Examination of Witnesses (Questions 260-279)
Mr Kim Darroch, Mr Vijay Rangarajan, Ms Sally Langrish,
Mr Paul Heardman, Ms Clelia Uhart and Mr Gian Marco Currado
8 MAY 2008
Q260 Chairman: Qualitatively it is
clearly important that it comes from the Council, but I am just
wondering whether it is something that interrupts the normal agenda
that the Commission is working to.
Mr Darroch: Sometimes it is filling a gap. Sometimes,
obviously as with 9/11, it is responding to a cataclysmic international
event from which some immediate change of gear and European response
is required. Sometimes it is putting a framework and an overall
strategic direction, as with JHA, around policy that is going
forward anyway and adding elements to it, but including some of
the existing ideas. It can be all of those things.
Q261 Lord Rosser: Would it not be
fair to say though that the Commission is still in a very strong
position because if the Council is requesting and saying they
want legislation in particular general areas, different Members
of the Council may have very different views of what they mean
by saying, "We want legislation in certain areas". The
Commission is still in a very strong position, surely, in initiating
the proposals because it determines first of all how it would
interpret what has been said in general terms.
Mr Darroch: It is true to say that the Commission
is de facto in a strong position as the sole initiator
of legislator and, of course, in initiating legislation it is
able to interpret. However, in a way it is in the Council's hands
how clear it is in directing the Commission on what it is looking
for and if it is very general and very vague you are giving much
more scope to the Commission to interpret it in its own way. If
you are relatively specific about what you are looking for and
what direction it is supposed to be going in, then the Commission
has less room for manoeuvre. It is up to us to say what we mean
in European Council Conclusions if we want the Commission to follow
rather a narrow remit. Sometimes the Council does not really know
much beyond a general concept what it wants and in that case the
Commission will.
Q262 Lord Rosser: The Commission
is in a very strong position if within the Council there are different
views about what they mean by asking for legislation in a particular
area because the Commission, to some extent, can decide which
horse it wants to back.
Mr Darroch: Yes, but then I would say it is
our job in the Council to try and find a consensus which gives
a clear direction to the Commission and if we fail to do that
then it is understandable the Commission exercises its own authority
in interpreting what direction it should go in.
Q263 Lord Jay of Ewelme: Would you
draw a distinction within the Council between the specialist councils
and the European Council in this context, that is to say if the
Single Market Council or the Culture Council ask the Commission
to do something, is the Commission more likely to get all sniffy
and say, "We are not obliged to do so but we will think about
it", whereas if it comes from the European Council in effect
the Commission is going to have to?
Mr Darroch: It is not written down anywhere,
but that is probably broadly true, not least because the President
of the Commission will play a big role, often the leading role,
in the European Council discussions. If you take, for example,
the climate change package, it was a Barroso presentation at the
beginning of the European Council which was followed up by Heads
of Government discussion and then it all emerged in the Commission.
Often there is quite a big Commission role in those European Council
Conclusions. It is usually something that is quite strategic or
that is responding to a big international need for a response
and in the European Council, which has a particular role in European
affairs, greater authority than the other limbs of the Council,
it is going to be seen as more of a priority. That said, we could
not find any examples of a Council Conclusion that clearly called
for legislation which had been explicitly rejected or ignored.
The Commissioner is always around when the Council makes that
decision and if he thinks it is a really bad idea he will say
so. Usually, if the Commission is really against something they
will find a few natural allies around the table, that is just
the way things are.
Q264 Lord Jay of Ewelme: There is
a stage before the Council says, "We would like the Commission
to do this" and the Commission responds and there is presumably
a debate in which the Commission will take part.
Mr Darroch: Exactly.
Q265 Lord Jay of Ewelme: At that
point the Commissioner might say, "Look, I do not really
think this is a good idea". Does that happen? Does the Council
sometimes say, "We take that point, we will not push it"
either formally or informally?
Mr Darroch: I have heard it many times and it
is in the discussion phase before Council Conclusions are agreed.
The arguments you hear most often from the Commission are, "You
have set us a set of objectives which we are working through now
and we cannot do two things at once, so surely that is the priority
rather than this", and that is often quite a powerful argument,
or they will have specific arguments why legislation in that area
is not a good idea and they will usually find some around the
table who will agree with them.
