Examination of Witnesses (Questions 440-459)
Mr Jim Murphy and Mr Ananda Guha
4 JUNE 2008
Q440 Chairman: It was Lord Brittan,
but I think he was reflecting perhaps the same spirit of what
you were saying. Might it be said that the present situation has
grown up a little bit like Topsy, that we are where we are simply
as a matter of history and that it might be an area where some
re-thinking could be done?
Mr Murphy: I think it would be foolish to say
that in a European Union which continues to expand you cannot
continue the re-think. Of course we should always be open, but
I think from the UK perspective, the Government perspective, we
think it is important that the Commission has this right of initiative.
Now, there are some changes which perhaps we will have the opportunity
to talk about a little later within the Lisbon Treaty about the
threshold for the right to make proposals and initiative and everything
else for Member States, but generally we are content that the
Commission has this right of initiative in the context and within
the parameters which Lord Brittan clearly referred to and which
I have described as a similar process but in a different way.
But we can always look to how these things evolve, of course we
can.
Q441 Chairman: The fact is that at
the moment in the Third Pillar area there is an individual Member
State right of initiative and, as you have just mentioned, when
that comes into the First Pillar there will be a variation in
that, but there will still be a Member State right of initiative
if you get a quarter of Member States to make a proposal in the
area in question, criminal and policing. Is there any particular
reason for the difference in that area from the more general areas
of the First Pillar?
Mr Murphy: The important thing post-Lisbon Treaty
ratification—and I do not think it is bad manners to notice
and reflect that your Lordships' House is considering these issues
at this very moment, so without trying to impinge on that debate
in any sense whatsoever, as justice and home affairs move from
Third Pillar to the Community method my Lord Chairman is right
to state that that right of initiative by a single Member State
will move from a single Member State to a quarter of Member States.
I think it is partly based on the sense that if the proposal cannot
command the support of a quarter of the Member States it has a
very unlikely chance of ever succeeding. I have been to a number
of your Lordships' Committee hearings on these related issues
and the most common question asked is, "Give us some examples."
I will not read them in to the record, but I will happily provide
them for your Lordships. The fact is, there is a substantial number
of proposals from different governments, the Belgian, the Greek,
and not in a particular but illustrative way I would say the Belgian
and the Greek Governments have proposed things which through a
lack of preparation and forethought on occasion (not generally
but on occasion) have not deserved the full support of other Member
States. So that threshold I think is an initial threshold which
is a good test. It is a good way of taking the temperature as
to whether there is a willingness across a European Union of 27
to actually progress, rather than just one Member State, whether
it is the UK, Belgium or Greece, having that right of initiative.
I think it is a sensible reform.
Q442 Chairman: I am just giving you
a bit of historical fact which Professor Peers gave us. He observed
that if one was to judge by the five year transitional period,
I think following the Treaty of Amsterdam, when Member States
could propose legislation, or indeed to judge by the Third Pillar,
if you had a Member State right of initiative across the board
you would have a great many more proposals, but do I gather from
what you have said that you would not be too worried about that,
you might be a bit concerned?
Mr Murphy: We would certainly have a quantity
of proposals and I think we would like to invest our energies
and our diplomatic skills in the proposals which have quality
and which command support. That is the important change there,
I think.
Q443 Chairman: I think you have mentioned
a point which is relevant to my second question, which is whether
the shared right of initiative in the Third Pillar has caused
any difficulties. I think you have just identified that there
have been some difficulties when individual Members have put forward
proposals without thinking them through sufficiently. Is there
any other problem in that area? The question refers to impact
assessments and failure to take account of different practices
and legal traditions across the EU. Has that been a problem?
Mr Murphy: I think on impact assessments there
has historically been a significant problem. It is improving,
but it is nowhere near perfect. It has not improved enough. There
are things which still have to be improved and there are other
committees which your Lordships' House has—I will not say
enjoyed but had to endure, from my reflections as a former better
regulation minister on these issues of impact assessment. We only
have an hour and a half today! I could speak about impact assessments,
whether that is a good thing or a bad thing, for that period.
But I think it would be churlish not to acknowledge that there
has been progress, but not enough progress on impact assessments.
Q444 Chairman: Are you talking about
Commission initiatives here or Member States' initiatives?
