Examination of Witnesses (Questions 20
- 39)
TUESDAY 20 NOVEMBER 2007
Mr John Palmer and Professor Damian Chalmers
Q20 Lord Roper:
I wonder whether I could follow up something you said earlier
about the fact that there would be no legislation in the Second
Pillar. Which council would the foreign affairs matters, where
there is legislation such as development and humanitarian aid,
be taken in? Would they be taken in the Foreign Affairs Council
chaired by the High Representative or would they be taken somewhere
else? In so far as the Foreign Affairs Council is not supposed
to be doing any legislation, there seems to be a problem.
Mr Palmer: Certainly it has been my understanding—I
stand to be corrected—that they will be taken in the Foreign
Affairs Council because, of course, the High Representative will
be double-hatted and will, in his capacity as Vice President External
Affairs and Commission, have a continuing responsibility for some
of those matters directly to the college. My understanding is
that it would be taken in the Foreign Affairs Council. How the
business would be differentiated to reflect that, I am not sure;
I do not know.
Professor Chalmers: I have nothing to add. This
would be something of a mystery to me with the reform of the General
Affairs Council.
Q21 Lord Roper:
I wonder whether you could say something, any other comments,
on the impact of the double-hatting of the High Representative
in future and the impact this might have upon the work of the
Commission.
Mr Palmer: That is a huge and very important
question because arguably in the arrangements to give greater
coherence to the common foreign and security policy and to the
position of the High Representative, the creation of the external
action service is arguably the most important element of this
Treaty given the nature of the European agenda today, which is
so external, global, et cetera. A great deal depends on the personality
of, whoever is appointed, in working through this because there
will be a delicacy in the double accounting system. The institutions,
the Council, the Secretariat and Commission, have had quite a
long time to think through how this will work and what frontiers
have to be observed. It would be a little bit surprising, since
we have got to 2009 still to prepare, if there were needless confusion
or lack of clarity. It is down to what political will the Member
States are ready to demonstrate, with this or any other system
but certainly with this proposed system, to make common foreign
and security policy a reality. All I can say is that I note that
across the 27 there is a remarkable degree of consensus about
the critical importance of making all of this work; making all
of this work in particular by encouraging the formulation of and
an understanding of a European-interest-based common foreign and
security policy, something that has been difficult to achieve
in the past since the preparation of policy has so much depended
upon individual Member States. The ultimate answer does not so
much lie in the provisions of this Treaty but in the political
will which the Member States show to make a reality of it, to
make it work.
Q22 Chairman:
We will move on to the European Parliament now. In your opening
statement you said that the new powers for the European Parliament
are very significant and we recognise that with the extension
of co-decision. I should like, if you would, to address two areas.
The first one is on the question of the budget. Now the European
Parliament is on the same footing with the Council on all budget
hearings since the difference between compulsory and non-compulsory
disappeared. How significant is this? The second is on agriculture
and fisheries. It has been suggested that there is a certain vagueness
in how this has been described in the Treaty because there are
possibilities that the European Parliament and Member States are
going to disagree as to which of the two really have the authority
on agriculture and fishery matters, that this could be an area
of particular tension. Is that a possibility?
Professor Chalmers: It is tough. In relation
to these areas which are redistributive areas in so far as they
are not just about classic regulation but largely about redistributing
wealth one way or another, it is difficult to know because this
is the first time the ordinary legislative procedure or co-decision
has been applied in significant ways to these types of policy,
where there are clear winners and losers. The experience of the
ordinary legislative procedure, co-decision as it still is, is
that although Parliament nominally talks about being equal, and,
if one looks at it, large numbers of its amendments are accepted,
by some accounts 83%, which is very significant; of those 20%
are unadulterated, 63% in some compromise form. When one looks
at these amendments, a lot of them are those of a review in chamber,
that when push comes to shove, my feeling is that Parliament normally
backs down. It very rarely exercises its veto; since Amsterdam
the statistic that is quoted is two times out of 617. One would
expect a lot of influence from Parliament in amending the detail.
