Examination of Witness (Questions 60-79)
Lord Brittan of Spennithorne
30 APRIL 2008
Q60 Lord Rosser: I think that
you may have misunderstood the way I put it over. The extent to
which proposals came forward that were simply new initiatives
from the Commission and did not come as a result of other reasons
was only 5 per cent, i.e. it was very low; but, equally,
there was another category that came as a result, or is described
here in these figures as an express request from other bodies.
I was simply saying that, obviously, if the Commission had a particular
view about the direction in which it wanted to go and did not
want to put forward a proposal as a new initiative from itself,
it could simply wait until another body came up with the idea
that the Commission had and then it could argue that it was pursuing
it in response to a proposal from another organisation. It is
presumably in the Commission's interest to make it appear at times
as though the number of proposals that it pursues that are at
its own initiative is as small as possible.
Lord Brittan of Spennithorne: That may be the
case. That is pretty speculative. What I am saying is that the
Commission puts forward a proposal. It has to take the responsibility.
It is at its own initiative that it is doing it, and then it will
say who will support it or who has put forward the idea. Whether
it would have come up with the idea if somebody had not made the
proposal is a pretty abstract question, which I do not think is
really capable of an answer. Also, remember of course, as everybody
will, that lots and lots of people may have bright ideas in the
Commission but they will have some idea of the degree of support
that a particular idea will have. Many a time when I was in the
Commission people came up with ideas and I said, "It may
be a good idea or it may not be a good idea, but we know that
it will have no support from among the Member States; so there
is no point in putting it forward. You can talk about it and see
if you can gather more support, but one of the reasons why I am
not prepared, for example, to put the thing forward is because
I know that at the moment the degree of support is so limited
that we would be wasting our time". I think that one must
not underestimate the fact that the Commission is a comparatively
small institution. To take, for example, when I was responsible
for financial services, the number of people responsible for insurance,
say, was very small. I would not allow them to waste their time
coming up with ideas, however clever or brilliant they were, if
they stood no chance of getting anywhere.
Q61 Lord Jay of Ewelme: On
the same question and to remove what may be a kind of canard,
sometimes one hears the suggestion that there are people beavering
away in the engine room of the Commission who see it as very much
the route to advancement to produce some clever proposal, and
that that is a sort of motivation. Was that your experience while
you were there?
Lord Brittan of Spennithorne: It sounds more
like an investment bank than the Commission! No, that was not
the case at all. Nobody would score any brownie points for just
coming up with lots of silly proposals. You might score brownie
points if you came up with a proposal that seemed to make sense
and actually got through; but just to come up with lots of clever
ideas I do not think would get you very far.
Q62 Baroness O'Cathain: The
second part of the question by Lord Jay was whether the culture
of the Commission encouraged officials to generate ideas for legislation.
I take it from your answers that it is really reactive. The officials
are more in reactive mode than in proactive mode, because some
of the other areas that generate these ideas have to be sifted
through by the Commission officials. Is that right?
Lord Brittan of Spennithorne: It is certainly
the case to say that there are so many people wanting the Commission
to do things—whether it is national governments, industry
bodies or NGOs—that they are not going to be sitting twiddling
their thumbs, unless they come up with brilliant ideas which nobody
has ever thought of, and it is extremely unlikely that they would
do so. It is an iterative process. Coming up with a formal idea
is the end of a long process rather than the beginning. Supposing
somebody did think of an idea which he had not been aware that
anybody else had thought of, instead of putting it up to the Commission
or the directorate-general he would first of all take soundings
to see what people thought of it as an idea and also what support
it was going to get, and he would probably report back saying,
"I have taken soundings and, if you like it, I think there
is a reasonable degree of support for it".
Q63 Lord Wright of Richmond:
Lord Brittan, I do not want to pre-empt later questions about
the role of the European Council, but I am interested that you
listed three sources of Commission ideas: the Member States, the
European Parliament and NGOs. The Bar Council of England and Wales
have given us written evidence in which they list nine sources
of initiatives for the Commission, the first of which is formal
Council meetings. Do you yourself remember initiatives arising
out of formal Council meetings?
Lord Brittan of Spennithorne: In the sense of
going to a Council meeting and hearing an idea put forward for
the first time at such a Council meeting which we then go away
with and get going on, no. That would be rare. I could not think
of an example, but we are talking about some years back. What
is much more likely is that the Member State that is airing it
at the Council will have already put it forward to the Commission;
the Commission might not yet have decided to accept it and put
forward a proposal, and the Member State might very well then
seek to gather support for it by raising it, foro público
as it were, in the Council. That would add more weight to it as
far as the Commission's consideration of it. But just to sit and
go into the Council and somebody suggesting something for the
first time—it might happen but it is not a common source
of legislation.
