|
Oral evidence Taken before the European Security Committee on Wednesday 16 July 2003 Members present: Mr Jimmy Hood, in the Chair __________ Witnesses: RT HON PETER HAIN, a Member of the House, Government Representative on the Convention on the Future of Europe, MS SARAH LYONS, Private Secretary to Rt Hon Peter Hain MP, and MR TOM DREW, Head of the Convention/Inter Governmental Conference Unit, EU (Internal), Foreign and Commonwealth Office, examined. Q1 Chairman: Welcome, Minister, to the European Scrutiny Committee again. I was just recalling that when you first came before the Committee I reminded you that you were the sixth European Minister to come before us, and I wished you well and longevity in your post, and you did not do badly - you lasted just over a year - but we are delighted to see you promoted because two previous European Ministers have been promoted, but now I find out that you are the third Leader of the House we have had in only five months! Maybe you are used to these promotions and fast turnover, but welcome to you in your responsibility as the minister who led the government into the Convention and we are very pleased that you are here to discuss with us aspects of the draft Treaty. It is particularly nice to see you here and congratulations on your new promotion. Minister, you have described the Treaty as "a good basis for negotiation at the IGC". Having sat through those many hours, how much manoeuvre will the government have at the IGC to make the improvements it wants, and what is it that we will hopefully persuade some of our members to do? Peter Hain: First of all, Chairman, thank you very much for your generous welcome. I am not sure whether the change of job is anything to do with me or to do with the way government operates but one thing I have learnt is that you can never anticipate what is going to happen in government! I am delighted to be back. I think we have a very good deal for Britain out of the Convention. Indeed, compared with what most people expected it was an exceptionally good deal. Even our own officials did not anticipate that we would be able to win as much ground as we did for Britain's case, and I think the proof of the pudding is in the reporting in European newspapers. European newspapers overwhelmingly described it as an excellent result for Britain, some in such terms as it being a triumph for the Prime Minister in rather aggrieved terms. If I just finish on this point before I answer your direct question, it is odd that there has been so much criticism in Britain from certain quarters when in fact it is the federalists, the advocates of a Brussels super state, that feel the most aggrieved about the outcome - which has essentially defended nation state interests. In terms of what we cannot accept, they include the mutual defence guarantee and the enhanced co-operation package around that which will allow a minority of countries to go off and do things in the European Union's name for defence purposes. We managed to stop harmonisation of taxation, though there were pressures in the Convention for that: there is a limited area where there is a proposal in the text to allow QMV, qualified majority voting, for cross border tax fraud. You might say "What is wrong with that? Tax fraud is a bad thing and it is in the interests of the European Union and, indeed, in the interests of Britain to stop that". Our concern is once having conceded the principle, it might then allow an encroachment into other tax matters in the name of combatting tax fraud. The other area is criminal procedural law - qualified majority voting there; a limited area of social security - qualified majority voting there mainly for cross border issues; and qualified majority voting in the system for own resources, which is effectively a way of allowing the European Union to decide what contributions we as nation states make, which is for us a national sovereignty issue. As to how we will do in the IGC that remains to be seen but we are pretty confident because in all of these issues, for example the limited area of tax, we had around ten countries signing up, ten governments signing up to our opposition to that, and you can go through every other area and find similar groups of countries that are signed up with us, so we are not on our own in objecting to these things: we have good support and I think we are in a good position to negotiate for successful outcome. Q2 Mr Marshall: Can I welcome you as well, Minister? When you were exchanging pleasantries with the Chairman, you did say you never knew what was going to happen and you referred to government, but is it not also true about processes within the European Union? Could anyone have foreseen, when the Laeken declaration was made some years ago, that we would be in this situation now? I just wonder, whilst the British government does have reservations about some aspects and clearly other governments will have reservations too, once the governments get down to horse trading within the context of the IGC, then one country is going to trade off its interests with the others, so do you not feel that it is inevitable that the United Kingdom will have to accept something which even you say at the moment would be unacceptable? Secondly, the Laeken declaration also said that one of the objectives of this exercise, if not the most important objective, was to engage the citizens of the European Union with the institutions of the European Union, the Parliamentary institutions and the Commission, but can you point to one shred of evidence in the Convention report which enhances that role? Peter Hain: First of all, on the issue of the balance, as it were, of negotiating forces there and how that compares with