Examination of Witness (Questions 80-99)
Lord Brittan of Spennithorne
30 APRIL 2008
Q80 Lord Blackwell: Was that
seen as a serious challenge, a serious scrutiny, or was it effectively
just a tick-box on the front of the legislation that says—
Lord Brittan of Spennithorne: I would say that,
as time went on, it got more and more serious. It had to be formalised
but, as you say, if it is formalised it could just be a box-ticking
thing. Then it depended very much on the individual people concerned,
how seriously they took it; because these considerations are inherently
not quantifiable; they are judgemental and to an extent subjective,
and so it very much depended on, if you like, the political philosophy
of the individual Commissioners. However, I would say that generally
these considerations increased in the degree of real seriousness
with which they were applied during my time with the Commission.
Q81 Lord Burnett: This is
just a quick supplementary on the sifting process. Do the Commission
consider the divergences and the levels of implementation of legislation,
if and when they are considering it? Some states might find implementation
very expensive or very difficult. I recall when milk quotas came
in, we implemented the regulations pretty quickly in the early
1980s, and I am not sure whether the Italians have yet to implement
the milk quota regime. That is just one example. Do these things
get considered?
Lord Brittan of Spennithorne: Yes, it would
be quite a common and wholly relevant consideration to say, "Look,
it's a lovely idea but it's fantastically bureaucratic. It would
require enormous numbers of people and enormous expenditure. Very
few states could or would do it properly", and therefore
we would not propose it at all. That was not uncommon. People
would give their experience from different countries. Just as
people, quite legitimately, without taking instructions from national
governments, would say that there might be a particular proposal
which would have disproportionate benefit for their country, as
well as others which might have a disproportionate disadvantage.
Those kinds of discussions, both as to the practicalities and
as to the positive merits, would absolutely take place.
Q82 Baroness O'Cathain: I
am going into the process area now. How influential are the other
institutions other than the Commission? In your answer to the
first question you said that there were three main areas: lobbying
the Commission, then the Member States and then the European Parliament.
Was that in an order of importance? In other words, do you think
that the European Parliament has a large role to play in the initiation
or development of legislation?
Lord Brittan of Spennithorne: I will not say
that mine was an ill-considered answer, but it was not meant to
be in order of importance; still less was it exclusive because,
since then, questioners have mentioned lots of other sources,
which I would readily concede are at least as important. As to
the European Parliament, the important point to make is this.
Just as its legislative role increased over the period that I
was there and has increased a lot since then, similarly its role
in every other sense increased. The extent to which ideas coming
from the European Parliament, even if not part of a formal legislative
process, would have an impact on the Commission in considering
the matters put forward as proposals has certainly increased.
Q83 Baroness O'Cathain: The
next part of the question is how far do the conclusions of meetings
of the European Council set the agenda for the legislative proposals?
Has the European Council's emerging role as a high-level decision-maker
weakened the Commission's role?
Lord Brittan of Spennithorne: The short answer
is I think that the European Council has had an increasingly important
role, as is reflected by the fact that it is only now becoming
a European Union institution. It was quite an informal thing.
It is difficult to quantify, but I would say that over the period
I was there that role increased and, since then, it has increased
still more. Frankly, at the very beginning of the period when
I went there in 1989, more important than the European Council
was the meeting between the French and German heads of government
who would get together and concoct something. That was very, very
powerful. That became less and less powerful, I am glad to say—exercising
the freedom that I now have to say things like that—and
the European Council became more influential in that respect.
Q84 Baroness O'Cathain: Was
that in direct relationship to the enlargement?
Lord Brittan of Spennithorne: I think that happened
before enlargement even, yes. I think that it certainly happened
before enlargement.
Q85 Lord Rosser: May I pursue
the question that is being asked, and I am probably putting this
in a very simplistic way? If I am an organisation, a lobby group,
that wants to see proposals initiated and become legislation in
a particular area, let us say transport or something like that,
and I am therefore faced with the European Council, the Commission
and the Parliament, which of those three is the key one to get
on board? Who should I go to first? Is one more influential than
the other? Is it imperative to get the support of the Commission?
Is it imperative to get the support of the Parliament primarily?
Is it imperative to get the support of the Council? In other words,
which has more influence than the others in actually determining
whether one would be successful?
Lord Brittan of Spennithorne: There is not a
single answer to that, because it would depend on what the proposal
is. It would depend on its degree of novelty, and so on. If you
have something which really no one has thought about at all, the
question is how controversial it is as well. I have had to deal
with this in a practical sense because, since leaving the Commission,
I have had innumerable people coming up to me and saying, "I
want this. Who should I go to?"—to which my response
is, "If you can afford it, go to everybody. If it is that
important to you and you have got the money, go to everybody".
If they say, "We don't have the money" or "We don't
wish to spend that amount of money. Which should we focus on?"
