Examination of Witnesses (Questions 80
- 99)
TUESDAY 27 NOVEMBER 2007
Mr David Heathcoat-Amory, Lord Leach of Fairford
and Mr Neil O'Brien
Q80 Lord Roper:
If we do solve those problems, would this not be a better machinery
to ensure that the different parts of the European Union's activities
are co-ordinated?
Mr Heathcoat-Amory: In my view not. I think
this puts an immense burden on a single individual because we
are setting up potential conflicts between this person and the
President of the Council, who will be a permanent figure, as we
have discussed, the President of the Commission who will still
be a powerful figure, and Member States who could find themselves
drawn along or unable to change a policy perhaps after a change
of government to which they are committed because of course there
is a new obligation on Member States to comply with the decisions
taken. Of course I readily agree that the initial strategic decision
is taken by unanimity and that is a block or a handle that all
Member States will have. Can we imagine a change of government
in a Member State, really a different government, coming in with
a new foreign policy it wishes to implement, bound by decisions
taken by the previous government? I think that would start to
negate the purpose of foreign policy promises made at general
elections.
Chairman: We have 20 minutes left and we still
have many questions to go.
Q81 Lord Sewel:
I was really concerned to ask two specific questions on the European
Parliament. One is the effect of co-decision making in agriculture
and fisheries and also on the amendments to the budgetary procedure.
Having drawn attention to those two specific things, could you
also give your views on the more general issue of the impact of
the Reform Treaty on the European Parliament and how it will affect
its legislative and other powers. I would like the answer to the
specific points.
Mr O'Brien: In answer to the general point,
there are a lot of new powers for the Parliament. One very significant
one is the power to elect the Commission President. Again, that
is something the UK Government objected to. Jack Straw said that
the appointment would be caught up in the politics of the European
Parliament. It is certainly likely to mean that in the future
Commission Presidents are more likely to have a strongly integrationalist
bent in line with the general opinion of the European Parliament.
In answer to the specific question about the Parliament's new
powers over the budget, I broadly do not see that as a good thing.
Over the last couple of years, the Parliament has tended to be
a brake on reform of the agricultural policy and the fisheries
policy. For example, at the start of the year the Parliament used
the powers that it currently has to stop modulation of more direct
payments into rural development. The Parliament also resisted
the sugar reform and the wine reform and helped to water those
things down. Broadly speaking, the Parliament is less reformist,
if you will excuse the expression, than the Member States in the
Council, and so giving them the final say is not necessarily going
to help us get reform of the CAP, which I think most of us in
this room would like to see.
Chairman: I call on Lord Tomlinson, a former
Member of the European Parliament.
Q82 Lord Tomlinson:
My Lord Chairman, can I just follow up the answer to that question
because I think, first of all, the witness slightly ducked the
specific about agriculture and fisheries. In a system with qualified
majority voting applying in those two areas, will not the process
of reform become easier, particularly against the background where
the distinction, which almost encouraged irresponsibility in the
European Parliament, between compulsory expenditure and non-compulsory
expenditure in the budget is now abolished by the proposed new
Reform Treaty?
Mr O'Brien: I thought I was replying to that
before. I think by abolishing the distinction between compulsory
and non-compulsory, effectively you are giving the Parliament
the final say over the compulsory elements as well; you are giving
the Parliament more power over this.
Q83 Lord Tomlinson:
No, it is not the final say, is it? In the new Treaty it is an
equal say between Council and Parliament. There has to be co-decision
on the final say as there has to be on the annual financial perspectives.
Mr O'Brien: You would agree with me that certainly
increasing Parliament's power over what it has now would be.
Q84 Lord Tomlinson:
It makes it easier to get a reform agenda through the codifying
process.
Mr O'Brien: You answered the question there.
Q85 Lord Tomlinson:
The answer is that I do not agree with you because I think you
are asking a different question.
Mr O'Brien: I think broadly speaking giving
the Parliament this extra power will effectively give protectionist
interests a second line of defence in the negotiations. So as
well as being able to block things in Council, you will also be
able to kill things off in the Parliament as well. If I felt that
the Parliament was a wonderfully reformist institution, full of
MEPs that were not on rural seats and not in favour of keeping
the CAP, then I might be interested in giving it more power, but,
as it is, I am not convinced that it is a good idea for pro-reformists.
Q86 Lord Tomlinson:
Is that your view as well, Mr Heathcoat-Amory?
Mr Heathcoat-Amory: Could I make perhaps a comment
on the budgetary procedure, which is also part of the question?