Laeken, I think given the ambitions of Belgium, which hosted the Laeken Summit obviously and had the European Presidency at the time, which has a very federalist agenda for the future of Europe and the way that European parliamentarians, who were playing at home when the Convention met because meetings were almost all in the European Parliament and there was a lot of pressure from those quarters, the outcome was good and I think we can hold our position and I think we can improve on it in these areas because, as I say, we have a lot of support in other areas. In terms of citizens and relationships with the European Union, I think there are several things I would pick up. First of all, you have now a single constitutional Treaty wrapping up four existing treaties which is clearly expressed, to the extent that any Treaty can be clearly expressed, where people can see for the very first time in one document, in a readily digestible form and reasonably accessible, how their rights in the European Union are affected and what their opportunities are, what their rights are and what the Europe's democratic structures are, so I think that is a big advance. The second big advance is we have, for the first time, national parliaments, including our own House of Commons, able to vet effectively any new Commission proposal for legislation - that is a big advance which has never existed before and citizens' rights are enhanced by that. The next area is in the proposal to make the President of the European Council, what we call the Chairman of the Council, full time instead of rotating six monthly with the job changing every six months, then you have at least somebody representing governments, accountable to those governments, accountable to national parliaments through those governments and accountable to citizens therefore through national parliaments - a much clearer chain of accountability than you ever have had before. Finally, I think the clear statement in the Convention text, in the constitutional draft, that the Union only has the powers that Member States give it is a really important principle to embed it - in other words, it only acts at an EU level when it needs to and when it does act its law prevails over Member States' laws: when it does not, they do not. Q3 Mr Davis: Minister, was it the same ten governments who agreed with you about everything? Peter Hain: No, it was not. Spain tended to be a reasonably reliable ally on most things: Sweden too: Denmark - but no. Ireland, for example, was in the group of those ten, and many of the central and Eastern European new Member States tended to be allies of us on many things. The alliance has shifted, but we were always in a position where we were not alone. Q4 Mr Cash: At the beginning, Mr Hain, you indicated your concern about conceding matters of principle, which you did just now. How could it possibly be a "triumph" for the Prime Minister to have conceded the principle of the constitution, when it says in the Treaty that the constitution shall have primacy over the laws of the Member States? Would you not regard that as more a betrayal of the voters of this country in relation to their government and the way in which they can decide how they are to be governed, and do you not agree with me that, having conceded that, it is far from a triumph - it is actually a disaster? Peter Hain: If it was a disaster it is a disaster that has been in existence since 1957 -- Q5 Mr Cash: That is not true. Peter Hain: -- And that we signed up to, and I think if I am right you always said that you voted for joining Europe in 1975 - so it is actually. European law only has primacy where European competencies operate, not over national laws where European competencies do not extend to those areas, so pretty well we are where we were. Q6 Mr Cash: Do you not understand, perhaps, that the provisions relating to the Court of Justice give as the first and prime duty of the European Court to interpret the constitution? Does that not in relation to this provision that I have already referred to amount to a concession, I would say a betrayal, of the British people? Peter Hain: I think with all due respect the very fact we are in the European Union is a betrayal from that point of view, and I think people who are arguing this line of argument should really come clean on what they really want, but in respect of your specific question on the Court of Justice's remit and interpretation of the constitution and the primacy of European law, no, I do not think anything has changed fundamentally. In a lot of this, and this is another area, around three quarters of the clauses in the new constitutional draft Treaty are imported from one or other of the four existing treaties, so to that extent it is a tidying up exercise in respect of three quarters or so of those clauses --- Q7 Mr Cash: You are still maintaining that? Peter Hain: Let me finish - but the rest, the other quarter roughly of the clauses, is reforming and modernising structures which were designed for the six Member States in the 1950s and 1960s which are barely coping with 15 Member States and certainly will not cope with 25, later to become 27, 28 and probably later 30 by the end of the decade. I would have thought anybody with common sense would welcome this modernisation and reform as well as an obvious self-evident tidying up of clauses into a new single constitutional test. Q8 Mr Cash: So why did you vote with me on the Third Reading of the Maastricht Treaty against that Treaty? Peter Hain: If we want to re-open that, I am very happy to do so -- Q9 Chairman: Not particularly. Peter Hain: -- not for the same reasons he did, Chairman! Q10 Mr Tynan: You have indicated a number of successes, Minister, as