Examination of Witnesses (Questions 360-379)
Ms Catherine Day and Mr William Sleath
8 MAY 2008
Q360 Lord Burnett: This is at the
earliest stages, is it?
Ms Day: Yes, when we make a formal proposal
or a formal communication.
Q361 Lord Burnett: Is that too late?
We are sometimes told that when those things happen it is rather
too late and it is at the very embryonic stage that people want
to get hold of it.
Ms Day: This will include Green Papers and refers
to very general communications which maybe only three or four
years later will lead to some decision. There is no earlier point
at which the Commission adopts a position than the point at which
we now send documents to national parliaments. Why did he want
to do that? He wanted to do that because he feels it is very important
we try to stimulate debate at national level at the early stage
when the Commission is making a proposal. What has happened up
to now is that most parliaments were only consulted after the
Council and the Parliament reached agreement and were asked in
the case of legislation to transpose it into national legislation.
If they then wanted to have a debate and say "We would like
to change this", they were told, "You cannot because
it has all been agreed in Brussels". What we want is to give
national parliaments the opportunity to come in at the beginning
of the process and say, "Well, we think this" or "We
think that". It has been a very worthwhile process already
because we have had, I can never remember the numbers—
Mr Sleath: Over 200.
Ms Day: We have had over 200 opinions from national
parliaments in these two years and it is very interesting to see
on what the parliaments choose to comment and which parliaments
are most active. What we find is that in a lot of parliamentary
systems where there are second chambers, it is the second chamber
that is very active.
Baroness O'Cathain: We know that!
Q362 Chairman: We have seen a very
limited number of these. I think we have seen some comments about
the Bundestag, or possibly it was the Bundesrat, but not others.
It might be of some interest if national parliaments' responses
were circulated among all national parliaments.
Ms Day: We want to make them all available on
the website, so that we publish them all. I think it should be
a question of you having somebody to track them and pull out the
ones of interest to you.
Q363 Chairman: We must advise our
legal advisers.
Ms Day: We are very transparent.
Q364 Chairman: They get put immediately
on the website?
Ms Day: Yes.[31]
Their position to us and our reply to them, because we comment.
Of course, all of this will take on a more formal character if
the Lisbon Treaty is ratified and when national parliaments have
a right to object on the grounds of subsidiarity to a Commission
proposal, but we intend to continue sending all our proposals,
not only the legal ones, to national parliaments in the hope that
you and others will debate nationally and get rid of this sort
of distance between Brussels and the local situation.
Q365 Lord Burnett: Is what we have
been led to believe wrong then, that once as a Commission you
produce these initial proposals it is a sort of fait accompli?
Ms Day: Yes, because once we make our proposal
that is the end of the first chapter for us but then we go into
negotiation with the Council and the Parliament, and almost always
our proposals are changed, so everything is still open. What is
true is that maybe it will have taken three or four years before
we make a proposal and some people would like to be involved at
that stage. It is much more difficult for us to involve national
parliaments in that because there is not a proposal at that stage,
there are ideas which are being batted around and discussed. One
year in advance we do always publish our Work Programme in which
we say what we will come forward with next year, so if ever you
are interested in something on the Work Programme please let us
know and we would be happy to make the consultation papers, et
cetera, available.
Q366 Lord Burnett: Everything that
comes up as a proposal will have been flagged up the year before
in the Work Programme?
Ms Day: Yes, all major new initiatives. Not
detailed decisions, fixing the price of eggs or whatever, but
all new political proposals—except for the occasional urgency.
Q367 Chairman: May I just ask at
what stage will institutions like the Justice Forum, which has
recently been proposed, come into play? Will they be used before
a legislative proposal emerges?
Ms Day: I am afraid I do not even know what
the Justice Forum is.
Q368 Chairman: The Bar Council raised
the question whether it was a fig leaf.
Ms Day: I am afraid I personally have not encountered
it before.
Q369 Chairman: The idea is to try
and find stakeholders who can vet legislative ideas proposed and
put forward by the Commission, a disparate group of interests,
but you do not know about this.
Mr Sleath: There are a variety of pre-legislative
stakeholder opportunities. They tend to vary quite a lot from
one policy area to another, but in certain areas it is the case
that we have developed over the years quite a close relationship
with particular stakeholder groups which could lead to discussing
a draft text of one form or another before it is adopted by the
College. That is not systematic, it tends to have evolved case-by-case.