I recall when I was a very junior Treasury Minister many years
ago going to Brussels in order to negotiate about such matters.
It always struck me that the European Parliament was always on
the side of expenditure and, unless my memory is doing me tricks,
I think Lord Tomlinson might have had a formal duty connected
with the European Parliament on the Budgetary Committee.
Q87 Lord Tomlinson:
And always opposing an increase in the maximum rate.
Mr Heathcoat-Amory: If they had all been like
Lord Tomlinson, there would not be the problem, but I think he
would agree that his colleagues from other Member States, other
MEPs, were almost always for bigger expenditure programmes, because,
after all, they have the pleasure of spending without the pain
of having to raise the taxes. I think giving them any further
powers over the budget will probably be treated with considerable
alarm in the treasuries of all Member States.
Chairman: I may take a rather na-ve view
of this but I am always impressed by the fact that the European
Union manages to stay well under the cap that they have on expenditures
and there is plenty of headroom still there. I do not think that
can be entirely contradicted but that is only a personal view.
Q88 Lord Wade of Chorlton:
May I ask very briefly: what will be the impact of the Reform
Treaty on the role, functioning and membership of the European
Commission and will the President gain power?
Mr Heathcoat-Amory: I can be brief on the European
Commission. It will of course expand its role into those aspects
which are presently intergovernmental, which will switch to the
other Treaty, in the way I described earlier, as affecting criminal
justice and policing matters. They will come under the purview
of the European Court of Justice and also the Commission will
have the right to bring infraction proceedings. To that extent,
their role will expand. The President of the Commission will gain
the ability to sack individual Commissioners. The Commission itself
will get smaller and small Commissions probably mean more powerful
Commissions because they will be less influenced by national influences,
which are supposed not to exist but we know that they do. Every
small Member State wants its own Commissioner. That will end in
2014 when there will be a slightly smaller, perhaps more executive
body. Indeed, the word "executive" is a new power and
a new word that has gone into the Treaty. I think a smaller, more
executive body with wider powers is envisaged. Crucially, and
I am sure this was fought very vigorously by the Commission representatives
on the Convention on the Future of Europe, the monopoly of initiative
remains in the Treaty. My own position on this is that any self-respecting,
democratic institution, as the EU sometimes holds itself out as,
should not tolerate a situation whereby a group of non-elected
people meeting in private have a sole right to initiate legislation
or the repeal of legislation. That is not changed in the Treaty
and I think that is a shame.
Q89 Lord Wade of Chorlton:
May I just ask a follow-up? When we took evidence last week, the
people who gave evidence indicated that they believed that the
new Treaty would encourage more power and influence in the Parliament.
They indicated that they believed that Parliament would probably
become more politicised as time went on and that therefore slowly
they would exert more influence over the Commission. Is that a
view that you hold as well?
Mr Heathcoat-Amory: It is true that the Parliament
will elect the President of the Commission. I believe that is
new. It is stated I think in the Treaty formally for the first
time that the Commission is accountable to the Parliament. I may
have got the precise wording wrong. As regards which institution
will end up ahead of the other, I am not in a position to judge
that relatively. All I can say with some assurance is that they
all get more powerful, which echoes a point I made earlier. In
Alice in Wonderland the Dodo was asked at the end of the caucus
race who had won and he said, "All have won and all must
have prizes". I think at the end of the Convention on the
Future of Europe, they all got prizes except for national parliamentarians
and the public.
Q90 Chairman:
I am interested in your argument that a smaller Commission will
be more powerful because, if I have got you right, national interests
will be less deployed. Is not the corollary of that that you are
in favour of a weaker Commission with more national interest influencing
its deliberations?
Mr Heathcoat-Amory: My own personal position
is that I would make the Commission into a secretariat, possibly
based in somewhere like Helsinki, serving the interests of national
parliaments and drawing up common rules and proposals where national
parliaments agree that common action is required, but this, I
am afraid, was never seriously considered.
Mr O'Brien: If I can just follow on from that,
in terms of whether national interests are more strongly represented
in the Commission where obviously not every country will have
a Commissioner, it is pretty clear that the answer is "no",
because it will be more difficult for this country in times that
it does not have a Commissioner to find out what is going on in
the Commission. It is pretty clearly a step further away from
the idea of a kind of European nation state towards a more federal
Europe. The argument that is advanced for this that it will reduce
bureaucracy in the European Union I can't really accept. There
are 65,000 people working for the EU and its agencies now. Removing
nine of them will not make a significant dent in that bureaucracy.
All it will do is reduce our input over the process.
