Examination of Witnesses (Questions 160
- 179)
THURSDAY 6 DECEMBER 2007
Professor Helen Wallace CMG FBA
Q160 Chairman:
My first words are always to note that members' interests have
been distributed. Professor Wallace, what a pleasure to see you
here. Thank you very much indeed for finding the time to come.
I am afraid we are a little thin on the ground because, as you
will see from the monitor, there is a debate going on in the Chamber
on one of our reports which is a highly contentious issue and
therefore, I am afraid, some of our Members are in the Chamber
rather than here. We are of course on the record and we will send
you the transcript. This is part of our ongoing inquiry into the
Reform Treaty and we are planning to provide the House with a
detailed impact assessment of the impact of this Treaty on the
European Union and by extension on the United Kingdom in time
for the arrival of the ratification Bill in the House. The timing
of that we do not know but it will be some time in the early part
of the year. Would you like to make an opening statement? You
are welcome to do so.
Professor Wallace: May I make just a few very
brief remarks? I thank you for inviting me and I apologise for
not being able to send you anything in writing first because I
have been away. I just want to make three very quick points. The
first is that, as I read the history of the European Union, what
happens depends tremendously on evolution and not only on the
way the formal rules are stated. Trying to speculate about the
outcome of this Treaty, as with previous ones, means guessing
about practice as well as about the application of new rules.
In my book, and this will no doubt come up later, there are many
areas in which the Reform Treaty does not actually dot all the
i's and cross all the t's, so there is a great deal of room for
practice. The second point to make, as I have just been involved
in doing some work on it, is that it is interesting that the Union's
institutions have coped much better than many people expected
with the arrival of new Member States. If you simply track output
productivity, activity and so on from the main institutions, they
are pretty much as the institutions were before. Part of that
is because, within the institutions, various non-treaty reforms
have been introduced to smooth practice. The third point I want
to make is that my view of the experience of the past is that
the institutional rules which bed down best are the ones which
have clear policy drivers behind them. This Treaty is not terribly
clear on policy drivers, although I suppose maybe one would expect
most impact of policy-shaping institutional practice in the justice
and home affairs and the foreign policy provisions.
Q161 Chairman:
Thank you very much; that is very helpful. May we begin by drawing
you out a little bit on how the Treaties have been restructured
by this new Reform Treaty? Questions have been raised about the
relative importance now of the objectives as they appear in TEU
and what would appear to be the subjection of TFEU to TEU or do
you feel that they both have equal value?
Professor Wallace: You have just been listening
to a very distinguished lawyer and I cannot second-guess your
previous witness on any of those things. We have ended up with
a slightly muddled outcome because of the circumstances in which
this Reform Treaty has been born. This is one way of carving up
the different items between different branches of the Treaties
and a lot will depend on practice and the kinds of cases that
are brought, whether legal cases or institutional pressures, to
try to figure out how those things work out in practice. I myself
was very concerned at the way in which the framing of the words
about competition were shifted from the preamble. Lawyers seem
to say that probably it does not really make a great deal of difference
to the likely substance in that in litigation members of the Court
will read across the various provisions. I would have preferred
it if, on that particular point, the competition reference had
stayed more firmly in the preamble.
Chairman: Thank you. We may come to that
again a little bit later.
Q162 Lord Tomlinson:
Professor Wallace, last night I had the benefit of listening in
our own House to a debate during which I heard a tremendous diversity
of view about what the express conference of legal personality
on the Union would actually mean. What practical effect do you
think this actually has, if any?
Professor Wallace: Again I am not a lawyer.
Q163 Lord Tomlinson:
That is why I am asking you about the practical effect.
Professor Wallace: I agree with the British
Government's view on this, namely that the provision is much more
about clarification and simplification than about introducing
major new points of principle and I can see there is a welcome
point to doing that. If one is thinking about the practical relevance
of it, then there are many areas of the world, including many
troubled areas of the world, where the Union is working, often
with other international agencies, to try to bring remedies to
bear in troubled places and where it would be useful not to have
to argue about the legal personality of the Union when you are
trying to get inter-agency cooperation. For it to be clear that
both the Commission and the Member States can directly engage
without silliness seems to me a benefit. However, that is a very,
very down to earth view of it.
Q164 Lord Tomlinson:
If I may just move on to the next area, the Treaties contain the
statement about the respective competences of the Union and the
Member States. Are these listings of competence mere codification
of the existing position as reflected in the European Court of
Justice case law? Do you believe the statements of competences
are helpful and, if so, in what particular context?
