1
Corrected transcript of evidence taken before
The Select Committee on the European Union
Review of the Balance of Competences
Evidence Session No. 1 Heard in Public Questions 1 - 9
Lord Boswell of Aynho (Chairman)
Earl of Caithness
Baroness Eccles of Moulton
Lord Foulkes of Cumnock
Lord Harrison
Baroness Henig
Baroness Hooper
Lord Kerr of Kinlochard
Lord Maclennan of Rogart
Baroness O’Cathain
Baroness Parminter
Baroness Prashar
Baroness Quin
Earl of Sandwich
Baroness Scott of Needham Market
Lord Tomlinson
Lord Tugendhat
Lord Wilson of Tillyorn
____________________________
Dr Samantha Currie, Professor Michael Dougan and Dr Thomas Horsley— Liverpool European Law Unit, University of Liverpool
Q1 The Chairman: Good afternoon. Welcome to the witnesses from the Liverpool European Law Unit. You are very welcome here. We appreciate your presence, and we have some questions for you that will in effect be the unveiling of our short inquiry into the Government’s balance of competences exercise, on which I know you have been much engaged. It would be helpful if you would introduce yourselves. Who would like to kick off? Ladies first?
Dr Samantha Currie: I am Dr Samantha Currie. I am a senior lecturer in law at the School of Law and Social Justice at the University of Liverpool, and I, along with colleagues in the Liverpool European Law Unit, have been undertaking some on the balance of competences review.
Professor Michael Dougan: My name is Michael Dougan.
The Chairman: Could you speak up?
Professor Michael Dougan: I have to apologise; I developed a cold over the course of the afternoon, so I will try to keep my voice up. I am Professor of European Law at the University of Liverpool, and again, with my colleagues here and with quite a few other colleagues in Liverpool, I am engaged in various capacities with the balance of competences review. I think Thomas is going to talk a bit more about that.
Dr Thomas Horsley: I am Thomas Horsley. I am a lecturer at the Liverpool Law School. Again, with colleagues in the Liverpool European Law Unit I have been contributing to a number of the reports and written evidence, and in another capacity to some of the open and closed engagement sessions. If you permit me, I would be happy to provide an overview of our work.
The Chairman: That will be very helpful in a moment. For the record, as this is a public evidence session, we are recording it and will send you a transcript to correct any factual errors. We very much hope that this can be a dialogue. If there is a complex question, you may undertake to respond to it later. Conversely, if you have any afterthoughts or additional material to feed into us, you may also do so later.
Perhaps we will go straight on from that to ask Dr Horsley to make his statement on behalf of what you have been doing and where you are.
Dr Thomas Horsley: Thank you, it will be my pleasure. There are around 23 colleagues and academics at the Liverpool European Law Unit, with interests across a range of areas of European law. Thirteen of us have been involved in the balance of competences review across the four semesters. The nature of our involvement is that we have been submitting written evidence to 13 of the 32 reports. We have also, including me and my colleagues here, been involved in a number of the engagement sessions and in some of the expert closed legal sessions. I was involved in the FCO and the financial services and capital report, and my colleague Michael Dougan here—
The Chairman: As we feared, we are about to have the first of possibly two votes. The Committee, almost before we start, will be suspended for 10 minutes.
Sitting suspended for a Division in the House.
The Chairman: Dr Horsley, you were explaining your unit’s work. Whether you want to reconstruct your earlier remarks or append what you have said I will leave to you.
Dr Thomas Horsley: Thank you, Lord Chairman. I will follow with a brief summary, if I may. We were describing the activities of our unit, the 23 colleagues and the 13 of us who have submitted written evidence to 13 reports across the semesters. In addition, as I mentioned, we and other colleagues have been involved in some of the engagement events across the individual reports, both open and closed. My colleague, Professor Michael Dougan, acted as a challenger to one of the draft reports for the Cabinet Office. In addition, and finally, a colleague, Professor Amandine Garde, the current head of the School of Law, drafted the legal analysis for one of the reports on consumer policy.
Q2 The Chairman: Thank you for that. You obviously have a very wide range of experience of this process. Indeed, that was one reason why we were attracted to asking you to come and give evidence to us. I kick off by simply asking you—and please feel free either to select one of you or to direct us across the troika, as it were—to give us your assessment of the review as a whole.