Q370 Chairman: May I perhaps suggest
the idea that although in theory it sounds an extremely interesting
idea, it is one that might need some care in the selection of
stakeholders and actually in trying to work out what the purpose
of the Forum us. I say that, I do not know whether you have heard
of it, but I was a stakeholder in the CFR process which involved
a series of workshops of very stimulating individuals. There is
a clear need for structure and to work out in what direction one
is going.
Ms Day: You are absolutely right. First of all,
we have minimum standards of consultation and we always publish
the list of stakeholders who respond and we publish at least a
summary of the input that we have received so that people can
then say, "Well, that's not representative", or "I
don't agree with this", or whatever. It is a challenge also
in terms of our own staff profile. In the days when you had somebody
who was an expert working quietly in their office, you needed
a different kind of expertise from somebody who was capable of
chairing a meeting of 200 stakeholders which might be very unruly.
For us, it is also a voyage of discovery and we are recruiting
a different kind of person now and our officials have to go through
a different kind of process in terms of formulating policies.
We are constantly trying to assess ourselves and improve. We are
getting better at this but, as William says, from one area to
another there are longer traditions of working with stakeholders
and for some parts of the Commission it is still a relatively
recent experience.
Q371 Chairman: I will not go further
into that, but it is a subject on which people have spoken. One
point the Bar has made is that in this Justice Forum, which I
appreciate you are not familiar with, there is a refusal to allow
stakeholders from national bodies, such as the Bar of England
and Wales, and an insistence one has only European associations.
From a common law viewpoint that might be seen as a problem and
I think it is one that you may like to comment on.
Ms Day: I am smiling because I have encountered
this in other situations. In our desire to be representative we
sometimes insist on only having representatives from organisations
that are established in several Member States, which can be a
problem in some parts of the Union. In our water discussions we
do not have consumer representatives from the UK because they
are not represented in the same way as they are in other countries.
We have to try not to be too rigid about these things. What is
important for us is to be genuinely representative, but if you
start to make exceptions then you have to make sure that the exceptions
do not become the rule. I will take this away and we will look
into it.
Q372 Chairman: It has certainly been
a matter of concern because there is a general concern that common
law should be represented at the European level and should play
its part.
Ms Day: The British and Irish situations are
different and having the opt-outs and not being in Schengen, the
others ask why should we then be influencing what they are going
to do if we are not going to be bound by it. It is a more complex
debate. What the Commission has insisted on on a number of occasions
is where the Schengen countries are going to be getting together
to discuss future policy, we try to inject somebody with a common
law background, even as an observer, just to make sure that the
other school of thought is represented and they do not go too
far down a continental route which would make it difficult and
at least have the two systems linked together at some point.
Q373 Chairman: It has been suggested
that individual DGs effectively develop their proposals and there
is then a very short period of circulation within the Commission,
I think ten days, to other DGs and, indeed, to the Legal Service,
and then the matter goes upwards through the Commission and is
approved at each level. That ten day period is very short and
the result is that individual DGs are given very considerable
opportunities and freedom to develop legislative proposals without
actually a real input from the specialised Legal Service which
may be to the detriment of the product and may also mean that
the product is not entirely consistent with what other DGs would
wish. Have you got a comment on that?
Ms Day: Yes. That used to be the case, but it
is less and less the case. We are extremely conscious of just
how cross-cutting most modern policy-making is. We have various
ways of dealing with that. I mentioned the Work Programme and
we used to have a situation where the Work Programme was simply
the sum of all the proposals that came out of the system, but
that obviously was not very sensible and used to lead to situations
of people being surprised at the end of a long process to find
out that in another part of the Commission something was going
on that they should have known about and might or might not have
approved of. We now go through a very intensive process of vetting
proposals before they go into the Work Programme. We do this as
the Secretariat-General together with the President's cabinet.
We have sessions with each pairing of cabinet and DG to
establish what it is they are working on, what degree of maturity
it has reached, have they got a good impact assessment under way,
have they done their stakeholder consultation, and we only put
in the Work Programme things that pass all of those tests. That
is already a very good preparatory phase. We are doing a lot of
intensive upstream co-ordination now working, under the instruction
of the President, with all the major DGs on all the major policy
initiatives to make sure that they have involved everybody who
needs to be involved and that we do the trade-off between different
legitimate policy considerations months before things come for
final adoption. This ten day procedure is still there but we are
moving it from having been a sort of surprise ambush, as it has
been in some cases in the past, to now being a process of just
a final checking on something that we will have been working on
together. I do not claim that the system is perfect, but I do
think the culture of the Commission has moved quite far in the
last three or four years, to being an organisation where we prize
much more the co-operation between departments rather than the
solo ones which we have witnessed in the past.
