Select Committee on European Scrutiny Minutes of Evidence


Examination of Witness (Questions 439 - 459)

WEDNESDAY 17 APRIL 2002

MR MARTIN HOWE, QC

  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.

Mr Marshall

  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.

Jim Dobbin

  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 test—the current subsidiarity protocol is very poorly worded from the point of view of controlling over-legislation—I would argue that you have to provide an institutional check that is rooted in the individual States, rather than an institutional check at European level.

  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 over-legislation?
  (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 measures.

Mr Steen

  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 parliaments—and I use the word "repatriated" carefully because it has certain connotations—would 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 that.

Mr Hendrick

  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.

Angus Robertson

  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 record—that 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 me—if you came up with it as an idea today—as 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.

Mr Marshall

  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.

Mr Hendrick

  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 system.

Mr David

  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.

Chairman

  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.

Mr Tynan

  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.


 
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