve Peers and Professor Anne Rasmussen
23 APRIL 2008
Q40 Lord Tomlinson: That in particular,
in the context of this, or any other example which might be a
precedent for them extending into this area.
Professor Peers: Of course, you have very prominent
examples of the Parliament gaining more powers over the appointment
of the Presidents and Commissioners.
Q41 Lord Tomlinson: But they are
juridical powers.
Professor Peers: Yes. In terms of pressing for
legislative proposals, the official procedure by which the Parliament
can request a proposal is very rarely used but there are often
informal suggestions for legislation made in a resolution of the
Parliament, for instance, in response to a White Paper. The Parliament
might well say, "this is a good idea as a topic for legislation,
let's see legislation right away and it should have these main
aspects to it". So, you have that as an example and other
own-initiative resolutions often raise issues that the Parliament
thinks are good ideas for legislation without being a formal request
for legislation. You can find quite a few examples of that. To
come back to Professor Rasmussen's example, you find many examples
of legislation where the Parliament insists on some kind of review
clause where the Commission is called upon to make proposals for
legislation. Again, I have to give you the same example of access
to documents, where that is not always effective. One of the main
things the Parliament did in negotiating the access to the documents
Regulation of 2001, was to get a review clause; the Commission
had to review it within three years—2004. I remember the
rapporteur telling NGOs at the time who were concerned about the
regulation, "this is a great victory, we are going to have
to have it revised in three years' time". But then, when
it came to it in three years' time, the Commission said, "No,
we're not going to propose an amendment". It is only now,
four years later, that they are imminently about to propose one.
So, you cannot overstate the importance of the Parliament getting
those review clauses placed into the legislation, you would have
to do an analytical survey of them all within a particular area
of law to see how often they are effective in getting the Commission
to make further proposals in a reasonable period of time, because
often they are reasonably successful, often they are not. In general,
the Parliament has been trying to use those mechanisms to pressure
the Commission to make proposals and sometimes it is successful,
sometimes it is not. It is rather hard to quantify how often it
is using that kind of power and how often it is successful.
Professor Rasmussen: The relationship between
the Parliament and the Commission is an interesting one because
in many areas the Commission has been an ally for the Parliament
that MEPs could use in order to put pressure on the Council. For
example, when the co-decision procedure was introduced, it was
not a bi-cameral procedure as we know it for many bi-cameral parliaments
because, even if it provided for the Parliament and the Council
to get together and directly negotiate in the Conciliation Committee,
there was the possibility for the Council in case it did not manage
to reach agreement in the Committee, to reinstate its common position,
which would become law unless the Parliament gathered an absolute
majority of its members against it. The Parliament was, of course,
unhappy with this; it felt that it was not on equal terms with
the Council, so it stated in its Rules of Procedure that in case
it did not manage to reach agreement with the Council in the Conciliation
Committee, the Commission would be required to withdraw the proposal
so that the Council could not just reinstate its previous position.
That is just one example. Another example where the Parliament
has tried to establish a close relationship with the Commission
has been when it comes to comitology because, even though now
we have a new comitology decision where the Parliament will get
more power over those cases that come out of the co-decision procedure,
for many years the Parliament has not had any real power when
it comes to comitology and it has tended to rely on the Commission.
So it has usually supported the comitology procedure set-up, which
gives the Commission as much power as possible and the Council
as little power as possible. For years these two institutions
have been allies, but we have seen in recent years a tendency
for this Commission/Parliament relationship to become more conflictual.
Q42 Baroness O'Cathain: I want to
pursue the point that Lord Lester of Herne Hill made about the
proposal which was watered down. In your responses, I have to
say the words "might", "could", "maybe",
keep cropping up. Can we ask a straight question: if Lord Lester
of Herne Hill's example came back again to the Commission, could
the Commission just say, "No, we're not going to bother"?
Like, for example, extending from disability into the other rights.
Professor Peers: If there were a legislative
proposal that the Council has announced will come soon and it
only relates to disability, the Parliament can always try and
table amendments to it to expand it.
Q43 Baroness O'Cathain: Try?
Professor Peers: Yes, it can, as such, table
an amendment to it; that can be where the Parliament votes for;
but the most important thing at that point, once the legislation
is on the table, is to convince the Council. It might well convince
the Commission to expand the scope of the proposal, it does not
actually matter, because the voting is by unanimity anyway in
the Council and will remain so after the Lisbon Treaty. So, that
is the problem that the Parliament would have; it would gain a
power of consent, rather than consultation after the Lisbon Treaty
on that proposal. But, still, it has to get the Council to agree
unanimously; that is going to be the real debate, although the
real dynamic will be between the Parliament and the Council, if
that happens. It is not so important any more that the Commission
make that proposal.