Q64 Lord Blackwell: I imagine
that this process generates more ideas for legislation than can
be fitted into each session, and so I wonder if you could talk
a little bit about how the Annual Policy Strategy and the Annual
Legislative and Work Programme are developed out of this? How
are the priorities set? To what extent is there a top-down view
of what areas are important? Do you sift them or is it, as sometimes
in Whitehall, that every directorate gets its chance to have a
bit of legislation and then have a spot on the programme?
Lord Brittan of Spennithorne: I suspect the
process is remarkably similar to the Whitehall one. It is a bit
of both, in that the Commission, led, if you like, by the President
and his team, would have some idea of the broad priorities that
they wanted, which would have to be approved of course by the
Commission itself—the members of the Commission sitting
as such. Then there would be a cull from the departments of what
they had come up with; because, again, even the President of the
Commission and his team do not operate in a vacuum. There would
be an iterative process, which would lead to a plan of action
and priorities being put forward to the Commission by those drafting
it; and the Commission would then have to consider it and decide
whether those are the priorities that it wishes to put forward,
or whether it wishes to vary them. It might say, "Yes, but
we don't like item no.5" or "We think that item no.5
ought to be item no.16" or vice versa. I think that is the
way it would work. Can I say in answer to the previous question,
developing it further, that in terms of the number of sources
I was not seeking to be exhaustive at all. As far as the European
Council is concerned, I counted that as being part of the Member
States, because that of course is what it is.
Q65 Lord Blackwell: Just to
press you a little more on this annual programme—and there
are, as we know, a lot of Commissioners—presumably it must
be something of a brownie point for a Commissioner to have an
important piece of legislation going through. Putting it the other
way round, a Commissioner would feel a bit empty if they spent
their period of time there without a single piece of legislation;
so is there not an element of jockeying, to make sure that everyone—
Lord Brittan of Spennithorne: It depends what
your portfolio is. Of the two that I mainly did, when I was Competition
Commissioner we did not normally put forward legislative proposals
at all—hardly ever. There were very few of those, because
the job was to look at state aids, mergers, cartels and so on,
and rule on them in most cases. We were not concerned with legislation
very much, therefore.[1]
Similarly, in the area of foreign trade, when one was negotiating,
I spent my time trying to get an appropriate mandate from the
Council of Ministers to conduct a particular negotiation, or conduct
the negotiations and try to get Member States to approve the outcome
if we got an outcome—not seeking legislation. Certainly,
anyone in the competition or foreign trade areas would think it
daft to be judged by the number of legislative proposals they
put forward. On the other hand, in some of the other areas where
legislation is more to the fore, I suppose people would think
that if they did not come up with anything, people would think
that they had not done very well. However, it is the job of the
Commissioner to do the sifting and then of the Commission as a
whole to exercise the priorities and also to decide. While I was
there, for example, during the course of the period I was there,
at the beginning lots of legislation was put forward but, towards
the end—and I was there for nearly 11 years—there
was a very conscious decision that there should be much less legislation.
Q66 Lord Blackwell: If you looked
back at the end of each year, were you generally satisfied that
the right priorities had been promoted?
Lord Brittan of Spennithorne: I could not guarantee
that that was so. I had my personal prejudices and they were sometimes
met and sometimes were not. Like anything, I was satisfied that
the process was a reasonable one.
Q67 Lord Blackwell: It was
a rational process.
Lord Brittan of Spennithorne: It was a rational
process but I did not always get my way.
Q68 Lord Jay of Ewelme: I
want to ask a question to follow up what you were saying about
stakeholder relations. I suppose there are two sorts of these.
There are the lobbyists, who are always getting at the Commission
to push their own point of view, and there is the consultation
which the Commission will want to do, I imagine, in its own right.
Could you say something about the balance between those who get
at the Commission and those whom the Commission wants genuinely
to consult, and if you felt that balance was right? Also, if you
thought that this process of consultation or lobbying on the whole
genuinely improved the quality of legislation, or to some extent
distorted it?