Dr Thomas Horsley: Certainly. It would be my pleasure to open on that question.
I think that overall we would summarise our assessment as positive of the review. We would say that as a whole the individual reports are an impressive technical exercise in attempting to understand the current balance of competences across a range of fields, and to try to collate in a fair, synthesised and balanced manner the range of responses that were received as the evidence base. In result, the exercise has provided a very rich, unique resource that we suggest is greater than the sum of its parts.
I would be happy to mention a few and isolate maybe three particular further points of detail of the assessment. My first comment is on the strength of the initial mandate in the Command Paper. We think that it was an ambitious mandate, but it was well conceived as a technical exercise. It compares favourably on many points to some of the obvious comparators: existing reviews or inquiries into the balance of competences that have been conducted elsewhere.
My second point is about process. As an overall opening observation and general assessment we note that the reports and the departments have, in our view, delivered generally on their commitment to conduct a rigorous and evidence-based, and indeed transparent, series of reports. We also compliment in particular the role of the two co-ordinating departments, the FCO and the Cabinet Office, in managing quite a complex process over a sustained period of time, and suggest that they have done quite a good job in imposing structural discipline across the individual reports. By way of illustration, the competence definition is a thread that is maintained throughout the reports, and the structure of the individual reports is maintained throughout over the two years.
Finally, we note as an opening assessment that to a greater extent in the individual reports the conclusions are a balanced synthesis of the full range of evidence that was submitted by the various stakeholders.
Q3 Baroness Quin: My question follows on from that. I would like your thoughts on how much the process has lived up to its original claims. It was originally claimed by the then Foreign Secretary that it would be the most thorough and detailed analysis possible. At the same time, it was made clear that it would be transparent and comprehensive. Do you all feel that it has lived up to those claims?
Dr Samantha Currie: I will preface our comments with a bit of detail on where we currently stand with our analysis. We have conducted a general review of all the reports and we are about to embark on a much more detailed analysis. We have forthcoming events at which we will present further detail of our research as it develops. To answer your question more specifically, we generally agree at this stage with the suggestion that the review is being conducted in the manner which the Command Paper initially promised. In general, we agree that it has been a very transparent, inclusive and far-reaching review.
I will, if I may, follow up that general statement with some more specific points to help to demonstrate that feeling. There have been a considerable number of engagement events, which we found very impressive, so we felt that the review across all the different reports did well not to rely simply on the written evidence submitted to the reports but to make a concerted effort to engage with stakeholders, experts and interested parties at these various meetings and engagement events.
The Chairman: May I interpose at this point by asking you whether it was your impression that the other participants in these seminars and engagement events—obviously not mentioning particular names—also came well prepared and ready to make a contribution and generally found it a useful exchange of views and process?
Dr Samantha Currie: Clearly we can only speak to our specific experiences, but certainly the impression that we all got as a unit was that the participants were very well engaged and felt very well supported in speaking freely at the events. As a follow-up to our engagement with the events, we were always asked, for example, to check our attribution to comments that had been made in the sessions, and we felt that the communication was very good even after the events had concluded.
On transparency, there are perhaps some specific points to be made about the inclusion of anonymous evidence, but only in very limited circumstances, in the reports. On the whole, the list of submissions and those who had engaged in the process was very thorough and transparent. The vast majority of reports were published on time, with the exception only of the report on the free movement of persons.
Q4 Lord Maclennan of Rogart: Did you think that the reports were comprehensive in their coverage of the policy areas of the departments? Were any issues not covered by the review, including any issues that you might have raised in your own responses to the call for evidence?
Professor Michael Dougan: The troika is working quite well. There are a series of positive comments to make on that issue, and a series of issues that are possibly worth highlighting. As Thomas mentioned, one of the real benefits of the review was the very broad definition of competence chosen across all the reports. It was not just about looking at EU legislation or treaty provisions, it was about the impact of EU law and policy-making in all its diversity on a particular field.