Q44 Lord Jay of Ewelme: We have talked
a great deal, when talking about other actors, about people putting
pressure on the Commission and trying to influence the Commission,
which is one side of the coin, but there is presumably another
side of the coin, which is the Commission genuinely wanting to
consult and seek the views of people before they come forward
with a proposal. I did not want that side of things to get lost.
It seems to me to be a rather important part of the process for
proposals coming forward. Is that an important part of the process
in your view?
Professor Peers: Behind any significant set
of proposals there is often some form of consultation—a
green paper or white paper, or just a consultation paper, as well
as impact assessments—the results of which are published
on the Commission's website in some form and you could perhaps
do a comparison between the position of the consulted parties
and what the Commission eventually comes up with. Certainly, the
Commission is genuinely interested in the consultations. Inevitably,
since those consulted take different views, and the Commission
has to be more concerned about the Parliament and the Council
and whether they will adopt the legislation, it probably takes
more account of what Member States think or what it perceives
Member States are likely to say and what the European Parliament
majority is likely to say than it does of the consultees. It can,
of course, rely on the consultees' arguments if there is an overwhelming
point of view on one point or another to try and give it legitimacy
in terms of any proposal it makes that corresponds to the views
of the consultees.
Q45 Lord Bowness: We have talked
a great deal about the interaction between the Commission and
the Parliament and it is fairly clear from what you have said
that one is able to see when the Parliament wants to put forward
an idea, whether by way of formal process or whether included
in resolutions. But what about the Council? How open is all that?
Do you find their proposals in the Presidency Conclusions, or
is it something which is "hole-in-the-corner" lobbying?
How open is the process in terms of when the idea comes from them?
Professor Peers: Usually, the final result of
the process is open because the Council's Conclusions or the European
Council's Conclusions are published as part of a press release
of one or the other. There might, of course, be some private lobbying
going on outside of the formal Council Conclusions; and there
is also a question of how open the process is of arriving at the
Conclusions, because the final Conclusions of the European Council
or the Council on a particular point do not tend to be published
or made available until the very end of the decision-making, when
those conclusions have already been agreed. That is the problem
with openness; the ability to influence the Council and the European
Council during that process of drawing up the Conclusions, where
it is perhaps more important to have that influence for national
parliaments or for civil society, for instance.
Q46 Chairman: Has anyone done a study
on the impact and effectiveness of lobbying? It must be very difficult
at the European level to get a representative picture of all the
issues and all the interests, and lobbyists obviously feel that
there is a point in having offices in Brussels.
Professor Rasmussen: We do have studies, yes,
but very often studies of interest representation do not try to
measure influence, as such, because of the challenges involved
in doing that. What they would often measure would be access to
the different institutions and there we can say something about
the conditions under which a given type of group enjoys access
or which type of groups enjoys access to which kind of institutions.
Those are the kind of studies that exist.
Q47 Chairman: If there is a particular
telling one, maybe either you or Lord Norton can assist us. We
should move on to the area of Third Pillar legislation. What is
the reasoning behind the shared right of initiative? Roughly what
percentage of legislative proposals are Commission proposals and
what percentage are Member States' initiatives? And, where do
ideas for Third Pillar legislation come from? Can you give us
some examples?
Professor Peers: I can start with giving you
exact statistics on where the proposals come from. As regards
adopted legislation in the Third Pillar, adopted since the Treaty
of Amsterdam, when the Commission more fully shared the right
of initiative with the Member States on policing and criminal
law, it is interesting to break it down between Framework Decisions,
which harmonise national law and mainly deal with criminal law
issues, and Decisions, which are otherwise binding but tend to
deal with more policing issues. In the case of Framework Decisions,
the balance of the 21 adopted is 12 proposed by Member States,
nine proposed by the Commission. Nine more have been agreed of
which only two were proposed by Member States, seven by the Commission,
so that adds up to 14 proposed by Member States and 16 proposed
by the Commission, so it is about half and half. In the case of
Decisions, which deal with policing law, it is more overwhelmingly
Member States where 27 adopted proposals were proposed by Member
States, only 11 by the Commission, of which seven only dealt with
funding programmes from the Community budget where the Commission
has a role in implementation and it is natural that it would make
a proposal for a funding programme. It is interesting to see Member
States having a greater influence in one area and as regards one
type of instrument.
The Committee suspended from 5.47 pm to 5.59
pm for a division in the House
Q48Chairman: I think we can resume now.
