Examination of Witnesses (Questions 60-79)
TUESDAY 25 MARCH 2003
RT HON
PETER HAIN
MP, MR NICK
BAIRD AND
MR RICHARD
WESTLAKE
60. It says here "In the second part/in
the protocol" but you indicated that the reason for that
was that it would not be justiciable in the same way as if it
were in the main body of the text. Presumably if it is an Article
of this Treaty or of this Constitution, then it will be justiciable.
(Peter Hain) Not necessarily if the court does not
have jurisdiction over it. Simply because it is in the Constitution
does not make it justiciable. I think that is right, is it not?
(Mr Baird) That is right. For example, in Common Foreign
Security Policy our position would be that there should be no
ECJ jurisdiction. That will be—
61. Where is that written down? The court is
the supreme legal body of the Union and interprets the Union documents.
So when you say that is your position, if it says "You shall
follow a Common Foreign Security Policy in a spirit of loyalty"—I
note the Minister said earlier he did not like ambiguous words—I
would not have thought that "spirit of loyalty" has
a clear legal meaning, so in one sense I would hope the ECJ does
not try and interpret it. But where is it actually written down
that it would not have the jurisdiction to do so. You said it
is your position, but I mean if this is a Treaty, assuming it
is now a finished Treaty rather than a draft and that is in it,
why could the ECJ not—
(Peter Hain) You cannot make that assumption. We have
not got the ECJ Articles to look at and it is very far from a
finished exercise. We made it absolutely clear in this whole Convention
procedure that nothing is agreed until everything is agreed. What
you have in front of you—and quite properly you are questioning
me on—is the first draft.
62. Yes, I appreciate that. What I am asking
is whatever we end up with as a finished text, is all of that
justiciable before the court if it is the main body of the Treaty.
Mr Baird indicated no.
(Peter Hain) No.
63. What I am asking is, where does it say "no"?
(Peter Hain) The Treaties of the European Union have
Common Foreign Security Policy in them at the present time, but
the Court of Justice does not have jurisdiction over CFSP. So
it is quite possible to design that outcome as we would want to
see, with your agreement, I assume. It is quite possible to do
that in the new Constitution and we intend that that should be
the case and we will ensure that that is the case.
Mr Cash
64. You know that I strongly object to the whole
of this Constitution as a matter of principle, but having said
that, because we are engaged in a discussion about options, do
you see any threat to the United Kingdom opting out arrangements
from the Draft Constitution?
(Peter Hain) No.
65. You do not? And has the question of opt
outs been discussed at all?
(Peter Hain) Not in the respect that we are asking
for more opt outs, no.
66. I think going for bits and pieces is a recipe
for disaster because the principle of acceding to the Constitution
would turn the Constitutional Treaty which would give effect to
this through the 1972 Act into an autochthonous Constitution on
the primacy of law which then, effectively, would supersede and
overtake not only this Parliament but the whole of our judicial
process and the implementation of laws. You shake your head, but
the primacy of law is incorporated in these first few Treaty Articles
and therefore the consequence of seeking an opt out is, for some
people, a very important way of dealing with it. I do not happen
to agree with opt-outs, but are you saying that there are no opt
outs at the moment?
(Peter Hain) There are no proposed new opt outs and
we are not seeking them. What we will insist on doing is retaining
our existing opt outs, particularly over Justice and Home Affairs
areas in the Schengen arrangements and border controls and so
on. It was interesting, the Justice and Home Affairs Working Group
did not address this question of opt outs and left that to the
Convention, so putting it squarely back in our laps.
67. But you are engaged in a certain amount
of light footwork over this question of Schengen, are you not
really?
(Peter Hain) No.
68. You are not?
(Peter Hain) Heavy footwork actually to make sure
that we retain our opt out.
69. Are you quite sure about that?
(Peter Hain) Absolutely sure, Bill, and probably 300%
sure, if that satisfies you, which it probably does not.
Mr Tynan
70. I understand that there have been some calls
for a quick IGC conference following the Convention, especially
from the Italians who would love to see a new Treaty of Rome.
How easy will it be to resist the pressure for a quick IGC conference
later in 2003 and which does not re-open the questions the way
they are resolved in the Convention?
(Peter Hain) I think it would be very unwise to go
for a quick fix. So that is the principle that we are operating
on. I am not saying the IGC cannot be completed by Rome and we
do not have some sort of concrete block against that, but I think
that given that the earliest the Convention is likely to report
is in all probability at a special European Council on June 30,
which is what has been proposed and we support that, the Convention
concluding its business in the first part of June, there then
needs to be two important breathing spaces; one for national parliaments
to consider the outcome, and certainly we would want to see national
parliaments, including your own Scrutiny Committee, Chairman,
play its role and, secondly, for governments to consider what
they think about the Convention outcome. So I think a rush job
or a quick fix is not a sensible way to proceed. As I say, if
it can be done by Rome, we will see, but I think many Member States
think that it ought to go into next year. Some of the new Member
States who will only join in on 1 May next year feel very strongly
that they should be in the IGC as full Members. So I think that
there is a quite a long way to go on all of this.
71. So if national parliaments go through the
scrutiny process and they decide that they want to re-open some
of the issues that have been concluded in the Convention, do you
see that being a practical proposition?