Lord Brittan of Spennithorne: I think that the
lobbyists have a hard time on the whole; I think they have a hard
time in any administration or process like the Commission, because
they so obviously have an axe to grind. You immediately start
off by feeling, "Well, they would say that, wouldn't they?"
and so they have to work harder to prove a point and be persuasive.
In my experience, much more weight is given to consultees. When
you have something which you want to put up and you really want
to know "Is this going to run or is it not going to run?",
you are more likely to be influenced by the arguments put forward.
Also, even if you are not actually persuaded by the arguments
and all the world and his wife say that they do not like it—and,
however much you explain it, they still do not like it—there
is not much point in proceeding further.
Q69 Lord Jay of Ewelme: So
a clever lobbyist would wait to be consulted?
Lord Brittan of Spennithorne: No, I think that
a clever lobbyist would feel that he was not doing his job unless
he put his oar in first. He could not be sure that he was going
to be consulted or that there would be anything on which he was
going to be consulted, so he could not risk that. However, I think
he would realise that the consultation process was likely to be
more fruitful than just the lobbying. Although sometimes, of course,
particularly if it is something very technical—in telecommunications
or something—I literally would not have a clue what to do,
but people who were in the business and knew about it would put
forward proposals which one had to try and understand and take
a view on, and judge the extent to which they were self-interested
and the extent to which they were in the general interest.
Q70 Lord Jay of Ewelme: One
final question on consultation. Would it be the case that there
would be a pretty formal process of consultation on every Commission
proposal, do you think?
Lord Brittan of Spennithorne: I cannot think
of any where there was not. Unless—and I could just about
imagine it—say, within the Council there was an overwhelming
request for something that was really urgent and that had to have
legislation, then I could imagine that there might just be, not
a formal consultative process, or a very abbreviated and simplified
one.
Q71 Lord Tomlinson: I want
to pursue this question about stakeholder consultation because,
with a body like the European Commission, you have an enormous
number of stakeholders. I want to ask you a question about one
experience I had during the Convention on the Future of Europe,
where the Commission in particular wanted the Convention to consult
civil society. NGOs were invited and they responded by the thousand
and, in order to make it manageable consultation, they decided
to consult only NGOs that operated at a European level. We wound
up consulting only the NGOs that received a subvention from the
European Commission. Is there not a danger in this sort of process,
where there are so many who want to be consulted that you consult
those who organise at the European level and, in the case of bodies
like NGOs, they are actually the recipients of your—I do
not say it derogatorily, but they are in fact the recipients of
your largesse?
Lord Brittan of Spennithorne: I cannot say how
common an experience that is; all I can say is that if that happened
and I was aware of it, and I was the responsible Commissioner,
I would be profoundly unhappy about that outcome.
Lord Tomlinson: As I was, but to ill
effect in the Convention.
Q72 Lord Burnett: This follows
on the point made by Lord Tomlinson. It is tangential perhaps
but nevertheless interesting. Lobbyists are important people but
they are very powerful sometimes. What rules of conduct are there
in the EU in respect of EU officials like Commissioners and so
forth, who have enormous powers, in restraining the activities
of lobbyists and in restraint of the processes and their activities—and
perhaps the inducements they could offer?
Lord Brittan of Spennithorne: I think that I
am a little bit out of date on that, because there have been important
developments since I left the Commission, which was after all
at the end of 1999. There were obviously rules then relating to
transparency and relating to preventing corruption, at the very
worst. They were perfectly sound rules but they were fairly simple
ones. I understand that since then it has been extended and formalised
very much more, obviously in the direction of transparency and
everybody knowing who the people are who are making the lobbying
efforts, everybody else being allowed to know that they are doing
it; and obviously to avoid any kind of impropriety—but I
could not give you details of that.
Q73 Lord Burnett: The next
question is provoked by the Law Society, who believe that, in
the absence of more co-ordinated thinking in the Commission, matters
such as the preparation of legislation are developed in what they
describe as "policy silos" and that there is not enough
co-ordinated activity in the preparation of policy and legislation.
Lord Brittan of Spennithorne: We are talking
about the preparation of policy, not the technicalities of the
legislation.
Q74 Lord Burnett: Correct.
Lord Brittan of Spennithorne: It is always easy
to talk about joined-up government, and we know that that has
become a mantra in certain quarters in this country. I am not
always sure what it means. Who is to do the co-ordination? If
it means that there should be a central power in the institution
which has greater control, I am not sure that I would be terribly
happy about that. If it means that there should be a coherence
of the programme and that we should not be putting forward mutually
inconsistent things, then I would agree with that very much. I
am therefore open to the idea that there should be more co-ordination,
but I would be chary of buying it just like that, without knowing
what the people who want more co-ordination would actually like
to see happen. I can see at least as many dangers as benefits
in things that could be done in the name of co-ordination, i.e.
centralised diktat.