In terms of joint agenda setting, of joint decision taking, it
would be a lot harder. In relation to agriculture, given that
is already subject to qualified majority, it will shift power
away from the farmers towards food safety policy and consumers
in the sense that at the moment it is agricultural ministries
and the Agriculture DG who run agriculture. We will presumably
have a food committee, there will be MEPs with urban constituencies
who will be much more interested in having a say, so it might
lead to an ideological shift rather than the simple question of
loss of sovereignty. I see that as what is significant about agriculture.
Mr Palmer: This is an area where the European
Parliament is going to become an even more formidable political
player. One can expect the Parliament to perhaps intervene more
strongly in some of these new areas than past practice would have
suggested. This is not only because of the formal co-decision
powers but something else that is more tricky to define is happening
which can only be described as the growing politicisation of the
European Union decision-making process. By "politicisation"
I mean a sense that there are now divisions emerging which are
not simply national but are broadly more political and that the
Commission has become a more politicised force since the last
Commission was appointed. We are seeing the gradual emergence
of the European parties and it is very interesting to see how
the voting record of MEPs is changing. Professor Chalmer's colleague
at LSE, Professor Hix, has done some very interesting work charting
the shift in voting patterns to a more political, ideological,
set of divisions rather than nationally inspired divisions. That
is likely to manifest itself in some of the debates about redistribution
policies and indeed the budget as a whole. Just on agriculture,
the only thing I would say is that the environment in which the
whole CAP has always been debated is now so utterly transformed.
The questions suddenly emerging are ones of supply and security,
not surplus and subsidies. A whole new debate is beginning as
a consequence of climate change and bio-fuels and all the rest
of it. That is something which may happen irrespective of the
Treaty changes on CAP.
Q23 Chairman:
So you do not think the move to co-decision is going to provoke
any real problems over the respective prerogatives of the Parliament
and the Council of Ministers.
Mr Palmer: I would not exclude it. I would not
exclude the possibility that, on the broad macrobudgetary question,
the size of the budget, et cetera, there could be significant
conflict. You are going to see an increasingly self-confident
Parliament in general terms and both in relations vis-a"-vis
the Commission and to its co-legislative partner in the Council
that has already to some extent been demonstrated. That is part
of this politicisation process which, over the next decade, may
become even more marked.
Professor Chalmers: The only point that I and
Mr Palmer possibly see slightly differently is about the vigour
and self-confidence of the Parliament and we will have to wait
and see on that.
Q24 Lord Wade:
What you have raised is an extremely interesting part of this
project of the impact of this Treaty. Is it going to have an effect
which you think the people who created the Treaty think it is
going to have? Is what you are talking about now, this politicisation
of the Parliament, which in fact you are suggesting is that Europe
will divide along political lines rather than national lines,
what they had in mind or is that going to be a consequence of
what they did not realise was going to happen?
Mr Palmer: It is not what all of them had in
mind, would be my answer. Some of them would not have done this
with that in mind but some of them may have been aware of it,
indeed I know some of the negotiators were aware of this tendency,
but it is something that is happening independent of the treaty-negotiating
process. I agree, we cannot at the moment predict how these new
dynamics will work out, but I am certainly struck by the increasing
assertiveness of the Parliament in a general sense. If I may add
one sentence, it raises very interesting questions as to how the
partnership with national legislators should evolve to take account
of this. I am struck by the number of national parliaments, scrutiny
committees who admit members of the European Parliament as non-voting
members in order, where possible, to traction the two parliamentary
forces together. This may be something that becomes more relevant
with the new powers and co-decision powers of the European Parliament.
Q25 Baroness Symons of Vernham Dean:
It seems to me that what you have been describing is a process
that was already under way and that the Treaty, although there
are new powers there, actually is not the issue here. The issue
is the greater political activity in, possibly for all sorts of
external reasons, activities over war in Iraq and everything else
which has made people more energetic within the European Parliament.
I am just not quite clear whether your assessment is that this
is something that has been happening anyway or whether it does
turn on the new powers in the Treaty.