Q91 Lord Mance:
I want to ask you first about the European Commission and the
European Court of Justice and the expanded jurisdiction which
arises with the collapse of the pillars and the expansion of the
Title IV. You have already made some comments on the competences
of the approach to the ECJ. Perhaps you could also feed into the
answer the Protocol on transitional provisions and the five-year
period in that?
Mr O'Brien: I think the whole issue of the Charter
is one of the most significant things about the Treaty. The Government
in its draft of 2000 promised that it would not be legally binding
and never would be. It now clearly will be legally binding.
Q92 Lord Mance:
Is not an answer the Charter?
Mr O'Brien: It is about the Charter.
Q93 Lord Mance:
That was going to be the second limb of my question, but take
it first.
Mr O'Brien: On their return from the European
Council, the Government initially claimed that they had an opt-out
from the Charter. Now they say very explicitly that they have
not got an opt-out from the Charter, which is interesting. The
Government's current argument seems to be that these are not new
rights, either in the UK or in any other Member State. That begs
the question to my mind: if these are not new rights, why have
we spent the last seven years resisting them? If you look at the
sources of these rights, it is pretty clear that they are new
rights. For example, if you look at the text of explanations which
comes with them, 13 of the Articles are based on the ECJ's own
case law; seven are based on the ECHR but their scope has been
widened; seven are based on the Articles of the European Social
Charter, which the UK has not signed; two of them the Schengen
Protocol; and some are very simply new rights and explicitly so
in the Charter. Clearly, this will have an important impact. The
attention on this in the UK is focused very much on other impact
on our economy, on the social rights in Title IV but it has much
wider implications because there are lots of new rights which
will impact on our asylum and immigration system for example and
also on the rights of criminal suspects as well.
Q94 Lord Mance:
Could you just focus the answer a little on the Protocol because
the Protocol is clearly designed to address some of the matters
which you have been making?
Mr O'Brien: It seems to me that one of the many
problems with the Protocol is that Tony Blair when he came back
from the summit originally purported to read out the text of the
Protocol and omitted the fact that it only says that Title IV
of the Charter is supposed not to create any new rights in the
UK, and even then, except in so far as those rights are already
provided for in national law—and of course it is up to the
ECJ to decide whether those rights are provided for in national
law or not. So it is a very interesting question, which I would
suggest you certainly ask the Government. If, for the avoidance
of doubt, we have said that one part of the Charter should not
be read as creating new rights, does that not: (a) imply that
there is a lot of doubt about whether the rest of the Charter
does not create new rights; and (b) why does that piece of text
not simply apply to the whole of the Charter? It seems to me that
the Government does not have any answers to that.
Mr Heathcoat-Amory: May I comment on one aspect
of that? There are new rights. I think it is helpful perhaps to
mention just two of them. One is that scientific research should
be free of constraint; that is Article 13. I am very interested
in animal welfare and I am alarmed that there is an apparent right
here to do scientific research which is free of constraint and
may be relied on by scientists doing nasty things to animals in
general. The significance of it is that that right does not exist.
It is clear from the explanatory notes that it is not derived
from existing European Charters of any sort. Also, there is the
right of access to a free placement service. That again is an
entirely new right. Indeed, Mr O'Brien said that if these rights
were not new, nobody would worry about them. It puzzles me that
the Government and others persistently say that there are no new
rights in the Charter. There clearly are, which is why we have
had to have this Protocol. Why I think the Protocol will not work
is that it is not an opt-out from the Charter for the United Kingdom;
it only tries to ensure that courts do not apply it in this country,
but it certainly will be applied indirectly because one can imagine
that a Directive applying throughout the European Union may be
the subject of an appeal by another Member State to the European
Court of Justice. That Court may decide that the Directive in
question does not meet the requirements of the Charter and require
an amendment or interpret it in a way that is compatible with
the Charter. That would become binding on this country under the
other provisions in the Treaty whereby we have to obey European
Union law and we have a mutual solidarity obligation and so on.
So I think the Charter will come into British law not directly
but indirectly. If the Government had wanted to prevent that,
they would have said that the provisions of the Protocol should
apply notwithstanding the other obligations in the Treaty. They
have not achieved that, so I think they are extremely vulnerable
to the Charter, including its new rights, applying indirectly
to this country. I think, frankly, the Protocol is wafer thin.
If you add to that a good measure of judicial activism, I think
that fact that it will be legally applied renders us widely open.
Q95 Chairman:
What you are saying is that the European Court could say that
the Protocol is not effective in certain areas, that it does not
apply?
Mr O'Brien: I do not think it is just a matter
of the Court saying, "Your Protocol does not apply".