regards the negotiation, and negotiations at the IGC are obviously very important. Would you comment on the question of asylum and immigration and the United Kingdom's position on that? Peter Hain: Yes, I would be very happy to. This is obviously extremely important because we felt from the outset that it was really important to accept an extension of qualified majority voting in justice and home affairs areas, save with the exception of criminal procedures and our own judicial system, because it is in our interest to get, in order to be able to tackle the problem of human trafficking and illegal asylum seekers much more effectively, other countries to bear their share of the burden instead of passing the buck to ourselves, for example, and you can only achieve that by having a common policy, common procedures for admitting asylum seekers, and common procedures are very important for returning people to the country that they first landed in in the European Union, which is what this new approach will deliver, instead of allowing certain Member States to be backmarkers and opt out of their responsibilities. So through an extension of majority voting and by voluntary giving up our veto on this area we strengthen our border controls and our barriers against illegal asylum seeking, and it is only a dogmatic position that refuses to countenance any sensible European co-operation that will, I think, baulk at that achievement. Q11 Chairman: The European Parliament has been given the provision of being consulted and involved in the work of the Inter Governmental Conference. What role do you envisage for national parliaments, or are you arguing at the IGC for an effective role and for national parliaments to be involved in the IGC? Peter Hain: I think the key area for national parliaments, and I hope this will be actively accomplished over the coming period, is that it is really important for our own House to maintain effective scrutiny over the IGC proceedings. I know that the Foreign Secretary is very keen on this and I think he has written about this. I am certainly very anxious in my role as Leader of the House, as well as fulfilling my role as being accountable to the House for my work representing the government and the Convention, that we have maximum opportunities for scrutiny and for debate about how the IGC negotiations are fulfilled. Obviously everybody will appreciate that these negotiations are done, unlike the Convention, behind closed doors, and in the nature of negotiations you have to get what you want. You have to negotiate hard and nobody will expect that to be done under a public spotlight. Q12 Chairman: I was just smiling at the mannerisms there while you were describing negotiating at the IGC! Peter Hain: A lot of other European Member State delegates saw that as rather my role in the Convention! Q13 Mr Connarty: I have a supplementary question to Mr Tynan's question. I raised with you when you were wearing another hat the question of detention of children in detention centres in this country, which I believe we took as an exception, an opt-out to part of the European Convention of Human Rights. When we fall into one regime for asylum immigration in Europe, will we also fall into line with the European Convention on Human Rights in (?) Prison in Cheltenham? Peter Hain: I need to take some advice on that. Perhaps I could come back to the Committee on that point? If I could just sign off on this issue, we have only agreed in the area of justice and home affairs, asylum for example but it also applies to combatted terrorism and combatted international crime, to majority voting and to common policies because it is in our interests as a country to do so. It strengthens our security: it strengthens our borders against these threats of illegal human trafficking and terrorism, international crime, in order to get everybody to accept their responsibilities so that the problem is not continuously dumped on our island. Q14 Mr Marshall: Minister, firstly a brief comment on what you just said: one of the concerns that some of us have about the collapsing of pillars 2 and 3 to the new structure is that it is just the first step on a road that will eventually lead to qualified majority voting, and that is the big concern, but my substantive point, if it is a substantive point, to your question, is this: you did refer to haggling taking place behind closed doors, perhaps no longer smoke-filled rooms, in the IGC. One of the criticisms that we make of a committee, of the work that the European Council do, is that they do their work presently behind closed doors and you can never quite be sure what people say they said in the meetings: they will come out saying they fought for their national interests as strongly as they could when they probably sold them at the first opportunity, so we have argued that those meetings should be held in public and hopefully under the new Treaty they will be. Do you not think there is a similar argument for some of the IGC meetings to be held in public for similar reasons? Peter Hain: I am very much in favour of greater transparency and therefore democratic accountability of the European Union's institutions to its citizens and to its parliaments, and I strongly support the provision in the draft articles that the Council should meet in public when it is legislating - well, the European Council does not legislate as such but in the Treaty negotiation. And that is something that needs to be looked at in the European Council as well. As I say compared with the United Nations Security Council, people have an image of the United Nations and how it makes key decisions - they see the Foreign Secretary there: they see Colin Powell there: they see Austin