The decision to treat policy fields in their broad sense and to look, for example, at how single market provisions might impact on healthcare or how a directive that might well be about something other than public health but has an impact on public health policy—the working time directive is a very good example—meant that the review was a very thorough and comprehensive approach to the individual reports.
There are a few small examples of issues that were not covered, which are probably understandable. For example, the police and judicial criminal co-operation report was very carefully delimited not to deal with the measures that were the subject of the opt-in, opt-out debate, which was working its way through Parliament. It is very understandable that that was not dealt with. That of course means that in the report on police and judicial criminal co-operation, many of the most important measures—the European arrest warrant, Europol and Eurojust—are not covered, but for very understandable reasons.
If we are thinking about more general gaps, it is arguable that there are a few more horizontal issues—to put it that way—which could have been dealt with in the review. Issues like subsidiarity and proportionality were dealt with very thoroughly. Fundamental rights are another very good example of a cross-cutting EU competence that was dealt with very thoroughly. It is arguable that an area like enhanced co-operation and flexibility more generally—flexible integration—could have been addressed more systematically in the review, given that it is one of the main characteristics of UK membership of the EU and, potentially, for future EU policy.
Obviously, specific aspects of flexibility were dealt with under economic and monetary union or criminal co-operation, but arguably a more horizontal look at flexibility could have been valuable.
The most important issue that we have identified as a gap in the coverage is an overall assessment. The Command Paper mentioned that, closer to the time of the conclusion of the review, thought would be given to the type of overall assessment that would bring the 32 reports together. One issue that we have been talking about is whether the lack of an overall assessment was a good or a bad thing. On the one hand, you can say that it is very difficult to make the review comprehensible to the broader public and accessible to politically engaged actors when it is a series of 32 quite lengthy, detailed and technical reports, and that without a broader reflection it is difficult to make the optimum use of that massive exercise.
On the other hand, we think that one of the risks with an overall assessment is that the review can say all things to all people. If you want to pick up one of the reports and find criticisms of the EU, you can of course find them, because every report has criticisms of certain aspects of EU policy-making. If you want to pick up the reports and find reasons to dislike particular areas of EU activity, of course you can. Whether that represents a balanced assessment of those reports or of the review overall is much more open to question. We feel that it is arguable that not having an overall assessment leaves it to the political actors to make of the review what they will. If they want to use it in effect to prejudge their own preferences and policy conclusions, of course they can perform that function. Our suspicion is that if you tried to conduct an overall assessment of the review, it would probably end up with that type of exercise anyway.
The Chairman: Thank you. To be honest, you have neatly pre-empted a question which I might have asked the end. I am grateful to you for that, but I will use the indulgence of the Chair to follow-up with one specific. On reading the reports myself, I felt that generally they were rather light on comments on the agencies and in certain cases absolved themselves from commenting on things done in the EU’s name but not actually through the main administrative processes. Would you see that as a potential area of concern as well?
Professor Michael Dougan: Potentially, but on the other hand it is probably worth bearing in mind that in most cases the EU agencies do not have real decision-making powers. In most areas, they are primarily technical, advisory bodies or purely executive, but they do not exercise any real form of political discussion. So yes, the agencies may not be dealt with in any great detail in a lot of the reports. On the other hand, it is arguable that agencies are not one of the more politically interesting parts of the EU policy-making, or rather the decision-making, process.
Q5 Baroness Scott of Needham Market: I wanted to go back to the question of stakeholder engagement. I am sure I was not alone in my concern at the beginning that this would be an exercise with a few loud voices with significant axes to grind, and that the whole process would be hijacked by that, so it has been heartening to hear what you had to say about stakeholder engagement. I guess that the process was written submissions and then, as you suggested, a kind of trawl was done to make sure that there were events to which people could come. Can you comment on whether the process was the same across all four semesters in all departments? In other words, did you see that being done differently? From your interested observer status, are you confident that the whole range of people, and the right sort of people, were approached?
Dr Samantha Currie: I would begin by saying that there is indeed evidence of a lot of systematic engagement with stakeholders, not only in the UK but in the EU—and beyond, actually, thinking of candidate countries and the like.
