Examination of Witnesses (Questions 200-219)
Ms Evanna Fruithof, Ms Helen Malcolm QC, Ms Julia
Bateman and Mr Andrew Laidlaw
8 MAY 2008
Q200 Chairman: Then when the individual
proposals actually do reach the table you seek to influence them.
Ms Fruithof: Or the consultations that come
before the proposals ideally. In a sense, if there is a proposal
on the table it is already a little bit late.
Q201 Lord Wright of Richmond: I assume
your contacts are primarily with the Commission. To what extent
are you able to develop and maintain contacts with the presidency
of the day, which at the moment, of course, still rotates? It
must be more difficult.
Ms Fruithof: It is more difficult because you
have rather a short period and everybody wants to do the same
thing. A little bit depends on the topic. For example, when the
Rome I Regulation was going through last year, at the very end
of the negotiations the Portuguese Presidency staff here in Brussels,
so the equivalent of UKRep but for the Portuguese, who were actively
negotiating the final terms of the Rome I regulation, were quite
open to hearing from us because they were quite keen that the
UK should come on board and, as you know, Her Majesty's Government
was very active in negotiating in Council. On that file I had
direct contact, but that would be relatively exceptional. Normally
I would expect to have more contact with the Secretariat in the
Council, which is a permanent staff, and from them find out what
is happening and through them perhaps feed in our views.
Q202 Lord Wright of Richmond: Are
you already developing a relationship with the French Presidency?
Ms Fruithof: Specifically, no. That is the other
problem, it rather depends on what the particular issue is that
we might be concerned about during their presidency. There are
a couple of files that we are hearing about that the French Presidency
is likely to be interested in, such as one on the authentication
of instruments which is being pushed, I gather, by the French
notaries. That is the sort of thing where we may well want to
talk to the French Presidency.
Q203 Chairman: That perhaps links
up with one or two comments in the Bar Council's paper prepared
by James Flynn. I understand that your committee criticised the
lack of homogeneity built into the system and suggested it was
open to manipulation by powerful interests and was not very systematic
in its consultation of stakeholders. That seems fairly blunt,
I do not know whether it can be amplified. It is certainly something
which interests us, who gets the ear of either the Commission
or the presidencies.
Ms Malcolm: You appear to be directing your
question at me?
Q204 Chairman: Since it came from
the Bar Council ...
Ms Malcolm: Yes, which is the committee that
Evanna is also very much involved with. As a criminal practitioner,
albeit international criminal law, I am very much three stages
removed from what is going on, on the ground in Brussels. In terms
of influencing things, I have a slight discomfort that the Bar
should be involved in any event with originally feeding in ideas
for legislation at EU level. That is perhaps an entirely personal
view. I can well understand that there is very useful work that
we can do in terms of attempting to feed in the common law perspective
once proposals have been made. In relation to the particular comments
that you have pulled out of the Bar Council's evidence to you,
certainly within the criminal justice field I am not aware, and
it may be my ignorance on this, that the judiciary, for instance,
in the UK was consulted prior to the European Arrest Warrant coming
into force. I know that two QCs did apparently come to Brussels
in 2001 prior to the EAW coming in, but that was at a very, very
early stage in the proceedings and that was before 9/11 which
was what caused an enormous upturn in the priorities, or a complete
reversal of the priorities that were then being considered at
the Brussels stage. I am not aware, again, of the CBA—Criminal
Bar Association—being approached directly by anybody saying,
"What do you feel about this? What do you feel about safeguards?
What about bail?" I have attended an experts' meeting on
trans-border bail, for instance, at the stage that was being considered.
I think the comment that was made in the paper was perhaps because
of the old system of single Member States having initiative and,
therefore, being able to push something forward in the programme.
There have been two occasions, I think, when that cut across issues
that the Commission was already considering and, therefore, caused
confusion. Both of them, in fact, have died a death, but whether
as a result of that or other issues I am not in a position to
say.
