Examination of Witnesses (Questions 80-99)
TUESDAY 25 MARCH 2003
RT HON
PETER HAIN
MP, MR NICK
BAIRD AND
MR RICHARD
WESTLAKE
80. You have.
(Peter Hain) No, no, no. We have agreed to seeking
to negotiate an up to date clearer Constitutional description
of many of the existing tangled web of Treaties. That is what
we agreed to.
81. Well, I heard the Foreign Secretary. I have
read what he says and he clearly states—
(Peter Hain) He is not saying we are going to agree
to a Constitution whatever is in it.
82. I understand that, but the principle is
acceded to and that is the point I am concerned about because
once that goes through a Treaty, through the mechanism of the
1972 Act with the primacy of law which is incorporated in these
original Articles et cetera and the role of the Court of Justice,
effectively the Constitution would subsume the role of this national
parliament and its parliamentary sovereignty. Now, you are disagreeing
with me but—
(Peter Hain) No, I am saying we are in exactly the
position as we are now and we will be in exactly the position
as we are now and have been under successive Treaties, endorsed
and ratified by successive Governments of both political persuasions,
including yours.
83. Well, I think you will find that there will
be very substantial disagreement on that point.
(Peter Hain) I look forward to the divisions in the
Conservative Party on that point then.
Angus Robertson
84. Minister, are you content with the draft
Article on the right of initiative in respect of police and judicial
co-operation? Do you think that co-decision and qualified majority
voting are appropriate for initiatives brought forward by a group
of Member States, rather than by the Commission?
(Peter Hain) Yes, we are happy with that draft Article.
John Robertson
85. Minister, what is your view about the proposed
extension of the European Court's jurisdiction to the application
of Union law in criminal cases? Do you have concerns about the
possibility of long delays for preliminary rulings whilst accused
persons are held in custody?
(Peter Hain) Can I just obviously remind everybody
that ECJ jurisdiction already applies, as you know, with certain
limitations to both asylum and immigration and to police and judicial
co-operation. What we want to see is limitations to retain the
carve out for law and order and internal security, which should
be a matter for national governments and national courts, and
a provision allowing Member States to restrict to final Courts
of Appeal the power to make preliminary references to the ECJ
on particular aspects of justice and home affairs.
86. But there are obviously concerns about the
long delays.
(Peter Hain) Yes. It is precisely for that reason
that we want to actually avoid clogging up the legal processes
for hearings, for example, on asylum claims, where an asylum seeker
makes an appeal in our courts, then on a slightly different point
of law makes an appeal to the ECJ and then, as it were, boxes
and coxes between the two almost endlessly.
Mr David
87. I wonder if I could go on to ask about provisions
in Article 16 for common rules on specific elements of criminal
procedure? It can be said that there perhaps should not be common
rules in the European Union when there is no need for common rules
for England and Wales, Scotland and Northern Ireland. Basically
what I am getting at, do you think there is sufficient recognition
of the different legal traditions inside the European Union, particularly
with regard to ourselves and the rest of the EU?
(Peter Hain) No, I do not. I think the way that this
Article is drafted is not acceptable. For issues like mutual recognition
and so on it is a different matter, but I think the implication
behind your question is one that I agree with and that is why
we are seeking to amend it.
Mr Connarty
88. Just to pursue that, do you interpret it
that if they did go for the common position that would then begin
to put pressure on the UK to bring the other jurisdictions in
the devolved assembly, the Parliament of Scotland for example,
into line with one system? Because it seems to say that there
should be either an inquisitorial system or an adversarial system.
If they come down for a common system would that then not suggest
they would want to see that throughout the whole of the EU?
(Peter Hain) What we are trying to achieve is to restrict
competence to eliminate any risk of that happening and really
confine it to cross-border issues. I do not know whether either
of my colleagues can add to that.
(Mr Westlake) We would be looking to restrict it to
things like translation and interpretation and consular access
where there is a genuine cross-border dimension where we need
to ensure that foreign nationals are not at a disadvantage in
our courts, but we are trying to restrict competence in a way
that ensures that we do not move towards a harmonised single legal
system.
(Peter Hain) Co-operation yes, harmonisation no, I
think is the principle.