In many respects, what we saw was not too dissimilar from what we would see with public consultations in general. What makes this unique is that the interested parties were asked to keep coming back, if you like, so it was not just the one-off submission that you would get with a consultation; many were engaged across the whole process. Of course we would be thinking about NGOs and think tanks, but also the European Commission itself and representatives of other member states.
We found no evidence of evidence fatigue across the semesters. From what we can see at this stage, the volume of evidence continued and in many cases increased. There was an increase in evidence submitted across the second and third semesters of the review. We went from approximately 600 submissions overall in the second semester to around 800 submissions in semester three. So from what we can see at this stage, that stakeholder involvement remained and did not tail off.
What is happening at the moment to help us gain a full picture? We have colleagues at Liverpool who are undertaking a more systematic and rigorous analysis of stakeholder input. That work is currently being carried out, so that might give us more of a sense of which stakeholders remained with us right through the semesters and which dipped in and out of different semesters and different reports.
Baroness Scott of Needham Market: I have two final questions. Do you have a sense at this stage of the quality of the evidence? How seriously were stakeholders taking the process? Did they feel that it was worth the time to seriously engage, or was it sending in a glossy brochure that you happened already to have? How confident are you that subsequent reports actually reflect the breadth of the contributions made by the stakeholders?
Dr Thomas Horsley: On the nature of the evidence, one thing that is absolutely undeniable is the enormous range of evidence in both its nature and quality. Submissions go from the individual, perhaps disgruntled, making some short comments to incredibly detailed statistical qualitative and quantitative analysis. There is enormous range in the quality across the reports and within reports.
One positive thing that we have found, at least at this impressionistic stage, is that it would be reasonably safe to conclude that the reports present quite a faithful synthesis of the full range of evidence that was submitted. That is our general working conclusion. We certainly have not found, looking through the reports with that particular aspect in mind, any evidence of a systemic prejudicial approach to the conclusions. A typical narrative that emerges is that there is a summary of the various pieces of evidence, there is an acknowledgement that it is a contentious political point and there is a faithful attempt to synthesise the full range of evidence.
In that sense, going back to my earlier remarks, I would say that the departments have to a great extent done a good job of doing this as a technical exercise. The various different reviews that come out of it reflect the fact that the national interest, which incidentally is not defined in the Command Paper or the reports, emerges from the variety of submissions. What is the national interest is often in the eye of the stakeholder.
However, I would say that we are beginning to find small instances of potential concern with respect to some of the use of evidence. One example is the free movement of persons report. There is a section, chapter 3, on future options and challenges, which appears in all the reports, where we would say that conclusions are drawn through a relatively small pool of evidence. That is probably the best way to put it. We would say that the balance is maintained—there is no attempt to present that as the only evidence—but in a report that has attracted 79 submissions we find a relatively small pool of evidence, often from individuals as well. That is a qualification to a general theme.
Q6 Lord Foulkes of Cumnock: I think you have already answered the first part of my question in that the conclusions are based on the evidence, albeit some of them on a small pool of evidence. Do you believe that some of those conclusions were prejudged and the evidence then selected to back up those prejudged conclusions?
Dr Thomas Horsley: There is no evidence of a systemic attempt to achieve that. The free movement of persons report is probably one of the stronger examples of a sense of a smaller evidence pool, which raises questions. We would question why that pool of evidence is the size that it is. Even then, I would say that there is an attempt to maintain a balance of views. Even that particular section of that particular report cross-references a range of opinions.
We have found isolated instances in some of the reports, particularly the 22nd report on fisheries where it seems that the weight of the evidence has been used to adjust the structure of some of the report. As I mentioned at the beginning, there is a neat structure across all the reports. In fisheries, there is an additional section on alternative competence models. That is very out of line with the other reports. Indeed, we would say that it strains the mandate in the original Command Paper. The report section is also prefaced by the statement that it is based on the view of the views of a small number of respondents. Again, it is not an indication that there is any imbalance in the presentation of their views, it is just evidence of an outlier to what is an otherwise, we would say, a pretty balanced and fair review of individual submissions.
Lord Foulkes of Cumnock: Far be it for me to criticise what Baroness Scott described as “loud voices with axes to grind”. Did you get the feeling anywhere that there were lobbies getting lots of people to write in on a particular topic to try to get a particular conclusion adopted?