Professor Wallace: The attempt to try to codify
different kinds of competences is an old story, is it not? We
know from the history of the Union that whatever kind of categorisation
and listing we do, the interesting issues are always about the
grey areas. This particular way of doing it in this new Treaty
does not remove the potential for grey areas at all. It is probably
nonetheless important to have the phrasing that is there because
it is a kind of reassurance and it is a particular reassurance
for people who have nervousness about subsidiarity and related
questions. On the grey areas, my speculation would be that if
we were starting to draft this Treaty now and looking at the issues
of policy competences, one of the areas many of us would want
to look at would be the appropriate policy competences one would
want to attribute to the Union for dealing with the climate change
related issues. It might be an area in which it would not be too
difficult to get agreement for stronger policy competences there.
It is just an example of something which comes somewhere around
the grey areas and it may be that the Treaty revision procedure
that is envisaged in the future might be used or people may try
to use it in this context. I suppose the other thing to say, which
I actually quite welcome, is that in various places in the new
Treaty, there are references to the possibility of proposals to
reduce the competences of the Union also being legitimate ideas
to put on the table. That used to be regarded as blasphemy. It
is not at all a bad thing that one should put into the Treaties
that it is a perfectly reasonable thing from time to time to suggest,
for X or Y, maybe one wants less at a Union level because there
are other, better, different ways of dealing with a particular
problem and in this way to see the issues of assignment of competences
as a two-way street and not a one-way street.
Q165 Lord Tomlinson:
Just one brief supplementary on that. A significant number of
Members of our House seem to be greatly exercised by what they
consider to be the fact that the list of shared competences actually
makes the interest of the Member State subservient to those of
the European institutions. Do you see that? Do you think there
is a change caused by the codification of shared competences or
do you think it still remains completely a community of conferred
competences and they only get the competences that Member States,
through the Council, have voted for?
Professor Wallace: The Union has conferred competences
and the arrangements for conferring can vary over time. The two-way
street point is that they might vary in either direction as more
or fewer, in the same way that the competences of the United Kingdom
Government have been reduced to the extent that some of those
competences have been devolved to other parts of the UK.
Q166 Lord Powell of Bayswater:
I just wanted to interject a thought. I was very interested in
what you said that policies ought to be the main drivers of the
European Union instead of arcane discussions about competences
and shared competences which are meaningless to 99.5% of the population.
Do you think this Treaty will actually draw a line under the constant
obsession with institutional issues? Or is that a vain hope? Do
you think it will go on being the main preoccupation of most European
governments forever?
Professor Wallace: I would be very happy if
it were, because I have always taken the view that the most appropriate
and effective way of trying to reform the Union is in relation
to policy things that you either do want it to do or do not want
it to do. If the policy objectives—the single market is
a very good example—seem to require some different instruments
or some different mix of instruments, then put those instruments
in place to achieve this; hence my point about climate change.
We have had three bad experiences in a row, have we not, with
the Treaty of Nice, the Constitutional Treaty and this one in
some sense not doing that? I guess there is a certain amount of
fatigue. How long the fatigue lasts into the future, I cannot
guess better than you.
Q167 Chairman:
One last quick question on competences. I still do not quite understand
why the Czechs insisted on Protocol 8 on defining the scope of
competences. It appears that they wanted it there so that it would
say the following, that when the EU carries out an action in a
certain area, the scope of its competence covers only the elements
governed by the Act in question and does not therefore cover the
whole domain. I understood that was already within the definition
of competences or is this something new? If it is new, what is
the significance of it?
Professor Wallace: I do not have a very clear
read-out on that. It would not be the first time that a protocol
or declaration had made a statement of the obvious. It is frequently
the case that Member States wish to be attached to documents of
this kind—protocols or declarations—that are there
mainly for domestic purposes. It has even been known for the United
Kingdom Government so to do.
Q168 Chairman:
In other words, for the Czechs to have something called a Czech
Protocol is a score.
Professor Wallace: In the last round of discussions
there was rather a queue of governments trying to put their flags
on particular things.
Q169 Chairman:
What impact might the extensions of legislative competence have
on the institutions of the Union? What about the introduction,
for example, of sport as a new competence?
Professor Wallace: The extensions of legislative
competence are a very mixed bag of different kinds of issues and
I am much more persuaded by some than others. I would broadly
welcome those in the field of justice and home affairs in the
sense that so much of justice and home affairs is now put into
a normal legislative process. There are some areas, such as arrangements
to deal with humanitarian aid and so on, aspects of energy policy,
where it may also be welcomed for those to be part of a normal
legislative process. There is a bunch that I would like to take
out and sport would be one, except the trouble is there is Court
jurisprudence, so it is quite hard completely to cross sport out.
I would cross tourism out as well. It would not be difficult to
find a slightly longer list of things that might similarly be
removed. Incidentally, I would cross space policy out as well.
