Examination of Witnesses (Questions 40-54)
WEDNESDAY 16 JULY 2003
RT HON
PETER HAIN,
MS SARAH
LYONS AND
MR TOM
DREW
Q40 Mr Marshall: Has Solana gone
native?
Peter Hain: No, not at all. He
has been very much in our camp arguing on this, but he gave another
very practical example of why we favour this role. You asked me
whether we favour it—yes, we do. I do not like the title
and I hope to get that changed, though it is not the be-all and
end-all of the matter, but why we favour it is, for example, Javier
Solana gave us evidence that when he went into Bosnia, I think
it was, on behalf of a European Union peace-keeping mission, quite
properly, he had no resources and he needed a four-wheel drive
vehicle, which gets you down to the practicalities of this, and
he did not have a budget for this so he had to persuade a car
manufacturer to donate to him, effectively to the European Union,
a vehicle in order to carry out this mission, which is completely
absurd. Now having that person in charge of both areas, and therefore
having the Commission resources at the disposal of that post and
acting to that extent on behalf of the Council and governments,
is then a sensible security and defence policy—
Mr Marshall: It also leaves the European
Parliament—
Q41 Chairman: Can I just intervene,
Minister, and apologise. I know your time is restricted and you
have to be away to another select committee meeting, and I understand
you have to be there because you have to be Chairman of it—
Peter Hain: Well, I have not been
nominated yet!
Chairman: But I would like to move on
to the Charter of Fundamental Rights.
Q42 Mr Davis: Before I ask a question
on the Charter of Fundamental Rights, can I ask you a more general
question which arises from your answers this afternoon? You have
made it clear that you are pleased with the outcome of the Convention
because you regard yourself as having achieved most of what you
wanted to achieve. Obviously it is unrealistic to expect you to
get everything you want, so what was your most important defeat?
Peter Hain: The areas that we
remain dissatisfied about are the ones I listed earlier on—the
cross border tax fraud issue, for example—and I suppose
you could say those were defeats but, given we got 99 per cent
of what we wanted or thereabouts, I do not want to get into percentages
today but it was very high, and given that the people complaining
bitterly about the outcome of the Convention are all the super
federalists, I think we have cause to be reasonably satisfied.
Q43 Mr Davis: Yes. You said that
before but I just wanted to know what you regard as your own personal
disappointment—but you have told us. So you are satisfied
with the outcome of the Charter of Fundamental Human Rights. Now,
there was a lot of concern at the start of the Convention about
the Charter of Fundamental Human Rights becoming a legally binding
fact, and a potential clash between the court in Luxembourg and
the court in Strasbourg interpreting the European Convention on
Human Rights. I find this very confusing. Can you explain to us
how you succeeded in avoiding that clash?
Peter Hain: Remember that at Nice
we refused to accept the Charter going into the Treaty. We were
very happy for the Charter to stand as a declaration of rights
because it is, in many respects, an admirable declaration of individual,
social and civic rights which I was going to say the whole of
the Committee could sign up to but maybe not some of its members!
The issue for us was whether, by just pushing it into the Treaty,
you allowed the European Court of Justice and possibly the Commission
to start extending European competences and extending Europe's
powers, and therefore changing our domestic laws. Where we have
got to at the present time is a series of safeguards that stopped
that happening. First of all, we had a strong horizontal clause
embedded in the Charter which stops European competences being
extended and European powers being extended by decision of the
European Court of Justice, or for that matter by the Commission
acting under the Charter, and that is very important. It would
have been intolerable otherwise. Secondly, getting in the constitution
a linking reference saying that the Court of Justice will have
to pay due regard to the commentary which is separately published
alongside the charter again strengthens that kind of position.
Q44 Mr Davis: But that, with respect,
does not answer my question, which is how have you avoided the
potential clash between the European Court of Justice in Luxembourg
and the European Court of Human Rights in Strasbourg?
Peter Hain: The point is that
we were able to negotiate amendments to the horizontal articles
to define the scope and meaning of the Charter's provisions, particularly
those which correspond either to the Court of Human Rights or
to Community law. As to any potential clash, this was an issue
I raised myself in the Convention saying that you could in principle
get a different judgment from Luxembourg from that in Strasbourg
and that it remains to be seen what happens there, but I think
the Court of Justice certainly will want to interpret the Charter
in a way that that does not happen.