Q205 Chairman: I think what you have
raised includes a very interesting point which I also drew from
the Bar Council paper about the Justice Forum which has been proposed
which you fear may be just a fig leaf, certainly intended to embrace
a number of stakeholders but apparently it involves the Commission
adamantly refusing to allow seats on the Forum for national stakeholders
and insisting, for example, the Bar be represented only by a European
Council of the Bars. I can see your concern about that.
Ms Fruithof: Yes.
Chairman: It is a point we might focus on. Thank
you very much.
Q206 Lord Burnett: You have talked
a bit about consultation with stakeholders and you gave an example
of company law, Mr Laidlaw. If I might pursue that a little bit?
The Law Society listens to the views of your Company Law Committee,
which is an eminent committee with some very experienced people,
and perhaps the Bar have a similar arrangement.
Ms Fruithof: We work together, in fact.
Q207 Lord Burnett: That was what
I was going to ask. You work together but what about the Confederation
of British Industry? I am just taking it one step back. What about
the CBI, the Institute of Directors, these sort of people, do
you work with them? Do they give you their views? Do you act in
a co-ordinated way to get your views over right at the most inchoate
stages of this?
Mr Laidlaw: Again, it depends sometimes on the
issue. Sometimes there will be an interest in making sure that
you present a UK plc front in terms of co-ordinating what you
do with business and other stakeholders. I know there is a lot
of crossover in membership between our bodies. I think some of
the Law Society's Company Law Committee members are also involved
in the CBI.
Q208 Lord Burnett: For sure.
Mr Laidlaw: They also feed into the BERR stakeholder
groups. From that point of view, through some of the Government
initiatives and through the way the memberships of the different
organisations work, you do tend to find that naturally there is
a degree of consistency.
Q209 Chairman: It would be right
to say, would it not, that quite a lot of co-ordination is done
by the Ministry of Justice. Is that something you have come across
in stakeholder meetings? Equally, there are ad hoc reactions to
particular proposals, and I am thinking of Rome I where you had
the Bank of England Financial Law Panel heavily involved. Maybe
we could think in the United Kingdom about how we react to European
proposals. This Committee has as its function to react, but it
requires a very considerable amount of back-up to do so. Both
of your organisations do it on a pretty systematic basic.
Mr Laidlaw: Yes, but your point is correct,
apart from some of the forums that individual ministries set up.
I know from my experience that BERR seems to be quite effective
at co-ordinating the various stakeholders. I am not sure how it
works with other ministries. I am not sure it is systematic across
Government in terms of how UK bodies present themselves in Brussels.
It is done on a more ad hoc basis through informal contacts that
we have here with other Brussels offices of UK bodies.
Ms Fruithof: My Lord, referring back to a point
you made before and bringing that into what you have just been
asking, the concern that the Bar has is not that we are never
consulted but rather that it is not systematic consultation. The
earlier in the life of an idea that one can be involved, of course,
the better that is. The Commission is now obliged to conduct impact
assessments when it is considering legislation in the fields that
we are all interested in but we, as far as I know, are not necessarily
consulted during the course of those impact assessments. One of
the things that I wanted to bring to your attention today, and
it is very relevant to your Committee, is that we see the new
Lisbon Treaty provision, that will require the Commission to send
new proposals to national parliaments at the same time as it sends
them to the Council and European Parliament, as a very key opportunity
for the Member States and the organisations behind them to actually
really look at proposals and take these ideas forward and be very
proactive. The problem is you will only have eight weeks.
Q210 Chairman: The problem is that
unless there is some mechanism for actually starting the process
of thought before the eight weeks it is going to be extraordinarily
difficult for even one parliament to react, let alone to get sufficient
parliaments to have any real influence?
Ms Fruithof: That is right.
Q211 Lord Burnett: Once you get the
information at the start of the eight week period, what effect
will representations from Parliament have?