(Peter Hain) It really depends on what the Convention
comes out with. If the Convention comes out with a consensus position,
as opposed to consensus over some areas with very clear disagreements
with options put forward over others, if it comes out of the consensus
position then that will have a lot of force in the IGC because
these are difficult issues to negotiate a common agreement on
and I do not think people will be anxious to re-open them, ourselves
included. But if there is no consensus over significant areas,
then that becomes a very important focus for IGC negotiations
and for input by national parliamentarians.
Mr David
72. Do you see any circumstances where the life
of the Convention could be extended in any way?
(Peter Hain) I do not want to see that. For two reasons
I would like to be liberated from it at some point myself. Not
that I am not enjoying it. I am, enormously. Secondly, I think
there is a Parkinson's Law syndrome here that you could keep extending
it and you will still find further reasons to prolong your life.
I think we need to bring it to a close as was decided in Laeken
in December 2001 on time reporting, as I say, to a Special European
Council at the end of June.
Mr Connarty: Thank you very much, Minister.
That brings to an end that section of our questions. We would
like to turn to the Report of Working Group X "Freedom, Security
and Justice" which Chapter 3 and 4 of the draft Articles
will be covering. As the Government's Representative at the Convention,
you will be putting forward, presumably, the amendments the Government
have tabled or may have already tabled. So we would like to turn
and look at those. Mr Robertson?
Angus Robertson
73. Minister, can I ask you what are the implications,
particularly in the area of police and judicial co-operation,
of dropping the three pillar structure?
(Peter Hain) As far as policing is concerned, and
particularly joint police operations, this has got to be a matter
for unanimity. And the workings of our judicial system similarly.
We are quite content to see qualified majority voting extended
in areas where it is in our national interests, such as co-operation
over asylum policy, co-operation in tackling international crime,
the threat of terrorism and so on. Indeed that is already happening.
But there are some fixed red lines, including the two that I have
mentioned.
Mr Connarty: Do you want to pursue that, Mr
Cash?
Mr Cash: No, not on this occasion.
Mr Connarty: There were some other matters that
you thought you might want to bring up. Fine. Mr Robertson?
John Robertson: No, no more, Chair.
Angus Robertson
74. In that case, can I ask you, Minister, do
you think it is acceptable that rules of criminal law and procedure
should be adopted by Qualified Majority Voting with the result
that the national parliaments of the minority will be deprived
of the ability to shape the national criminal law?
(Peter Hain) What we are really trying to focus on
is not harmonisation of domestic law. We are not supporters of
that and I cannot imagine that your Committee would be, although
there are some in Europe who are. What we are trying to promote
is better co-operation and more effective policy implementation.
For example, mutual recognition is an important principle for
making this whole area of justice and home affairs work more effectively
in a cross-border basis. That is an area where we want to see
progress.
Mr Connarty
75. Can I turn to the role of national parliaments?
In Article 3 it recommends that national parliaments need to participate
in the evaluation of policies in the justice and home affairs
area and be involved in the political monitoring of Europol's
activities, for example. Do you think draft Article 3 gives national
parliaments a strong enough role to compensate for the move to
qualified majority voting? Are there areas in which you would
give additional roles to national parliaments in this area?
(Peter Hain) In the justice and home affairs area
it is particularly important, I think, that national parliaments
have a role in subsidiarity, and proportionality is very important
too. That is an argument, I think, which came from your Committee
which we have basically won the argument on, in principle. The
area on subsidiarity where we still have to finalise and get agreement
is, is there a red card or a yellow card? Does it have teeth or
does it not? That is still an area of negotiation.
76. I think specifically we have all rehearsed
that argument—
(Peter Hain) Yes.
77.—but in the justice and home affairs
area where qualified majority voting means that things will be
agreed in the Council and the veto which was there before to protect
the citizens of this country could be lost. The question then
is, what role do you think the national parliament should have
in justice and home affairs? It would compensate for that because
there is a feeling that if the veto is lost things will be agreed
in Council with which maybe the parliaments and the citizens that
we represent would not be happy.
(Peter Hain) I understand that concern and I share
it which is why we are seeking to have QMV apply only to framework
laws so that national laws would still be a matter for national
parliaments and be implemented by national parliaments, which
is where we all come in.
Mr Cash
78. Can I come in on that? On the question of
the national parliaments, it does seem to me, and I would be glad
if you could help me with this, Mr Hain, that the effect of these
proposals really is not going to make any serious difference to
the diminution of the role of national parliaments because as
we go through this process it is becoming more and more obviously
something that we are expected to accede to. There is a salami
slicing going on all the time. What I would like to hear you say
is that you completely endorse the doctrine of parliamentary sovereignty
and that the fact that this is part of a constitutional arrangement
in no way would inhibit the national parliaments, and particularly
the Westminster national parliament, from deciding to legislate
as it wishes in the future after this Constitution has gone through.
Are you going to agree to that or not?
(Peter Hain) If you mean by that that you are seeking
in this Constitution to overturn the 1972 Act and give national
parliaments primacy over European law, even though national parliaments,
including ours, have endorsed successive Treaties explicitly and
ratified them, conceding certain powers for practical common sense
reasons to a European level, then the answer is no.
79. Right. So if I may say, I think you slightly
missed the point I was making, which is that to date, up to the
point where this Constitution has been proposed and on the assumption
that it goes through, because you have agreed to it in principle
as a Government—
(Peter Hain) No. We have agreed to—
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