I think it is simply a matter for the Court to interpret that
Protocol how it likes really.
Q96 Lord Mance:
Really what you are saying is that without an opt-out, a right
to opt in, this operates in a different way. Is there anything
you want to say on the expanded jurisdiction of the European Court
of Justice?
Mr Heathcoat-Amory: It might be appropriate
to mention one very curious and new requirement of the Treaty,
which is often not commented on, which is that the new Treaty
lists the institutions of the Union, which of course include both
the Commission, the Council, the European Central Bank, the Auditors
and the Court of Justice. It then says that the institutions shall
practise, "mutual sincere co-operation".[2]
I am not a lawyer but I find it alarming that the Court is mandated
to co-operate not with Member States but with the other institutions.
If I were a litigant going in front of a court, I would not be
happy if the court had to practise mutual sincere co-operation
with my legal opponent, but that I think will be the case because
very often the Commission takes a Member State to court. The Commission
will be an institution and therefore will receive the co-operation
of the Court, but the Member State will not. I think this undermines
the status of the Court and it will cease to be an independent
arbiter between the rights of the Union and the rights of Member
States.
Lord Leach of Fairford: I would be unhappy if
any judiciary was obliged to act in sincere mutual co-operation
with anybody. It seems to me that if we had here a constitution
for Britain and the judiciary was told it had to act in sincere
and mutual co-operation with the Government, it would not get
very far with some of your learned Lordships. The whole principle
is wrong.
Q97 Lord Mance:
Can I just ask one follow-up? Was any consideration given to the
extra workload which will fall on the Court and whether its existing
working methods and internal structure needed any adaptation to
meet that? For example, it is going to require expanding to criminal
competence.
Mr O'Brien: I think you have put your finger
on a very important point. For example, there are about 80,000
asylum appeals every year in the UK. All of these people will
have the right to go to the Court because of the demolition of
the limits on the rules on standing. You could find that the Court
would suddenly be hearing a lot of very contentious cases, in
criminal law and also asylum and immigration cases. There are
provisions in the Constitution to allow the Court to set up new
specialist tribunals. One of the problems with doing that is that
you then get these very small courts with only three judges on
and you are more likely to get very controversial rulings, but,
yes, that is a clear consequence of the Constitution or the Treaty.
Chairman: I am going to allow this meeting to
go on for another seven minutes but then we will really have to
finish.
Q98 Lord Kerr of Kinlochard:
Mr Heathcoat-Amory, you have twice said that the big losers were
the national parliaments. I remember at the time you and I thought
that Mrs Stuart's working group on the role of national parliaments
had done rather well, in particular in injecting national parliaments
at a very early stage in the legislative process. They would be
the first place where the text of a legislative proposal would
go. Now I think in both our Houses we still have to work out just
how we can make best use of this, but in what sense were the national
parliaments losers? Perhaps you are saying everyone gains and
national parliaments do not gain as much as everyone else—but
I do not think you are saying that. You are saying that national
parliaments are absolute losers. How come?
Mr Heathcoat-Amory: There were valiant efforts
made, particularly by my colleague Gisella Stuart, to advance
the interests of national parliaments. I think we had a sympathetic
hearing from the Secretary-General at the time, but I have to
say that the final outcome is rather disappointing. It boils down
to the subsidiarity test whereby national parliaments get some
additional influence over policing subsidiarity, but it does not
add up to very much. It amounts to little more than requiring
the Commission to think again. We can do that already. As has
already been mentioned, I am a member of the European Scrutiny
Committee in the other House. We can require or request that something
is looked at again, but the Commission can still go ahead. That
remains the case, we never succeeded in replacing it with a red
card system whereby there would be a complete block, to my great
regret. To be fair, it has been slightly strengthened since then,
and there is now a complicated procedure whereby if a large number
or national parliaments object, it can go to the European Council.
Frankly, the bar is set so high that if it ever reached that,
the proposal in question would fall for other reasons. There would
not be a majority for it in the European Parliament or the Council.
I think this is something of a disappointment. It is no real advance
on our existing powers.
Q99 Chairman:
We take note of the fact that there is now an orange card that
does have a bigger impact and is more useful to the national parliaments
than just the yellow card.
Mr O'Brien: Perhaps you should also note that
you still cannot stop the Commission from going ahead with things.
Even in the unlikely event that you cobble together a huge number
of national parliaments all simultaneously voting against something
on subsidiarity grounds within a very short window of time, the
Commission is still going ahead with things at the end of the
day.
2 Note by the witness: Article 9(2) TEU. Back
| 
