Select Committee on European Scrutiny Minutes of Evidence

Examination of Witnesses (Questions 300 - 319)



Miss McIntosh

  300. I listened very carefully to the views the Minister expressed as a pro-European realist. Would he have expressed similar views ten years ago to those which he expressed today, just out of interest? When we were taking evidence from equally distinguished witnesses last week there seemed to be quite a body of opinion that subsidiarity in practice is being applied very differently from how it is imagined it will be applied under the treaties. My concern is that we pride ourselves in this country on not having a written constitution. Is it the Minister's view that what will emerge from the European Convention will be precisely that, a written constitution, under the argument that what we are seeking is a broader, more defined definition of how subsidiarity should work in practice?
  (Mr Hain) To pick up some of the previous points, I do think, without repeating myself, that there is an issue here about subsidiarity which needs to be constantly scrutinised and ultimately there needs to be as it were a court of appeal. Whether that court of appeal is through national parliaments meeting in the form of a second chamber, as the Prime Minister suggested, an idea which has not won much support outside the Government, or whether it should be through court action is something for us to discuss and again I would be interested in the Committee's views, Chairman. As regards a constitution, we are opposed to the idea of a European constitution if it became a blueprint for some kind of federal superstate, so those who have that ambition—for instance, the Belgians might—we would flatly oppose. If on the other hand we were talking about simplifying into one really accessible document the tangled web of treaties that govern the European Union and which are not easily accessible, in fact are very impenetrable to the average citizen, if we were talking about assembling the existing treaties, not re-negotiating them but assembling them, in a straightforward and easily digestible form in which subsidiarity itself would be more clearly entrenched and addressed and therefore be more easily scrutinised, that is something we would be very interested in and open to, depending on what was in it and what the ultimate objective of the blueprint was.

  301. What is the difference between that and a written constitution?
  (Mr Hain) You mean as far as Britain is concerned or as far as Europe is concerned?

  302. In effect it would be a constitutional treaty, would it not?
  (Mr Hain) It would, yes. It would be a re-working of the existing treaties and any amendments that were to be agreed at the IGC into a new treaty. Yes, indeed, it would.

  303. Could I just ask your views now and your views ten years ago?
  (Mr Hain) I do not know that I had actually thought about European constitutional matters ten years ago unless you can dig out some paragraph in a book I wrote or whatever. I have always been pro-European. I voted, I think, along with you in the 1975 referendum to stay in the European Union. I think that is right, Bill.

Mr Cash

  304. I voted yes in 1975. I voted no to European government at Maa­stricht.
  (Mr Hain) So did I, but that is entirely another matter.

Mr Connarty

  305. I did not intend discussing this but I feel that there are so many things to take up. Looking at the speech made by the Foreign Secretary in The Hague on 21 February, it is quite clear in his statement that he said that action should be taken by the Community only if it could do a better job than the Member States, which we all agree is the concept behind subsidiarity. He then went on to suggest that it might be necessary to have some way of referring what appears to be a breach of that subsidiarity rule to the European Court of Justice. Clearly there is another aspect to how this might be dealt with by having a collection of European scrutiny committees from the European Union meeting together where they have the power to decide that something has been done in breach of that subsidiarity rule because of qualified majority voting. Therefore it should be a matter that should only be allowed to go through at European level on a unanimity basis. Later in his speech the Foreign Secretary says: "As both I and my successor as Home Secretary, David Blunkett, have argued, asylum and immigration policy should be conducted more efficiently for all if QMV were the rule. Such a move would basically be in Britain's national interest." My sense is that such a view would not be the feeling of this Parliament or the people of the United Kingdom. That is one area quite clearly where they see unanimity as being a protection for the United Kingdom in a very volatile situation. We have had some very disturbing incidents clearly with people who are seeking asylum in this country, such as the incident that happened at the detention centre recently. There is an example where clearly there would possibly be a different view taken by the people in the country, yet we have a clear message coming out from the executive at Cabinet level of this country that they would give that over to the European Union. Where do you think the resolution of that lies? How do you stand in the debate between favouring either a constitutional court or the European Court of Justice as against a gathering of the scrutiny committees of the separate parliaments having the triggering mechanism for a challenge to a breach of subsidiarity? Is it not so fundamental to this debate because people are beginning to worry that there is a European Union legislation procedure out there that has no way of being stopped by their elected parliamentarians here?
  (Mr Hain) As between the different options of European scrutiny committees or a court of justice deciding these matters, I think we need to argue these through and we have not taken a final position as a Government on it. We want to hear the argument and we are very interested in any thoughts this Committee has. In respect of the specific issue of asylum, why the Foreign Secretary referred to that is because of our experience of the difficulties of dealing with asylum policy, especially the problem of asylum shopping. This is effectively people crossing the European Union's boundaries somewhere, let us say in southern Europe or eastern Europe, and making their way to Sangatte in order to get through the Channel Tunnel and come here for whatever reason, and thousands of them are attempting to do so. Our thinking is this, that if we had an ability to agree at a Community level an asylum policy that prevented asylum shopping by imposing on each Member State the same obligations of accepting people across their borders and then returning them if they were not genuine political refugees, and if they were to accept the same obligations in respect of social security entitlements and so on, then you would not have a situation where Britain effectively was a soft touch, which is the predicament that both the previous government and ourselves have constantly had to face and it is very difficult. It could well be in our national interest to have that issue decided on a Community basis. It is not something we would have considered a few years ago but it is a question of what is in our national interest. If it is better to deal with this problem of asylum shopping, that everybody makes their way here because we are a magnet for them, by enforcing the same procedures on everybody else, then there could be enormous benefits to us. This is an example of the practical approach that we want to adopt.

