Examination of Witnesses (Questions 480-499)
Mr Jim Murphy and Mr Ananda Guha
4 JUNE 2008
Q480 Lord Burnett: I do not understand
why it should be voluntary registration. You still have not really
explained why it should be voluntary and not compulsory.
Mr Murphy: These are not our proposals, these
are proposals emanating from the Commissioner for Parliament.
We have not come to a firm view on it. We still have to hear much
more about it. There may be a logic as to why it is voluntary,
why the membership is voluntary and the code would be compulsory,
but I am happy to share our thinking with your Lordships as this
evolves.
Q481 Baroness O'Cathain: At the risk
of sounding extremely cynical, do you see any chance at all of
that action materialising?
Mr Murphy: I think it is unavoidable. I actually
think it is probably unavoidable.
Q482 Baroness O'Cathain: What would
the sanctions be against people who would not register and who
still continue to lobby?
Mr Murphy: I think Members of the European Parliament
and the Commissioners would not meet them. I suspect a culture
would evolve whereby one Commissioner would say to another, or
to a senior official, "Why are you meeting someone who is
not a senior official? Why are you meeting someone who is not
on the register, who does not abide by the code, who is not transparent,
reputationally and culturally?"
Chairman: Maybe the code would be two way. Maybe
the code would bind the Commission as well.
Baroness O'Cathain: Yes.
Q483 Lord Burnett: The sanctions
point is interesting.
Mr Murphy: This is my personal reflection, that
for an organisation to sign up to the code there would have to
be consequences for them not abiding for it, otherwise it is relatively
meaningless.
Q484 Chairman: It is meaningless,
yes, and would the register disclose financial interests too?
We had some interesting evidence from an entirely laudable source,
the World Wide Fund for Nature, about the extent to which NGOs
are paid by the Commission, funded by the Commission in order
to lobby the Commission, including on subjects dear to the Commission's
heart, such as the issue about the extent to which the seven principles
in the environmental programme could and should survive in relation
to the Lisbon agenda of deregulation. You might like to consider
that in relation to your register.
Mr Murphy: Yes, of course.
Baroness O'Cathain: I am sure, my Lord Chairman,
we could share that with the Minister!
Q485 Chairman: It is all public.
Mr Murphy: I am very interested in it, yes.
Baroness O'Cathain: It was fascinating.
Q486 Lord Wright of Richmond: I think
we have actually covered very fully the extent to which the Commission
involved Member States in the initiation of legislation and I
really want to move to one particular instance and that is common
law countries, including of course the UK. Do we find ourselves
at a disadvantage, being the minority, common law countries in
the EU, particularly in the area of justice and home affairs?
Mr Murphy: I think that danger always exists,
but we mitigate against it by virtue of how active we are, along
with others, ourselves, the Cypriots, the Maltese and the Irish.
Previously my understanding is that there was something called
a common law club. Perhaps recently it has not been as coordinated
as it has been in the past. That worry exists, but I think we
have mitigated it because of the level of activity and the fact
that there are four of us, and between us we have very significant
influence and I think there is a genuine understanding of the
different legal provisions.
Q487 Lord Wright of Richmond: Is
it a problem you have been personally aware of in your discussions
in Brussels and meetings of the Council?
Mr Murphy: On the periphery of the conversation
about the Lisbon Treaty there were some issues around the different
legal traditions. Even, for example—this is related to but
not specific to this point—the legal traditions around the
workplace. Without going into too much detail about the Charter
of Fundamental Rights and the protocol on the Charter of Fundamental
Rights, we come from a different legal tradition in terms of the
role of trades unions in collective bargaining in society from
some others, so these things complicates it. Of course it complicates,
but I think it is managed pretty well.
Q488 Chairman: What about personnel
within the Commission? There is a number of high-ranking civil
servants who are of British origin and are legally trained in
the Commission, and they play an important part. Is that something
which can and will be assured for the future, because there has
been concern to the contrary?
Mr Murphy: I think it is important that either
seconded or personal staff embed a common law knowledge within
the Commission. That is important, and actually contrary to the
concern which exists we are currently looking for ways in which
to increase the level of permanent or seconded staff that we give
that degree of common law knowledge to.
