Examination of Witness (Questions 20-29)
WEDNESDAY 19 MARCH 2003
RT HON
DAVID HEATHCOAT-AMORY
MP
20. Can you give us a general feeling in the
Working Group as to any proposals about opting in and opting out
and the way in which that might be accommodated particularly for
the UK?
(Mr Heathcoat-Amory) I felt that it was up to the
British Government representative, Lady Scotland, to protect the
British opt-out, although of course I was highly sympathetic to
anything she might say on that. There are no opt-outs in the draft
so I am not quite sure what the British Government position is.
21. And the Working Group is generally hostile
to that?
(Mr Heathcoat-Amory) Very hostile to opt-out. There
is a strong feeling, and it probably does have consensus although
not unanimity, that we are creating here a single Union with its
own personality at law, separate to Member States, endowed with
certain powers under the Constitution, law making powers which
are new, they are going to have new Titles and no state will be
able to derogate or opt-out from that. That is the flavour and
you can read the Working Group and the draft Articles in vain
for any recognition of our existing opt-outs.
Mr Bacon
22. Mr Heathcoat-Amory, Emerson once said that
foolish law is a rope of sand. Listening to your descriptions
of the way in which there is no respect for diversity, are you
not concerned about the reaction of the public? Do you not think
there are huge dangers here for respect for law and for people's
willingness to obey the law? Secondly, how do you account for
this desire to have tremendous unifying trust rather than a respect
for diversity? Is it basically because of a world view that is
based upon the Napoleonic code? If it is, was not the point of
the Battle of Waterloo that we could do without this rubbish?
(Mr Heathcoat-Amory) There is a strong integrationist
majority in the Convention. We were not elected to write a Constitution
and in fact in the Laeken declaration it only mentions the possibility
of an eventual Constitution, that is what we are now writing and
we are not actually mandated to do that. Most of the people on
the Convention come from parties in their own country usually
by appointment and they belong to what I would call the European
political elite which is dangerously separated from public opinion
and that is actually why the Convention was set up, because of
a perceived democratic deficit and a gap that has opened up between
the EU and the ordinary public which is shown up in the fact that
very few people vote in European elections now and you sometimes
get big negative reactions when there is a referendum. I think
we are simply ignoring that aspect of our work. The reason I think
it is dangerous is this, the rise of extremist parties if the
political system cannot give effect to freely expressed choices.
We saw last year the rise of Le Penn in France and indeed an anti-immigration
party in Holland which did very well until its leader was shot.
I dislike both those parties very much, but the electorate are
trying to send a message that they will not accept a consensus
written in Brussels which appears to be immune to democratic choice
and this plays straight into the hands of extremists. If they
say, "It is all a stitch-up, it is all the same and it doesn't
matter who you vote for. All these laws, all these changes to
the justice system, our border controls, our immigration system,
our asylum system, our visa system, it is all going to be written
in Brussels by majority voting and it does not make any sort of
difference", I think that is a very, very dangerous anti-democratic
attitude. We have got to keep the powers in the hands of the people
so that if they vote, they can effect choices and they will not
be able to do that if this Constitution in this form goes through.
Mr Cash
23. I have to say with regard to opting in and
opting out, as you know, my interest in this goes back to the
Maastricht Treaty at least, and I am extremely against both, because,
as far as I am concerned, they do not work, and they are only
a temporary palliative and in any case wrapped into this Constitution
effectively opt-ins or opt-outs will not get around the fact that
there would have been a Constitution which has been passed in
principle, over my dead body! However, there is a problem about
the extension of the European Court of Justice's own jurisdiction.
What is your view about the problem of long delays for preliminary
rulings while accused persons are held in custody? Lastly, there
is, I fear, a crossover even to the dramatic events we are now
facing in relation to the Iraq war because there are arguments
that in fact in certain circumstances British troops could be
found to be guilty of criminal offences. If we project this constitutional
arrangement forward, that too, I think, would be a matter of grave
concern that by one route or another questions of that kind could
be dealt with before the European Court. It is a very serious
matter at the moment and I would like to have your view on that
as well.
(Mr Heathcoat-Amory) On the question of opt-outs,
the most recent statement I have was from Jack Straw when he gave
a statement to the House of Commons in 1999 when he said, "Our
intention to maintain our frontier controls has implications for
our participation in the direct co-operation of external frontier
controls", and he raised similar objections to visa co-operation,
so he was quite firm that we had to maintain what he called our
frontier-based system of control. That would go obviously in the
clauses which I have mentioned. On the question of judicial control
altogether, as the Committee knows, in the Third Pillar as still
exists in criminal justice and policing matters, the Court of
Justice has no direct jurisdiction, except at the request of a
Member State. That will change and it is recommended that those
Articles should be abolished, and I quote from the report: "The
general system of jurisdiction in the Court of Justice should
be extended to the area of freedom, security and justice".