Mr Tynan

  306. I am sure you are not saying that we are a soft touch but we may be perceived as a soft touch, because it is important to make that distinction. How practical is it to allocate powers in each policy area between different levels of government in the EU?
  (Mr Hain) You have to look at each area on a case by case, practical basis. Certainly I did not say we were a soft touch. I said we were perceived, particularly by human traffickers, as a soft touch. It is organised criminal activity that is the problem. It has to be looked at in a practical fashion. There are certain fundamentals that I have referred to earlier on: taxation, income taxation, defence, especially committing our soldiers to areas of conflict, and social security matters and so on, that we would want to preserve as matters of national policy.

Mr Hendrick

  307. The EU's legislative process combines great length with lack of time for scrutiny when it most matters. Do you see difficulty in combining adequate opportunity for scrutiny and at the same time a reasonably rapid legislative process?
  (Mr Hain) I know this is a point that has exercised your Committee, Chairman, and I sympathise with you. If I were a member of the Committee I would feel exactly the same way. Since the Amsterdam Treaty where the protocol was agreed imposing a six-week minimum for scrutiny on the European Union institutions, we have made some progress. The problem arises at both ends. We have had a spate of recent initiatives on common foreign and security policy, and I know there have been problems with that which you have written to me about, Chairman, and I think our officials are going to meet on 18 April to seek a way forward, and we genuinely want to find a way forward. It is not in my interests as a Minister to have your Committee dissatisfied on this point. We want to be open and accessible to you, and I hope we can agree that. When things have come up quickly and something has had to be done quickly, as we have seen in a number of Third Pillar areas recently following September 11 on anti-terrorist action, that has created the most enormous difficulty for you but that has been in exceptional circumstances. It should not become the norm and as far as we are concerned will not do so. However, yesterday and the day before I visited Denmark and Sweden and they have very interesting scrutiny arrangements. They sit on Fridays, which is not going to be possible—well, certainly not desirable—for members of this House, and I guess not practical. They choose to do that. That puts them in pole position as far as scrutiny is concerned because they can have pre-scrutiny on that basis. Their scrutiny hold over the Swedish Government was explained to me in graphic terms and I am not sure that either of us would want to go down this road. My opposite number, Mr Lars Danielson, explained to me how in the middle of the Nice Treaty negotiations he had an eight-hour telephone conference call in the middle of the night (although not entirely in the middle of the night because eight hours probably would have gone into dawn) with his Scrutiny Committee agreeing the approach that the Government of Sweden was taking. I am not sure that this is a road that either of us would want to go down but it does show how some countries, especially with coalition governments, where it is perhaps more difficult, deal with the matter. There are problems at both ends and we will just have to make it work as best we can.