Q489 Chairman: Is this a change of
policy, because there was a lot of publicly expressed concern
towards the end of last year?
Mr Murphy: I do not think it is a change of
policy, but do I think it will change publicly expressed concern?
I do not think it is that either. It is something we are committed
to doing and the Ministry of Justice and the Home Office are looking
at active ways of—embedding has got terrible connotations,
of course, but posting on a permanent basis or the secondment
of staff with this knowledge of a high enough quality that would
have that effect. We are actively looking at ways in which to
do that. Is that a change of policy? I do not believe so. Will
it assuage publicly expressed concerns? I hope so.
Chairman: Can we move then to a different subject?
I am sorry that Lord Lester is not here, because he has a particular
interest in fundamental rights, but Baroness Kingsmill would like
to ask a question on the same subject.
Q490 Baroness Kingsmill: Do you consider
that the principle of subsidiarity is adequately taken into consideration?
I am quite sure that this could be more elaborately put, but cutting
to the chase—Lord Lester, undoubtedly, would make more of
this, but I would be interested to hear your views.
Mr Murphy: Cutting straight to the chase, first
of all it is something which the UK is one of the principal advocates
of, as I think your Lordships will be aware, and as a consequence
we are one of the Member States who are most careful about it,
going back to the Edinburgh European Council in 1992, and we have
been pretty active since. We have certainly been very active across
whichever party has been in power and will continue to be so.
It is something we have to be mindful of and continually watchful
of.
Q491 Chairman: Is it not right to
say that there has been a programme which, following 9/11, has
focused on some of the problems revealed, or potential problems
revealed, in relation to matters like terrorism, money laundering
and other things—the European Arrest Warrant comes in there,
too—but there is concern that the Community has not shown
itself as active in the countervailing guarantees of civil liberty?
Is that a concern which Her Majesty's Government shares?
Mr Murphy: I think on the Charter of Fundamental
Rights, and being proactive on the fundamental rights, I would
not share the criticism of European institutions on this. I think
there is a real substantial programme of work about legislative
proposals, the methodology around legislative proposals, ensuring
that they do guarantee fundamental rights as a whole. There is
a litany of initiatives and protections around that Charter of
Fundamental Rights that I do not think could lead a reasonably
objective observer to come to the conclusion that the Commission
and other institutions are not mindful of civil rights and civil
liberties. In fact, in common parlance in the UK—but this
is not the best way of judging it—the opposite accusation
is made much more regularly.
Q492 Baroness Kingsmill: Minister,
perhaps just to elaborate a little more on that, how would you
describe the balance as between the sense of being proactive about
human rights and the sense that there must be limitations, perhaps,
by reason of external threats? Just give us some sense of your
understanding of the balance and the balance the Commission takes
into account.
Mr Murphy: I think the Commission and other
European institutions see themselves—I think rightly—as
defenders and promoters of fundamental human rights within the
European Union and beyond, and it must surely be a European value
to do that. I have never bought into today and do not share the
analysis which says, "We've gone too far. Our citizens' liberties
are at threat from those who claim to seek to protect them."
I think it is an important role which the European Union, the
Commission, have to protect those fundamental human rights. In
terms of external threats, issues about counter-terrorism, cooperation,
and matters of that nature—and this is a slightly political
answer so I hope you do not mind—my sense is that the fundamental
civil liberty and human right is to be free from the threat of
a terrorist attack. I know that is a slightly political answer,
and therefore it is about getting the balance right between the
modern European value of human rights but without jeopardising
our safety. I think on most occasions certainly the vast majority
of Member States get it right. On most occasions the vast majority
get it right.
Q493 Lord Wright of Richmond: Could
I please pick up the other end of this question, which is the
part about subsidiarity, more generally, how it is taken into
account in the development of legislation? I have to confess that
when I listen sometimes to Commissioners and Members of the DG
talking you do get the impression that subsidiarity is the last
check on their list. In other words they start, as you can imagine
they would, with saying, "I want to fix it. Here's the answer."