So right across the board the European Court would have jurisdiction,
except as regards Member State responsibilities regarding the
maintenance of law and order and the safeguarding of internal
security. That is the only area which is protected from the European
Court of Justice, so I do think this has very big implications.
We are effectively gaining a supreme court.
Angus Robertson
24. The Committee was last week in both Strasbourg
and Luxembourg and much of our time was spent in the European
Court of Justice where Committee members held discussions about
the workings of the Court. Now, if the jurisdiction of the European
Court of Justice is likely to be extended, what is your view and
what was the view of the Working Group on how one might avoid
long delays, bearing in mind there is a waiting list of about
two years now in particular involving cases where people might
be incarcerated? What thoughts in the Working Group went into
how that difficulty might be overcome?
(Mr Heathcoat-Amory) Our Working Group was not concerned
itself with the European Court of Justice. There has been another
working group which is examining the incorporation of the Charter
of Fundamental Rights and the signatory of the European Union
to the European Convention, but it has worried the plenary session
and I think there is a 22-month delay in getting a preliminary
decision out of the European Court. These delays will only increase
because of course we are going to have 10 new countries coming
in soon and of course there are moves to give individuals a greater
right of direct petition to the European Court and when the Charter
of Fundamental Rights becomes part of the Constitution, as is
clearly signalled, those rights are even more general than those
in the European Convention. They include some very general social,
employment and political rights, all of which are, in theory,
justiciable. Therefore, if there are delays now, I think it gives
a flavour of what will happen. It will mean of course that we
will have to have more judges and more courts of first instance,
and I think it will lose its cohesiveness. It will become a series
of subsidiary courts and I think that has implications for the
unity of justice at the European level, so I prefer to keep the
existing Member State justice systems intact and confine the European
Court of Justice to arbitrating between Member States in matters
which are inescapably of a cross-border and European Union level.
Instead, I think we are going to enmesh ourselves in a supreme
court sitting elsewhere, overwhelmed with cases dealing right
the way across the board and intruding into matters which really
should be the responsibility of national parliaments.
Mr Bacon
25. Mr Heathcoat-Amory, I wanted to develop
this point and I share your concerns about the transfer of power
over political issues from elected politicians to unelected judges,
but I wanted to ask you specifically about the Convention on Human
Rights and whether the EU should accede to the Convention on Human
Rights in its own right. We heard last week in Luxembourg basically
two views. In the European Court of Human Rights in Strasbourg
we heard general support for the European Union acceding to the
Convention on Human Rights on the basis that if you are going
to transfer powers from Member States to the Commission, then
it is only right, and increasingly right as you transfer more
powers, that individuals should have the right of redress against
institutions of the EU, such as the Commission, which they do
not currently have, which they do have against, shall we say,
Sheffield City Council or the Department of Work and Pensions
and that, therefore, if the EU were to accede to the European
Convention on Human Rights, it would be clear as daylight that
those rights would be maintained and there would be a method of
redress. The second view, which was expressed to me by Francis
Jacobs, the Advocate-General, is that it would not make much difference
either way because of the Charter itself and that because we had
an EU Charter incorporated within the European Constitution, it
really would not matter whether or not the EU acceded to the European
Convention on Human Rights. I was wondering if you could explore
those issues and say which of those two views you tend towards.
(Mr Heathcoat-Amory) It is quite certain that the
Charter of Fundamental Rights will be, as quoted from draft Article
5, ". . . an integral part of the Constitution", so
it will be fully legally binding. Some on the Convention say that
this will create confusion if the EU as a body accedes to the
European Convention, we will have two justice systems and two
systems of case law, and I am not in a position to make a judgment
on that. What I do know is that the Charter does go substantially
beyond the Convention in a number of respects and, therefore,
presumably will be superior to it. This, I think, was why the
Government was so cautious in the year 2000 in saying that the
Charter should only be of declaratory value; it should be a political
document, and that position has been lost. They confirmed at that
stage that it should not be made legally binding and it will be.
I think this has enormous long-term implications and if the Home
Secretary, as he said, is concerned about judge-made law at the
minute, it is at least I think British judges that he was complaining
about who are ultimately going to be told what to do by Parliament.
That will be lost altogether when these are judges in Strasbourg.
26. The view we heard certainly in Strasbourg
was that the one way to avoid confusion was for the European Union
to accede to the Convention on Human Rights and that would ensure
not only that the ECJ, which it already does, takes considerable
account of the European Convention on Human Rights and it says
so regularly, but that it would be, as it were, in its founding
nature because the EU had acceded and that would be a way of bolstering
the two coming together. However, when we heard the European Court
of Justice saying that it would not matter, the suspicion rested
in my mind that the reason for that was that the people in the
European Court of Justice did not want to see another arbiter,
another court of appeal of any kind, such as the European Court
of Human Rights in Strasbourg. Even if, as they are, the opinions
of the European Court of Human Rights in Strasbourg are declaratory
and there is no enforcement mechanism, they did not want to see
any mechanism outside the European Court of Justice of any kind
whatsoever and that was the primary reason for opposing the accession
of the EU, even though, we heard quite clear arguments, it would
make the situation clearer rather than less clear if the EU did
accede.
