Select Committee on European Scrutiny Minutes of Evidence

Examination of Witness (Questions 200 - 208)




  200. I think we should recall that we first started hearing the wonderful word "subsidiarity" from the Maastricht treaty, which I recall Bill voted quite a few times against. Let's look at the history of it. We had a sense there where the government of the UK—a Conservative government at the time—was claiming subsidiarity from Brussels while it was centralised in its own country. It was not practising in its own country its own subsidiarity. When we first heard of subsidiarity, it was subsidiarity of decision making to Member States and not down to the regions. We have moved on from there—rightly so. But one of the difficulties that we must look at—and I am sure you must appreciate it—coming from understanding or trying to understand your point of view, is that we have 250 regions in the Union of 15 states now. We have got another 40 regions coming in. Therefore it is how you can effectively get real subsidiarity, democratic devolution—call it what you will—with so many regions and how you administer that, what sort of bureaucracy administers that, and how you get best value from that. That is the challenge to us all. There are no easy answers to how we do that. I think, in fairness, the way that the Commission and the European Union is doing it at present is helpful and encouraging, but I am sure the Convention will look closely at it, and there is going to be no easy answer how you achieve what you understand from your own political perspective but understanding that there is another number of people—maybe 100, 200 regions—throughout Europe arguing for the same things that you are arguing for.
  (Professor MacCormick) I think it is perfectly clear in all my answers that if you want a democratic Europe that is a Europe of equal citizenship, then your right to be heard in the construction of laws at the European level should not be a function of whether you live in X or in Y. That is absolutely clear, as clear as a bell. Part of the trouble is that where the regions are self-represented in the machinery of the Union, they are done so on a very odd principle. The Committee of the Regions, when you think of it, was set up to compensate for, in some degree, to adjust for the fact that there are in big states significant regions which are less significant in terms of most of the constitutional architecture than small states. But what was done when the Committee of the Regions was set up was they repeated that principle. It is a very good idea, for example, that Luxembourg should have six members of the European Parliament. The reason for it is that if you have much fewer than that you cannot represent the political diversity of a country. Luxembourg with six can have its different party positions represented, just as the UK with 87 can. The UK being a big state, it does not need proportionately exactly as many as Luxembourg. If we had proportionately as many as Luxembourg, practically the whole parliament would compose of the UK representatives or it would be a parliament of several thousand. So that is a good principle. In the same way, Denmark has five million citizens, 16 Members of the Parliament at the moment; Scotland has five million citizens, eight Members of the Parliament at the moment. Under the principle of degressive proportionality, that is as it should be. Why does that principle apply to the Committee of the Regions? Surely the opposite should apply, in order that the regions as regions are fairly and proportionately represented. That would be a situation which would make much more sense, saying, "What is the population base of the different regions?" For this purpose, is not Luxembourg a state which has regions but a state which is a region? While Bavaria is a non-state which is a region, or perhaps comprises several regions, depending on how the Bavarians want to set their own principles of self-government. You can do some arithmetic on that, by the way. If you say that roughly 2.5 million people would entitle you to three seats on the Committee of the Regions, with or without substitute arrangements, but that no state should have fewer than three, you end up with a Committee of the Regions a bit smaller than the existing Parliament, comparable in size with the present one, but you would have some equity among the regions of Europe. The argument from equality of citizenship operates in exactly the opposite direction. If you want the regions to self-represent on an equal basis here in Brussels, you need to rethink the Committee of the Regions.