I remember listening to one Commissioner talking about why the
EU was introducing quite complicated regulations about traffic
flows through tunnels and justification of subsidiarity, "Well,
you know, we think it's a necessary thing to do. We don't think
the countries would do it themselves because they don't see it
as important, so it is obviously an important thing for the European
Union to do because we should step into this breach," which
is a justification you could use for doing anything in effect.
I just wonder whether, firstly, you share my perception, and secondly
whether there is anything we could do to put the subsidiarity
check earlier on in the list of initiation?
Mr Murphy: Again, without pre-empting your Lordships'
reflections on the business in your Lordships' House today, tomorrow,
and I think next week—and please forgive me if you think
I am in any way trying to impinge upon your Lordships' debate,
but I think the Treaty does set out new powers for national parliaments,
in particular those we have already reflected upon. Those are
powers, of course, to block rather than to initiate. The fact
that every national parliament has two votes on subsidiarity,
the yellow card and orange card process—and perhaps in ten
years you will call this assertion naive, or perhaps in less than
ten years—the expectation will be that the fact that every
parliament of a Member State has these votes and working together
through the networks the national parliaments and scrutiny committees
have, I think there is a sense that the scrutiny committees of
national parliaments are entirely separate organisations with
no networks and no influence and do not share the information,
but we know that is anything but the truth. In fact we have active
gatherings of the chairs of these scrutiny committees, and the
fact that it would only require a third to force the Commission
to re-think and a half to potentially completely lead to the proposal
being blocked if either the European Parliament or the Council
agreed, that should change things in terms of a concern that the
Commission may have about the re-balancing of the argument about
subsidiarity. You take it up and we welcome it. We think it is
an important thing because this is one of the countries which
argue passionately about the importance of subsidiarity. We think
these new powers for national parliaments in every Member State
on subsidiarity grounds are important.
Q494 Lord Wright of Richmond: So
implicitly, or explicitly, you are agreeing that the pendulum
does need to swing?
Mr Murphy: I am implicitly and explicitly stating
that the pendulum always has to be in the right place!
Baroness O'Cathain: Absolutely!
Q495 Chairman: This ties in very
frequently with the time limit for deciding whether to opt in
and there is liaison with the scrutiny committees on this. Does
it follow from what you have said that the Government would be,
on occasions, actively drawing to the attention of scrutiny committees
possible subsidiarity problems?
Mr Murphy: Baroness Ashton has appeared before
your Lordships' scrutiny committee, and your Constitution Committee
earlier today and I hope gave a good account—I am sure she
will have—of what the Government is suggesting in terms
of the way in which national parliaments can have an important
and significant influence over the opt-in on justice and home
affairs issues.
Q496 Chairman: I think what it really
means is that we would ask for explicit and helpful explanatory
memoranda in relation to any particular proposals you felt you
could possibly give us. There may be considerations which make
it difficult to disclose all the reasoning, but the more the better.
Mr Murphy: Baroness Ashton has a package of
measures which she shared with your Lordships' scrutiny committee,
and certainly an explanatory memorandum was one of the elements
of the package.
Chairman: Yes. Baroness O'Cathain has a question.
Q497 Baroness O'Cathain: How effective
is the Commission's policy for better law making? This is right
up your street, I think. Are the principles of better regulation
observed? You have already said, "Not really." Are the
arrangements for impact assessments working satisfactorily? To
use your own words, they "need improving," so have you
anything to add to all those?
Mr Murphy: I wish we had had this question first,
because we could have done this for the whole session!
Q498 Baroness O'Cathain: It is what
they call a "wash-up".
Mr Murphy: Okay. Never let me have this sort
of question first, if I ever come back, because we will spend
a whole hour and a half on it! The Commission has improved under
President Barroso's leadership. I think there has been real improvement.
Q499 Chairman: How have they achieved
the improvement?
Mr Murphy: As Commissioners, first of all they
agreed to a 2007 target of a 25% reduction of regulation. That
in itself is very, very important, but there is more to be done.
There is more to be done on whether it is just on the floor for
new regulations or whether it is on the stock of existing regulations.
We continue to argue that it is on both, on the floor and on the
stock.
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