Select Committee on European Scrutiny Minutes of Evidence

Examination of Witness (Questions 192 - 199)




  192. Thanks very much for coming. It is nice of you to afford us this opportunity to hear your views as part of our inquiry. Those of us who come from Scotland know you as their MEP. Is this your first term?

  (Professor MacCormick) That is right, first term.

  193. We know of you and we are interested to hear your views and perceptions since you have come to Europe, how you see your role there and how you see the Convention. What do you see as the most important task for the Convention and, most importantly, the results it could achieve? What are you looking for?
  (Professor MacCormick) The end product I think is bound to be a revision of what we start from. We cannot reinvent the European Union and its institutions. What we will be doing will be essentially a process of adjustment and improvement. It could not possibly be a redesigning from the beginning. I think that there are two big questions that have to be answered. Question one is: How do we make subsidiarity a reality? How do we make it the case that the local engages with the central, so that people feel that the decisions that they take in their home place have a bearing on what happens in Europe? I think that the sense of remoteness of European institutions from the citizens is extremely troubling and certainly makes it very difficult for the Union to function as a democratic union. That is the second task. The first task is subsidiarity, and it connects directly with the democracy task. There is a democracy deficit and the key question is how you redeem it. These I think are the tests. You start with the treaties, which are, in the functional sense, anyway, the constitution of the European Union. There is a great discussion whether we should have a constitution or not, but I find it quite extraordinary to believe that we do not already have one. It is like saying the UK does not have a constitution. I mean, in exactly the same sense, the UK started in a treaty and then got arrangements worked out around it; the Union has started in a treaty and has had arrangements worked out around it. It does not have anything called a constitution and it is an important question whether it should have something called a constitution, but this will be to do with the formal adoption of an instrument not the creation of something ab initio from nothing. The treaties have already, as we all know, I am sure, been in a certain sense academically reorganised. You can take the effectively constitutional part away from the, as you might call it, regulatory part and put them into two different blocks of text—and the European University Institute in Florence has carried out that task. You then have got the materials that you want in the right places, I think, and you have a sort of reshaping task to do at that point. So that is how I see the task. My own particular and personal interest is in securing the subsidiarity issue, not just as a Member State/Union issue.

Miss McIntosh

  194. You may or may not remember but you actually lectured me years ago.
  (Professor MacCormick) I do, indeed. I remember it with great pleasure.

  195. Thank you. It is good to see you over here. Can I just ask you what your view is of the proposal that regional and other local authorities with legislative powers should have "Partners of the Union" status with certain privileges? Do you have a view as to what those privileges should be?
  (Professor MacCormick) The short answer: Yes, a good idea to have some kind of partner status. The point is that there is something absurd to the point of effrontery in the Slovak Republic, with its five million citizens and extensive coastline, taking part in the Fisheries Council and the kingdom of Scotland not doing so. It is just an oddity beyond conception. Of course that is an exaggerated way of putting it. Under existing arrangements, where the UK is there, Scotland is there, Wales is there, Yorkshire is there, nevertheless, the point will not go unnoticed. The same goes for Flanders, the same goes . . . My friend Camilo Nogueira (?) was talking to Mr Prodi this morning in connection with the governance discussion, on behalf of an intergroup of which I am a vice-president, saying, "Galicia will not take kindly to the Czech Republic- or Slovakia sitting on the Fisheries Council, and Spain, unlike the United Kingdom, keeping regional government at arm's length from discussions at the Council of Ministers." So that issue will come up in many contexts. How you deal with it, what is the right answer, what would partnership status mean, is an interesting question and it raises a problem, obviously, about equality. My party has a solution, which you know, which is that Member State status would solve the problem in a yet neater way. But for the time being, given that the majority of 2003 still awaits us, I think that the conception of partner status is an attractive one, and I think, not just from the point of view of Scotland, not just from the point of view of Wales but from many similar stateless nations within the Union, there is a clear demand for a re-conceiving of the architecture which takes account of the fact that some Member States, like Luxembourg, are very much smaller than significant self-governing entities within Member States, and there will be yet smaller, like Malta. Also, countries which so very recently were part of larger unions (the Baltic States, the Czech Republic, Slovakia, Slovenia, all these are coming in) and getting a sense of a workable balance is going to be very difficult. I think "partner region", if it is used imaginatively and developed well . . . The best written about it, I think, if I may say so, is the report which Alain Lamassoure has just put before the Constitutional Affairs Committee up the road.