I would then have to ask them, "What is this proposal?"
and the answer would vary according to how novel it was and how
controversial it was. I think that in most cases I would say,
"Go to the Commission first". However, I would also
say, "For God's sake, even if you are a frightfully important
person and the head of an enormous company, don't say, `I want
to see the Commissioner. Start by talking to much more
junior levels; try to enlist their support, find out what they
think about it, and then work your way up". However, it would
depend very much on what the proposal was.
Q86 Lord Tomlinson: I would
like to pursue the role of the European Council, not in the formal
legislative process but the process that distorted somewhat the
other process of decision-making. As somebody who believes that
the European budget is a legislative act, I can recall a number
of times when the European Council came to informal agreement
that on some occasions was little short of lunatic. For example,
I can remember when there was pressure from President Mitterand
to get an agreement to 50 million ecu being placed in the budget
to underpin democratic forces in Algeria. By the time the process
had happened, the undemocratic forces that President Mitterand
was seeking to overcome were in fact in power. You then had to
determine how to prevent them becoming the recipients of the 50
million. You can find other examples like that. Was that a big
problem in the Commission?
Lord Brittan of Spennithorne: Folly does not
have a unique source. That kind of thing could happen. After all,
let us face it, we are talking about a political process and sometimes
you have to accommodate folly in order to achieve the larger objective
of something which is very important. Dare I say it to Lord Tomlinson
specifically, it was not unknown for the European Parliament to
make a condition of their acceptance of something the inclusion
of a penny-pocket of something that met somebody's pet interest.
Sometimes one had to gulp and, in the interests of the larger
whole, say, "Okay, we will spend 10 million on supporting
pelota" or whatever it might be.
Lord Tomlinson: Beekeepers!
Q87 Lord Jay of Ewelme: I
want to ask a question about the relationship between the sources
of legislation and the quality of legislation. We have heard that
legislation may come forward from within the Commission; it may
come forward or be initiated by a Member State; it may be initiated
in some instances by the Parliament. Do you think that the nature
of the proposal, or the quality of the final proposal that then
emerges and goes to the Council, is any different if it comes
from within the Commission or comes from a Member State or comes
from the Parliament, or does the process inside the Commission
ensure that there is enough quality control and what comes out
at the end is in all respects satisfactory?
Lord Brittan of Spennithorne: I would say the
latter. By the time the proposal is actually put forward it will
have gone through the internal procedures, principally the legal
service obviously, and the draughtsmen and so on. I do not think
you could, if you were looking at it as a technician and looking
at the quality of the legislation, jog back and say, "That
obviously comes from `X', because it is better than that".
I do not think that you could do that.
Q88 Chairman: The Work Programme
drawn up by each presidency—what involvement does the Commission
have with that, albeit informally? What effect does it have on
the legislative programme?
Lord Brittan of Spennithorne: I think quite
a lot. It would vary from country to country, but in most cases,
again, there would be a lot of discussion between the Commission
and the Member State concerned about that. They did not have to
listen to the Commission but they would know that, particularly
if it was a question of legislation where the Commission had
the unique right of initiative, there was not much point in coming
up with a programme which would not get through the Member States
and would not be accepted by the Commission; so there is quite
a lot of discussion.
Q89 Baroness O'Cathain: I
know that this is in the area of speculation but, in view of the
changes which are proposed in the Treaty of Lisbon, the fact that
the presidency will be semi-permanent for a period of time, how
will that affect the ability of Member States to get their bit
through—knowing that they do not have a president for the
next 20 years or so?
Lord Brittan of Spennithorne: I do not think
that it will make it any worse. If they had to rely on the presidency
and they had a presidency only every 20 years, their chances would
not be very high; so they might be better off having a presidency
which is not, as it were, the representative of another country
but is in some sense meant to be acting in the common interest
and is, to that extent, more professional. I do not think the
Member States would be any worse off.
Q90 Lord Tomlinson: In the
question before last Lord Brittan referred to the Commission's
sole right of initiative. That triggered a question in my mind.
In the light of what you have told us and how amenable the Commission
is to all the pressures to which it is subjected, do you think
that that sole right of initiative, for which the Commission fights
so hard, is a useful formulation of words for the Commission to
cling to?
Lord Brittan of Spennithorne: I can quite see
that it might irritate people who resent it or do not like it,
but it is a correct statement of the legal position.
Q91 Lord Tomlinson: The sole
right of presenters or proposers of legislation, but the idea
that it is the sole source—a single source?
Lord Brittan of Spennithorne: I do not think
that anybody has ever said that it is the sole source.