Q170 Lord Mance:
May I ask you questions about the European Court of Justice? Do
you see any significant changes with regard to its jurisdiction?
Professor Wallace: The fact that the Court is
now going to be able to receive litigation in justice and home
affairs is hugely important and it is something which I personally
welcome. I appreciate there are limitations about which parts
of justice and home affairs would and would not be subject to
the Court, but there are areas of justice and home affairs where
the right of the individual to have access to litigation seems
to me critically important. It is not an unreasonable speculation
that we can expect the Court to get quite busy in that area over
the passage of time.
Q171 Lord Mance:
Do you think any changes might need to be made in respect of the
way the Court operates or is constituted for that purpose?
Professor Wallace: I am not an expert on the
Court of Justice. What is interesting to note is that the Court
of Justice, less so the Court of First Instance, has been through
really quite an extensive renovation of its operating procedures
and that is one of the better things that came out of the Nice
Treaty. They have done that partly to cope with backlogs and the
amount of time taken to resolve cases, but also in anticipation
of a greater workload with enlargement. I do not know how far
the Court would need to do more changes in addition to those that
it has recently done which seem to be bearing rather good fruit.
Q172 Lord Mance:
If you are not an expert on it, I will not pursue it very much
further but I had in mind also the greatly expanded nature of
the jurisdiction. Is there anything you want to say about that?
Does the Court need any adaptation of capabilities in that regard?
Professor Wallace: I presume it would be to
produce staff support that will enable it better to deal with
those areas.
Q173 Lord Mance:
May I just ask then about the UK Protocol on the Charter of Fundamental
Rights? What do you make of the position in relation to the Charter
and the UK?
Professor Wallace: I gather David Edward has
just been talking to you about that and I do not have any more
to say than he did on the substance of the law. I personally regret
the Protocol, because I regret the complexity that it produces
and what may be a lack of clarity as to how the Charter, to the
extent that it is justiciable, which is in itself a question,
might bear on British citizens. Maybe one other point is that
to the extent that the Charter is justiciable and issues are raised,
for example, about employment rights in other Member States, then
it may well be that companies will start to introduce also in
the United Kingdom any consequential changes as a result of litigation
elsewhere. This is what happened with the Social Protocol previously.
Q174 Chairman:
May I just follow up on one thing? It would seem that the Court
will, over time, develop jurisprudence in the field of fundamental
rights by reference to the Charter. Does this not already then
undermine the UK Protocol and maybe it is not as watertight as
the Government would like it to be?
Professor Wallace: Much remains to be tested
here and it may well be that things are not as watertight, just
as it may well be that the fact that the Court was already making
reference to the Charter, even without it being specified that
it would have the force of law, means that there is a certain
amount of jurisprudential drift here.
Q175 Lord Maclennan of Rogart:
I wonder whether I could ask you a little about the impact of
the Reform Treaty on the Council of Ministers. There have been
a number of changes to the presidency and the transparency of
its legislative role. There are also the more distant prospects
of changes in the qualified majority voting system and the effect
of the declaration on blocking minorities. I wonder whether you
can see how this may impact upon the effectiveness and accountability
of the Council.
Professor Wallace: There are lots of different
issues here. First on the voting part, let me just go backwards
for a moment, if you will bear with me. We do not have a very
good analytical toolkit for telling us how the existing majority
voting provisions work in practice. Even in areas where the Council
may, and indeed does, take decisions on a qualified majority legal
base, mostly governments prefer to take decisions by consensus.
Explicit voting occurs on only really quite a small minority of
issues and such explicit voting as we have recorded is not very
interesting in telling us about the way the voting system operates.
To the extent that it really bites, it bites in a much more implicit
way, long before decisions are formally adopted. We have to try
to figure out what is going on inside the Council, both at ministerial
level and in its committees and working groups. It has always
been my sense that the numerical notion of voting was really not
as important for that as the public debate would suggest and that,
in any such negotiations, there is concern to try to assess the
weight of the pros and the cons on any given issue and, very importantly,
try to take into account reservations that this or that Member
State has by incorporating them into the proposed legislation
itself by amendment. That is really much more the way it operates.
If that is right, then the shift to the different majority voting
would probably have a very small impact on the way things happen,
although we know it has been extremely important for Germany symbolically
for those changes to be made. I do not expect the voting as such
to make a terribly big difference. On the revised version of Ioannina,
I reread this morning Douglas Hurd's account of the negotiations
over the Ioannina decision which troubled him a good deal at the
time. What he says in his book and what the experience of practice
is, is that the Ioannina decision is useless in practice. In practice
it is not very interesting because the cases in which this particular
notion of constituting a blocking minority arises turn out not
to arise in an important way. Such issues as have arisen and been
pleaded on have been pretty trivial issues. I would guess the
same is likely to be true with the version that we now have there
at the insistence of the Poles. So it has a symbolic importance,
but is probably a nuisance in practice and not very important.
