Select Committee on European Scrutiny Minutes of Evidence

Examination of Witnesses (Questions 60-77)



  60. I accept that, on consultation and co-operation; what I am saying is, if you extended co-decision, how would that make it more relevant to the man, or woman, in the street?
  (Mr Bunyan) In fact, there was a report out recently from the Parliament, there are two aspects of the European Parliament, but the Parliament has actually produced a report saying it is actually quite effective when it gets to co-decision, it has actually won quite a number of victories; because it is an extended process, it means that there is an extended period during which MEPs and civil society and the media and lawyers and academics and others can actually gain an understanding. And although you may only be given 15 days or three weeks to come to an opinion, actually for that to filter down to the civil society is quite hard, and therefore co-decision does give that opportunity, I think, for civil society and national parliaments to be that bit more involved.
  (Professor Curtin) But you can have an input of views, that there is a possibility for that, which there is not, essentially,—

  61. I do not disagree with your analysis of co-decision; what I am saying is, will that improve turnout and will that get more involvement?
  (Professor Curtin) This is something that political parties everywhere are suffering from, it is not peculiar to the European level. I think we have got to remember that as well.

  Chairman: That was my earlier point; this conversation has been on amongst the political parties, and we are speaking for what they perceive the citizen wants and is needing. And I think it is chicken and egg, as Mr Bunyan said earlier on, it is how you achieve that, and I do not necessarily think giving more power to the European Parliament is the process.

Mr Connarty

  62. Welcome to the Committee. I read your paper with interest; in fact, I counted almost 40 recommendations in four pages, I think this is a real paradise. But you seem to be modifying your position very quickly. Your first statement was, in fact, that, "On EU matters the ultimate arbiter should be the European Parliament . . .". You have been running away from that for the last ten or 15 minutes; only on condition that civil society is consulted, only on condition that . . . So did you overstate the case, and shall I take the rest of the 40 recommendations with a similar pinch of salt?
  (Mr Bunyan) No, not at all. It was trying to answer your question, and the questions coming across here today, how do you begin to get an idea about how Europe should work, and we are putting forward the idea there that, perhaps, for all the conflicts, institutions and co-decisions, and everything else, which is incredibly complex, that the people understand parliaments. I remember it was John Major, some years ago, at some lecture, when he was Prime Minister, said, "Oh, well, the European Parliament is still a young Parliament; we can't give it too many powers too soon." I thought to myself, "well, what kind of democratic statement is that;" if this was a parliament of a third world country, it would probably be called authoritarian, it would be the wrong relationship with government, the current power the European Parliament has. So, no, we are not running away from it, we just think it is an element, we are sowing this thought, in that if you have got a parliament, which is not a proper parliament in the sense of its power, so it does not have powers in critical areas like civil liberties and people's rights, one element of increasing the standing, the real democratic debate that should be happening in Europe, is that the Parliament should have powers. We are by no means saying that is the only solution, and we are not retreating.

  63. But you have said that the EU Parliament should be the ultimate arbiter, and now you are obviously modifying that greatly. On the powers to reject a proposal from a Member State, in other words, the Parliament will be able to decide that a Member State's interests were not in line with the Parliament's interests, therefore it should reject a Member State proposal. I am not saying I am not attracted to that, but what I am saying is, you now do not seem to be arguing that case as strongly as you stated it in your paper?
  (Mr Peers) To reject a proposal from a Member State for Community legislation, like an immigration directive, or a European Union Act like a framework decision. We were not suggesting it be the ultimate arbiter over purely national laws, only proposals within the European Union legal system.

  Chairman: Mr Peers, welcome. Sorry you were held up.

  Tony Cunningham: Like some of my colleagues, I also served in the European Parliament before I came here. I wonder whether you would agree that one of the basic problems, as far as the European Parliament is concerned, as far as this country is concerned, is that people have no idea what it does, they have no understanding of what it is. I was elected with 44 per cent in 1994, but the turnout was 75 per cent for the national elections; it has gone down to 19 per cent. Yes, we can say that, national parliamentary elections, it has gone down, but it was incredibly low the last time. But people do not understand what is going on. I could say to you, for example, that the most important Conservative politician in Britain today is Caroline Jackson; now the person who told me that was a Conservative Member of the European Parliament.