Q92 Lord Tomlinson: They have
not said it but it is the impression that so many Eurosceptics,
who want to castigate the Commission as being this bureaucratic,
unelected group—
Lord Brittan of Spennithorne: I think that Lord
Tomlinson has a greater faith in the rationality of the Eurosceptics
than I have, in the sense that I do not believe that, if you substituted
for the phrase "sole right of initiative" some milder
phrase or, if you like, more accurate phrase, that would dampen
the ardour of the Eurosceptics who wish to criticise the Commission
and all its works. If it would, that would be a cheap price to
pay; but I fear that I could not be as optimistic as that.
Q93 Lord Jay of Ewelme: It
is the sole right of proposal, is it not?
Lord Brittan of Spennithorne: Yes.
Q94 Lord Jay of Ewelme: Only
the Commission can propose but actually others can initiate.
Lord Brittan of Spennithorne: Yes.
Q95 Chairman: Do you consider
it to be a good thing that that formal position is maintained?
Lord Brittan of Spennithorne: Yes. I think that
does raise a very fundamental question about the nature of the
European Union. I will start by giving a straight answer, because
I think the Committee is entitled to one. I do favour a continuation
of that. I think that you have to look back historically. The
whole thing is a great bargain of some genius, initiated by the
founders of the European Union, in the sense that they did not
want to create a federation—or maybe they did but they knew
that that was premature and would not ever get support. (It would
have been easy to have devised institutions of a more federal
character). On the other hand, they wanted to have continuity
and momentum, so the ingenious idea was to create a body which
was not a government, in the sense that it could command a majority
or could get its way through, was elected, but which would have
continuity and give that body the unique right of proposal—which
is a more accurate way of putting it—but leaving it to the
Member States to decide whether or not to accept the proposals.
In a sense, it was an anti-federal balance, reflecting the Member
States' primacy while, at the same time, creating an engine which
would push things forward. I do not think that anything has happened
since then which means that that fundamental balance is the wrong
one. To move away from that would mean either inertia or moving
more in a federal direction, which I personally do not happen
to favour and which would be contrary to the temper of the times.
Chairman: Lord Tomlinson, did
you want anything else on your question?
Q96 Lord Tomlinson: No, it
was really asking Lord Brittan to reflect on whether the position
has been static or whether it has changed much over the years.
For example, between the mid-1980s and the work to complete the
Single European Act, has the position changed much, or do you
see it changing or evolving? I think that you have partly answered
it in relation to the increased role of the European Council.
Do you have anything else to add on that?
Lord Brittan of Spennithorne: I think that the
basic structure remains the same and, as I have said in answer
to the last question, I am in favour of that balance remaining;
but the sources of the proposals which the Commission uniquely
has to put forward have widened and deepened—if I can use
that expression as well—and that is a good thing.
Q97 Lord Rosser: You were
speaking earlier about the role of the Commission, in that it
was no good putting forward proposals that would not be accepted;
there was a lot of consultation and discussion that went on. Has
the Commission in reality, over the years, moved rather closer
to being a civil service? It may have the right to propose but,
in reality, it is only putting forward what it knows, almost in
advance, will prove to be acceptable.
Lord Brittan of Spennithorne: I think that is
not right, because very often the Commission, because of its continuity
and having a five-year spell, and because it cannot be sacked—short
of grave crisis—can persist with things which at first have
very little support. Take, for example, the liberalisation of
telecommunications. I remember going forward with ideas of that
kind. To start with, I thought that we would have a dinner, in
Luxembourg as it happened, of ministers. Only three ministers
turned up and the rest of the countries sent either permanent
secretaries or, worse still, directors-general of telecommunications,
out of politeness. One had no traction at all, if I can put it
that way. If you had just said, "Does this fly?" the
answer is, "It does not fly". Although this was extremely
disappointing, it was not astonishing and one knew that that was
roughly where things were—but you start. Then the Commission
has various instruments which it can apply, as well as those of
persuasion—most particularly, for example, the use of competition
policy—as a way of levering things, which is exactly what
we did do, or the threat of its use. You would never have guessed
from that meeting, or from the analysis which you had to give
before the meeting took place, that within a very short time there
would be a degree of liberalisation of telecommunications that
went far in excess of what the Commission would have actually
put forward if it had put forward a proposal at that particular
time—so there is hope.
Q98 Lord Burnett: We are carrying
out our current inquiry on the initiation of EU legislation. Do
you think that we or another body might be wise, as the next logical
step, to look into the different levels of how that legislation
is implemented in the different nation states?
Lord Brittan of Spennithorne: It is not for
me to suggest the programme, but I think the answer is that if
you think you can get realistic answers, it would be interesting.
I think it would be a formidable task, but good luck!
Q99 Chairman: Thank you, Lord
Brittan. Is there anything you want to say to us before we conclude?
Lord Brittan of Spennithorne: I wanted to have
the opportunity of making the broad point about the right of initiative
or right of proposal but that arose, as I suspected it would do.
Otherwise, I feel that the field has been covered to the best
of my ability.
Chairman: Thank you very much indeed.
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