Miss McIntosh
89. Which would be the applicable court? Presumably
any UK court could be asked to make a ruling? It should not necessarily
be dependent upon a referral for a preliminary ruling and that
is why Mr Connarty's point, as Chairman, comes into play because
I can see that you desperately want to avoid harmonisation but
you need to make sure that all the UK courts are applying what
would be a new law, a new formula and that is different to harmonised.
(Peter Hain) Yes, I think I agree with that.
90. So which would be the applicable court?
Are you asking that each UK court, the Scottish courts and the
English courts, could be expected to rule on this without making
a preliminary ruling?
(Peter Hain) To the extent that I interpret your question
fairly, I would have thought that the relevant court is the one
applicable and will remain so.
91. Which is the relevant court for these purposes?
(Peter Hain) Mostly a domestic court unless there
is an ECJ issue explicitly covered by the Constitution in which
case you can refer upwards for that.
92. What if we found ourselves in the unfortunate
position whereby a Scottish court interpreted the Convention or
the Constitution in one way and an English court interpreted it
in a different way?
(Peter Hain) That possibility arises now. We have
got Treaties now. This Constitution is—
93. Not as regards criminal law and I do not
even know to what extent it has even been tested as regards private
international law.
(Peter Hain) To the extent that I am following what
you are saying—and you may have bamboozled me, in which
case that is my fault—I just repeat that I do not think
that the existing Constitution or the proposed existing Constitution
is fundamentally altering that point of domestic law courts being
in pole position over their own areas. I do not think that is
altered by any of the changes that were suggesting QMV or common
justice and home affairs policy which are in our national interests—it
is in our national interests to have strong common foreign policies
on asylum, to stop asylum shopping and buck passing to fight terrorism
and to fight international crime. We cannot deal with these things
on our own. That is why we co-operate together on a European basis.
Angus Robertson
94. Just to follow up on a point that Miss McIntosh
made, perhaps a way around the potential difficulty that there
might be of a different judicial interpretation in the Scots legal
system or in the English and Welsh legal system would be that
there would be direct access to the European Court of Justice
through the Scottish Executive, which is not the case at the present
time. Is that not perhaps an argument for extending the direct
right of access to the European Court of Justice to the devolved
institutions?
(Peter Hain) I will seek expert help on this arcane
point, but I do not see any fundamental change here, frankly,
from where we are now. Scottish courts operate according to a
different legal system from English courts. So they are free to
interpret things in a different way already. I think that is right,
is it not?
(Mr Westlake) Yes, we are seeking a system where preliminary
rulings references would be restricted to the House of Lords,
but beneath that we operate as we do at the moment.
(Peter Hain) Absolutely.
95. But with the emerging role of the European
Court of Justice in all of the areas that we have been talking
about this afternoon, does that not strengthen the case for a
direct access for the devolved administrations with their particular
legal tradition for direct access to the European Court of Justice?
(Peter Hain) No. I think, with respect, you are flogging
a dead horse here.
Mr Connarty: It is actually my understanding,
Minister, that Mr Robertson is asking for the present situation
to continue. At the moment they can, in fact, make direct application.
There is no restriction at this moment.
Angus Robertson: Yes, there is.
Mr Connarty
96. My understanding is that is not correct.
I am sure we will debate that within our Committee, but my understanding
is that that is available at the moment.
(Peter Hain) No, I do not think it is. No.
97. I am told by our legal advisor it is the
court that makes the reference from Scotland to the Court of Justice.
(Peter Hain) Yes. The courts, not administrations.
Mr Connarty: The courts at the moment. Which
seems to be where it should lie.
Mr Tynan
98. Now that we have resolved that point, could
I turn to Article 17 which implements the Working Group's recommendations
for a legal base for the new Treaty permitting approximation of
certain areas of criminal law such as serious crimes with correspondent
dimensions. Are you content with the provisions for the approximation
of certain areas of criminal law?
(Peter Hain) I do think this is actually an Article
that we are much happier with than any of the others. Having common
penalties and procedures, that is actually quite an advantage
across Europe. Different legal systems and different national
laws, but a common approach to the whole thing so that people
cannot, as it were, duck and weave between particular Member States,
particularly international criminals, drug traffickers or terrorists,
according to where they think they might get an easier ride.
99. So the answer is yes?
(Peter Hain) Yes.
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