Professor Chalmers: My view is that it has been
happening anyway but Mr Palmer would know much more about it than
I. One can point back to the aftermath of the Single European
Act, when one first noticed this huge increase in the number of
amendments that were being put forward by the European Parliament
and successfully so. It is a process which takes place irrespective
of treaty reform. Obviously, the European Parliament is aware
treaty reform influences it because it provides new opportunities
for that process.
Q26 Lord Wade:
In fact what you are saying is that the Treaty is going to encourage
what was going to happen anyway but it has encouraged it more
than might otherwise have happened.
Mr Palmer: It will allow new avenues in which
this developing tendency can express itself.
Q27 Lord Kerr of Kinlochard:
Back to agriculture for a second. If the abolition of the distinction
between dépenses obligatoires and non obligatoires
was not significant, I wonder why the French opposed the abolition
so strongly. It seems to me, I wonder whether you agree, that
the overweighting of agriculture in the EU budget would not have
survived as long as it did had there been no dépenses
obligatoires rule, and therefore co-decision on agriculture
financing 20 years ago. It seems to me that this may be another
area where the Treaty is not just catching up with a change that
is already happening, but it actually encouraging it, I would
have thought.
Mr Palmer: I agree with that entirely. That
is happening. The only additional factor I would factor into this
equation is the totally new set of problems facing agriculture,
none of which could have been predicted from the shape and size
and growth of the CAP over the last 30 years.
Q28 Lord Tomlinson:
Earlier we heard from Professor Chalmers that the European Commission
had lost power to the European Parliament, also quite a number
of people have suggested that there has been enhanced power for
national parliaments in the process that we have gone through.
Against that background, what do you think is the impact of the
Reform Treaty on the role, functioning and membership of the Commission?
Professor Chalmers: I shall try to give a concise
answer to that. In relation to the formal powers of the Commission,
it is a winner in some areas, a loser in others. It has acquired
a monopoly of initiative in new areas, notably what were previously
Third Pillar areas. Things like the new consent procedure or the
ordinary legislative procedure lead to a diminution of Commission
influence. I would raise two other things, if I may. The question
of national parliaments perhaps may be one to take separately
but I would raise two other things in relation to the Commission
that are significant. One is the citizens' initiative, to what
extent its power over the agenda is going to be constrained by
this, by endless petitions and it is time consuming. The second
is that the Commission is moving away—and this will affect
its priorities—from being something close to a British style
cabinet with first amongst equals and collegiate responsibility
to a much more presidential system. We have a system where the
president and the commissioner can co-appoint, admittedly with
the Parliament and European Council, reorganise and now fire independently
individual commissioners. He or she has a lot of power and this
will vest a lot of influence in that personality and that may
be for good or for bad. Certainly, it will influence the whole
nature of the Commission once you have moved towards the end of
the term and that person has an eye either to reappointment or
non-reappointment.
Mr Palmer: I agree with that. There is one other
additional element which some members of the Committee may know
I have been excited about for some time, in the Constitution Treaty
and in this Treaty, which affects the answer one gives to the
position of the Commission.That is the new arrangements for the
election of the Commission President, not so much the election
by the Parliament but the way this now opens the possibility which
the parties are likely to pursue, that they would go to the next
European Parliament elections in 2009 not only with lists of candidates
and programmes but with their proposed Commission presidency candidates.
This is of very considerable importance because in the European
Council it will allow presidents of the Commission to point to
a direct mandate; we all know even of former prime ministers who
have sometimes ended up as Commission presidents and been reminded
by their former colleagues that they now have a very different
and inferior status. That is going to change. It is going to play
into the politicisation process. The Commission has not gained
formally from the Treaty to the extent that the European Parliament
has, but the point about its weakening can be greatly over-stated.
If the presidential commission emerges more strongly, which is
the flip side of the politicisation coin, the Commission will
play a more important part in the balance of powers in the future
than some people right now imagine.