Q45 Mr Davis: A moment ago you told
me that was one of your successes and now I understand you are
saying we will have to wait and see what happens.
Peter Hain: Well, when you have
courts interpreting things, and that is true for our own courts
by the way—the Hon Member for Stone laughs but judges make
decisions—they are not going to make decisions, I venture
to suggest, which create ridiculous conflicts, they are going
to bear in mind what the Convention on Human Rights says and the
judgments made by its Court compared with what their own decisions
are.
Q46 Chairman: Minister, has the Government
considered making acceptance of the Charter of Fundamental Rights
conditional upon the EU's accession to the European Convention
on Human Rights?
Peter Hain: I am just being passed
a helpful note here. At the moment, as you say, the European Union
has not acceded to the Convention on Human Rights and I tend to
agree with those who say that the autonomy of the Community of
legal order should not be endangered by that accession. I think
I am right in saying that the objective is to accede.
Q47 Mr Bacon: Minister, do you disagree
with Article 7.2 which says that the Union shall seek accession
to the European Convention?
Peter Hain: No.
Q48 Mr Bacon: You do not?
Peter Hain: No.
Q49 Mr Bacon: So you think the Union
should accede?
Peter Hain: Yes.
Q50 Mr Bacon: You do not think that
will undermine the legal—
Peter Hain: No, I do not, but
we have just got to be careful about how that is done.
Q51 Mr Cash: Of course, Mr Plender
when he came to see us, and that was in the beano days when your
predecessor, or the previous Minister for Europe, was saying that
this was no more than a beano, it was quite clear from Mr Plender
QC's advice that even in those days they would apply the Charter
as if it was legally binding. So having moved thus far, as we
are now, I find it incredible that you should assert that it will
not be.
Peter Hain: That is exactly why
we negotiated these strong barriers to exactly that threat appearing.
We have still got to negotiate the final detail and see whether
we can finally accept it or not, it is not a done deal. If we
had not been able to put that horizontal article in, together
with the link in the Constitution itself to the commentary which
is crucial to the interpretation of the Charter by the Court of
Justice, then we would have said no. We emerged from a minority
position in the Convention to one where that was adopted unanimously
by the Convention, and I think that was a big success for Britain.
Q52 Mr Bacon: Article III-278 says
that the European Court of Justice shall not have jurisdiction
over the Common Foreign and Security Policy, however Article I-15
talks about the Common Foreign and Security Policy and the provisions
for Members supporting it in a spirit of loyalty and solidarity,
not acting contrary to the Union's interest, as justiciable and
it is explicitly declared as being justiciable elsewhere in the
Treaty at Article III-274. The question is will the Government
press for jurisdiction of the ECJ over Article 15 about the CFSP
to be removed?
Peter Hain: The key thing, and
you raise an important point, is that the ECJ does not have jurisdiction
over the Common Security and Foreign Policy, that is absolutely
crucial, and we succeeded in achieving that. In a lot of these
areas, and you have identified one, there is a lot of negotiation
on the fine print to do and a lot of technical negotiation to
do, and that is one of the areas which we intend to pursue.
Q53 Mr Bacon: You will seek to get
Article 15 made non-justiciable, will you?
Peter Hain: We will seek to make
sure that the eventuality with which you are concerned, an eventuality
which we share, namely that the Court should start determining
or ruling perhaps on a Member State's foreign and security policy,
cannot arise.
Q54 Chairman: Minister, thank you.
We have covered a fair bit of ground but I suspect you have left
us with as many questions as we have had answered. Thank you very
much for an interesting session. I thank you again for your visits
to the European Scrutiny Committee. I look forward to co-operating
in your other job as Leader of the House, which is very important,
and I know that you have some very interesting and excellent ideas
on how we progress the role of national parliament and it will
be nice to have a Leader of the House who maybe understands our
case a wee bit better than we have had previously.
Peter Hain: I am very grateful,
Chairman, and I do look forward to working with you as Leader
of the House in these areas. I think we are entering a very interesting
phase in which reforms are needed to pursue common objectives.
Also, can I just say that I think this is my last duty as the
Government representative on the Convention and I am very happy
to be let out of jail, frankly.
Chairman: I hope you enjoy your freedom.
Thank you.
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