Professor Peers: I was in the middle of the
statistics: there were six proposals for conventions or protocols,
all by Member States, and also there was a transitional period
where Member States shared the right of initiative over immigration,
asylum and civil law. During that five years, I counted 38 proposals
from the Commission, 25 from Member States, so about two-thirds
were from the Commission. Again, it is different depending on
subject-matter; the Commission made almost all the proposals on
admission—on asylum and legal migration; Member States made
the majority relating to control of migration—on illegal
migration and visas and borders. Again, the topic dictated the
relative influence of the Commission as compared to the Member
States. As for the reasoning behind this shared right of initiative,
probably it is lack of expertise in the Commission considering
that it did not have a Directorate-General on justice and home
affairs until 1999, and it took a while to build that Directorate-General
once it was set up. Also, the national sensitivity and issues
of national sovereignty, which arise in most areas of the Third
Pillar and the degree of national divergences in the concepts
underlying civil and criminal law, in particular, probably also
led to a shared right of initiative. As to where the ideas for
legislation come from, most of them are set out quite generally
in the programme of the European Council. My Lord Chairman, you
have already mentioned Tampere in 1999; we have also had the Hague
programme in 2004, and at various times the European Council has
reviewed or dealt with justice and home affairs issues, most obviously
in an emergency meeting after September 2001, but on several other
occasions it has devoted quite a big chunk of its discussion to
aspects of justice and home affairs. Again, there was an emergency
meeting after the Madrid bombings in 2004; at one point in Seville
in 2002, immigration and asylum was a big part of discussions,
and on several other occasions also. You can point much of the
general ideas for legislation back to the original conclusions
of the European Council at those times. There is a difference
in the way that the European Council reached its conclusions in
Tampere and The Hague. The Tampere conclusions were basically
drafted by presidents and prime ministers, whereas the Hague Programme
was drafted by the interior ministers and justice ministers of
the Member States, trying to make sure their prime ministers did
not get any influence five years later on the programme. In any
case, it has a big influence and more influence over time on the
proposals made by the Commission and the proposals made by Member
States also in the Third Pillar. The Member States proposals in
particular are more and more within the framework of the general
programmes rather than just ideas that occur to particular ministers
for domestic political consumption. What influence do national
bodies have and how are national concerns accommodated? Obviously,
they are more directly accommodated where Member States make proposals.
It has been more common recently for a group of Member States
to make proposals. In the last year, several times, there have
been seven and even up to 15 Member States making group proposals.
You might think it would be almost impossible to co-ordinate officials
from the Member States to draft those proposals, but it has been
possible in practice. It is understood that the Council Secretariat
and the Council Legal Service in practice does much of the drafting
of these legislative proposals. In one interesting example recently,
15 Member States proposed to amend the Eurojust Decision, but
the United Kingdom Government—not being one of those 15
Member States—told the Commons Committee that most Member
States did not agree with at least aspects of what they proposed—which
is a little unusual—but they just wanted to get an initiative
on the table. Another interesting feature is that several times
recently Member States or groups of Member States have made proposals
precisely quite clearly knowing that they would forestall the
Commission making one. The Eurojust initiative is a good example
of that. The Commission had long said it was going to make a proposal
in July 2008; Member States went ahead and made a proposal of
their own in January, as well as proposals on in absentia
trials and recognition and probation decisions, where the Member
States deliberately forestalled a Commission proposal. In at least
some of those cases, the Commission has probably already spent
money on a consultant's report for the impact assessment that
it would be doing. Obviously, if that impact assessment is ever
produced and made public, it is now a bit pointless because Member
States have already made their proposal without having any chance
to consider it.
Q49Chairman: Could you get concurrent proposals?
Could you get a competing proposal from the Commission in that
sort of situation at the moment?
Professor Peers: That is possible, yes. It is
possible you could have some concurrent proposals from different
Member States. That happened years ago, in the case of Eurojust,
when it was first established, but that has not happened since.
The Commission shies away from making competing proposals; rather
it comments on the Member States' proposals. In a few cases, the
Member States have made a few proposals even after the Commission
has tabled one. In the case of the Prüm Treaty; that was
negotiated between a group of Member States, the Commission then
proposed a Framework Decision on the principle of availability
of policing information and then Member States just ignored that.
What they did instead was to bring the Prüm Treaty, on the
initiative of Member States, within the framework of EU law, so
the Commission was undercut that way. You can find plenty of examples
of the Commission being undercut by the shared right of initiative
of Member States. Even though the Treaty of Lisbon would require
one quarter of Member States to make a proposal—not any
individual Member State—it has frequently been the case
recently that you have had a quarter or even a half of Member
States making a proposal, so that Member States already have experience
of being able to get together and make collective proposals so
they may well be thinking about continuing to do that.