Q29 Lord Powell of Bayswater:
My first question is do you see any major changes affecting the
jurisdiction of the European Court of Justice? From your earlier
comments, one would deduce not. You said that of course it had
capacity to make case law and that much of what happens in the
Treaty is codification and therefore not really an extension of
its jurisdiction. On the other hand, it does seem to have a more
general power now over justice and home affairs, it seems to have
some specific powers in relation to intellectual property and,
as I understand it, the ability to take proceedings against European
institutions including the European Council itself before the
Court. Are there other powers? Do you think overall that the Court's
power has increased significantly?
Professor Chalmers: You raise a number of questions.
Firstly, in relation to powers under what is now the Third Pillar.
It is a significant increase in the Court's power, you are right;
I did not raise it because of the specific UK position but other
than that, in relation to most other Member States, it is very
significant. I would make one point in relation to that, that
does affect the UK significantly apart from when it opts in and
this is that the Court of Justice is currently operating at close
to full capacity. It is not like it can do another 200 judgments
a year. It is over-stretched and the docket has gone up significantly
and will likely increase as more cases from the new Member States
come before it. One change that was made in both the Constitutional
Treaty and the Treaty of Lisbon is that cases where someone is
in detention will now be expedited. This will presumably be not
just questions relating to criminal justice but also asylum. Currently
the work of the Court of Justice is actually very narrowly focused
because most EU law is not the type of law that gets before the
courts. Immigration, asylum, crime are. It could become, if we
are not careful, an asylum court where large numbers of cases
are sent up to it by NGOs referring, pressurising tribunals to
make references and it would only require 70-100 cases a year
for that to really change the nature of the docket. In relation
to increased powers of judicial review, specifically vis-a"-vis
the European Council, the European Council does not have many
duties or responsibilities, so the general answer to that is yes,
formally it does have increased powers of judicial scrutiny but
the circumstances where that will happen will be quite narrow.
You mentioned intellectual property. This is another area where
there is codification. Since 1997, there has been legislation
on intellectual property rights and the Court has interpreted
those. It did that under a single market jurisdiction.
Q30 Lord Powell of Bayswater:
What position do you think it will take on the UK's protocol and
the Charter of Fundamental Rights? How do you think it is likely
to react to that?
Professor Chalmers: There is first of all the
meaning and then there is how the Court will react to it. It is
not an "opt out"; even that is admitted by civil servants.
What it says is that the existing position on the Charter, as
it applies to all Member States, must continue. My understanding
of the existing position is that the Charter is a source of law
in the same way as the ECHR is in national constitutions. It has
been the case since the Family Reunification Directive Judgment
in 2006 where the Court refers to it as having equal status with
other sources. The protocol does not say the Court cannot apply
the Charter to the UK: it just says it cannot extend it. If you
look at what happens at the moment when the Court refers to the
Charter, it then relies very extensively for its reasoning on
the case law of the European Court of Human Rights. People who
think we have some sort of opt-out are going to be in for a surprise
in that regard because that is what will happen. The temptation
for the Court, in so far as it gets cases from the UK or it is
worried about UK reception, is quite simply to be profligate about
the sources it uses. It will refer extensively to national constitutions
or the European Court of Human Rights rather than the Charter
as almost all the rights set out in the Charter are found in other
constitutions. From my perspective it is very undesirable to give
a court an opportunity to be so opportunistic.
Q31 Lord Powell of Bayswater:
So you are saying in effect that the UK protocol is not really
worth a great deal?
Professor Chalmers: Crudely, yes. The other
thing I would stress before that is that there is an elephant
in the room but it is a very small elephant in the room. Fundamental
rights have bound Member States as a matter of EU law since 1991.
There are only six cases one can point to where it has had any
effect, one involving the UK; I have not heard huge outrage in
the national press about it. The Court of Justice, has never said
social rights are self-standing. Instead, they only have interpretive
value. The Protocol is value-less if you think the Court of Justice
has no good sense. If you think that in this area, the Court of
Justice has been quite timid, I would put it to you that there
is less reason to worry.
Mr Palmer: Professor Chalmers is the expert
in this area, not I. The only thing I would add is that I would
expect British citizens to have recourse to the ECJ on many of
these matters but they will be living in other EU Member States
and this will create politically quite an interesting situation,
if the Court rules in their favour where the Charter is pleaded
in support of their cause where they are, as many hundreds of
thousands of British citizens currently are, resident in other
Member States.