My starting point on the European Council part of it is that it
probably makes good sense at this moment in the history of the
Union for the role and purposes of the European Council to be
laid down in a more specific way in the Treaty. It seems to me
quite logical and in this sense for it to be embedded into the
institutional system: it recognises practice; it is not a huge
innovation given the way the European Council actually operates
within the process in a slightly less formal way. As for the election
of a full-time President, it is a proposal I have always been
against and always thought ill-conceived. Why have I always thought
it ill-conceived? For some maybe not entirely glamorous reasons.
I have always been more inclined to prefer the risk of rotation
in the hope that rotation would now and again bring a very good
President of the European Council and that if it brought us less
good Presidents of the European Council it would only be for six
months. Actually I thought it was rather a good thing and we were
all very lucky that Angela Merkel had that particular period of
six months in the Presidency of the European Council and, in my
view, did a rather fine job and a better job than most had expected.
I rather like the rotation, but rotation has gone out of fashion.
In the European Council, with its own elected President, we will
be left with a very large number of coordination issues and I
am quite bothered about the coordination issues. There is a set
of coordination issues between the European Council President
and the High Representative. There is another set between the
European Council President and the other parts of the Council
presidency which will be on a team basis. If I were President
of the Commission I would say—indeed I heard him say it
the day before yesterday—that it would take a great deal
of talented effort by those involved to overcome the coordination
question between the President of the European Council and the
President of the European Commission.
Chairman: I am sorry, I left Lord Powell
of Bayswater out of this particular part of our discussion. Are
there any points you would like to raise in light of what Professor
Wallace has now told us?
Lord Powell of Bayswater: Only to comment
that I rather agree with her. It seems to me a recipe for confusion
with a full-time President of the Council and these team presidencies,
apart from the High Representative. I think a great deal of time
in the European Union will now be spent on squabbling as to who
is supposed to be doing what, everyone trying to do the same thing
and causing considerable confusion for the rest of the world when
they try to understand who actually speaks for the European Union
and under what circumstances. I think it is a pretty disastrous
muddle. It has reflected for me the inability of the European
Union ever to abolish anything; it creates new things but it never
abolishes the old ones and both just go along in harness.
Q176 Chairman:
One of the coordination problems is the fact that you have a permanent
President and you will also have a President of a six-monthly
presidency at the same time who may be someone of greater stature
than the President.
Professor Wallace: One can speculate about lists
of stronger and less strong candidates for these posts.
Q177 Chairman:
It is presumably not going to make life very simple for either
of them.
Professor Wallace: No.
Q178 Chairman:
Do you think it could undermine the position of the President
of the Commission as well?
Professor Wallace: It is a source of confusion.
If one of the things that we will probably all value is that the
European Union should be better at coordinating the right hand
and the left hand in whatever policy areas it might be and in
relation to whatever external interlocutors then it might be,
then we are not doing better in that direction. One of the tasks
of the Commission is also to try to secure some coordination between
different policy sectors, so there are some grounds for the confusion
which I agree is a problem.
Q179 Lord Maclennan of Rogart:
Could you give us your views about what the importance of the
changes is in respect of the European Parliament's new legislative
and other powers generally? In particular perhaps tell us whether
you think it might have an impact on particular policy areas like
agriculture and fisheries and the amendment to the budgetary procedure.
Professor Wallace: It is interesting, is it
not, that each successive Treaty reform has produced an expansion
of the European Parliament's legislative powers in a very incremental
way? Even though in other areas of reform the patterns have been
much more zigzag, in relation to the European Parliament they
have been pretty linear. It is as true of this Treaty as is it
of its predecessors. I always thought it was a pity that in the
past agriculture and fisheries were subjected to such weak consultative
discussions with the Parliament and I never bought the argument
that was made for a long while very fiercely by many Member State
governments that the Parliament should be kept completely out
of agriculture and fisheries. I would have found it a more plausible
argument or a more acceptable argument if I had been happier with
the substantive content outcome of policy in the case of the Common
Agricultural Policy and the Common Fisheries Policy. I cannot
see that the discussion on agriculture and fisheries will be impeded
by the Parliament having more say; indeed it might be very healthy
for the Parliament to be much more involved, both on the co-decision
side for agriculture and fisheries and as regards expenditure.
This distinction between obligatory and non-obligatory expenditure
was always somewhat curious and was a way of creating protected
fiefdoms in the budget. I welcome the changes.
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