  Mr Cash: (-Inaudible -)

Tony Cunningham

  64. I am pleased to see the Conservatives actually agree on some of these things. But the chances are that no-one has ever heard of Caroline Jackson, and yet I could sign up to an Early Day Motion tomorrow which would appear in my local newspaper as something which was of great importance, and so on, and we know that it is political graffiti, which is about all it is. But people do not understand, the media never—how often do you actually read anything about what is going on; so unless civil society is embraced, unless they have the information, unless they understand what is going on, then there never can be the sort of democratic justification for having the European Parliament?
  (Professor Curtin) People do not understand what the Commission does either, or what the Council is doing, to a large extent, or what Eurodac does, or Eurojust, or Europol, or any of the other, many of the agencies' organs, they do not understand that the Council has its own bureaucracy, which is also active. There are so many layers involved at the level of the European Union, which is why we think that there are no simplistic solutions, and it is why, even if it contradicts one sentence in our written memorandum, we do not think that the only solution is giving more powers to the European Parliament and that will solve everything; on the contrary, we think that healthy parliaments, in the national systems, are a very important part of providing a link with the formal political process in the European Union. But the parliaments also have to ensure that information is made available, again, I am repeating myself, on time, and that civil society, people who are concerned about certain decisions that are taken, maybe they are only concerned about certain themes, it might only be the environment, or justice and home affairs, or whatever, but even if that is so that they are able to have an input into an informed debate, which filters through into the media, or whatever. That is part of a healthy democracy, of having a healthy public sphere.

Roger Casale

  65. Can I also welcome you here very much today, and thank you, in particular, Professor Curtin, for making the journey here from The Netherlands. And you will know, from your knowledge of Britain, that we have a number of neuroses in this country when it comes to thinking about Europe, one of which is that membership of the European Union is eroding our sovereignty and means the end of civilisation as we know it. But perhaps another one, which you hinted at in your introductory remarks, is that the world can somehow be re-ordered and tidied up and we can solve all the problems of governance in the European Union by reforming it perhaps all in one go. I think one of the things that you have said to us, and I will just ask you to confirm that point, is that we may, for quite a long time, have to live with decision-making structures in the European Union that are a bit messy and untidy and imperfect, but nevertheless perform a useful function, and are capable of improvement. Within that context, I particularly welcome what you have said to us about the role of national parliaments, and, as our Chairman said, we are pushing very hard to see a greater role for national parliaments through this Committee, a greater role for national parliaments in terms of being able to hold governments to account, but also in engaging civil society. And I hope that, as part of this inquiry, we will be able to call a meeting here at the House of Commons to involve groups from civil society and to discuss with them the future of Europe. But I am very struck by how rarely we are contacted, as members of this Committee, by organisations in civil society, and I wonder if there are any practical suggestions that you can make, based on your experience with Statewatch, as to how this Committee can actually improve its contacts with civil society. Now can we perform better in really engaging civil society in the European debate in this country? Through the work of this Committee now can we feed the views of civil society into the process of European decision-making?
  (Mr Bunyan) Basically, what the Committee is now doing, as is the other Committee in the House of Lords, is putting up information on the Internet of its proceedings, of its reports; before coming here we could download the last people who came in and we could read it on our way here. That is simple. What I said earlier is important, to have a deadline. I believe that for every new measure which comes before your Committee there should be a schedule, and in the middle of that schedule there should be a public deadline where civil society has said, effectively, "you can put your points of view to us, now it will grow in time, you can play an active role by contacting groups," but I think there has to be a formal role, not a formal effect but a formal date, "by 10 January, if you have got any views on this issue, and if you need a copy of the document, or other documents," which is your job to make available. You have got to have vertical access. When you have got a new measure here, I am not at all sure that you get what we would call vertical access, that is, all the background documents which have led to the document which is before you. In our view, that is what we do in our work, we will track a document, a proposal, through, so that even before sometimes it comes to this Committee we can see it is going to come here, we can see the earlier discussions within the Council, the Commission; now I think you should and civil society should have all that background documentation around that idea. So you have got a job to demand your own rights vis-a"-vis the Government, and at the same time make a lot of that information, because it is not secret, available to civil society so that it can have a full understanding; and you can be more mature, it will make the Government more mature, and then develop a more mature civil society. And I think things would be healthier, for that matter. But there is another issue, which I think is, in the real world, I think parliaments have not just to monitor new measures, they have to take some responsibility for how they are implemented. Now, unless I am entirely wrong, there is not a national parliament in the European Union, and the European Parliament itself has no committee empowered to look at the implementation, in our field, of third pillar justice measures. In other words, you have a European Parliament committee, in that case, which is working like mad to clear things by the deadline, which the Council says it has to do, it is not taken much notice of, and it has no time at all, apart from maybe an annual report from the Director of Europol, in a sanitised report, to find out how those powers are being used. Now, really, that is not the best way to gain confidence, you do not give powers to create a database or give police new powers to do this or that without monitoring how they are using them, or maybe amending or adapting them later. So those two things have to go together, you cannot be seen just to be looking at new measures without looking at how they are used.

