Examination of Witness (Questions 439
WEDNESDAY 17 APRIL 2002
Chairman: Good morning, Mr Howe. Welcome to
the European Scrutiny Committee. It is a delight to have you here.
You come very well recommended, unfortunately by a Member who
is unable to be here to join us because he is on other parliamentary
business, but I hope you enjoy the experience, as we will enjoy
the exchanges. We are doing an inquiry into the governance of
Europe, and your evidence will help us to connect al the other
evidence we will be hearing, and I am sure it will be helpful
at the end of the inquiry, which we hope to publish in May.
439. I also welcome you, Mr Howe. For the record,
and so that people know your background in European affairs, can
you tell the Committee of your expertise and background in European
Union matters? First, however, I should like to ask a specific
question on your paper, relating to the first paragraph. You say
that citizens, by and large, do not understand the processes by
which laws are made in the European Union, with erratic exceptions.
I would like to know what you mean by "erratic". You
then say: "They do not know because they are not told by
the media and do not know how to find out for themselves."
Are you suggesting that that is by default, or are you seeking
to suggest there is some intention, ie, some conspiracy, to keep
these things away from the general public?
(Mr Howe) Shall I answer that first, and then describe
my background? What I was intending to refer to there is that
the media do alight on European measures going through the European
Parliament or Council of Ministers. They tend to alight on them
in a very erratic way, and coverage tends to be very sensationalised.
They do not, by and large, systematically explain measures going
through in any way like the same depth as, say, the Government's
legislative programme gets explained through the media. I do not
attribute that to a conspiracy; I attribute it to the many problems
that I describe later in the paper, of lack of openness and lack
of comprehensibility of the European law-making process. In relation
to my background, my practice is very largely in the field of
European Community law. I primarily concentrate on intellectual
property, but I also cover the field more widely. I have made
a number of appearances in the European Court of Justice in the
course of my practice. I also take an interest in these matters
from the wider constitutional and political perspective. At the
time of the Maastricht Treaty, I published a short book called
Europe and the Constitution After Maastricht and I have
published numerous more minor pamphlets and articles since then.
My political background is that I am a former Conservative parliamentary
candidate, so that is where my party political standing is.
440. My questions relate to subsidiarity, which
you talked about earlier in your paper. You argue that there is
a need to curb what you describe as "over legislation"
at the EU level. How would you define what the EU should be doing
and what do you think constitutes over legislation?
(Mr Howe) It is a matter of excessive width and excessive
detail. I gave examples in the paper. Why should Europe legislate
hygiene standards in street markets in France? It is one thing
to say that if you have packaged foodstuffs crossing borders of
Member States, you need common European standards on hygiene,
but it is another to go further and get increasingly into that
field. The problem with the present system is that there is no
effective check on the argument that things need to be done at
European level. I would argue that things only need to be done
at European level when there is a concrete, demonstrable effect
of the measure, of not having it, or having it, on the interests
of other Member States in the European Union.
441. How do you think that should be determined
and possibly enforced?
(Mr Howe) I would argue that it is virtually impossible
for that distinction to be effectively enforced at the level of
the European institutions. The reason for that is that in all
federal type systems, the federal or central institutions have
a tendency to over-expand their own competences. If you look across
the Atlantic to the United States, you can see what the Supreme
Court has done to the commerce clause of the constitution. It
was designed to allow the federal congress to legislate on inter-state
commerce but has been expanded to allow it to legislate on any
matter which, in the opinion of Congress, might affect inter-state
trade in any way, including things like how schools are organised.
I would argue that apart from improving the formal testthe
current subsidiarity protocol is very poorly worded from the point
of view of controlling over-legislationI would argue that
you have to provide an institutional check that is rooted in the
individual States, rather than an institutional check at European
442. You appear to regard national parliaments
as potential countervailing institutional forces curbing over-legislation.
