Examination of Witnesses (Questions 330-339)
Ms Catherine Day and Mr William Sleath
8 MAY 2008
Q330 Chairman: Thank you very much
indeed for coming. As you know, we are pursuing an inquiry into
the initiation of European legislation. We are particularly grateful
that you have come from the core body. This is going to be recorded
and there will be a transcript, and if there are any points which
arise on the transcript I am sure you will let us know, and if
there are any supplementary thoughts, please let us know also.
Any interests which members have are recorded in the Lords' Register.
With that, I think we can go straight into the questioning unless
you would like to introduce your colleague or say anything in
preliminary?
Ms Day: My colleague is William Sleath, one
of my assistants. I do not know if you want to say something about
your antecedence relating to this particular Committee.
Mr Sleath: In a former life I was a Lords' Clerk,
so at different times I have been on the other side of the table.
Q331 Chairman: Did you have anything
to do with the European Union?
Mr Sleath: Yes, I did.
Q332 Chairman: You are very well-informed.
Mr Sleath: I served this Committee for several
years.
Q333 Chairman: We might even repeat
the questions we asked in the previous session relating to the
work of the Lords, but let us leave that for the moment. Are there
any preliminary remarks you want to make?
Ms Day: No, I am keen to use the time as effectively
as you wish. Please start wherever you would like to.
Q334 Chairman: Thank you very much
for your paper. Can I just start with the first point which you
make, which is the Commission's right of initiative which you
explain in terms of the founding of the Community and you explain
it as one of the cornerstones of how the Union works. Can you
amplify a little on the rationale? I think it is pretty clear
from the first paragraph of your paper, but in particular can
you tell us whether the rationale still holds good today? Some
might see it as not mirroring, and it certainly does not mirror,
the procedure in national institutions. Is it still a good idea?
Ms Day: Yes, I think it is. It has evolved over
the years. It is one of the things that explains why the European
Union is not just an intergovernmental body, and why it is different
from the way that the Member States are organised. There are a
lot of reasons why it still makes sense today, but I want to underline
at the outset when we say that the Commission has a sole right
of initiative, it does not mean that we live in an ivory tower
and dream up initiatives all on our own. This was one of the points
that I wanted to make in my note. This is a good mechanism when
you have a body like the Commission which is full-time thinking
and working on realising the European interest. It helps to make
sure that proposals that come forward reflect a balanced interest
across the Union, not just the interests of the bigger Member
States or groups of Member States, but search all the time to
try and find a way to identify what is the real common interest.
Now that we are 27, I think the Commission's right of initiative
serves another purpose: lots of Member States have lots of bright
ideas all the time but they do not all necessarily merit being
put forward at EU level. If Member States had the right of initiative,
I think we would have a much bigger job in trying to sort out
which initiatives are worthy or would provide an added value.
So the right of initiative is still relevant today. The way in
which the Commission exercises its right of initiative today is
very different. First, we now have a culture of consultation.
Second, over the years institutions like the European Council,
which did not even exist at the beginning of the Union, and if
the Treaty of Lisbon is ratified will become an institution in
its own right, have developed a technique of inviting the Commission
to come forward with proposals. This is a diplomatic way of respecting
our right of initiative but, on the other hand, making plain that
the Heads of State and Government expect the Commission to come
forward with an initiative. The situation is even more complex
than that, in that very often the Commission starts the process
by suggesting that the Council might be interested in having a
proposal. It is a very sophisticated process of consultation,
testing, refinement, and then coming forward with formal proposals,
for which one has tested the temperature and the "market".
The hope is that when we do come forward with proposals they will
be well-received and agreed.
Chairman: Are there any points which arise out
of that?
Q335 Lord Rosser: You have made the
point about the role of the European Council and making their
views clear. I appreciate in asking this question that things
are not as black and white as this question suggests, but I am
asking you which category you are nearer. In relation to the Council
and the Parliament, is the Commission a servant or a master?
Ms Day: We are not a master at all. The Commission
has the power to propose, it is an important right but, except
in very rare cases, like in competition policy, we never take
decisions, so we are always in the position of inviting others
to decide. We would like to think that because we have researched
the ground, because we try to only come forward with well thought-out
proposals, because we back these up with a lot of argumentation,
a high percentage of our proposals will get through, perhaps in
modified form, and I think we have a fairly good track record.
We are certainly not masters. What we have seen over the years
is more of a balance coming into the picture between the Council
and the Parliament. The Parliament has been given progressively
more powers and in terms of the budget, for example, the Parliament
uses those powers fairly effectively. It is the Parliament and
not the Council that has the right to sack the Commission, so
the Commission is very conscious of being the servant in this
respect, and part of that can mean showing that it is not just
there to do the bidding of the Member States. This is also a dynamic
process: because the Commission has this role of thinking about
the common interest all the time it would be very rare for the
Commission to come forward with a proposal knowing that all Member
States were against it, but it is quite often the case that we
start out thinking something is a good idea without having all
27 already signed up, so it is a question of debate and persuasion.
We always know that we can initiate the process but we can never
conclude it on our own.
Q336 Lord Rosser: Would it be fair
to say that where you are in a situation where the Council has
a point of view or the Parliament has a point of view, perhaps
they have passed one of these own-initiative resolutions, the
power or the influence of the Commission is that much less, but
if you are in a situation where there are different views on an
issue coming from the Council and it is clear that the Parliament
is divided then the Commission is in a position to pick whichever
line it feels is most appropriate and, therefore, does have greater
influence in that kind of scenario, or is that not a realistic
statement?