Angus Robertson

  66. You have talked quite a lot about involving civic society, giving the parliamentary process more time to deal with proposals as they come through. You have not had much chance yet to say anything about your specific proposals on scrutiny reserve, I know you have got some, about how you foresee that mechanism being improved to make the scrutiny process more effective. And if I can do a supplementary, sorry, to blindside you somewhat on this, the Scottish Parliament yesterday published its report on Governance in Europe, in which one of the more significant suggestions was that the scrutiny reserve that this Committee enjoys with regard to the House of Commons should be extended to the devolved Parliaments as well. So if I can ask you about scrutiny reserve issues in general, how those can be improved, and specifically also on a sub-state level?
  (Mr Peers) We made a number of suggestions in our recommendations as to the way the scrutiny reserve could be improved. We would agree with, I think, one of the previous witnesses to this Committee, who suggested that the scrutiny reserve should be set out in national legislation, and, in addition, we approached it from the point of the view of the European Union as well. One way to approach the reform of the protocol on national parliaments would be to provide for a set of minimum guidelines, or minimum standards, on scrutiny reserves in each Member State, so that citizens of the European Union have the knowledge that certain minimum guidelines were being met for all national parliaments. And, additionally, the protocol on national parliaments could be amended to specify what the effect of a national scrutiny reserve is upon the European Union legislative system. I notice, in testimony you had from Angela Eagle, that there was a great deal of dispute about the effect of lifting the scrutiny reserve for the Justice and Home Affairs Council in May, and I think there is a great deal of reluctance by the UK to maintain a scrutiny reserve on something which there is a lot of support for from the UK executive and the other Member States. But if there were protocols specifying the legal effect of a scrutiny reserve by a national parliament, in that sense, that would release the UK and other Member States from being in that awkward position of maintaining a scrutiny reserve, in spite of the great support that they and other Member States had for a proposal. So that would, in a sense, clarify the issue and relieve the UK and other Member States of being placed in that awkward position. On your second question, we certainly made some comments about regional or sub-central parliaments in our recommendations, and we would agree that it would be a good idea to extend the scrutiny reserve to sub-central bodies within the UK. That could be implemented now, of course, within the UK system, and it would be preferable to develop an EU system, to extend the protocol on national parliaments to provide that, where sub-central bodies are given a scrutiny reserve under their national law, that should also have a similar effect as regards adoption of EU legislation.