Q32 Lord Powell of Bayswater:
You were implying earlier that the Parliament would feel its oats
as a result of the Treaty in a rather general way. Do you think
the Court will do the same?
Mr Palmer: The judges, the ones I have ever
met or had knowledge of over the years, have not been driven by
any great political agenda at all. As Professor Chalmers has referred
to, they are hugely preoccupied by the work that they have currently
got and, even with the changes to the Court of First Instance
and so on, there is a huge problem with processing business which
is their main concern. However, they will uphold the ultimate
principle that EU law should be non-discriminatory and it would
be surprising if they did not.
Professor Chalmers: May I make two points? The
first one is in relation to the Court of Justice. It was a great
missed opportunity at the Constitutional Treaty and at Nice that
more attention was not given to reform of the Court of Justice.
What they did was to create more chambers; almost all cases are
heard now by chambers of three or five judges. This vests a lot
of power in individual judges which gives the possibility of more
erratic judgments and more opportunistic judgments, notwithstanding
the quality of the individual members of the Court. That is a
worry once you start doing that; that it leads to a possibility
of a breakdown of collective discipline. With regard to the Charter,
for those who are concerned about it, the main concern in my view
is not the Court; it is the new Fundamental Rights Agency. My
understanding is that all legislative proposals will be proofed
by that agenda which will proof them against the Charter and the
Charter therefore will affect the ideological drift of legislation
and that is the worry, if there is a concern, not rogue judicial
activism.
Q33 Lord Blackwell:
In your earlier answer Professor Chalmers, you suggested that
the ECJ had, through its judgment, extended the EU competences
in the past which are now being consolidated in the new treaties.
Is there anything in this new Treaty that would prevent or limit
the ECJ from continuing therefore to extend competences from this
current Treaty base?
Professor Chalmers: The simple answer is no.
At the end of the day courts have the ultimate authority over
interpreting a legal text and it is very difficult for a legal
text to tie their hands. This Treaty does not make many efforts
to tie their hands it excludes them a bit from foreign and security
policy but not from many other areas. One other area it does:
internal security.
Q34 Lord Harrison:
Can you help us with an area which has been little commented upon
so far and that is the role of the national parliaments in the
light of the Reform Treaty? What do you think that role is? Do
you believe it to be significant? Given Mr Palmer's comments earlier
about some national parliaments having members of the European
Parliament join their scrutiny committees, how do you think it
will affect this Parliament and the House of Lords in particular?
Indeed, have you any advice to give us on how we might reform
ourselves to take notice of this greater burden?
Mr Palmer: I am certainly being invited to tread
where angels might fear to proceed! You will be aware, Lord Harrison,
of the proposals which allow parliaments to flag up concerns at
a much earlier stage and, frankly, a great deal will depend on
the working relationship between individual national parliaments'
scrutiny committees themselves to turn that right into something
that is actually useable. The timing is going to be quite constricted,
even though there are promises of much more direct advanced information
on which to base possible concerns. The whole machinery of inter-parliamentary,
national parliament cooperation needs examining urgently to allow
national parliaments to be able to canvass and win support, if
they so wish, for a sufficient number of national parliaments
to send the appropriate signal to the Commission. As always on
matters of the role of national parliaments, a great deal frankly
is down to the way the national assemblies and national parliaments
organise themselves. We have all been impressed with the case
of the Danish Folketing. This is slightly a special case
because until recent years it often had a different political
majority than the majority of the parliament itself, which gave
it an incredible sharpness of political purpose. There is a strong
case for strengthening intra-national parliamentary liaison in
order to mobilize the number of national parliamentary objections
needed to require the Commission to justify its position or, in
extremis, to justify itself to the Council. It may also involve
looking again at how you can get the experience of European parliamentarians
working as a multiplier in the national scrutiny process. It does,
as I say, happen; it happens in the Bundestag, it happens in the
Belgian parliament, it happens in one or two other national parliaments
and apparently to their advantage.