Ms Day: I do not think that is very realistic.
Apart from making the initial proposal, the advantage the Commission
has is we are the only institution that knows what is really going
on in the other two, because we spend a lot of time with the Council
and the Parliament. They tend not to interact together in anything
like the same way. What that enables the Commission to do is to
be the honest broker. Of course, we want to defend our proposals,
but once we have made them and the negotiating moves to the Council
and the Parliament, then the role of the Commission is to try
to see how can we preserve the integrity of our proposals but
also accommodate the wishes of Council and the Parliament. What
you have seen in the current legislature of this Parliament has
been a greater ability on the part of the Parliament to rise to
the challenge of some big political initiatives. If I give the
example of the Services Directive where the Member States were
completely blocked, it was actually the Parliament that came up
with the political compromise that broke the logjam and that was
adopted. Similarly, on the REACH Regulation on chemicals the Parliament
played a very political cross-party role. They do not do it every
time but they have increasingly shown an ability to rise to the
occasion. It is in areas like that where the Commission has to
respect the political authority of Parliament and Council as legislators,
while trying to act as something of a go-between between both
institutions in the interest of bringing everybody to as consensual
an outcome as possible.
Q337 Lord Wright of Richmond: Can
I ask you to speculate a little on the extent to which that balance
of proposal versus decision is likely to change under the terms
of the Lisbon Treaty?
Ms Day: I think it will change subtly rather
than massively. It is obvious that the Lisbon Treaty, if it is
ratified, will move a significant number of decisions to qualified
majority and away from unanimity. The question is the real impact
of this. We do periodically have a look and see what is happening
in terms of voting patterns. The influence of Qualified Majority
Voting is more to produce the circumstances in which a compromise
is likely to emerge, but the Council still tends to favour consensus
as much as possible. There is a sound political logic to that,
I think, which is that we are taking real decisions which have
to be implemented afterwards and if they are taken by consensus
you have a higher degree of ownership than if Member States are
outvoted. We, as the Commission, would always try to support the
move towards consensus. Qualified majority voting does help in
terms of time or in avoiding relatively minor logjams: if one
delegation is holding out on a rather small point if the Presidency
can say, "We can see that we have a qualified majority here
so, Delegation X, would you please go back and take another look
at whether you really want to hold out". It has a subtle
effect rather than a major effect.
Q338 Lord Bowness: Could I just ask
the Secretary General to expand upon something which is set out
in the paper that we had from former Commissioners Barnier and
Vitorino which is actually quite clear but quite important when
we are looking at the Commission's sole right of initiative. They
say in their paper: "The Commission's right of initiative
gives an extra guarantee to Member States in the minority, usually
but not always the small countries, in that the Council cannot
push through a majority decision without the Commission's consent".
I think that is a matter of very important principle and perhaps
if you could expand upon that I personally would be quite grateful.
Ms Day: It is important in terms of the integrity
of our proposals and it is an important guarantee for all of the
Member States because sometimes some of the bigger Member States
can be on the side of the Commission and some of the smaller Member
States can be in favour of some other outcome. Most of the time
the Commission is looking for compromise, as I said, but if we
feel that one of our proposals would be so diluted in order to
reach the minimum compromise, we do not necessarily say, "Okay,
we go along with that". In particular, there can be areas
where some of the smaller Member States have what might look like
a minority interest or something that is not very important when
looked at in the scale of the overall Union, but where if the
Commission is persuaded that it is important for one or more smaller
Member States, then the fact that the Commission can effectively
withhold its agreement to a compromise can be important. It means
either all the Member States have to be unanimous against the
Commission proposal in order to decide something else, or they
have to go on looking for a compromise. Withholding our agreement
from a compromise is not something that we do very lightly, but
we do it on certain occasions if we feel there is a strong enough
justification.
Q339 Lord Bowness: My Lord Chairman,
I wonder whether the Secretary General can give us any particular
instance, particularly one where it was protecting the interests
of smaller states.
Ms Day: Maybe William can think of an example
as well. One I can think of goes back a few years when I was working
on the accession of the countries of Central and Eastern Europe.
We were discussing things called Pre-Accession Partnerships where
we were setting out in considerable detail what the then candidate
countries needed to do and the Commission made its proposals and
there were situations where some of the bigger Member States wanted
to insist on things which from the Commission's point of view,
and the point of view of some of the future Member States, were
unreasonable. We refused to change our proposal to make it, as
we would have seen it, unreasonable, excessively demanding and
less possible to fulfil, until we came to the end of the discussion
process. By the time we came to the end of the discussion process
enough balancing factors had come in to bring the Member States
which were unreasonable at the beginning to a much more reasonable
part of the landscape. That is a particular example of sometimes
it is a question of allowing enough time for discussion for some
of the subtleties and complexities to come across to Member States
who maybe start with a rather black and white attitude but in
the end realise that the situation is perhaps a little bit more
complex than they might first have realised.
Mr Sleath: An example of an instance where the
Commission uses its power to ensure that a proposal is not emptied
of all meaning might be the Services Directive, again, where there
was a point in the negotiations when everyone was very much looking
to have a deal and almost a deal at any costs. The Commission
had to step in and say, "No, even if there is unanimous agreement
to have a deal and get this issue off the table, we are not going
to agree to something that in the end does not add to the status
quo at all in terms of liberalisation". In the end the Commission,
as would normally be the case in these instances, did not actually
have to use that power, but the very knowledge that the power
is there was enough to turn that debate back towards a more meaningful
compromise.
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