Q374 Chairman: What about the drafting
point? On this Sub-Committee we have seen some proposals which,
frankly, seemed to us to be in need of some rethinking in terms
of drafting and, as we understood it, were the product simply
of a particular DG without necessarily any real input until the
very late ten day stage by the Legal Service. As I understand
it, there is no equivalent of the Law Commission or the parliamentary
draftsman in the European Union to ensure that you have got a
specialist draftsman producing work products. Does that not seem
a rather fundamental defect in the system, that it can produce
legislative proposals from unqualified people who are not specialist
drafters, to use a neutral term?
Ms Day: Yes, it is a problem. Normally speaking,
we try to involve the Legal Service as well because if we are
drafting complex legal proposals then we need their advice on
how to do it long before we get to the final product. Again, the
ten days for a complex piece of legislation, the Legal Service
can simply refuse to give its agreement and take longer to do
the necessary work. Things are not quite as they might seem. We
do have a problem even in terms of clarity because most people
are drafting not in their mother tongue, so we are now working
with our Translation Service to provide an editing service, to
put non-mother tongue English into pukka English which can help
in terms of clarity of concept. It is quite difficult working
in a multi-lingual, multinational organisation, but we are trying
to find—
Q375 Chairman: Does that have to
be done for every language?
Ms Day: We need a good master copy because if
you start off with a bad original it will get translated in "Chinese
whispers" fashion into very different things by the time
you get to the 23rd language. The master copy is something that
as the number of languages has grown recently we have realised
we have to put much more effort into. It is normally in English
or French and then it has to go into the other languages. We are
trying to improve the quality of the drafting and our Legal Service
is working with the Legal Service in the Council to try to promote
high standards of legal drafting. We are conscious that this is
an area where we need to invest.
Q376 Chairman: The input of the Legal
Services is more by vetting than by initial drafting?
Ms Day: They do not draft the original, that
is correct.
Q377 Lord Bowness: Some witnesses
have said to us that it is not clear where proposals come from
and they want the Commission to publish the contacts and approaches
that you have had rather than the results of formal consultation.
Have you any comment on that as to how practical that is?
Ms Day: I do not think it is practical, to be
quite honest, because there are a myriad of sources for ideas.
Some come out of legal requirements, some come out of bright ideas
somebody has, some come out of lobbies. I think it would be impossible.
How can you get into a Commissioner's brain and say, "Where
did this idea come from"?
Q378 Baroness O'Cathain: Can I take
you back to something you said about water and the UK. Is the
situation with water similar to that with other regulated industries
in the UK, like communications, Ofgem or any of these, the energy
companies, because there are consumer groups under the terms of
the regulations of Ofwat so there is great consumer representation
and I do not understand why you cannot have the output of that
transferred over here to Brussels?
Ms Day: There is something of a particularity
in the way the UK has privatised water, for example, which means
that it is very heavily driven by financial considerations, which
is not the case in most other Member States, they have not privatised
in the same way. The way the City drives decisions in a number
of your privatised industries is not common on the Continent.
That is a separate point from the consumer representation point.
On the consumer representation point, we have to go through representative
organisations and you cannot always have 27 times everybody in
the same room. The water consumer body, as I recall, maybe it
has changed, does not have a UK member. We have not been able
to find an EU-wide representative body of consumers to include
in the water consultations.
Q379 Chairman: Just to drive this
forward a bit, because we are very short of time, can I just ask
what is the role of the Commission's Joint Research Centre? Perhaps
you could also give us a view as to whether the Impact Assessment
Board, which is described as independent but is part of the Commission,
is effective.
Ms Day: The Joint Research Centre is a very
important source of scientific information for the Commission.
We do a lot of technical legislation and regulation if you think
about all of the standardisation work that the Enterprise Department
does or a lot of the environmental legislation, that has to be
based on a sound understanding of science. The Joint Research
Centre works on its own Research Work Programme but also does
a lot of, if you like, almost sub-contract work for different
Commission departments. It is a very important part of giving
us the reassurance that our decisions are based on sound science.
31 Comment by the witness on reading the transcript:
The best place to put them is on the IPEX website run by the national
parliaments, and our responses are now being transferred to IPEX. Back
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