Q35 Baroness Howarth of Breckland:
I have been wanting to ask this question and it may be outside
your remit but it fits in here. It is that communicating organisational
complexities to communities is an extraordinarily difficult task.
This national parliament, as you know, is in the middle of a debate
and some people say there should be referendums and some people
there should not be referendums because of the way the detail
of the Treaty has or has not been communicated to the general
public. That is also trying to get through the medium of those
existing newspapers that there are. What role do you think that
our parliaments should have in pursuing, helping the communities
to gain a grasp of the very complex issues that we have been discussing
this afternoon? How do you actually take some lead too from the
European Parliament? What is their role in ensuring that national
governments are helped with that issue?
Mr Palmer: You raise a question that in my different
professional incarnations in the European scene has been a pressing
and continuous problem. When you have the responsibility to try
to communicate to a mass audience some of these issues—and
they get more complex with time and not less complex—one
realises what an enormous problem this is. I am struck by the
attempts being made—the Commission has given support to
this—to encourage citizens' consultative assemblies. This
is an experiment which allows randomly selected citizens to come
together to discuss big macropolitical and other issues of concern
and how and whether the European Union should play a role in helping
to resolve the problems. They have advice from experts but it
is done in the context of concrete problems and policy issues.
Too much of the debate is presented in an abstract fashion and
this Treaty, with its mind-boggling cross-references, is incredibly
difficult. Professor Chalmers and his colleagues no doubt delight
in reading through this stuff! The only way citizens can be better
involved in European Union affairs is when the problems which
the EU is designed to help to solve, the real world external problems,
are brought into this debate. It helps if we discuss how else
we can best deal with some of the issues around management of
migration or transnational crime or some of the foreign policy
issues or climate change. In this way it may be possible to try
to connect again the concrete problems that people do understand
with the procedural matters. Once they are separated out, it becomes
an almost impossible problem.
Q36 Lord Wade:
Will this Reform Treaty have any impact upon the future enlargement
of the EU?
Mr Palmer: Not directly. My judgment is, from
what I understand, that decisions about the next major phase of
enlargement, which is the western Balkans plus or minus Turkey,
will have to be taken somewhere in the middle of the coming decade,
between 2012 and 2015. There is one exception to that that could
prove to be Croatia which might come through in a slightly earlier
timescale. We are in almost a ten-year hiatus in which we have
to see to what extent this Treaty, as it comes into force, prepares
the Union to be able to handle yet further members and, without
extending this discussion wider than your question, what should
lie beyond the limits of enlargement, which is a question that
our political leaders have to confront very soon. I noticed the
Foreign Secretary in a speech in Bruges seemed, according to some
reports, to be opening up the possibility of a massive widening
to the south as well as to the east. I am unaware of what studies
have gone on as to the capacity of the Union in any reasonable
timeframe to handle that. This Treaty will not hold up anything
that is not anywhere being held up for other reasons. Croatia
may come through sooner but we have to decide probably about six
years after this Treaty comes into force, if it is approved, what
our final decision is on the next Balkan plus Turkey enlargement.
Professor Chalmers: My understanding is exactly
the same.
Q37 Chairman:
This Treaty does provide on the other side of the coin the mechanism
for getting out of the European Union, which is something new.
Professor Chalmers: Yes, it does.
Q38 Lord Roper:
The question I should like to ask is on the implication of the
Treaty for the reduction in the size of the Commission which of
course was already in Nice. Do you think very much thought has
been given as to how that will be done in practice?
Professor Chalmers: My answer is that I suspect
not. The initial proposals in the Convention were for 15 Commissioners.
This was seen as the ideal number when they thought about it.
There is a little bit of a compromise that they have gone for
two thirds of Member States, that is 18. How will it affect the
reorganisation of the portfolios and the relevant power of the
Commissioners? My personal view is that largely depends on the
personality of the President of the Commission. He or she becomes
a lot more central in my view and has become a lot more central
in the last five or six years.
Q39 Lord Roper:
So there could be circumstances in which there would not be a
British Commissioner?
Professor Chalmers: Yes. That also will affect
perceptions of the Commission very strongly.
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