Jim Dobbin

  67. My question is on freedom of information, and you are pushing for legislation in that area. How would that improve on the rules that are already in the system for access to documents at the present time?
  (Mr Bunyan) How much improvement have we got; well, we have got a new regulation, which came in Monday of last week, and we, with others, and Steve Peers as well, have been very active in trying to get them to take the most positive interpretation of the Amsterdam commitment. Some people have taken cases to the European Court of Justice, we have taken eight cases to the European Ombudsman, we won our eighth one last week, although there is some problem, because the Council will not listen to the Ombudsman, so he has made a special report to the Parliament. The new regulation is not as good as the Amsterdam commitment, it could have been a lot better, and there are a few rights that have been removed; on the other hand, there are some new rights that are in it. One of the ironic things which has come into it, others can tell me if I am wrong here, but when they were negotiating the Amsterdam Treaty, right near the end, like the Friday before the Monday when the final text was agreed, to keep some Member States happy, the more "dinosaur" States, as Mr Söderman would call them, they added a declaration, asserting the rights of Member States, meaning, effectively, governments. When they came to the actual negotiation over the regulation, we saw this declaration becoming virtually a principle. So you can have a Member State, and we have had cases where a Member State can veto us having a copy of a document which they have submitted to the policy-making of the EU, and that is not a classified document, it is just that they decided that we cannot have it, the public cannot have it. You could have the same issue arising with a third party, another country, another agency, in another State, could actually veto EU citizen access to a document. We have been refused on a number of occasions; often though we will find other ways of getting that document, because we think it is important that that document is in the public domain, and it is not a classified secret, it is not going to cause any great problems, it is usually the kind of thing which would be embarrassing to governments, rather than things which are going to be dangerous to anybody.
  (Professor Curtin) Could I just add something to that. I think where a Freedom of Information Act could make a difference is that, at the moment, it applies to only three institutions, the European Parliament, the Commission and Council, their documents. A Freedom of Information Act, presumably, would go much wider than that and would cover all the organs, agencies, and whatever, operating under the auspices of the European Union. I think it would also deal directly with the whole question of classified documents, and not as is now the case; in particular, the Commission published an Amendment to its Rules of Procedure last week, a 50-page document, which, in effect, attempts to amend the regulation in a very restricted manner on the whole question of classified documents, and it is quite a matter of dispute whether parliaments, the European Parliament, for example, will get those documents. And I think a third way is that a Freedom of Information Act could deal with the whole digital aspect of freedom of information and the proactive obligation really to be putting information on the Internet, which is then available to national parliaments and to civil society, so that there can be a real, genuine dialogue. But I think there is a need, in that sense, for a European-wide obligation, and not just in respect of Member States. And the same thing with regard to national parliaments, if I could just come back to the previous question, is, I think, we must think not only in national terms, in terms of the national constitution obligation vis-a"-vis the national government, but also at the European level, that it is almost a procedural requirement that a measure can be annulled if the time limit of consultation with national parliaments has not been respected, that is the way that it went with the European Parliament, and the Court of Justice annulled decisions that did not respect a procedural requirement, in that respect, and maybe we must follow the same route with regard to consultation of national parliaments.

Mr Tynan

  68. Obviously, I give you the same welcome that other colleagues have this morning. We are talking about democracy and accountability and the involvement of the individual, and sometimes, I think, to play devil's advocate, as regards civil society, when we talk about civil society, normally we seem to be talking about pressure groups which are looking for information, we are not talking about the individual, and how the individual, whether interested or not, and I think that is something that has got to be developed. But the point you made in your submission was that individuals should have a right to challenge legislation, and you speak about individuals, when you talk about civil society, and you are talking about pressure groups, on that basis, and you then go on to say that they should be able to initiate legislation and challenge legislation. Could you tell me how you would see that relevant to the ordinary person, and how we would bring them into that process?
  (Mr Bunyan) I think, I might be wrong, I think we used term "initiating legislation" in terms of powers of the European Parliament. We do not say that in terms of the right of the citizen to initiate legislation.
  (Mr Peers) By referendum.
  (Mr Bunyan) Yes; the referendum is another thing. We are not arguing that an individual citizen can initiate legislation, we are arguing, in that part I think you are citing, the European Parliament should have the right to initiate legislation, which it does not have at the moment, where it is a relevant remit.

  69. In your documentation, you speak about a referendum, and you speak about complex issues being decided on a yes or a no vote.
  (Mr Bunyan) Yes, we do.