  196. We have taken quite a body of evidence over yesterday and today where the witnesses have emphasised that the European Union is made up of Member States. There is an argument that flows from that, that giving, if you like, the sub-tier Member State these special privileges would detract from that. What would your answer to that be?
  (Professor MacCormick) Personally, I do not see that as the problem. I think the problem might be more accurately posed as one of equal citizenship. What would the citizens of the Midlands of England have to say if the citizens of Scotland had a quicker route to consult the Commission than they do? The same goes for the citizens of Rhône- Alpes(?), and so forth. I think the problem is about equal citizenship. After all, the Union is a union of states, of course, but that leaves quite open the question whether the states should or should not be relaxed about their internal self-governing entities having a route to the centre. And even down the line: there is a discussion in Belgium: "Why can you not dis-aggregate the votes in qualified majority voting? What if Flanders wants to go one way on a significant point of culture and Wallonia wants to go another? There are five votes. Why not three and two?" Because it might be that the European majority is one way or the other as between the two views within the Belgian state. There are all sorts of things. Once you go down that line, of course, it becomes important to consider whether the existing weighting of votes makes sense. I am rather strongly attracted by the version of weighting of votes which says that the votes should be cast on the basis of a majority of the population and a majority of the states; which means statehood counts for one point, as it were, and then population is counted proportionately. I think that would be a good way because it would mean that the issue of dis-aggregation could be raised as a quite neutral issue. It would not be a question of a state which has proportionately fewer votes losing some of them; it would just be a matter of splitting them.

  197. Given the fact that your party's view has not yet formed the majority view in your home country, how important do you rate the proposals in the Commission's White Paper on giving a more systematic dialogue with regional and local governments at an earlier stage in shaping policy?
  (Professor MacCormick) That, it seems to me, is again a quite separate issue from whether there should be a formal partner region status. But it connects to it quite closely also. I think it is about 80 per cent of the legislation that the Scottish Parliament can pass. The devolved subjects interact in some way and often overlap almost entirely with Union competences. It therefore follows that, unless the Scottish Parliament and the Scottish Executive have ways of being involved in the dialogue at an early stage, you will simply end up having a spatchcocking in of laws that will make less sense than they could and should have done had a point of view been taken into account beforehand. I mean, some of the ways that environmental legislation is biting at the moment, in the Hebrides, for example, seems to me just very silly, and if anybody had talked to the folk there beforehand—and this is not to do with wanting to dodge from under environmental protection—it would have been better that way done. I do not see why the same point does not apply to some extent, say in Yorkshire or Kent, except that Yorkshire and Kent do not have legislative powers which involve their transposing Union law there. So the methods of consultation, the methods of getting the word in early, should be different, but, at all points, if legislation (as Adam Fergusson of our Edinburgh university once said) is a treaty between citizens determined to live together as free persons, then it is not a top-down process at all, it is a dialogical process which emerges in an agreed product, and at the moment it is too top-down.