Where evidence do you have that those parliaments would oppose
(Mr Howe) You are quite right to raise the question,
because obviously different parliaments will behave in different
ways. Some national parliaments are more in the hands of their
executives than ours, and are more compliant and have less of
a history of independence than others. As far as I can see, they
are the only institution around that is at least capable of exercising
some independence of approach, compared with what the governments
huddle together and decide to do. The only other alternative would
be the solution of a Swiss style referendum, but that would be
a very radical approach, to have referenda on detailed European
443. Can I ask you about your thoughts on the
fiche d'impact, because this whole business of subsidiarity changes
if the fiche d'impact worked, so that before the Commission did
anything, they consulted firms throughout the European Union and
came to a conclusion whether the risk was greater than the benefit.
As a practising barrister, you must have had experience of whether
the fiche d'impact is actually working, because, if it were working,
the whole question of subsidiarity may be very different. If I
can follow that up with another question, if you say that the
European Parliament or Commission only deal with the minimum things
which are of benefit to the Member States and that the maximum
should be repatriated in effect to the Member State parliamentsand
I use the word "repatriated" carefully because it has
certain connotationswould you not need a bureaucracy in
Brussels to enforce even those things that are beneficial to all
the Member States? At the moment, the Commission has no teeth
and it relies on Member States to enforce the legislation once
those Member States have passed it. If you do go down a track
of de minimis from the European stance, would you not need
another whole layer of bureaucracy to enforce?
(Mr Howe) First of all, the Commission's own assessment
of the impact of its measures, I would like to think, has done
some good. On the other hand, it does not override the political
imperative and political forces that tend to force measures through
at European level. By and large, the whole subsidiarity provisions
have certainly had the effect of lengthening bits of legislation
because at minimum everything now is recited in it at the beginning,
as to why it is justified at Community level, for the following
reasons. You can argue that it at least makes them think about
reasons, and put them down. I am not convinced that it has more
than a minimal effect or more than a formal effect on increasing
the recitals. The second part of the question was whether you
need centralised bureaucracy in order to provide minimal legislation
at the European level. I cannot see why that should follow. The
proposals I put forward here are a check on further legislation,
particularly national parliament ratification. It is perfectly
true that they would not address the problem of the huge body
of European law that has now been created, and which it is extremely
difficult to amend under current procedures, still less repeal.
I accept that these proposals do not address that. I am not sure
that a central bureaucracy is the answer to that. I think it is
almost a question of a need for a political impetus at Member
State level. The climate has got to be in favour of rolling things
back, or "repatriating" to use the word used already,
before the political machinery or legislative machinery can deliver
444. Returning to your point about hygiene standards,
given the single market, which is obviously trying to promote
minimum standards for hygiene, you mentioned that it differentiates
between the transportation and packing of food and the fact that
food may be treated differently in various Member States. Would
it not be pointless to legislate at European level on hygiene
standards for food in transit and packaging, when less than satisfactory
standards may have prevailed in one or more Member States as a
result? Does it not defeat the object and, therefore, the two
are linked, whereas you are trying to make a separation between
what should be decided at European level and what should be decided
at national level?
(Mr Howe) I would say, in response to that question,
that that is, with respect, exactly the sort of argument which
is extremely dangerous. It leads logically to an argument that
Europe should legislate on everything. The question presupposes
that there is only one right answer for hygiene laws and that
Europe has the right answer. That is a field, as I am sure everyone
appreciates, like many other fields, where there are a lot of
judgment calls on what rules you apply or do not apply, for example
whether particular macrobiological standards are or are not justified.
I spent a week in the Court of Appeal about three or four weeks
ago, arguing this very point about a consignment of prawns. The
point is this: different Member States may have different approaches
to the balance between hygiene controls and their desire to allow
traditional unpasteurised cheeses to be marketed and sold. I can
see the argument that once you have goods travelling across the
borders of Member States, the function of the single market justifies
a system of common standards. Whether it needs to be totally and
utterly harmonised to the extent it is, is open to question; but
I question the logic of saying that therefore the standards applying
to everything sold in every shop or market or on every street
corner must be regulated at European level. There is a distinction
there, but the problem is that that distinction has not been recognised
and certainly has not been applied sufficiently vigorously.