  Mr Tynan: You then go on to say that individuals, or citizens, should be able to initiate legislation.


  70. Can I help and just quote from your paper: "On the other hand it is worth exploring whether citizens' initiatives should be instigated at the level of the EU which enable citizens to initiate legislation in circumscribed circumstances . . ."?
  (Professor Curtin) I think we mean a substantial group of citizens. That is one of the ideas that is being put around, that there should be, if a substantial group, which is then defined, feels there is a need for legislation on a certain matter, that they can raise the issue. And, with regard to challenging legislation, that is simply to give citizens some access to justice which they do not have at the moment; if they feel that a procedural requirement has been breached, or that a Council Directive or decision has been adopted which breaches human rights, or whatever they feel, that they can bring that before the Court of Justice; that is something that they do not have the right to do at the moment.

Mr Tynan

  71. It would not be on the basis of individuals, it would be on the basis of individuals involved in a group kind of situation,—
  (Professor Curtin) Class action, more.

  Mr Tynan: Who would have a particular problem as regards an issue that is being pursued through the European Parliament?

Mr Hendrick

  72. You mean, like in Switzerland, where so many signatures can get a referendum; is that the sort of thing you are talking about?
  (Mr Peers) We were probably thinking more of a process of getting an issue onto the agenda of the European Parliament to consider initiating a legislative process.

  73. You have got some suggestions about the Committee of the Regions; how much impact do you think that your suggestions would have on the difficulties that regional authorities experience with regard to the EU policy?
  (Mr Peers) I think that the regional authorities, in a way, are in a similar position to national parliaments, and that they should be bracketed together with national parliaments. So that, as we suggested before, the scrutiny reserve should be extended both domestically and at European level; the Protocol on national parliaments should also extend to regional parliaments. And, similarly, any advances as regards access to documents during the negotiation procedure in the Council, or public meetings of the Council, would also enable regional bodies within the Member States to exercise more effective scrutiny of what is going on, on their behalf, at EU level.

  74. Would you do that directly; for example, would you allow the Scottish Parliament the same sort of access as, obviously, the national parliament here, or would you see it as taking place through the national parliament to the European Parliament, for example? Are you putting the region on the same footing as a nation state, in this particular example?
  (Mr Peers) No, we are not suggesting putting the region on exactly the same footing as the nation state, it would all depend on the competencies of each individual region. So, within the framework of the powers that each region has, which is obviously different in each Member State, and even within the Member States, as regards, for example, the UK—where there are different powers for different parliaments and assemblies, they would be able to exercise scrutiny of what is going on in the European Union within the extent of their powers.

Mr Steen

  75. Am I right in thinking that your drift, your thinking, your approach, is more power to the European Parliament, and then you go backwards and talk about regions and various bits and pieces, all spearheading towards a European Parliament with greater powers? If that is right, have you considered the reverse, because in my travels to some of the national parliaments, increasingly, I find, parliamentarians are beginning to move back from that thinking, and want to see the national parliaments reinserted with their powers and subsidiarity given an extended view, with the European Parliament not having more teeth at all, with the review also of the Commission's powers; and that is going to be the discussion that will take place during the Convention for the next year? I know your thrust is opposite to that, but have you addressed, and are you planning to address, the reverse of your thinking, that it goes the other way round?
  (Professor Curtin) I think that is what we have also been saying here this morning, that we do believe in going the other way round; but, actually, we think that one of the greatest problems is the information deficit, that that is something that you have to address first, and that then you work gradually upwards, civil society, national parliaments. And perhaps there are certain circumstances where you do need a parallel institution at the European level that is able to exercise and demand accountability from the European Commission, or from other agencies and organs operating on that level. But I think a lot of our thinking is devoted precisely to national parliaments.