Mr Rangarajan: There are a couple of examples
where the Commission can get pushed quite a long way. Take the
Hague Programme, European Council Conclusions which asked for
a Green Paper on trials in absence. Mostly for reasons of workload
and because of the 9/11 workload on the criminal side, the Commission
did not do anything for a long time, they never even brought forward
their Green Paper. I do not think they disliked it but they did
not have the resources to work it through in a very complex area
and in the end a Member State initiative came forward, really
with the support of the Commission, and that is pretty close to
being agreed now. The difference of rights of initiative also
puts some pressure on the Commission. In some ways they knew they
did not have to, that if it was a real problem Member States would
do it, and in some ways they had neither the resources nor at
that point felt they had all the expertise to do it. A second
example is Europol where we had exactly that discussion, where
the Commission did not want to bring forward a proposal to change
the staff regulations on the immunities of police officers and
in the end the Council, effectively by unanimity, said to the
Commission, "You really need to bring forward this proposal
or we will not agree the change of Europol to a Community Instrument"
and the Commission then reluctantly accepted it and unblocked
a large negotiation. There is quite a lot of pressure partly by
linkage to other dossiers which can be brought.
Q266 Lord Wright of Richmond: I do
not want to pre-empt a later question about Member States' contributions,
but surely ideas that emerge from a Council meeting have previously
been rehearsed in Coreper, have they not?
Mr Darroch: That is normally the case, but it
is not unknown for ministers to come to the Council with an idea
that has not previously been ventilated.
Q267 Lord Wright of Richmond: Which
they had on the train!
Mr Darroch: It is not a common occurrence, but
it does happen. Usually it is something that has been worked through
the system before it pops up in the Council, but not always.
Q268 Chairman: You have been describing
strategic policies which derive from Council Conclusions, climate
change, Tampere, Hague, and the Sixth Environment Action Programme,
and you have indicated the influence that they have on the Commission.
I just wondered to what extent it would be open to the Commission
itself to actually set such general policies? In other words,
to what extent are the two bodies really alternative approaches
or are complementary and fulfil different roles in this respect?
Mr Darroch: There are not any hard and fast
rules, so this is an opinion. It works best if the Commission
and the Council, especially the Commission and European Council,
are working together. If, as President of the Commission, you
have a strategic idea which you think needs to be taken forward,
the right way to do it is to talk to the presidency of the day,
to get it on the European Council agenda, to get your presentation
made at the beginning of the European Council and to contribute
to the draft Conclusions which provide the follow-up. That is
the best way of working and it is the way, for example, the climate
change package went through. Every Commission tends to set right
at the beginning of its term its own independent objectives and
the Barroso Commission, I think from memory, set European competitiveness
and responding to the challenges of globalisation as its big tasks
at the beginning of this term, the term which ends next summer,
2009. There is that and that can then, I suppose, be translated
into a Commission Work Programme. But if you are sitting in the
Commission and you want to make these things work you would not
try and push that through in isolation, you would take it to the
European Council and get Member State, Head of Government, endorsement
for it and take it through like that. Given their right of initiative
it is possible for them to just bring stuff forward, but it would
not be the most sensible way of doing business.
Ms Langrish: Could I just add to that, that
under the Lisbon Treaty there is more emphasis on programming
between the Commission, the Council and the European Council.
For example, under the Lisbon Treaty you will get the formalisation
of the three Member State team presidency which will still chair
a lot of the sectoral Councils. They will have to draw up presidency
Programmes, and also the General Affairs Council will have the
obligation to draw up a multi-annual programme in consultation
with the Commission. To a large extent this reflects practice
already, but there is more emphasis on strategic direction and
co-operation between the institutions.
Q269 Lord Jay of Ewelme: Just a question
about the presidency and how far presidencies actually influence
legislative agenda? My own experience is that presidencies always
exaggerate the extent to which they can actually influence the
agenda and they can affect the timing rather more than the substance
of things that come forward. Can you think of examples in which
a presidency really has had a big impact on the legislative proposals
which have come forward then or afterwards?
Mr Darroch: I think that your overall impression
of the presidencies is right. Presidencies tend to have an inherited
legislative agenda which is part of the longer-term Work Programme
which it is their responsibility to take through as efficiently
as possible and that is the main legislative workload of the six
month term. The small country presidencies tend not to set on
top of that a series of national tasks or objectives. The current
presidency, which is doing a good job, is very much focused on
what they inherited, what the Work Programme is and that is it,
there is not a huge batch of Slovenian national objectives on
top of that. The larger countries do tend to set, as well as the
inherited Work Programme, some objectives of their own. The French,
for example, for the next six months have highlighted things like
ESDP and migration and the future of the CAP and the Health Check,
and there are a couple of others. How much of that actually ends
up as legislative proposals I am not sure, probably not very much.
Probably it will mostly be European Council discussions and sometimes
European Council Conclusions, but will not end up as legislation.
There is the possibility for presidencies to add to the legislative
agenda and to use their position to push through ideas for legislation.
They need to get the support of the Council for that to happen.
It is comparatively infrequent and if it happens at all it tends
to be with big country presidencies rather than smaller ones.
Q270 Lord Jay of Ewelme: Can any
of you think of any legislative proposal which has come forward
which would not have come forward if it had not been pushed by
a presidency?