and Fischer there: they see a decision being played out and people speaking and voting but they do not see that with the European Union, and I think that is a great flaw and has been a flaw in the way Europe has operated. I think it is in Europe's interests to be much more transparent and accountable because people then see on their television screens that democratic system operating. On the question of the second and third pillars I understand your concern, but we would have wanted a common asylum policy, whilst retaining control of our own borders and our opt-out from the shareholding arrangements therefore, regardless of how this particular constitutional Treaty had been configured because it is in our interests, for the reasons I have explained. You will understand that in respect of the second pillar, the common foreign and security policy, we have retained our national veto. It remains a matter for unanimity except in those areas where we already have qualified majority voting, which is basically for implementing policies, so once you have agreed on a policy by unanimity, obviously implementing it is the status quo. So effectively moving it out of the second pillar into a single, as it were, constitutional test does not change anything in practical terms, but it just makes it more understandable. I do not think anybody really understood the first, second and third pillars except experts like ourselves - hopefully we are experts - in this room so I do not think there is a need to be worried there. On the third pillar, the justice and home affairs issues, the one area where we are opposed to majority voting is the one I mentioned at the beginning which is in criminal law and our judicial system, and we hope to get that out. By the way, could I just welcome your report on all of this, Chairman, the report on the role of national parliaments and the opposition to harmonisation and taxation, for example? I very much agree, although I know the government still has to respond --- Q15 Mr Cash: Criminal law. Peter Hain: Criminal law, I am sorry. The government still has to respond to that, but I very much welcome it. Chairman: We look forward to that response. Q16 Miss McIntosh: Can I ask a question of the Minister that straddles both his present hats? There is the early warning mechanism on subsidiarity and there is a six week deadline within which this House or any national Parliament has to review any Commission proposal in view of the fact that it is not deemed appropriate to be dealt with at Union level. Have you as Leader of the House and as Welsh Secretary given some thought to what body in this place would be used as the early warning mechanism, bearing in mind we only have six weeks from the date of transmission not six weeks from the date of receipt, and also whether there would be discussions between this place and the other place and what formal channel you would use between this place, both Houses, and both the Welsh Assembly and the Scottish Parliament, on paragraph 5 of the protocol which you are obliged to give some thought? Also, why do you think that the Commission would pay a blind bit of notice and how do you believe that we will convince the Commissioner that needs to review its proposal, or in fact perhaps even accept that his is not the competent authority, and which other Member States would you look to on particular issues such as, for example, criminal law? Peter Hain: Firstly, on the exact mechanism by which our own House of Commons could express its point of view, as I say, this is a really important advance - to have for the very first time the House of Commons in a position to vet any new proposal from Brussels, to say whether it should be done at a European level at all, or whether it is properly a matter for our own national Parliament. That is a really big democratic advance for Britain, for our Parliament and our citizens, and I think that is very much to be welcomed. On the exact method of scrutiny, this is now I think going to be a matter for discussion - we have plenty of time, because the IGC will run into next year, I am sure. There is then, of course, the process of ratification which could take up to two years so it is not going to come into force, although I hope myself that the Commission will start to act in a way that respects the fact that this is coming up the road towards us, and that will start to be very careful about subsidiarity, and any new proposals that come through. I hope the Commission effectively will be acting in anticipation from now, that this new provision is going to come in, but I look forward to discussing as Leader of the House with yourself, Chairman and through you the Committee, your own ideas on this and be consulted on it. I think it is a great opportunity for the House to empower itself over the matters affecting European Union, and I am keen to see the European Union and its decisions and our own role within that much more accountable to the House as a whole - not just through very important work and detailed work and expert work that you do in scrutiny Committee, but to the House as a whole. There is a relatively few number of members who are informed about, interested in, and expert on European Union matters, and I think this is to the detriment of both our own quality of democracy and European democracy. On whether the Commission will take a blind bit of notice if a third of national parliaments say "No, they do not like it", I think they will have to. We wanted a red card rather than a yellow card: we wanted a situation and I argued for a situation where, if half of national Parliament said "No, this infringes subsidiarity", then that should just knock it out of court. We were not able to win that