Examination of Witness(Questions 1-19)
RT HON PETER
HAIN, MR
NICK BAIRD
AND MS
SARAH LYONS
WEDNESDAY 20 NOVEMBER 2002
Chairman
1. Secretary of State, can I welcome you to
the Scrutiny Committee once again? First of all, we congratulate
you on your promotion to the Cabinet. We have learnt from experience
that the person who occupies the position of European Minister
can hope for short terms and a wee bit longer terms, but I understand
you are the second European Minister to be promoted to Cabinet.
I am sure, if anything, our co-operation with you over the last
twelve months or so has helped with your promotion, so we are
delighted about that!
(Peter Hain) Thank you very much, Chairman.
I am sure the promotion is entirely due to your co-operation!
2. Can I kick off? Given your promotion to the
Secretary of State to Wales, the issue of subsidiarity will possibly
have more importance than previously. Do you think the early warning
mechanism involving national parliaments proposed by the Convention's
working group on subsidiarity will make any difference in practice,
given that the Commission could simply override the national parliament's
objections?
(Peter Hain) I think it will make a major difference
and I think this Committee's proposals in that area—though
not fully achieved in the Convention yet—were an important
contribution to framing the debate which helped us to press for
the principle of subsidiarity to be vested with national parliaments,
and for us to win that argument. It is true that we have not established
a permanent watchdog, but there was a very allergic reaction in
the Convention to creating another institution. In practice the
way it will work is that any new Commission proposal will be immediately
e-mailed to national parliaments and, I guess, to your Committee,
Chairman (should that be the procedure determined by our Parliament)
for a determination as to whether the principle of subsidiarity
(in other words, whether the matter should be decided at the national
state level or a European level) is infringed by that proposal,
or—as important, I believe, though it has not received as
much attention—the principle of proportionality, in other
words, whether the Commission proposal is too intrusive, or too
heavy-handed a way of going about a desirable objective. I mention
proportionality because I think the antagonism to some proposals
and policies emanating from Brussels is not because—as often—people
feel subsidiarity has been infringed but because they feel a worthwhile
objective is being achieved in too heavy-handed a fashion. So
national parliaments will have a period of, perhaps, four to six
weeks to react to whether they think the principle of subsidiarity
is being infringed or not. That is a major constitutional advance
for us (Britain) and for Europe as a whole, because up until now
the institutions of the European Union, subject to national vetos
and so forth, have been able to proceed as they wish. I cannot
over-emphasise how important an achievement this has been and,
indeed, how much, as it were, traditional resistance we had to
overcome to secure it. So an early warning mechanism, I do think,
is a very, very important principle to have established.
3. Do you accept that what came out of the Convention
is a far weaker proposal than your own? Is it your intention to
accept that or are you going to press for your original intentions,
which are far better than what has come out of it?
(Peter Hain) We put forward the idea of a watchdog
mechanism. What we have is a virtual watchdog, not a new body
meeting in Brussels regularly, as it would presumably have to
have done, but every national parliament in the loop. Of course,
in future this may evolve and we would be very comfortable with
that. There would be nothing to stop national parliaments freely
deciding to get together, should a particular issue be so critical.
My impression and my prediction of how this would work is that
the existence of this early warning mechanism will act as a severe
deterrent on the Commission, the Council and the European Parliament.
It is not just the Commission that gets into the area of infringing
subsidiarity, it is often actually in the Council or the Parliament
in the process of subsequent decision making that this might arise.
I think it will be such a significant deterrent that it will effectively
build into European decision-making a weather eye on not infringing
either subsidiarity or proportionality principles. I do not know
if, at the end of the day, the absence of a formal mechanism—which,
as you know, would have been quite difficult to implement, to
get national parliamentarians all in the same place on the same
day—is going to make a lot of difference.
4. If subsidiarity is basically a political
rather than a judicial concept, is the European Court of Justice
a suitable body to deal with subsidiarity problems at the end
of the legislative process?
(Peter Hain) At the moment, of course, it is a final
court of appeal, and there is recourse to the ECJ. What we did
not want to do, and what we have so far avoided (though there
are, in the Convention, conclusions still in issue to be decided)
is the idea that judges could be brought in at any time to make
rulings on this issue. It was quite significant that in the working
party in which I represented the Government on subsidiarity, the
court's Advocate came to give evidence and the court did not want
that either, because they knew they were the final court of appeal
and they did not want to be brought in on what, for us, was a
basic principle: elected politicians should be the arbiters on
this matter, not judges.
Angus Robertson
5. Minister, I am interested in the workings
of what you describe as national parliaments when you talk about
subsidiarity being breached. You will appreciate, of course, that
the overwhelming majority of European business with regard to
Scotland is not decided in this place, it is decided in the Scottish
Parliament. I am under the impression that the UK Government has
not been in favour of any greater involvement with the Scottish
Parliament to ensure that subsidiarity is not breached. Could
you, perhaps, paint a picture of how this six-week period might
work with regard to devolved institutions if matters were infringing
on their sovereignty?