Q75 Lord Burnett: And as regards
legislation? What about the co-ordination of legislation after
the policy?
Lord Brittan of Spennithorne: The preparation,
which is the technical side which perhaps the Law Society might
be concerned about, obviously is done largely by the legal people,
and I think is done quite well. In my experience, it is done quite
well. Usually, when legislation is subsequently found to be bad—in
the sense that there is ambiguity of an unnecessary or unacceptable
kind—it has usually come about because of compromises forced
on the Commission in the course of going through the Council,
when, in order to get the necessary degree of support, you may
be tempted to accept this proposal for an amendment and
that proposal for an amendment, and then the thing starts
losing coherence, or becomes excessively bulky. That is where
the defects, in the technical sense, of the legislation come about.
Q76 Lord Burnett: Are there
sufficient members of staff in the EU or is there an abundance
of them, and do they consult widely among national professional
bodies, for example?
Lord Brittan of Spennithorne: Yes. I certainly
would not be in favour of increasing the size of the Commission;
I think that it is quite big enough. On the other hand, as a commonplace,
it is really very small compared with the size of a national administration.
It is a thin red line. When I was Home Secretary here, I did not
conceal it but people were pretty astonished at how few people
there were dealing with important matters; and I suspect that
is true of most administrations anywhere. Can I give you a very
vivid example? When I was first a Commissioner I was dealing with
financial services and we were trying to get through the Investment
Services Directive, which was meant to produce a single passport
for investment services. We were completely stuck. We were stuck
because, essentially, of British-led suspicions on the one hand
and French-led suspicions in the opposite direction. I eventually
said, "Let's send out a sort of grid, which says `What is
it that you want us to do and what is it that you are afraid of
in its present form that it might do?'." We got the responses
from the Member States and we were able to make changes which,
hopefully, would achieve the objectives that people wanted—the
common objectives—and would allay the fears of those who
were worried about `X' or were worried about the opposite of `X'.
The result was that the directive was four times as long as the
original draft, and I am not sure that it was any better. It did
not do the trick and has had to be supplemented since. That is
the kind of thing that can happen, therefore.
Q77 Lord Wright of Richmond:
Lord Brittan, can you tell us what role the College of Commissioners
plays in both the initiation and development of EU proposals?
Lord Brittan of Spennithorne: The College of
Commissioners typically might have—and of course it will
vary from President to President as to the way he organises it—an
initial debate early in the stage of the process as to what the
priorities are, where people would in very general terms say they
should be. They would come up with their own, if you like, pet
ideas; then it would be up to the President and his team to try
and weld those into what they thought was a coherent and acceptable
package, work it up, and then come up with the finished goods
to the College of Commissioners, who would accept it, further
amend it, or whatever. That, very roughly, is the process.
Q78 Lord Blackwell: As the
Commission and the College of Commissioners look at these proposals,
is there any formal challenge built into the system around proportionality
and subsidiarity? In other words, is there any group or body in
the Commission that takes these proposals and says, "Hang
on, this sounds a very good idea and we'd love to do it but, for
the following reasons, it offends ... "?
Lord Brittan of Spennithorne: In my early days
it was not very formalised and I had to say, for example, "This
is a bit of a sledgehammer to crack a nut"—in the hope
that the translators would be able to translate that expression
into the various languages—or "Isn't this overdoing
it?" or "Does it need to be done at European level?"
or whatever.
Q79 Lord Blackwell: You would
issue that challenge as a Commissioner?
Lord Brittan of Spennithorne: Yes. Every Commissioner
had to decide to what extent he wished to raise issues of proportionality
or subsidiarity with any given proposal. As time went on and the
ideas became more prevalent, the thing was more formalised and
there was a formal system whereby a view had to be expressed on
that. It had to be considered before it was put forward and a
view expressed on it, and then the College of Commissioners would
have to decide whether they agreed it. Obviously, there would
be proposals which the directorate-general itself would have to
concede were disproportionate or did not need to be done Europe-wide,
and would never get beyond first base.
1 Note by witness: With the major exception
of the Merger Regulation which had been under discussions for
years and was finally agreed at the end of my first year as Competition
Commissioner. Back
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