Q50 Chairman: Would you remind us,
is that going to be generalised? At the moment the Member States'
initiative is in the Third Pillar context; once you have a merging
of the Pillars, the right of a quarter of Member States to make
a proposal is going to be generalised?
Professor Peers: No, that would still be confined
to policing and criminal law. If it were generalised, that would
radically change the right of initiative of the Commission. It
would still be confined to policing and criminal law. Another
interesting feature is that the seven Member States required to
make a proposal is very close to the nine Member States which
have the right to go ahead on the basis of enhanced co-operation
which would be facilitated in policing and criminal law; they
could go ahead with it more easily, so that may be a factor also.
Seven Member States who wanted to make a proposal would always
be aware that they just needed two more to join them and they
could go ahead with that measure, usually on an expedited basis
as regards enhanced co-operation without needing the Commission
and the Parliament, or the other Member States, to agree to it.
So, that may be a feature there; the interplay between the right
of initiative and enhanced co-operation. All this shows you what
would happen if the Commission more generally had to share its
right of initiative with Member States in the formal sense, not
just in the informal sense that Member States or the Council can
ask for proposals; it would change the institutional dynamics
quite profoundly. Even though it is fair to say that the Commission's
right of initiative is not that strong even in the Community framework—there
are many constraints upon it—certainly it would be possible
to weaken it further; if you ever moved towards a system of officially
sharing the right of initiative the Commission would be quite
dramatically weakened and the evidence clearly shows that.
Q51 Lord Lester of Herne Hill: My
question does not quite fall within the point we are on now, but
I wonder if I could just ask this: James Flynn, QC, on behalf
of the European Committee of the Bar Council, in paragraph 17
of his evidence to us, points out that Commission departments,
especially in the justice field, are understaffed and rarely have
common law lawyers within them, much less in all key areas. He
suggests that proposals are therefore often drafted by someone
with little knowledge of the subject matter, and likely no knowledge
at all of the implications for the common law of what they are
suggesting. Bearing in mind that only four Member States are common
law States anyway, in what we are looking at about initiating
legislation, is that a matter which should be of some concern
to us?
Professor Peers: The United Kingdom and Ireland,
of course, have an opt-out as far as civil law and would have
it as regards criminal law, replacing a veto that they have at
the moment, as regards criminal law. So, at least for those two
common law States, there are ways to avoid a piece of legislation
which would have a problem from the point of view of the common
law being imposed upon us. It is true to say, yes, that Directorate-General
is relatively understaffed and has relatively few people from
a common law perspective, although two proposals which the United
Kingdom had some concerns about on criminal suspects and the European
evidence warrant were drafted by English and Scottish people respectively,
and still in the case of criminal suspects, the United Kingdom
was entirely unwilling to agree to it, even though by the end
of the negotiations on that proposal, it resembled the European
Convention on Human Rights, which of course was drafted by British
lawyers anyway and has been implemented within our national law.
That did not stop the United Kingdom from leading the opposition
to the adoption of that proposal. So, not many of the proposals
that have been generated, in practice, would lead to huge problems
from a common law perspective, either in the case of civil law
or criminal law, but that is a possibility in the future, particularly
with the clarified competence under the Treaty of Lisbon, as relates
to criminal law in particular; proposals of that sort might come
forward or the competence to propose a European public prosecutor
almost inevitably would cause problems for the common law approach
to criminal procedure. Then, again, the right to opt out is there,
and the right to veto in that particular case of the public prosecutor
is there if we did opt in. So, there are ways in which the United
Kingdom and Ireland can protect their position.
Q52 Chairman: The best way presumably
would be to have serious representation within the Commission
of the common law.
Professor Peers: Yes, that would be ideal. The
Treaty of Lisbon has a particular provision saying that the diversity
of national law in the area of criminal justice should be respected
when making proposals on criminal procedure in particular. Perhaps
one thing that could be considered is that the Commission should
have some thought about the way it organises itself and the way
it obtains information in the early stages of drafting a proposal
and thinking about drafting a proposal, to make sure that those
different legal traditions are represented, rather than a couple
of people with a Franco-German tradition, etc., making the assumption
that their tradition is broadly representative. You would need
to have a process put in place at the level of the Commission,
making sure that right from the very beginning, the proposal is
sensitive to divergences of national legal systems.
Q53 Chairman: I am not sure how far
the Commission's legal department is involved in proposals; I
am not aware that it is, on a drafting basis or formulation basis.
Professor Peers: My understanding is that they
look at draft proposals and make comments—and I have seen
some comments a few times that they have made on draft proposals
and communications—but I do not think they have a direct
role in drafting; not generally speaking.
Chairman: We are very grateful for your
answers to the questions. Unless there is anybody else who wants
to ask a pressing question, we ought to allow you to go, with
our thanks.
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