(Peter Hain) This is an important issue and I anticipated
you might raise it. Can I just make one general European point
and then a specific point about the United Kingdom? The European
Union consists of regions within nation states as well as nation
states themselves, and included in regions are nations like Scotland
and Wales. However, the picture of regions across the European
Union is very haphazard and very far from uniform; some countries
do not have regions, others have different patterns of regional
legislatures within them, as we do, and others have regional assemblies
in some parts of their countries and none in others. So the idea
that you could get a uniform, regional channel into the European
Union's decision-making structure is, therefore, simply not a
runner—whether that was desirable or not. The principle,
of course, of the European Union being a union of sovereign Member
States is the bedrock of the European Union. So I just make that
general point. As far as Britain is concerned, this is really
a matter for your Committee, for our Parliament, but I would personally
favour—speaking as the Government's representative and a
Member of the Cabinet—a situation in which any incoming
e-mail from Brussels to Westminster was automatically copied to
the Scottish Parliament, to the National Assembly for Wales and
to the Northern Ireland Assembly (assuming that was up and running)
for their views; so that there was a way of taking into account
their views and, in your case, the Scottish Parliament's views.
I think that would be a sensible way of handling it. However,
you could not have a situation where, as it were, the subsidiarity
principle was being decided on an ad hoc basis according to regions
across Europe that have been differently constituted and, in some
countries, do not exist at all.
6. At the end of the day, the decision will
still rest here at Westminster and not in Edinburgh?
(Peter Hain) Of course, because that is the bedrock
of the European Union and, of course, these matters are reserved
matters, as you understand. I take your point that some issues
may affect the Scottish level, or the Welsh or Northern Ireland
level, for that matter. I am sure that this is a matter that can
be sensibly organised in order to reflect those concerns.
Chairman
7. It is a matter, of course, that is going
to rise up the political agenda if, as we have been informed in
the Queen's Speech, we are going to look at regions within England
itself.
(Peter Hain) Exactly.
Chairman: The best practice that we gain through
experience from now until we have more regional assemblies will
help our process.
Miss McIntosh
8. Secretary of State, you mention proportionality
and the fact that certain proposals seem to be too intrusive and
too heavy-handed, and you mention having a virtual watchdog. Is
the Commission not the real watchdog and is it not currently failing
in that role by, in fact, bringing forward policies which should,
rightly, be the subject of subsidiarity and should be the preserve
of national governments, and that it should be seen to be playing
its role much more realistically in that watchdog role, which
was one of its original duties under the original treaty?
(Peter Hain) This was a point made by some members
of the Commission who did not find this a particularly attractive
idea. They said one of their remits was precisely to keep an eye
open for subsidiarity principles. I am not sure that the Commission
has been a particular culprit in infringing subsidiarity. It is
much more complex than that. If I may make a confession, we, as
the British Government (indeed, this Government) when we had the
Presidency in 1998, came up with the Zoo Directive. Fine, but
in retrospect were regulations for zoos a matter for the European
Union or a matter for Member States? I think, in retrospect, we
might have taken a different view, and you could repeat this right
across the board; Presidencies tend to have their own fads, and
it is the Council which is as much of a culprit in this area as
anybody else. I do not know that the Commission has a particularly
bad record on this, but from now on it will not be able to have
a bad record.
9. Having served as a Member of the European
Parliament, I now find myself a Member of this Parliament.
(Peter Hain) All the wiser for the experience.
10. I would not like to comment. Given that
an increasing role of national parliaments was one of the Government's
main aims for the Convention, what changes in the role of the
national parliaments would you like to see in addition to a subsidiarity
role, bearing in mind the fact that it is not just about democratic
accountability but, geographically, Members of Parliament can
only be in one place at one time and, really, we should be here
and Members of the European Parliament should be there? How do
you see that we can enhance the role of the national parliaments?
Is that not one of the biggest disappointments in the Convention
to date?
(Peter Hain) I do not think so, because, first of
all, the principle of national parliaments being the arbiters
on subsidiarity has been established, and most people did not
expect that argument to be won but it has been, and received wide
support not just from us but right across the Convention. So that
is important on subsidiarity. The working group on the role of
national parliaments—which my honourable friend the Member
for Egbaston chaired very ably—came out with a number of
other proposals which, to some extent, reflected the work of your
own group, Chairman: the importance of scrutiny, minimum guidelines
needed to improve national scrutiny procedures right across the
board, because they are very uneven, and (an especially important
point) greater links between Members of Parliament and Members
of the European Parliament. I think you are quite right to say
that they are different roles and it is not the job of Members
of Parliament, such as us here, to continuously be in Brussels
peering over European Union Parliamentarians' shoulders. On the
other hand, I am struck—and I made this point in the Convention—by
the huge gap there is between national parliamentarians and what
is going on in the institutions of the European Union. Indeed,
there is probably only a very select group of our own Parliament—including
you, of course, and your Committee, Chairman—which has an
up-to-date working knowledge of what is going on in Europe. So
I think the fact that the working group proposed closer links
and closer liaison is very much to be welcomed.