Tony Cunningham

  201. Two or three questions on the issue of greater openness and transparency, something on which we have touched a number of times today already. In your view, how much difference would it make to the European Parliament and other parliaments and assemblies if the Council actually met in public?—and I am only talking here as far as when it is legislating. How important is it to open up the system of working groups, for example, and "comitology" so that there is far greater public scrutiny there? Finally, would you agree that the conciliation process should be more public, without making the negotiations which take place there much more difficult? Where possible, should it take place in public?
  (Professor MacCormick) I am certain about the Council of Ministers acting as the primary legislative house of the European Union, that it should deliberate in public. Of course everybody around this table is aware—most of you much better aware of than I am—that even a legislature which deliberates in public cannot get its business done unless there is a fair amount of talking in private places. That is also right. The idea that people should be allowed to do deals in private and talk to each other is obviously sensible, but, at the end of the day, when you stand in front of the citizen body and say, "These are the laws we propose to make and these are the reasons why we propose to make them," it is outrageous that that be done behind closed doors. So, as far as the Council is concerned, that seems to me to be perfectly clear. I think at the comitology level there is a presumption, though it is less overwhelming, provided that there are recall mechanisms, and I think that the recall mechanisms should be to the Parliament (rather in the way in which the Houses of the UK Parliament can exercise reasonably effective control over statutory instruments and other legislation), and I think the European Parliament, not the Council, is the right one to do that task. So there should be greater publicity. As far as conciliation is concerned, I have only taken part in one, but it was an epic. It was the one about the take-over directive which ended up 8:7 in the Conciliation Committee on the Parliament side—and I was the eighth, I am glad to say—and then became a vote of 273 to 273 in the Parliament and the thing fell at that point. Two Members of a certain political party had forgotten that the vote was happening and were secreted in the Members' bar talking to a journalist at the time. But that is a private grief.


  202. Not now it is not, Neil.
  (Professor MacCormick) I am sorry . . . But I do think that the case again for the final stage of the Conciliation Committee being public would be a good idea, although there is actually a less compelling case. It is the third reading in Parliament and the final deliberation in Council whether to accept the result of conciliation, and I do not think conciliation is as compellingly requiring the full glare of publicity, and I am not sure whether it will do any particular good. I equally do not think it will do any particular harm. I do not have a strong view on that.

Mr Hendrick

  203. Could I ask as a supplementary whether you would go as far as me in saying that repeat offenders should be made to watch comitology meetings and look at conciliation meetings!
  (Professor MacCormick) A cruel and unusual punishment.

Roger Casale

  204. Should the Commission President be elected by the European Parliament?
  (Professor MacCormick) There is quite a case for it. There is absolutely no case at all for a Europe-wide election for the Executive President. There is no country, not even France, in the Union which has a tradition of electing an executive president in the full American sense. If there is a need to elect the President of the Commission, it should be done through Parliament, not otherwise. I am more favourably inclined than most people are to the existing arrangement which is indirect election and direct dismissability. The fact that direct dismissability works is sufficiently demonstrated by its having been done once. It has had a transforming effect on the relations between the Commission and the Parliament. Why I think there is a good case for the existing set up, is that I think it actually is favourable to representative democracy in a kind of Burkean sense. The European Parliament is a parliament in which no part of it sits on purpose to keep a government in office. It therefore follows that Members of the European Parliament have a liberty of action unknown to Members of the House of Commons. There are Whips, but the Whips are relatively weak and even in the big parties they are divided, at least in part, along national lines. It follows that there is no continuous standing majority in the Parliament over the hill there. On each issue a majority forms. That really does mean that a critical power of scrutiny is exercised by the Parliament collectively and by its members as individual Members. This is an advantage, because the role which the direct elected house plays here is actually, when you reflect upon it, the role of the second chamber. The primary legislative chamber is the Council of Ministers, and, if you like the idea of the European Union as a confederation—and I do—you should keep that primary legislative house, the Council of Ministers, with some agreed basis of majority voting, qualified majority voting, but then your house of Scrutiny should not be cluttered up with the task of keeping a government in power. The difficulty about it is that it turns out that relatively few European citizens know about or believe in Burkean democracy. The idea of an elected legislature whose members exercise critical scrutiny on behalf of their electorate and come to a wise judgment about the interests of the body politic turns people off in huge numbers. The task of closing the democratic deficit is somehow, I honestly think, a task of getting people to appreciate that at the Continental level that is the kind of legislature you should have, but you do not know that you need.

Mr Cash

  205. Burke would not have approved of part of this, if I could just challenge you on that question. I do not think it is Burkean in that sense at all. I mean, a constituency-based organisational direct line to the constituency itself is quite different.
  (Professor MacCormick) I think I would meet you half way. If Burke had known of single transferable votes and multi-member constituencies, he probably would have been even more enthusiastic about—

  206. They had them but they were all owned by the individual—
  (Professor MacCormick) It is unfortunate that the Marquis of Salisbury owned them all.


  207. Neil, thank you very much. Unfortunately, we have run out of time. Thank you very much. I hope you have enjoyed it as much as we have.
  (Professor MacCormick) I think probably more.

  208. I would congratulate you on your responses to our questions and I am sure they will be helpful to us when we form our report.
  (Professor MacCormick) Thank you very much.

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