  308. What is your view of COSAC's suggestion of a minimum of 15 days (or a week in urgent cases) between final agreement of a text in COREPER and a decision in the Council?
  (Mr Hain) I am a little unsighted on that suggestion. I do not know whether Nick can help me on this.
  (Mr Baird) It is certainly quite difficult in practice. If you took the terrorism agenda-post-September 11, for example, where you have deadlines set by the European Council for agreement very swiftly on legislation, you were in that case having a number of things coming through where the discussion in COREPER and the discussion in Council were necessarily very close together simply to keep up with that deadline. It would be very difficult to set a hard and fast rule in that way without actually making it quite difficult for the UK in negotiating terms at a crucial stage.

Mr Cash

  309. Chairman, that is an astonishing answer, if I may say, and we had the same when we were over in Brussels the other day from our ambassador. It is this notion that somehow or other convenience for the purposes of the bureaucrats should override the necessity in the democratic and accountable parliament for the parliamentarians to make decisions irrespective of what government may decide to do, because that is the essence of our democratic system. I have to say I am absolutely appalled to hear somebody at such a senior level in the European Department of the Foreign Office trotting out that kind of stuff. It is just not appropriate.
  (Mr Hain) But before we all get on our high horses on this, this difficulty has arisen in circumstances where quick decisions are needed. It is not ideal.

  310. But, Minister,—
  (Mr Hain) Could I just finish? In the case, for example, of the anti-terrorist measures, we had to act quickly. It is not something—

  311. You just shelved it all.
  (Mr Hain) It is not something that we want to set a norm on, but where it is absolutely imperative that the European Union acts in our own security interests and our own national interests, I would have thought we could have adopted a practical approach to this. It is not desirable; it is not something we want as a common practice and I do not think that you were suggesting that.


  312. Minister, that is a message that we as a scrutiny committee have to get across to ministers and particularly to departments. All too often they can use the worst case scenario of September 11 to justify a particular action, which we would all understand and sympathise with. My experience, having been on this Committee almost 15 years, is that there is always convenience put before proper scrutiny. It should be the exception and not the rule and that is something that our Committee—and I am saying this to every minister and every department that comes before this Committee—wants to impress on all departments of government, that it should be the exception and not just a cavalier approach to lifting scrutiny reserves. We have decided as a Committee that we are going to be very keen and very strict in pursuing departments who lift scrutiny reserves to ensure that they have a very good reason for doing so. That is a concern that we have to impress on everyone.
  (Mr Hain) I respect that, and I listen to it and will seek to do what I can about it. I am glad you mentioned other government departments as well because of course the Cabinet Office has got responsibility for Community policy. We have responsibility for foreign security policy and the Home Office has responsibility for justice and home affairs, so we all have to do it as well as we can.

  313. It is certainly not a problem just within your own Department, Minister, I can assure you. We find the same difficulties in every department and it is a line that we are drawing in the sand.
  (Mr Hain) I hear it very loudly and clearly.

Mr Hendrick

  314. Could I ask finally what justification is there for texts which have been radically amended since they were last scrutinised being put to the Council for agreement without further time for scrutiny, which links in with the previous comment, and should safeguards be put in place to stop this happening, as the Chairman pointed out, except in real emergencies?
  (Mr Hain) I think that wherever possible this should not happen. This is a very undesirable practice.

  315. Shall we put safeguards in there to make sure that it does not happen?
  (Mr Hain) Safeguards in?

  316. In procedural terms.
  (Mr Hain) In this House's rules or do you mean in terms of the European Union's procedural rules?

  317. This House's rules, certainly in terms of this House's relationship with Government.
  (Mr Hain) I know that this is a matter that my Home Office ministerial colleague had a discussion with you on in October, about provisional agreements and political agreements. I think there is something that concerned the Committee. My view is that those should be the absolute exceptions and there should be as few exceptions as possible.

  318. So you are saying no safeguards?
  (Mr Hain) I would like to know what safeguards actually meant in principle. I think safeguards are a good thing. I would like to know exactly what proposal you have.

  319. I will give you an example. You would perhaps come to the Committee and ask to have a particular matter dealt with as a real emergency and therefore ask this Committee to let you carry on without just going ahead, as the Chairman puts it, in a cavalier fashion.
  (Mr Hain) I do not think we ever go ahead in a cavalier fashion. Can I have a look at that? I am not trying to dodge the issue. I would just like to consider the practicalities of it. If I can help I will.

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