Mr Cash
11. Minister, I have to say that I think there
is a certain degree of complacency in the way in which you answered
that last question, not least of which, you may be aware, that
our Committee were very critical of the report that was put forward
by the working group on national parliaments, and for a very good
reason. Only a few days ago we had two ministers in front of this
Committee, one of whom, Mr Meacher, said that the presidency is
sovereign. The question I want to put to you is this, in all seriousness:
does this Government really believe in the sovereignty of parliament?
It is a serious charge, but I have very grave doubts as to whether
you really do. I would like to ask this question in the context
of the scrutiny reserve and the way in which it operates: do you
believe that parliament, if it were to decide that it did not
agree with a European proposal, would be able to amend that proposal
by subsequent enactment? Do you, as I put it to the Leader of
the House the other day, still believe in the principle of national
veto? Could you answer those questions?
(Peter Hain) Yes, I am very happy to. Of course we
believe in the sovereignty of parliament. That is the bedrock
of parliamentary democracy and, indeed, the bedrock of our membership
of the European Union. It was this Parliament that voted to join
the European Union; it is this Parliament that has endorsed treaties
and changes during the evolution of the European Union, and we
could not have agreed to those changes without the sovereignty
of our own national Parliament being respected and, indeed, giving
us the mandate to agree those things. In many respects we have
agreed to share sovereignty—willingly, voluntary, by vote
in this Parliament, agreed to share sovereignty—with the
European Parliament. Indeed, your own government did this more
than anybody else over the single market—a huge sharing
of trading sovereignty and commercial sovereignty to our advantage
because our companies benefited from it.
12. Not in the field of government.
(Peter Hain) Similarly, we have agreed to share sovereignty
over establishing a much better policy on dealing with the problem
of human trafficking, in saying that this is a matter better decided
by co-operation on a decision at European level so that we can
get common standards to protect our own borders and our own society
from gangs trafficking in human beings. I can give many other
examples.
13. Can I just follow that up by asking a simple
question which arises out of the article by the Foreign Secretary
in The Economist the other day?
(Peter Hain) A very good article.
14. I am glad to hear you say that because it
rather contradicts some of the points you have just been making.
(Peter Hain) I do not think so.
15. Yes, it does.
(Peter Hain) I really do not think so.
16. You may say that until you hear my question.
(Peter Hain) I am always interested in hearing your
questions.
17. He speaks in the context of whether or not
parliaments would agree to EU proposals to a majority of national
parliaments exercising something less than a veto but, nonetheless,
exercising a degree of restraint on the manner in which those
European proposals would go ahead. Once you do that you are effectively
impugning the sovereignty of any one parliament—including
this one—and, of course, once you move into the territory
of making decisions by majority vote of national parliament then
you are riding a coach and horses through the principles you have
just enunciated.
(Peter Hain) No, I do not agree with that because
the principle that the Foreign Secretary was enunciating in that
article, which is what I have spent some minutes explaining to
you already this morning, was the new opportunity for national
parliaments to determine subsidiarity and proportionality matters
on issues which our own parliament has already decided should
be a matter for European decision making. In other words, by sovereign
decisions our parliament has decided on single market matters,
on common asylum policy matters, on fighting terrorism matters
and so on, and decided that our own national interests, including
those of this sovereign parliament, are better protected by co-operation
at the European level and then imposing a check on the nature
of those policies, in respect of whether they infringe subsidiarity
or proportionality, by perhaps majority vote. It is not the principle
of the sovereign decision, it is a matter of whether the nature
of that policy infringes the principles of subsidiarity or proportionality.
I think, if I may briefly add to that, it is actually in our interest
to have a majority rather than unanimity because we could have
a group of Member States that were not that bothered about subsidiarity
and proportionality being infringed, and therefore we would lose
the ability to give ourselves the protection which majority voting
would provide.
18. You would say, and you did say—and
I agree with that—that the foundation of our democracy is
our parliamentary system as we have it in this country, which
holds ministers to account in relation to a whole raft of matters,
not just in trade and things of that kind but in a very different
sense in relation to the running of government. That is the issue
which I am concerned about here. Once you move into the territory
that you have described, in handing over decisions which you say
are in the national interest but which quite clearly are related
to questions of transferring decisions in relation to the Common
Foreign Security Policy and the like and monetary union and all
these other matters to the European level, then you cease to be
able to argue the case for the national interest and, therefore,
you contradict yourself.
(Peter Hain) On the contrary, I think your position
is the contradiction here. If our Parliament, as it has done—as
your government did more often than we have done—
19. Over my dead body.
(Peter Hain) You are a lone ranger on these matters—and
a very attractive one, if I may say so. However, if our Parliament
votes to say that our national interest is best protected against
this phenomenon of human trafficking organised by criminal gangs
by voluntarily sharing sovereignty on these matters to strengthen
border posts to common standards, to share intelligence and to
establish common legal procedures to combat this issue, surely
the average person in the street is going to say "Good on
you". It is a very good thing. We cannot isolate ourselves
from this problem any more than we can isolate ourselves from,
say, the threat to our environment. Pollution, as far as I know,
even under the Conservative Party, did not stop at Calais. Therefore,
sharing of sovereignty on environmental standards protects our
national interest. I think that is the answer to your proposition.
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