445. You write at length on pages 2 and 3 about
the secrecy of the Council of Ministers. There are a lot of proposals
being discussed at the moment to open that up to one extent or
another. I am interested to find out whether you agree that this
might in itself pose a problem in as much as the horse-trading,
or discussions, that currently take place within the Council of
Ministers may simply be moved elsewhere, to the corridors, before
the official meeting of the Council of Ministers; and it might
be an ineffective way of providing transparency.
(Mr Howe) You cannot stop the horse-trading happening
outside the official chamber. It seems to me that you cannot ever
stop that happening. For example, in countries where you regularly
have coalition governments with multi-party support, what goes
on in the open proceedings in parliament does not necessarily
reflect the horse-trading that occurs behind the scenes under
which the common policies are formulated. On the other hand, it
does not seem to me that the fact that it can be by-passed and
that horse-trading can occur is a justification for suppressing
the public recordthat the actual legislative process should
go on the public record; so whatever the horse-trading is, at
the end of the day what our representatives say and how they vote
in the Council of Ministers is open and accessible, in the same
way that everything a Member of Parliament says or how they vote
is on the public record as parliamentary procedures. The local
papers might even report it now and then, if they have sufficient
interest. In principle, any constituent can find out. To have
a legislative body, which is what the Council of Ministers is,
where the constituents, for whom the Ministers on the Council
are acting, cannot find out what they have said and how they have
voted in substantive deliberations, strikes meif you came
up with it as an idea todayas bizarre. It is only there
because of the history of the way in which the Common Market was
created under the original Treaty of Rome.
446. You also write that there is no effective
way for electors to influence and effectively change EU laws that
they object to. Is not the answer to that, that electors can change
the governments that represent them in the Council of Ministers,
who decide on those laws, and also re-elect members of the European
Parliament through co-decision are also able to effect change
in the EU laws that citizens might object to.
(Mr Howe) I would suggest that in an imperfect system
the Council of Ministers is the more democratic element, or more
accountable element, than the European Parliament. The reason
why I would argue that the European Parliament is not accountable
is because of the cause-and-effect link between what the individual
members of the European Parliament may vote for and against, and
therefore their parties' prospects at the next election. We, by
and large, have predominantly a two-party system. That has the
effect that the governing party at the time and the main opposition
party are in competition for being the government, and if the
public do not like what is going on, they can change the government.
That has a dramatic effect in terms of accountability. If you
compare that with the European Parliament, where you have a whole
load of different national electorates, all with different views
and political climates and at different stages of their cycles,
and you have a system by and large of proportional representation,
either on large regional blocs or national party lists, you have
very little direct connection between what a Member of the European
Parliament advocates or votes for, and the likelihood at the next
European Parliament election of either him or his party being
significantly affected at the polls. I would argue that democratic
accountability in the European Parliament is an illusion rather
than a reality.
447. Can I follow up the point about the Council
of Ministers and particularly the European Council? I think you
would accept that there is a duality in the legislative role,
and there is also the situation in Germany. I accept that the
legislative part of that function should be open to the public.
Is it your view that both roles should be open to the public,
or do you accept my view that it should be just a legislative
form; and, if that is so, how do you determine that?
(Mr Howe) I accept there are certain activities of
the Council of Ministers which are, if you like, non-legislative.
The most obvious are formulation of policies on foreign and security
policy, where there would be obvious problems in such policies
being formulated in public when they affect the external relations
of the European Union and have international security implications.
Within the context of the first pillar, which is European Community
measures, I would say there are quite limited areas which you
would classify as being cabinet-like rather than legislative.