Mr Murphy: I think generally. I think it is
both. This is a snapshot in a sense rather than a scientific study
that I am going to offer, but I think actually Member State initiatives
are more prone to lack impact assessments at the point of initiation,
because it comes from an instinct to do something, often well
intentioned but not properly thought out, and it certainly lacks
an impact assessment.
Q445 Chairman: Could I just go back
to one of the points you were making about the greater guarantee
that the requirement of a quarter of Member States subscribing
under the Treaty of Lisbon will bring to the viability and good
sense of the proposal. Is there any reason why that possibility
of a quarter of Member States making a proposal should not have
been extended across the whole range of Community legislation?
Is it any more than history which has led to it being confined
to the Third Pillar, or now to the criminal and policing area?
Mr Murphy: I must say I am not certain as to
the dynamic of the conversation which took place at the time as
to why it is specifically here.
Mr Guha: I am not aware of any particular reason
why it is being pursued just in JHA beyond the fact that we are
moving beyond a very specific area, and in a sense whereas we
cannot necessarily guarantee that one country like Belgium or
Greece will come up with something which will reflect the views
of other Member States, having groups do it in the specific field
of the JHA provides some surety.
Q446 Chairman: It may be it is just
history and this was an unrestricted right of an individual to
do it at the moment at which it was cut back, but I wondered whether
there might have been advantages, if only in logic, in having
the same possibility across the board, possibly a democratic appearance?
Mr Murphy: On the issues such as common foreign
and security policy, where it has in the past required and continues
to require unanimity, I am far from certain that that right of
initiative, as has been suggested, would be the right way to progress.
Q447 Chairman: It is civil law. Is
there any particular distinction in the justice and home affairs
area between criminal and policing on the one hand and civil on
the other?
Mr Murphy: As they move from the Third Pillar
into the Community method, the exemptions, as I think your Lordships
reflect—family law, the European Public Prosecutor and operational
policing—will still remain within the scheme of unanimity,
and I think that is important. I am not aware of the historical
tradition which leads us to the conclusion we have arrived at
today.
Q448 Baroness O'Cathain: I am just
wondering, Minister, if there is a chance of it ever becoming
easy, in view of the different traditions, the different legal
traditions. There are lots of things, for example agriculture,
where you can get unanimity, or even foreign policy, but when
it comes down to things in the justice and home affairs area,
I just wonder, is it going to be possible ever, or will it always
be compromised and an uneasy relationship between the Member States?
Mr Murphy: Ultimately, where we move towards
a Community method and qualified majority voting processes, that
right of veto is not as strong, so we would not always have the
lowest common denominator in policy terms. As your Lordships will
be aware, the UK and Ireland have set themselves apart. This is
not celebrated across the rest of the European Union, but in terms
of our opt-in/opt-out arrangements on JHA processes that is an
additional—protection is the wrong word, but it is an additional
part of the equation. So the question is, will we get unanimity?
I am saved by the bell from the question! Ultimately, the intention
is to try.
The Committee suspended from 4.32pm to 4.40
pm for a division in the House.
Chairman: Minister, thank you for your patience.
I think you were cut off halfway through answering Baroness O'Cathain's
question. I do not know whether you want to repeat it again?
Q449 Baroness O'Cathain: No, I do
not think so, necessarily. The essence was, will they ever be
able to do anything other than compromise on justice and home
affairs, because of the nature of the legal systems being different
in effect?
Mr Murphy: All I would add is that as the proposal
winds its way through the process, if it is going to command consensus
then there does have to be a degree of compromise, if you wish
to put it that way. But where we support proposals we try and
ensure that the core purpose is retained. We do not always succeed
in that, of course we do not, and as the European Union continues
to expand in numbers, with Croatia probably being next, this is
a dynamic that is always at play.
Chairman: Can we go back to the initiation of
legislation?
Q450 Lord Bowness: Minister, we have
heard witnesses tell us that the Commission seeks to anticipate
the degree of support which any proposal will have. Is this, do
you think, because they can no longer (if they ever could) produce
their own proposals and expect to get them through the Council
of Ministers? If that is the case, is it because they have become
relatively weaker vis-a"-vis the other institutions?