  76. So will you be giving evidence, or are you planning to produce a paper for the Convention, will you be feeding in some of your expertise?
  (Mr Bunyan) We will; we will put things on our website, we will put it in. I think, once they decide the role of civil society, because it has been rather unfortunate that the Belgian Presidency, first of all, suggested that there might be some associated forum for civil society, which laid on the table for a few weeks, and then suddenly that is not there any more, there is not going to be a sort of quasi-formal role for civil society. On the other hand, of course we are. But I think what happens in these situations and these summits is that there is a big pull, which is in the media, and for the governments in Brussels it is going to be majority voting, it is going to be extending co-decision, it is about how to cope with enlargement, and leave the major States with enough power to still, as they would see it, run the EU; and that tends to pull the argument, and that defines an agenda and tends to define the argument. So what we would urge this Committee and others is to put in a very strong case that there are other issues that need to be decided, other than the headline issues, there are other issues which are just as important, if you are going to counter the democratic deficit and have a Europe which is democratic.

Mr Connarty

  77. Just to clarify. One of the things, and you say it in various ways, you seem to be supporting is that there should be some kind of statutory, binding scrutiny reserve for national parliaments, binding on the Council, or presumably on the governments' representatives at the Council. Is that what you are trying to say? That is the first point. The second one is the question of who consults civil society? I echo the reservations about who are civil society, because they often seem to be a self-selecting élite that often does not consider the general population's view but their own particular interest. You seem at different times to be saying that there should be a role for the European Parliament to consult civil society, or some process whereby civil society can be consulted during the process of legislation-drafting by the Commission, or in the process of the Council. At other times you seem to say it is the national parliament's role, or national and regional parliaments' role, to consult civil society. Do you not think you have to decide; that to give strength to a process, it has to be clearly focused, instead of a scatter-gun, where everybody takes a little bit, at whatever level they think is relevant? Do you not think that you need to be clearer about who is responsible for consulting civil society, and who better than a national parliament, or do you think it should be the European Parliament?
  (Mr Bunyan) To answer the last point first, it is a bit difficult. You have before you a whole number of measures going through in our field, in justice and home affairs, the European Parliament also has a whole number of measures going through in justice and home affairs; many of them are the same. So the situation at the moment we have, as civil society, is there are two Parliaments, often with the same measures before them, in one form or another, for scrutiny purposes. We are arguing that in both instances there should be a process whereby there is a formal deadline where civil society can put its views at a national level and a European level, that those views should be there and available to MEPs and MPs, and that those views should be placed on the record, like here, when you have Committees, the evidence is printed at the back of the report, and then civil society can clearly see, as can the press and everybody else, on what basis the decision of the national parliament or the European Parliament was made. And it can accept or reject the views of civil society, of course, but at least it is all on the table, it is an open process, we can see it. If you have got both parliaments, the European and this Parliament, considering the European Arrest Warrant, we have actually submitted our views on that issue to both parliaments, we have done that, and they have both got it before them.
  (Professor Curtin) If I may just come in here. It will never be enough just to have it at a national level, because of the nature of what we are dealing with. Also, it will always be necessary to have it at the European level as well, because otherwise you will have civil society only at the national level, whereas at the European level you have it adjoined, the transnational civil society, looking at the European-wide approach and not just vis-a"-vis one particular nation state. I think what we are arguing is that civil society does not claim to represent anybody, and this is the mistake that is often made. The European Parliament, for example, feels very threatened by how fashionable it has become, almost, to think about the role which civil society can play, and I think this is a grave mistake. And the Commission too, they are trying to sort of say, "well, the civil society can be represented, provided it fulfils certain conditions, in the Economic and Social Committee," for example, that is their place within the European Union process. Whereas what we are trying to say is, "no; civil society can't be constrained like that," what we are arguing for is just for a more informed, open debate, where all kinds of views can be articulated, and presented via the media, and other, more traditional forms as well, and that then parliament and the other formal political actors make their decision and play their formal role in the political process.

  Chairman: I indicated to the Committee and to Mr Connarty that his would be the last contribution, and his last contribution has incited three Members to put up their hand to speak, to whom I have got to apologise, because we have overrun our time. Can I thank you very much for coming along to the Committee today, and I hope you found it was all of value. I can tell you, from the Committee's point of view, we have certainly found it of value, and thank you very much both for putting in your submission and coming along and arguing your corner as well as you have done today. Thank you.

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