Examination of Witnesses (Questions 280-299)
Mr Kim Darroch, Mr Vijay Rangarajan, Ms Sally Langrish,
Mr Paul Heardman, Ms Clelia Uhart and Mr Gian Marco Currado
8 MAY 2008
Q280 Lord Wright of Richmond: Who
are the Board? What sort of people are they? Where are they from?
Ms Uhart: They come from within the Commission,
they are Commission officials.
Baroness O'Cathain: So they are not independent
then, are they?
Lord Burnett: Lord Jay made that point to the
Law Society very well.
Baroness O'Cathain: I am sorry, I was not here
then.
Q281 Chairman: Are their reports
ever published?
Ms Uhart: There is a webpage where you can go
and see a number of reports of the IAB. You can consult the impact
assessment and the IAB report.
Q282 Chairman: You said that they
do not do sufficient quantitative costing and one of the points
that was made in the last session was they do not look at the
impact in a sufficiently objective quantitative way, so they tend
to be satisfied, I think was the suggestion, by general statements
such as there are 200,000 cross-border marriages in the EU and,
therefore, there must be lots of problems. Presumably that is
exactly the sort of possible weakness of reasoning that the Impact
Assessment Board is intended to detect.
Ms Uhart: Yes, absolutely, it is there to improve
the quality across the board of the impact assessments.
Chairman: It is an important process.
Q283 Lord Norton of Louth: The point
about quantification is not particular to that because in Britain
regulators are accused as well of not doing enough in terms of
quantification of impact assessments. When you say the Board assess
the assessments, is that in terms of the substance or the actual
process to make sure that they have carried out the assessment
in the way that meets the template?
Ms Uhart: Obviously the two are linked, but
their primary remit is to make sure that the guidance has been
properly followed.
Chairman: Primary process, in other words.
Q284 Lord Burnett: They go to individual
organisations and universities in different countries. Do they
advertise as to who they are going to go to for assistance?
Ms Uhart: In many cases they do, yes.
Q285 Lord Burnett: Is that an open
process?
Ms Uhart: When they are using outside consultants
they will go through a public tendering process.
Q286 Lord Burnett: Do they advertise
the fact that they are doing that?
Ms Uhart: They would have to. They would be
bound by rules on tendering.
Q287 Chairman: I do not want there
to be any misunderstanding out of my last rather leading question.
I suggested a primary process but perhaps you could indicate in
your own words what the primary focus of the Impact Assessment
Board is. You said it was to following the guidelines for impact
assessments, which are what? Are they published?
Ms Uhart: Yes, they are. There is a Commission
paper which sets out the guidelines that officials must follow
and how they must carry out the impact assessments.
Q288 Chairman: How far does the Board,
as you understand it, actually look at the viability of the logic
and the conclusions which result from the process?
Ms Uhart: It is not just a box ticking exercise.
The aim here is very much to improve the quality of the impact
assessments. That is the idea behind bringing the Directors-General
in and having a conversation about these impact assessments to
improve the quality across the board.
Q289 Lord Wright of Richmond: We
have covered fairly fully the impact of presidencies, past, present
and future, in influencing the initiation of legislation. What
about other Member States? How does a Member State, and clearly
it would be interesting to hear from you about HMG, affect the
initiation of legislation? Is this done in Coreper, in the Council?
What have you got to say about that?
Mr Darroch: First of all, there is, of course,
in the Third Pillar a formal legal right of Member States alongside
the Commission to call for legislation and, when I have spoken,
Vijay will tell you a bit more about that, which gives him two
minutes to prepare!
Q290 Lord Wright of Richmond: This
is why the Commission's role is described as "virtually unique",
is it?
Mr Darroch: Described where?
Q291 Lord Wright of Richmond: In
the Treaty on the right of the Commission to initiate legislation.
Mr Darroch: Yes. This is the one area where
they share the right of initiative with the Member States.
Q292 Lord Wright of Richmond: That
is right.
Mr Darroch: Second, across the rest of the field,
of course it is open to any Member State to propose a new piece
of legislation in any body, whether it is the Council or Coreper
or a Working Group, but that, I think, would be a rather stupid
way to proceed and unless you have got 20 other Member States
to agree with you in advance you would not get very far. If you
were serious about trying to get a new piece of legislation out
what you would do is you would go in and talk to the Commission
informally at both working level and more senior level and make
a reasoned case for your legislative idea. You would do it through
UKRep officials to the Director or someone a bit higher. You might
have a team from London come over to talk at senior level to the
Commission and you might have a minister come over and talk to
the Commissioner about it. It is not going to work unless in the
end they have ownership of the idea and they feel it is their
idea and they have some credit for producing it. If you try to
keep a British flag on it, it is not going to work, but if it
is a case of getting the Commission to buy into your idea and
adopt it as their own, that is basically how I would do it. I
certainly would not try and spring it on a meeting of Coreper
or the Council because I think that would be a recipe for failure.
Q293 Lord Wright of Richmond: Can
I ask a rather introvert question about parliamentary influence.
Have you ever known a House of Lords report influence the initiation
of legislation?
Mr Darroch: If I say no, my Lord, it does not
mean that it has not happened, it just means that I cannot remember
off-the-cuff!