Mr Murphy: The power of the European institution
is that if it is seen in the context of a contest, then one could
perhaps come to that judgment about the relative influence that
is going to come to the European Parliament, but I am not sure
that we would see it through the prism of a contest. The European
Parliament certainly is increasing in power and influence, with
the Lisbon Treaty extending co-decision in, I think, 40 separate
discrete areas to the European Parliament. So certainly the European
Parliament is increasing in power and assertiveness, which I think
is an important evolution of its democracy. But the Commission
does retain a core central set of powers, which we do not think
is under threat and actually we do not believe should be under
threat because that set of Commission powers is, we think, of
fundamental importance to effective governance of the European
Union.
Q451 Lord Rosser: Minister, you did,
I think, write to the Committee recently in April about the inter-institutional
agreement for establishing rules for EU regulatory agencies where,
as I understand it, the Commission had put forward a proposal
some time ago and it has now withdrawn it because it did not have
the support of the Member States. First of all, was that a misjudgement
by the Commission, because the kind of evidence which I think
we have had from the Commission is that it in fact consults very
widely, it gets lots of people expressing views and it does not
actually put something forward unless it is pretty sure it is
going to get supported? So, on the face of it, that would suggest
either misjudgement or that the Commission had a view that this
is what it wanted and it was just going to push ahead with it
and try and get it. It has withdrawn its proposals, but it is
not giving up because it is coming back with something else. Is
that an indication of a Commission which takes note of what is
being said and only brings forward proposals which it knows will
have support, or is that an indication of a Commission which has
decided what it wants and is going to keep going until it gets
something?
Mr Murphy: In response to the first question,
I reflected that I think things have improved. They are far from
being perfect, but it would be churlish of me not to acknowledge
that there have been improvements in recent years. They do make
mistakes, of course they do. There are occasional misjudgements.
But there is also a situation where perceptions of what Member
States wish on occasion shift as a consequence, for example, of
elections in different Member States, as a consequence of external
events, as a consequence of domestic politics. It is certainly
a difficult and complicated task. They try to capture, as your
Lordships will be aware, a work plan within their multi-annual
set of proposals and generally they manage to stay within that.
That is, again, in the context of that being the parameters of
their work plan, but occasionally they do make mistakes and occasionally
they misjudge and on occasions, to be frank, what Member States
articulate in terms of their wishes does on occasion change.
Q452 Chairman: I suppose the question
which might arise out of that is, do they get a representative
fair cross-section of input? You mentioned the influence of pressure
groups and the various dynamics which influence the Commission.
We have heard from institutions and the Freight Transport Association
gave us evidence that working with a bright young administrator
in the European Commission who wants to move and get things done
is a very good way of promoting legislation. Another of our witnesses,
I think Lord Kinnock, gave us instances of individuals in the
European Commission who had been able to pursue bright ideas.
But are the pressures which lead to these bright ideas in any
way distorted? We have heard of lobby groups, pressure groups,
and sometimes one has a bold resolution from the European Parliament
which sets off an idea such as, perhaps, the idea of the civil
code for Europe, which gets picked up. Is there any way of saying
whether these ideas are representative of what Europe as a whole
needs or wants?
Mr Murphy: There is an awful lot in that question.
Notwithstanding the point about the multi-annual strategies, this
one about the bright young thing is a really interesting one,
as to which part of the European institutions the most talented
officials are most attracted to and driven towards. Picking up
on an earlier point about impact assessments, the bright young
things, or just the bright things, the most articulate, effective
civil servants are still attracted to, I think, the pro-activist
instincts of European institutions. What I mean by that is that
we have not yet seen a culture change within the institutions
whereby there is a similar appetite to work within the de-regulatory,
the better regulation -
Q453 Chairman: The Lisbon agenda.
Mr Murphy: I think there is still a task in
terms of changing the culture of the institutions where that is
seen as an attractive career prospect for personal enhancement.
That is a reflection, I think, of the political process. There
are very few people who get elected on saying, "Vote for
me and I'll do less." It just does not happen very often,
and it is difficult, and perhaps the structures reflect that as
well. They have got to be recognisant of the Parliament, particularly
in areas of co-decision, but generally their work reflects the
wishes of the European Council. But again—and I will finish
on this because I have spoken too long on this specific point—we
have also got to reflect. Do the European decision-making structures
give them clear guidance because of the sectoral councils, the
General Affairs Council, the European Councils? Is there a rationalisation
of the multitude of tasks which we set for the European Commission
in particular and a hierarchy of priorities?
Q454 Chairman: Just picking up one
thing you said, is there any European institution which influences
the Commission in the "less is better" direction which
you mentioned, de-regulation?