Dr Thomas Horsley: My answer is in two parts. The first, as my colleagues have mentioned, is that we are at the early stages of stakeholder profiling, if you like. We do not have access to the data set yet, so we cannot give it. The second is that even if there is evidence of lobbying, this review has been conducted to a greater extent as a technical exercise, which has ironed out those views. Those views, which are very controversial in some cases, are simply attributed within a broader summary of the evidence, which again for the most part we think is a faithful synthesis of the collated evidence. They are part of a balanced picture.
Q7 Earl of Sandwich: My question is about these subsets and communicating with the public. Professor Dougan has already said that it will be difficult to communicate with the public and that the Government are very likely to make use of it, which means interpretation and using conclusions that they already have. Was it not the intention to provoke a public debate on the whole question of Europe through this process? Therefore they still owe the public that, but they only have six weeks to do it.
Professor Michael Dougan: I think it is quite right to judge the review on its own mandate when assessing the quality of the review itself. Its mandate was not to provide recommendations or to look at alternatives but to provide an evidence base for a broader public debate. One of the interesting questions that we are thinking through at the minute is the nature of the public debate that can come from this review. There are a few potentially critical comments that we could make here. If we are going to be critical about this review, we are probably less critical of it as a technical exercise by the Civil Service and more critical of it in terms of how it might provide an evidence base for public and policy debate.
One of the interesting things that again we will probably have to explore in a bit more detail before we can feel confident about making assertions is the degree to which the value of the balance of competences review was overtaken by the Prime Minister’s promise of a referendum in early 2013 and then by the quite famous speech on immigration of EU nationals in late 2014. There is a sense, which we will have to think through a little more, that some of the value of the balance of competences debate might well be undermined, because instead of providing a full and broad evidence base of the vast, complex relationship between the EU and the UK we become focused on a relatively small number of issues that were going to be the subject of public debate anyway, and a lot of this evidence will either in effect be ignored and sidelined because it does not tally with the debate which the political parties have pursued already or may well be overtly instrumentalised so as to bolster particular political positions, but taking the evidence out of the broad context in which it was developed in all 32 reports.
I suppose that links up with the question, which we mentioned before, of whether the lack of an overall assessment is a good or a bad thing. Would an objective overall assessment help to counter any tendency towards instrumentalising these conclusions, or might it merely provide a systematic opportunity to instrumentalise them?
The other slightly critical comment that we might make concerns the media coverage that has accompanied the review so far. It has been relatively limited. Possibly if I were one of the people involved in this exercise I would be a little disappointed that so much work has not attracted more attention. Again, we are in the process of conducting a more thorough analysis of this, but our impression at the minute is that a lot of the media coverage has dismissed the review as a whitewash, primarily because it did not provide some of the conclusions that certain political actors wanted it to provide. Instead of it providing an evidence base for an objective and independent review, maybe some of the value of the review has been questioned because it did not tally with pre-existing preferences.
That is one section of the media coverage so far. The other, more concentrated, section of the media coverage was the free movement of persons report. I am sure everyone is aware that there were some press coverage suggestions in the newspapers that there was tension between the Foreign Office and the Home Office about whether the evidence was being manipulated in some way as to point more towards a particular Home Office policy, or not. Whether that is true or not—and of course it is impossible for us to say—we think it is very unfortunate that coverage of that nature has the potential to undermine so much good work that was not politically coloured and that was genuinely objective and independent. Any impression that these reports might have been doctored by political actors undercuts some of the real value that they should have.
Q8 Baroness O'Cathain: Are you aware of interest beyond the UK on the outcome of this exercise, including civil society and public administration? Indeed, are we interested in other countries’ assessments of competences? It makes me think that this was a great exercise and that it will be marvellous in years to come for people who are doing PhDs on the European issue, but what relevance does it have either to the 60 million people in this country or, indeed, to the 500 million people in the EU?
Dr Samantha Currie: Undoubtedly we are aware of growing interest in the review beyond the UK. A first point to make is that the involvement of those outside the UK in the review itself and in submitting evidence to the reports automatically speaks to those outside the UK as interested parties initially. Public bodies outside the UK in other member states definitely have an interest in the review. It has a profile outside the UK and engagement with different public stakeholders. There were also a number of submissions from academics based in other EU member states, and being part of that process will initially engage those parties with the subsequent reports and any onward developments.