Q294 Lord Wright of Richmond: Yet!
Mr Darroch: Vijay, do you want to talk about
the Third Pillar?
Mr Rangarajan: Even when the Commission does
its own proposals it is worth looking back as to where the roots
of those come from and why they are proposing them. One of the
reasons, and this is increasingly the case in the Third Pillar
as well as others, is there is a community of policy officials,
policy thinking and it can be quite a wide community. To take
a migration example, there is tremendously strong policy input
from people like the UNHCR or the Institute of Migration, or Member
States' border agencies and their migration officials. There are
often shared challenges that come up and there is a whole informal
process that goes on in advance of that. You can trace back, quite
often a long way, some of the actual legislative instruments which
have been brought forward to, for example, the conclusions of
UNHCR reports going back a long way or the developing policy consensus
that something must be done. One example of that is work to share
information from criminal records. It became clear quite a long
time ago that many Member States were having problems with this
and it came out in judicial co-operation discussions between Member
States. In the end it was a Commission initiative but it stemmed
from a growing and wide recognition of a problem.
Q295 Lord Rosser: Can I just follow
up on that. We have had evidence, and you will have seen these
figures, on exercising the Commission's right of initiative in
1998, which show that just 5% of proposals were new initiatives
from the Commission. You can argue that in the current climate
the Commission has an incentive for trying to pretend or give
people the impression that it is just there to do what other people
tell it to do. You could take the view that when it says that
it is responding to express requests from other EU bodies that
it must get so much lobbying on all sorts of issues that virtually
anything it puts forward it can say is somebody's point of view.
Where does the influence then lie? You have sought to say that
if the Commission does put things forward you have got to look
back to where it might have originated from and it might have
originated from other bodies. Is that scenario of the Commission
saying that really it is only 5% of own-initiatives an indication
of where influence and ideas originate from, that they are not
coming from the Commission, they are coming from everybody but
the Commission?
Mr Darroch: It is very hard to answer that.
Where does the idea first come from? If they interpret the question
very strictly it does not seem improbable at all that only five
or whatever per cent of the ideas were a Commission official having
a flash of inspiration completely in a vacuum thinking, "What
we need is a new piece of legislation on this", because there
is a huge amount of discussion, lobbying and interaction that
goes on in this town. It can come from Member States, it can come
from the business community or the trade unions, it can come from
NGOs, it can come from consumers. If you take the very high profile
piece of legislation on mobile roaming charges that went through
last year, I think the Commissioner, Mrs Reding, probably was
prompted to do that by complaints from consumer organisations,
I think that is where that come from, it certainly did not come
from the mobile companies. I am sure they would classify that
as not part of the 5% but part of the 95%. In a comparatively
open environment where there is a huge amount of contacts, lobbying
and discussion that goes on it is very hard to sensibly quantify
where all this comes from. It is from any number of sources.
Q296 Lord Rosser: Are the Commission
working to quantify it?
Mr Darroch: I am sure they would have seen it
as in their interests to present themselves as primarily the responder
to requests from others rather than as an initiator of legislation.
Q297 Baroness O'Cathain: The listening
Commission!
Mr Darroch: Yes, but you would expect them to
say that. I do not think they are necessarily wrong. They still
have to take decisions issue-by-issue on whether the case for
legislation is there or not. How often they have the idea for
legislation completely in a vacuum would be rather rare, I would
think, someone would have talked to them about it.
Q298 Chairman: Just going back on
a question put by Lord Wright who asked you about the House of
Lords reports, without, I hope, being too self-defensive can I
return to the subject. I think the question and your answer related
to the initiation of legislation. It would be right, would it,
that in relation to the development of proposals where this Committee
or the European Union Committee produces a report as, for example,
on the European Supervision Order proposal, that is the point
at which a body like ourselves might hope to have some influence?
Mr Darroch: Yes is the short answer. Just to
enlarge on that a bit, I am sure you do not underestimate but
we do a huge amount of talking to the Commission as pieces of
legislation emerge from that machinery. Before it ever gets to
the Council, to do the UKRep job properly you have to talk to
them an awful lot because it is much more effective to get a clause
changed or a new clause put in when the desk officer in the Commission
is writing the thing than when you have to argue the case with
26 others around the table with different views. We always regard
it as almost the most important thing we do, trying to influence
legislation as it emerges from the Commission. On the climate
change package there was a massive amount of contact between Whitehall
and the Commission in the 12 months between that Spring European
Council and the call for this package to come out and the package
coming out on 23 January. There was a huge amount of contact,
meetings and whatever. That goes on on every bit of legislation
that we hear about. There is one at the moment on mobility of
health services on which there will be any number of visits all
the way up to and including the Secretary of State for Health
to talk to the Commission as they produce this legislation to
try and make it come out right. I hope that is the case across
the board on all significant pieces of legislation where we know
what is going on.
Q299 Chairman: Do you ever use our
reports in that process?
Mr Darroch: Of course. There is always a Government
response to your reports and they pick up ideas and views from
the reports and that becomes part of British policy and part of
the instructions that we take into the Commission saying legislation
should appear like this or like that.
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