Ms Fruithof: Again, that will vary from one
file to another. If we are talking to you, say, and we are also
talking here in Brussels to our opposite numbers in other Member
States' Bars and Law Societies, and it emerges from our discussions
that we have the same sorts of concerns, we can tell our national
parliament that the Germans have that concern or the French have
that concern and at government level those governments can then
talk to each other and you can get a groundswell of opinion flowing
at that very early stage in the proposal. Going back to a point
that I have made before, it is already late in the day for influencing
policy when there is a proposal on the table but, nevertheless,
it is still useful to do that and it is an opportunity. I would
hope that some sort of mechanism would be put into place to try
to systematically use that eight week period and for proper consultation
to take place during it.
Ms Bateman: May I just add to that, my Lord
Chairman. The difference with the Treaty of Lisbon will be the
so-called yellow card or orange card system where if there is
sufficient concern within a number of national parliaments you
can wave the yellow card and send the proposal back to the European
Commission. Again, the Lord Chairman has made the point about
the eight week turn-around time, but there is an institutional
systematic process by which national parliaments can make their
views known and have an impact on whether the proposal is withdrawn,
reviewed or what have you, and that is a significant development
if it can be done within the timeframe. As Evanna has mentioned,
in terms of our counterparts and other stakeholder bodies to be
co-ordinated with the national parliaments in Europe to try and
exert that influence and see if that process can—
Q212 Lord Burnett: It is a message
we have got throughout our inquiry that it is pretty well too
late when the proposal is made. It is getting there right at the
start, at the embryonic stage. You do that by presumably—I
loathe the word "network"—networking. You all
live here and you all network like crazy in the end.
Ms Bateman: Yes.
Q213 Lord Bowness: This really follows
exactly on from this conversation. I think whatever fields we
are interested in we all accept that the earlier we are involved
the better our chances. If I can just turn to the Law Society
paper and their paragraph on transparency. You say there it is
not always possible to pinpoint where an idea originated: "Despite
the steps that have been made towards transparency, this does
not extend to the Commission disclosing with whom it has had contacts,
other than through public consultation." I understand what
you are saying but how practical would it be and how on earth
could the Commission in a town full of networkers, consultants,
lobbyists, to say nothing of Member States, possibly indicate
with whom it had contact on something?
Mr Laidlaw: This is one of the issues on the
European Parliament's agenda for today. They are talking about
transparency of lobbying. Indeed, one of the ideas is that proposals
should have what is called a legislative footprint. The idea is
that along with the proposal there would be a list or summary
of the contacts that have been had prior to the proposal coming
out. Obviously the Commission is not going to write in its proposal
"X official had this idea one day when he was having an informal
meeting with such and such an organisation", but as a first
step an idea like that might be useful in terms of demonstrating
where ideas originate. If we come back to the example of the European
Private Company, which was discussed earlier, this obviously is
not official but the French and German business organisations
have been very active in lobbying for this proposal to come forward
and, indeed, proposed their own draft statutes a few years ago.
It is possible to identify through knowing how things in Brussels
work where certain proposals come from, but that is just through
your informal contacts and not through a systematic process.
Q214 Lord Bowness: I am all in favour
of transparency and openness, but the more you formalise, as it
were, the informal contact before the formal consultation, are
you not just pushing everything back a stage to the stage of who
had coffee with whom on a Thursday morning?
Mr Laidlaw: Exactly, but the point we were simply
trying to make was in terms of where the Commission proposals
come from it is not always easy to pinpoint that.
Chairman: If I draw on personal experience,
if someone were to identify the legislative footprint of the Common
Frame of Reference and the vicissitudes which that piece of research
has had and the way in which direction has changed and whatever
emerges will emerge, it would be very interesting, and I am sure
it does go back to quite informal contacts. I do not know whether
that is within any of your experiences. That is a personal comment,
but it would certainly indicate whether something was coming from
within a particular national perspective, like your French notaries'
proposal, which might lead one to ask is this sectional or of
general European interest.