Even aside from those involved in the review, we are becoming increasingly aware of policy and academic interest in other EU countries. Work is being carried out, for example, in Germany by Almut Möller and Tim Collins, who are embarking on a project at the minute that specifically reflects on the balance of competences review. We are also aware of Michael Emerson at the Centre for European Policy Studies in Brussels, which has recently put together an edited collection that specifically reflects and analyses the review. We have recently become increasingly aware of this growing interest.
On the question of what happens at a governmental level, whichever way the developments go here politically, there is this growing interest, which may take on a force of its own outside that.
The Chairman: Following up on that, do you have any impression that the Commission is taking it seriously? I am thinking in particular of the new administration there with the work programme and the refit programme.
Dr Samantha Currie: I will just mention initial points and then hand over to my colleagues. We are aware of European interest in the review. At one event that we will undertake at the end of March, we will have Commission representatives involved in the discussions to steer some of the debate on the review. Although we cannot say too much, because we simply do not have the knowledge at the moment, we have European Commission interest on the radar. Thomas may want to pick that up.
Professor Michael Dougan: I also think that Thomas might want to comment here. A lot of the value of the review beyond the UK will boil down to what the UK wants to do with it. As Thomas mentioned, we have a unique exercise—perhaps we can talk a little about some of the comparable exercises—which has presented an enormous body of evidence. What is striking is that many of the issues that have been flagged up in the individual reports are of interest to every member state, or at least to lots of member states, not just to the UK.
If the UK wants to use the review as the basis for a constructive engagement with the other member states, it has a very strong evidence base on which to go in there and engage with other Governments and other parliaments about how to reform EU policy-making or how to look at competencies. If the UK decides that this review does not actually have much value and will be left on the shelf—in some cases it might be brushed aside as some sort of whitewash because it did not meet some of the expectations which political actors hoped it would provide—that could do some damage to the UK’s credibility. What is the point of carrying out an enormous, evidence-based objective exercise if you do not push it to one side because it does not necessarily tally with some of the political preferences of particular actors?
Dr Thomas Horsley: If I may, Lord Chairman, I will briefly add to that. One of the really interesting things about the review is that although it is driven by a lot of stakeholders with a variety of interests, when you look at some of the individual reports they are a bit of a gift, They diagnose through market actors and a variety of big-interest stakeholders areas where they think that there is good scope for further reform at European level and are feeding particular points of policy into it. I am talking in particular but not exclusively to some of the single market reports, which isolate very technical parts. Industry, stakeholders, consumer groups and other bodies have diagnosed some particular points of policy. To echo the comments of my colleagues, it would be a great loss, or rather unfortunate at the very least, if the United Kingdom did not in some way rely on this in a constructive manner to reinvigorate some of its earlier moves to act as a leader in driving forward particular aspects of European policy.
Lord Wilson of Tillyorn: I wonder if you could drill that down or flesh it out—whichever direction you want to go in. You talked about the UK using it, which means the Government, does it not? In what other ways do you see there being a legacy, an afterlife, for what you called a unique resource? For instance, in what specific ways might academics like you and some of the interest groups you talked about use it? It would be useful to get concrete examples of how it might be used.
Dr Thomas Horsley: I am happy to respond further with some additional thoughts on that point. Again, I preface my comments with the echoed remark that we are dealing collectively with 2,300 written submissions and multiple engagement events with European and national stakeholders. It is a really rich resource. When we think about the legacy issues, it is worth bearing in mind the mandate of the review. Looking back at the Command Paper, as one member of the Committee noted, one of those is not just to inform public policy but to think about public engagement. Indeed, the Command Paper states that it is to give everyone, including the British people, a far greater understanding of those issues.
When it comes to the public-facing constructive use of this, it is quite difficult to say. One option would be to explore the idea of a synoptic review of the review, but we have spoken to some of the concerns there. Using it constructively can cause challenges that are not unique to this exercise. In disseminating complicated multifaceted interlinked concerns and issues, it is often not easy to simplify them and distil them into a presentable package, but we would encourage dissemination in our own work and in government, as well as other public and indeed private efforts to try to disseminate some of those broader conclusions.