Mr Murphy: The greatest influence, I think,
is a group of Member States—some individual Commissioners,
but a group of Member States. Of course, I would say the UK, because
I think that is generally accepted, but the Dutch in particular,
who had earlier adopted the better regulation agenda, some of
the Baltic States, the Czechs and the Italians increasingly. So
Member States, I think, are the most effective lever on better
regulation currently, but there is a beginning of a culture change
within the Commission.
Q455 Lord Rosser: Could I just pursue
this role of Member States? How, in your view, can an individual
Member State influence the initiation of legislation? Have we,
the UK, done that, successfully promoting legislation? Should
we be doing more?
Mr Murphy: I am sure we could always do more.
That gets us away from "less is better". I think we
could certainly, of course, do more, but complacence suggests
we should not. Where are the most effective examples? On the climate
change package we were very effective, but the residual challenge
for us on climate change is to maintain that pressure. We can
discuss this if your Lordships wish, but as some Member States
realise the consequence of the climate change package which has
been agreed they seek to unpick it for reasons which are legitimate—national
and economic concerns on occasion, but as they seek to unpick
particular aspects of the climate change package, that is perhaps
the best example of our effectiveness. There are others.
Q456 Lord Rosser: Does it make any
difference? Does a state or a nation have more influence and power
if it is holding the Presidency, or is that a bit of a fig leaf
as far as this is concerned?
Mr Murphy: It has, but I think what is a false
assumption about this argument is that it has an immediate influence.
I think its influence is felt months, if not years, in subsequent
presidencies down the line. There are examples on better regulation
which I think the UK—was our Presidency in 1998?
Q457 Chairman: We have had a much
more recent Presidency, but yes.
Mr Murphy: Yes, the Presidency in 1998, the
proposals which we actually gave energy to in 1998 were actually
given legislative effect in 2007. So the question would be, as
President Sarkozy assumes the Presidency of the European Council
on July 1, will he by December 31 see legislative outcomes initiated
by French instinct and French politics? It is highly unlikely.
So there is not that short-term burst of legislative outcome impact,
but I think it is fair to reflect that there is a longer medium
term impact of the power of a presidency to put energy into a
legislative proposal.
Q458 Lord Rosser: You have spoken
about the time span. Does that then suggest that perhaps national
parliaments do not have a great deal of influence as far as the
initiation of ideas are concerned, the initiation of proposals
are concerned, because they are probably working to rather shorter
time-spans than you have been talking about?
Mr Murphy: I think I have come to this assessment
about the power of the presidency. On day one as the Minister
for Europe, I do not think I would have come to the job with the
perception or belief that the presidency would have a short-term
legislative impact. It is only as I now reflect on the presidency,
the energy, for example the Hampton Court agenda which we did
so much to give life to, better regulation. Culturally we still
are not there. Procedurally we are getting there, but culturally
we are not. As Member States and governments, I am not sure there
is a realisation of everything I have been speaking of. In terms
of parliaments, I think there is probably a similar timeline in
terms of the positive impact of the role of parliaments. The timeline
on parliament stopping and amending things I think is much shorter,
by necessity, by reports, or votes, or debates. Delaying or amending,
I think, is a much shorter timescale, which of course it has to
be by nature of the legislative procedures.
Q459 Lord Blackwell: If you take
the view that sometimes there is too much legislation, that less
is better, could you answer the question the other way round in
terms of what impact a Member State may have, particularly when
it is President, in throttling the start of inappropriate legislation
and could we in fact do a more effective job on keeping our eye
on what was coming out and trying to stop things coming out of
the system and getting legs?
Mr Murphy: We and a number of other Member States
are active as what, crudely put, some people describe as "budget
disciplinarians". It is a crude label, but in a sense it
is that the European Union should operate within its means and
if there is a new "to do" list, which of course there
is if you are going to respond to contemporary challenges, then
of course climate change is the easiest. It is the abundantly
obvious one, and international terror and migration. As the nature
of these challenges changes, the European Union at least has to
deal with it, preferably anticipate it but as a minimum mitigate
it. Now, to do that you have to stop doing something else. Everything
cannot be an add-on; occasionally it has to be an "instead
of", and that is certainly the approach we take, along with
some others, quite a substantial number of other Member States,
the Scandinavians in particular.
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