Most of the functions of the Council of Ministers within the first
pillar tend to be legislative in the sense of formulating the
448. That would not be true of the European
Council, would it?
(Mr Howe) The European Council has a slightly different
role. Summit meetings are quite complex because partly they are
European Council and sometimes they are at least partly formally
the Council of Ministers meeting the composition of heads of government.
On the other hand, when it comes to the European Council, the
guidelines, although of a political rather than a legal nature,
and given the way that they then form the programme of legislative
action, I would say there is a strong case for openness of proceedings
in the European Council as well, subject to things like foreign
policy where I fully accept the arguments that those should be
behind closed doors.
449. In your paper you mentioned that the European
Parliament's amendments to particular measures are erratic. Can
you provide any evidence for that?
(Mr Howe) I think they are erratic. When even the
well-known Member of the European Parliament, Mr Christopher Huhne,
writes castigating the conduct of the European Parliament over
things like the refrigerator mountain or the consequences of the
refrigerator mountain, I think one does have a concern about it.
I know this is politically controversial, but in the area of employment
rights, for example, and social rights in the workplace, the European
Parliament has tended to go along the road of legislating for
changes without necessarily taking into account the impact on
business of the cost of the changes. The Physical Agents Directive
is an example in point, and if you look at more specialist fields,
for example the Designs Regulation, where a number of amendments
were made by the European Parliament, the effects of lobbying
are felt strongly in particular by industry interest groups that
are able to push their case strongly and have the means to do
it with the right contacts and the right lobbying, and the arrangements
within the Parliament seem to be able to get
450. Is that not true in any parliament?
(Mr Howe) It is true in any parliament, but I would
say it is far more prevalent in the European Parliament than certainly
in this place, where, although many, many people attempt to lobby
parliament, the legislative process is quite resistant to back-door
lobbying. Obviously, there are mechanisms by which government
consults in its legislative process that are effective, but I
would say that our system here is far less prone to special interest
groups getting a foot in the door than the European Parliament
451. As a former Member of the European Parliament,
I would just like to point out that there are lobbyists in Westminster
just as there are in Brussels and Strasbourg. I do not really
see a profound difference in that respect. Can I take you on to
the question of the role of national parliament, which is central
to your paper. On page 7 in particular you make specific recommendations.
You are essentially suggesting that national parliaments should
have a veto over the implementation of directives and regulations;
and it is not just a veto of implementation, you suggest that
they should have an influence to the extent that you prevent a
directive or regulation being introduced. If that were to come
about, I suggest that the result would be that the whole system
would grind to a halt, and that rather than being a constructive
suggestion, it is a wrecking proposal.
(Mr Howe) No, it is not a wrecking proposal, and I
do not agree that the system would come to a halt. Let us take,
first of all, the simplest case where a directive or a regulation
is passed under a treaty base, which requires unanimity in the
Council. That means that every minister representing every Government
in that particular meeting of the Council has voted in favour
of the measure; it has been passed by unanimity. In the overwhelming
majority of cases, assuming those ministers speak with the confidence
and authority of their national parliaments, there will be no
problem in their national parliaments also ratifying the measure.
Where it may have an impact is where Ministers in the Council
have gone beyond the wishes of their national parliaments, in
which case there may then be non-ratification by the national
parliament back home; but I would argue that that is healthy for
democracy because it would make it less likely that ministers
would agree to measures which they think their parliament back
home might not back. They should not have backed them in the first
place if they thought they could not get them through the House.
452. On the other hand, we all know that the
reality is that decisions, whether through qualified majority
voting or unanimity, are made on the basis of negotiation and
compromise, and that implies some deviation from the established
national position. If that is the whole result of the process
of negotiation, if that was unpicked by national parliaments in
each individual case the system would surely break down?