Q9 Baroness Eccles of Moulton: My question has pretty well been answered, but I wanted to know, from the point of view of practical usefulness, because the evidence has been drawn from and composed in a particular period of time, what longevity it will have. Will it go on being a useful document—it will obviously always be useful in an academic sense—from the point of view of practical people adapting whatever we do to EU competencies?
Dr Thomas Horsley: The information, the evidence base, captured in these reports has a shelf life. As we know, European policy-making often occurs in waves and is often packaged together in narratives. Again, speaking, although not exclusively, to the single market, a lot of things that emerge as policy prescriptions in specific reports can be packaged with the digital single market agenda, so there is a shelf life in that sense. Some of the other issues in particular reviews have also been overtaken by domestic events, so there are certainly points in particular reports—I am thinking again of aspects of the free movement of persons—where it is absolutely correct to bear in mind the shelf life of some of the conclusions.
Baroness Prashar: You were talking earlier about the interest in our exercise in Europe, but as you know there have been exercises in Germany, Norway and the Netherlands. What lessons can the Government here learn from those exercises about dissemination, encouraging debate and so on?
Professor Michael Dougan: I think that the lessons are probably fairly limited. There are two main exercises, which you might call comparable, which have been conducted by other countries in Europe: one by Norway and one by the Netherlands. I say that you could call them comparable, because in the final analysis they are not really comparable at all.
The Norwegian exercise has some similarities to the balance of competencies review in the UK. It was a very large-scale exercise conducted over about a two-year period as well, but it was conducted in a very different manner. It was primarily an investigative exercise by an independent committee. More importantly, the framework of the Norwegian relationship to the EU is so different. Norway’s concerns about its relationship with the EU are so different from the UK’s. The Norwegians basically had to ask themselves, “Are we happy to trade off all the economic and social benefits of association with the EU against the massive impact on our own democracy of not being involved in EU decision-making?”. That is a fundamental dilemma for the Norwegians.
The Netherlands exercise is quite different again. It was a much more limited exercise, and it was also much more focused on concrete legislation and legislative proposals. They attempted to draw some broader lessons, but it was effectively an exercise in a subsidiarity review: which existing pieces of EU legislation or proposals do we think are best left to the member states rather than being undertaken by the EU? It is probably fair to say that it did not have the same degree of political independence which, on the whole, our review did. Our review was largely conducted by an independent Civil Service—acting, of course, under a mandate from the coalition Government but not under the instruction of the coalition Government. The Dutch exercise was more overtly political; it was about what that Government wanted to do in their EU negotiations.
Those exercises are very interesting, but perhaps we do not have an enormous amount to learn from them, except for something that we have mentioned a couple of times. The UK exercise is still unique and in many ways so impressive. If the UK wants to, it has the opportunity to show real intellectual leadership in these debates. As we said before, the UK may choose otherwise—I should say the UK Government, not all 63 million of us—but if the Government want to, they have an enormous resource, unique among the member states, to say, “We think this is what needs to be reformed and we have conducted a massive exercise to provide the evidence base for that”. That is the distinction with what we have to learn from the other exercises. It is more of a lesson that this is a really valuable opportunity rather than, “Should we learn lessons from the others?”.
Baroness Prashar: That is very important. It is all the more a shame that when ours is so comprehensive and intellectually rigorous they are not disseminating it or using it properly. Thank you.
The Chairman: Dr Currie, Professor Dougan and Dr Horsley, you have exemplified intellectual rigour very well in your answers to our questions, and they have been very helpful to the Committee. We have a little time and no outstanding specific items, but if you could reference back to our secretariat what Dr Currie said about the work being done in Germany and elsewhere, that would be helpful. Equally, and understandably, as you said, there were lots of items in your analysis of the exercise by those who participated that are yet to be on it. That is the work of academics. We will probably report next month before the dissolution of Parliament on our initial impressions of the exercise. Please feel free to share with us any other information as it develops. Meanwhile, I express on behalf of all the Committee our sincere thanks for your time and attention and your very helpful evidence.