Ms Langrish: We have an example which covers
two UK Presidencies and that is a regulation on cross-border small
claims in the civil justice field. This was first called for during
the UK Presidency in 1998. Obviously it took a while for it to
come through as a legislative proposal. What happened next was
that it was included in the Tampere Work Programme and then a
Green Paper was brought forward by the Commission in 2002. Eventually
we had a proposal for a regulation in 2005 which was pursued by
the UK in its next Presidency in 2005 and, finally, we had the
regulation in 2007. It takes a long time sometimes.
Q271 Lord Jay of Ewelme: Which rather
makes the point it is quite difficult to do because of the timing
of the six month presidencies.
Mr Rangarajan: Just to add one other one that
you know well, the Prüm Treaty. It was no coincidence that
this proposal appeared just before the German Presidency. There
are two answers. One is that big presidencies do a lot of forward
planning. If you think three or four years in advance then it
is possible for the system to produce in time. Secondly, it is
never quite a unilateral thing, the Presidency had to get buy-in
many times over from all Member States for that all to happen,
but they achieved that and in the end the Germans, having constructed
the original Prüm Treaty, managed to see it through into
European legislation very successfully.
Q272 Chairman: Is this going to change
under the Treaty of Lisbon or will this continue with that Treaty
and the troika arrangement? Are the presidencies going to have
the same role in that respect?
Mr Darroch: Not really, because the troika presidency
will be just another voice around the European Council table and
will not be the first to speak, will not set the agenda and will
not chair the discussion. That takes away a fair amount of the
role at that level. Of course, in the sectoral Councils the rotating
presidency still will chair them: the Competitiveness Council,
the JHA Council, Ecofin or whatever. There will be a Foreign Affairs
Council which will be chaired by the High Representative, so that
will also be taken away from the rotating presidency. In the General
Affairs Council his role is still to be discussed and decided,
we are not sure who is going to chair that. It will diminish the
potential for the rotating presidency to initiate or prompt new
legislation. It will not eliminate it completely but it will have
less opportunity to do so.
Q273 Chairman: They will be able
to do it in the sectional Councils?
Mr Darroch: In theory, yes.
Q274 Baroness O'Cathain: Will that
speed up the process or delay it still further because it does
seem an inordinate amount of delay from the time when a germ of
an idea comes to fruition?
Ms Langrish: I think against that you could
argue that the delay actually allows for greater consultation
of stakeholders and of interested parties. The Commission has
got a lot better in recent years at consulting more widely and
it does allow people to have their say as to whether the legislation
is a good idea and is properly thought through.
Mr Darroch: One of the things we have insisted
on as part of our Better Regulation Initiative is that the Commission
do proper impact assessments on legislation which they are proposing.
You cannot tell them to do this properly and consult properly
and then tell them they are taking far too long over things. Well,
maybe you can.
Q275 Chairman: Just deviating slightly
from the main theme, are you happy with the way impact assessments
are being improved and could they be further improved?
Mr Darroch: They are improving and more of them
have been done and they are of better quality but, yes, they could
be further improved. We talk a lot to the Commission about how
that could happen. I am not an expert on it. We also think that
we can improve impact assessments nationally as well sometimes,
so it is a learning process everywhere. They are genuinely committed
to making them better and there is a perceptible improvement.
Lord Wright of Richmond: Can I just say it was
clear from our last evidence session with the Law Society and
Bar Council that they are finding it extremely difficult to get
in on the impact assessment process. They did not actually seem
to be aware of the existence of the independent Impact Assessment
Board, their response was, "That is all the Commission".
They presented a formidably difficult networking process of trying
to get at the right people, but getting into the impact assessment
process they are finding virtually impossible.
Q276 Lord Burnett: Do you know who
the independent Impact Assessment Board are and how they can be
got at?
Ms Uhart: Yes.
Lord Burnett: Perhaps you could ring the Law
Society and the Bar Council!
Q277 Chairman: Tell us about them.
Ms Uhart: They operate under the Secretariat-General
and the idea is they scrutinise all the main impact assessments
to make sure they are properly following the guidance, the Commission's
own impact assessment guidance. They then write a report on these
impact assessments and call the Director-General of the department
in to tell him or her what they think of the proposals. The idea
is that there is real accountability at Director-General level
and the reports are sometimes negative.
Q278 Lord Wright of Richmond: Is
it also a subsidiarity check?
Ms Uhart: They follow all of the guidelines
that are set out in the Commission's impact assessment guidance,
so there is a whole range of things they have to cover.
Q279 Lord Burnett: Including cost
and how it will be implemented in nation states?
Ms Uhart: There is a very wide range. They have
to look at impacts on competitiveness very widely. They have to
look at environmental impacts, social impacts. One of the things
they do not do at the moment sufficiently in our view is quantitative
costing, and that is something we are lobbying for. There will
be a review of the impact assessment guidance later this year
and we are hoping they will be looking at more quantification
as part of that.
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