(Mr Heathcoat-Amory) I should have said that it is
not the judges in Strasbourg, but only in Luxembourg that the
Home Secretary should worry about if we do have effectively a
supreme court exerting its powers through the Charter of Fundamental
Rights. I cannot knowledgeably comment on what Mr Bacon has just
said, except to observe that in the Convention there is a jostling
for power between the existing institutions of the European Union
and it is very noticeable. I have mentioned the Commission and
I have mentioned the European Parliament, but even national parliamentarians
try to advance our own interests, but the European Court of Justice
is not immune from this. Each of the existing power-blocks sees
the emerging Constitution as an opportunity to enhance its own
interest and I think that is rather sad because what we were trying
to do at the start is design a more democratic unit of first principle
and I think that aim is very much lost.
Mr Cash
27. I think you do, Mr Heathcoat-Amory, but
I am not sure they do.
(Mr Heathcoat-Amory) Perhaps I am just rather innocent
in these matters.
Mr Steen: You mentioned a few moments ago, which
was not quite followed up, immigration and there is quite a lot
about immigration in the Convention and of course what is said
there does not seem to square with David Blunkett's statement
recently in relation to foreign nationals coming to this country.
I am just wondering what the immigration attitude was of Members
and were you again out on a limb?
Chairman
28. Again!
(Mr Heathcoat-Amory) Well, that tends to be my position,
but then I think in a way the United Kingdom is out on a limb
because we are an island and also we have a slightly different
view of the world. We have this dichotomy in that we are an Atlantic
power and a Continental one and we are pulled in both directions
and sometimes the magnetic pull from one gets stronger than the
other. The Continental countries, particularly the small ones,
look at this whole thing rather differently. They often have got
either a weak administrative system if they are Eastern European,
or they are the victims of uncontrolled migratory flows, so they
are longing to make someone else responsible for all of this and
shunt it on to a bigger, more powerful body in Brussels which
their politicians can then conveniently blame for all the failings.
I do not see it that way because I think that we have got to service
and guard the people who elect us and their interests and we have
an existing system of border controls which Mr Straw was referring
to when he was defending the British opt-out in 1999. Certainly
reading the draft Articles, the entire system of border controls
and checks either from immigration or from asylum-seekers will
be the subject of a common policy and not decided by ourselves.
We will obviously participate and have a big input and influence
on it, but at the end of the day they will be European Union policies
and, therefore, I think it would be quite impossible for us ever
again to bring back control of these matters under our self-control
and I think this has very big democratic implications. Now, if
the Government has got some plan here to reclaim or assert the
opt-out, I think they are leaving it awfully late. There is a
feeling in some Member States that whilst they may deliberate
in the Convention and they might have all these wonderful new
policies, finally it is going to be disposed of in an intergovernmental
conference. I think this is a mistake because in a sense we are
the intergovernmental conference. The French and the Germans are
taking it very seriously. They have expressed no doubts at all
about these policies, so if the Government is going to try and
retrieve a position, I think they are going to find it very difficult
because the main architecture of the Constitution and indeed many
of the detailed Articles are now being decided, so to leave it
to an IGC to recoup a traditional British position, I think, is
a big mistake, if that is their hope.
Chairman: Mr Heathcoat-Amory, I am going to
draw this evidence session to a close now. We have covered a lot
of ground. I know there are some who will compare it to the Battle
of Waterloo, the battle of Maastricht.
Mr Cash: It is not over yet, Chairman!
Chairman
29. I wonder if I can just give you a last opportunity
to say if you think we have missed any of the key messages from
the Working Group Report that you would like to draw to our attention?
(Mr Heathcoat-Amory) Well, I would say this, Chairman:
that I think that long after the Iraq war is over, what we have
been discussing this morning will be of importance and indeed
I think the constitutional implications are absolutely gigantic
and I do not think people have really woken up to it. Even if
I am wrong about the implications, there are certainly enormous
changes here and I think it is for those who advocate change to
explain why it is necessary. Otherwise, when it falls down and,
remember, there are people wanting the IGC to start this year
and indeed the Italian Government wants to conclude it all in
a new Treaty of Rome by December and we know that the British
Government are not going to have a referendum on this, it could
be that all of this will be over within a year and then after
that, the public, when they start to be affected by this, will
start to realise that their votes and the composition of the House
of Commons and the decision of Parliament cannot affect this and
I think there could be an interesting backlash. They are going
to ask us, "Why didn't you tell us? Why didn't you do something
about it?", so my job is simply to ring the bell in time
for people above my pay grade to realise what is happening and
to take the final decision.
Chairman: Well, I am sure we will carry on hearing
the ringing in our ears, Mr Heathcoat-Amory, and we will see you
later on this afternoon at the Standing Committee. Thank you very
much.
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