Jim Dobbin

  198. You have already mentioned the principle of subsidiarity, but subsidiarity means different things to different people and nations. It probably means different things to the European Parliament. What steps do you say need to be taken to introduce some consistency into that? That is one part of the question. The second part is we have a number of Scottish Members of Parliament on this Committee, and I think I can speak with a bit of neutrality, having an English constituency, but the question really is: How important is the debate about subsidiarity and the delimitation of competences to Scotland?
  (Professor MacCormick) I think the Scotland Act did the job it had to do in the exactly correct way. I think saying that the Scottish Parliament has a general power to make laws but this power is subject to exceptions, and then the exceptions are listed, is a very sensible way to give competence at that level of government. At the level of the European Union the opposite technique does and should apply. The Union is given specific competences, in some of which it has exclusive functions and some of which it has non-exclusive functions, and that is reasonably clear. The problem is—and again I would cite, with great respect, the report by Alain Lamassoure—that the history of the treaties means that the allocation of competences is done in a very different variety of styles. Sometimes the issue is what is the subject matter; sometimes the issue is what is the objective. Sometimes it is done in a whole page's length; sometimes it is done in one sentence. So the allocation of power at Union level needs, I think, greater clarity and greater systematization without actually, I think, substantial change. I do believe that the safeguard power in Article 308 (that is the one which allows the Council by unanimity to do anything else that it thinks it is necessary or proper to do) is probably too wide. There at least you need some, I think, better safeguard against that kind of curious excess of zeal of the states acting together to bind the states acting separately. One of the oddities is that when we talk about the policing of subsidiarity we are sometimes told that the states are acutely anxious to police subsidiarity effectively, as though it were not the states themselves who at council have agreed the laws to which somebody is now objecting. That I think is a real problem. It follows, I think, that you need a detached and judicial or quasi-judicial arbiter to decide whether subsidiarity as a legal principle is violated or not by some piece of legislation, just as you need the Privy Council to police whether or not the Scottish Parliament has trespassed beyond the limits of the power conferred on it under the existing settlement. I do not agree, if I may say, with great respect, that subsidiarity means different things to different people. I think people differ about how it applies. I think it is more or less universally agreed that the principle of subsidiarity is the principle that decisions should be taken as close to the persons affected by them as is consistent with equity and with efficiency. The problem of course then is: But what is equitable and what is efficient? It is a very open-textured test. What I think is true is that there can therefore be serious disagreements on any given question, whether that one had to be treated at the Union level or the UK level or the Scottish level or the Shetland Council level. That is a difficult problem. It is a bit like when, in 1932, the judges said, "You must take as much care as a reasonable man would take." How much care would a reasonable man take? (Alas, it was a sexist definition at that time.) But we have had 70 years of judicial decisions and we now know very accurately just what sort of care a reasonable person takes in a whole variety of contexts. I think the same goes for subsidiarity. Any broad and general principle introduced into a legal argument takes time to concretize and complete, but the best way to do it is to have some system of building up precedents and precedents should be on the whole, I think, more judicial in character than political. I can see the argument which says: Subsidiarity is really a political question, let the politicians decide it. But that is appealing from Paul drunk to Paul sober.

Mr Cash

  199. I think this is fascinating. We had Klaus Hänsch in before and he said unequivocally that it was political and not judicial. You say—in my opinion, quite rightly, because I do not think you can get away with that—it is in the treaty and therefore the treaty is by definition justiciable. To that extent, I do not think his argument could possibly stand up; the court is bound to get involved. The question which interests me a bit is the analogy with the doctrine of ultra vires in the United Kingdom which, rather on your reasonableness rule from the 1930s onwards, since the 1960s has built up in the field of judicial review. That is applied through statute down to local authorities, whatever, but of course there are principles involved in that. You know all the case law and all that stuff, and the whole business of where, for example, a statute says ". . . and all such things as may be reasonably required . . ."—which is rather like the 0235 which is the 308 you have just been referring to—and the question therefore is: Should there not be some serious study made as to the manner in which the court should develop the whole concept of the ultra vires doctrine? For example—and Michael Carpenter will help out here—there is the acte claire and so on, but it is not, when you really dig into it, adequate to deal with this problem. This is a separate issue from what should and should not be at the higher level. I have very clear views about that, which I do not need to get into now, but, at whatever level you are applying the principle of subsidiarity, there has to be a body of law which can decide whether or not there has been a act of ultra vires which then is declared void by the judicial authority. I think this is an area which needs much, much more examination and development. Whether the Convention would look at that, I doubt, because I do not think they have got a stomach for it, but it is implicit, I think, in the whole direction. There is no way at the moment that I can see of identifying a set of coherent principles on this subject.
  (Professor MacCormick) That is a very interesting proposition. The case of local authority powers in the UK, which says that if somebody is within their discretion you cannot complain about the decision having been unreasonable unless it was so unreasonable that no reasonable person directing their mind to the question could have come up with that answer—it is a double unreasonableness—is a complex case. But the point about it is that to say it is political but not legal or legal but not political is misleading. It is political in the sense that it is a principle whose only purpose is to guide political actors, and in relation to which the standard of judgment applied is a political actor acting reasonably and properly, but the decision whether the act taken satisfies that test is rightly and properly a decision taken by judicial authority and it leaves a wide discretion. I think the same goes in relation to subsidiarity. There is a paucity of case law at the moment. Really the case law simply says that it must be demonstrated that the decision taker had addressed their mind to the question whether this was the appropriate level of decision making. But the next phase, I think, will be that, if they had addressed their mind and answered it honestly, they could not possibly have come up with that answer. At some point, first of all, there will be path-breaking political ineptitude—the politicians will manifestly go too far—and then there will be path-breaking judicial intervention. I think, in a sense, the paucity of case law at the moment is partly to do with the fact that probably the politicians, the Council, Parliament and so forth have behaved on the whole reasonably in this matter. Or, alternatively, when they have done the wrong thing, they have been challengeable on other grounds (as in the case of the Tobacco Advertising directive).

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