(Mr Howe) I do not agree it would break down because
in such a case the minister goes home to his national parliament
and says, "we have not got all we wanted; we have to negotiate;
it is a compromise, but there are other aspects of this measure
which are helpful to us; the measure as a whole should be supported
and that is why I voted for it at the end of the day". If
he cannot make that case and gain the support of his national
parliament, I would suggest he should not have been agreeing to
the compromise in the first place. It may make things more difficult
in those kinds of situations, but I would argue that that is democracy.
453. You argue that it should be unlawful for
UK ministers to vote in the Council except in accordance with
the mandates. What provision would you make in cases where urgent
decisions had to be made?
(Mr Howe) You could make provision for situations
of emergency in the standing orders of the House, and provide
consultation with this Committee, for example in cases of emergency
outside the normal cycle of meetings and sittings. I do not think
that is insuperable.
454. How would you justify giving such power
to fairly small committees containing unelected members, the composition
of which might not reflect the composition of the House?
(Mr Howe) That is a matter for the House and its committee
structure, because committees always report to the House as a
whole. The House as a whole, as I understand it, can override
particular decisions of the committees. If the power remained
a legal power, you could argue that its importance would be increased,
and there might be an argument for wider groups of members becoming
involved in the process of scrutinising its exercise, which I
would argue is all to the good.
455. You will appreciate that there could be
a circumstance when a minister considered that making a decision
at that particular time was in the national interest, and that
not to make that decision might have serious effects on issues
that the government of the day was proposing. Is it consistent
with subsidiarity to require ratification of Council decisions
of national parliaments as well?
(Mr Howe) I would say that is the only effective way
of enforcing subsidiarity, or the most likely way that is likely
to be effective.
456. We, as a committee, generally argue the
case that we much prefer ministers not to lift scrutiny reserves,
and we appreciate that on occasions that may be absolutely necessary,
but we stress to ministers in departments that they had better
have a very good reason and rationale for doing so, and they come
back to this Committee and explain it. Then, it is for us to make
a judgment on whether we put that to the House or not. How would
you improve on that, because you seem to want committees to mandate
ministers, and there is a proposal where you are asking two committees
to mandate a minister. It does not seem very sensible.
(Mr Howe) It would not affect the ability to use scrutiny
reserves because the effect of a scrutiny reserve is that the
minister has not voted for the measure concerned. A scrutiny reserve
is saying, "I am in principle agreeing to this measure, but
I cannot vote in favour of it formally while this process of scrutiny
takes place". It strikes me that in almost all situations
where a deal needs to be done in the national interest, that covers
it. I think, Mr Chairman, that your point about the involvement
of the House of Lords and its scrutiny arrangements raises a far
wider issue of the relative roles of the two Houses.
457. With respect, it was you who raised it
in the paper.
(Mr Howe) The current position, for example, is that
in statutory instruments, unless they are money measures, the
two Houses both need to concur in making the statutory instrument,
both having equal powers. I was simply reflecting that when it
came to the question of authorising votes in the Council of Ministers.
458. You say, "unless with the mandate
of the scrutiny committees"; and you then say in your paper
that there is an argument that some important powers should only
be exercised following the affirmative decisions of both Houses
or the House. Is that not a contradiction in terms as regards
taking power away from the scrutiny committee in regard to important
decisions? What important decisions would you believe would need
affirmation by both Houses?
(Mr Howe) The example I had specifically in mind is
measures under the old Article 235 of the Treaty. I have forgotten
what it is re-numbered as.
459. Article 308.
(Mr Howe) It is quite a broad power to introduce any
measure whatsoever which is desirable to attain the overall objectives
of the Community. You could do anything by that route that you
could do by an act of parliament; it is virtually untrammelled,
beyond the fact that it has to be somehow within the broad field
of the objectives of the Community. Because it is not a power
within a limited treaty base or scope, I would argue that before
that is exercised it ought in principle to receive the approval
of the whole House, rather than just the Committee. That is the
main example that I had specifically in mind. You could argue
about other measures that might fall within that category or might
be regarded as sufficiently important to be within that category.