Q215 Lord Jay of Ewelme: I wanted
to go back to what you were saying about the Private Company statute
for a moment. As I understand it, what you were saying was you
were not sure yourselves whether a proper case had been made but
there was a lot of pressure from the Parliament, and you have
now said also from the French and the Germans, for it. What I
would be interested to know is whether in circumstances like that
the impact assessment which the Commission has to make could lead
to the conclusion that, "In fact, we do not think this is
the right thing to do", or, on the contrary, when there is
a lot of political pressure from the Parliament or Member States
the impact assessment effectively will not have any real impact.
Mr Laidlaw: That is a very good question and
I do not think there is an easy answer. Obviously in terms of
that specific proposal there was an impact assessment which did
suggest a need and political pressure. In terms of other proposals
that have been worked on by the same Directorate-General in the
Commission, there have been impact assessments and then decisions
taken afterwards not to proceed (even when there were a number
of voices calling for proposals to be made) on the basis of the
impact assessment decisions that had been taken.
Q216 Lord Jay of Ewelme: Can you
give us a particular example of a proposal which was, as it were,
in the offing and then the impact assessment said that it should
not go ahead and, therefore, it did not?
Mr Laidlaw: The proposal on the Second Company
Directive, capital maintenance, but also there was another proposal
on the transfer of companies' registered seats. That is another
interesting example because it has been suggested that not only
did the Commission conduct its impact assessment but it also tried
to predict what would be the outcome if it were to go through
the European Parliament and the Council, and it was felt possibly
by the time the proposal actually became legislation it would
have been watered down to an extent such that it was not useful
to bring it forward in the first place.
Chairman: Did the same apply to the protection
of witnesses proposal that I saw was floated and then dropped?
No, perhaps you do not know.
Q217 Lord Jay of Ewelme: The conclusion
I draw from that is the impact assessment process does have an
effect in ensuring that proposals do not come forward which are
likely to have an adverse impact or are not necessary.
Ms Fruithof: Unfortunately, there is no black
and white answer even to that question.
Q218 Lord Jay of Ewelme: It is not
a useless introduction to that?
Ms Fruithof: No, it is certainly not useless.
I would make two points on that. One is, who do they actually
talk to when they do their impact assessment because that is not
always clear. To my knowledge, we have never been consulted in
the context of an impact assessment. Secondly, on something like
the succession proposal, which we are now expecting in about a
year's time, what you will hear the Commission saying by way of
a justification statistically you might not regard as justifying
it. I think in that particular file at a hearing at the European
Parliament about two years ago now they were talking in terms
of a couple of hundred thousand people altogether per year potentially
in Europe being involved in a cross-border succession type scenario.
Yes, that is 200,000 people, but you could equally argue that
in the great scheme of the population of the European Union there
are probably other legislative proposals that are more urgent
and more useful. Sadly, it is a little bit of a "how long
is a piece of string" type discussion.
Q219 Chairman: I am very surprised
to hear that you are not consulted on impact assessments. Can
we get some picture as to who is consulted?
Ms Bateman: Just to back up what Evanna has
said, on things like divorce with the Rome III regulation, sometimes
impact assessments are used after the event to justify an initiative,
a Green Paper or a legislative proposal. There is a lot of broad
statistical information to say it appears that there are a number
of international marriages every year, therefore we believe there
could be a number of international divorces every year. In terms
of the impact assessment there are universities, think-tanks,
there is a tender from the Commission, they secure the tender
and undertake the study, but it is never clear who the national
rapporteur or the organisation is. Sometimes we do proactively
contact the Commission and say, "Could we have the contact?
Who is co-ordinating, who is running the study?" and it is
very difficult to get. I think that is certainly a lack of transparency
in the impact assessment process which is heavily relied upon
to bring forward legislation. Another example is the conveyancing
study of conveyancing practice throughout the European Union where
it was very difficult from our side to find out who was doing
the England and Wales report and where we could get in contact.
We did in the end but it took a lot of literally heavy lobbying
to get the contact name from the Commission and then make contact
with that person at home. That is one of the big flaws in the
process.
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