argument, but do not underestimate how very significant this move is. The Commission fought against this proposal, as did the European parliamentarians, and we are the federalists all the way down the line to the last. This is a very big change and in practice, if you imagine a third of national parliaments or more saying "No, this should not go forward", for governments then, who will be the final party in the legislative chain, ignoring their own national parliaments, it is inconceivable that Brussels will just take no notice at all of any decision in this respect - not only in respect of subsidiarity, I might add, but in respect of proportionality as well, because that is a very important factor here too. Q17 Miss McIntosh: Can I press you on the question of relations with devolved assemblies which this Committee has pioneered because of a number of members that are interested in this field? Given the fact that there is only a six week period have you given any thought to how, particularly wearing your two hats, this could be achieved? Peter Hain: Again, this is going to be a matter of consultation but what I would like to see is immediately the Commission e-mails our own Parliament with a copy of any new proposal it is immediately forwarded on to the National Assembly for Wales, the Scottish Parliament -- Q18 Miss McIntosh: That is not the point, with respect. Paragraph 5 says it is up to each national Parliament or chamber to consult where appropriate. Do you consider it appropriate? Peter Hain: I do, and I argued for that. We will immediately e-mail it across and we will work out with the devolved legislatures how best to take that forward. Six weeks is a short time but I think it is long enough for us to do the exercise we need to do. Q19 Angus Robertson: Welcome to the Committee - again, Minister. Can I ask you whether you agree that the Common Fisheries Policy and the Common Agricultural Policy have the same legal status? Peter Hain: The same legal status? Q20 Angus Robertson: Yes. Peter Hain: What is the answer to that, Tom? Can I probe you a bit? What do you mean by that? Q21 Angus Robertson: From a legal perspective, does the Common Agricultural Policy and the Common Fisheries Policy have the same legal status? Peter Hain: I am trying to get at what is behind your supplementary question, so perhaps you could ask that, as it were, before I answer it and then I can give you a proper answer. Q22 Angus Robertson: The question obviously is if they have the same legal status, which most purists would agree, then why is it that both of those policies are treated differently when the competencies of the European Union are listed under Article 12 of the draft constitution? Peter Hain: I do not see really what the problem is here. It seems to me that what we have here is a situation in which the fisheries policy and the agricultural policy is determined by the European Union in the way we all know, and again - and I apologise if I am not getting to your point but I cannot see the key point you are making -- Q23 Angus Robertson: It is pretty fundamental really because at the moment policies with regards to fisheries and policies with regards to agriculture are subject to the CAP and to the CFP, yet when one looks at the constitution both of those policies are treated differently. It is not just a tidying up exercise. One, namely fisheries, is to be an exclusive competence when dealing with the conservation and marine biological resources, but agriculture is not - it is to be a shared competence. It is fundamentally different. How is it that they are being treated differently if they are of the same legal status? Peter Hain: Well, they operate in a different way. The draft Treaty does not propose extending competence. It is not extending competence of fisheries - we can all agree that. If you are interested, as I think you are, in the conservation of marine biological resources under the Common Fisheries Policy, that has been exclusive to the European Community since 1979. Q24 Angus Robertson: With respect, that is not my question. I am asking why are these two policy areas which have the same legal status being treated differently? Peter Hain: Because they have been. Q25 Angus Robertson: Why? Peter Hain: I am not sure, to be perfectly frank, other than the obvious point which is that lots of different policies are treated in different ways in Part III of the constitution, and in different ways and so on. It seems to me to be a pretty obvious point. I am not sure what you are getting at. Q26 Miss McIntosh: My understanding is that these are two common policies so they should have exclusive competence and I think the thrust of Mr Robertson's question is that one is being treated - fisheries - as exclusive competence, whereas the CAP now, under the mid-term review, is going to be treated as shared competence. That is a fundamental change to the Treaty which appears to have been smuggled through. It is a very important point. Peter Hain: What matters is the impact and the outcome - that is what matters. The common foreign and security policy is common, but it is treated in a very different way. Q27 Miss McIntosh: If we follow that logic through then effectively exclusive competence means that fisheries policies will be applied the same across the European Union, whereas now you are going to have farming policy which is going to be applied disuniformly across the European Union. I think the question I would like to ask the government is was this the intention behind the change of competence in this new constitution? Peter Hain: There has not been a change of competence. Q28 Miss McIntosh: Yes, there has. You just told us there has. Peter Hain: No, I have not. I have not said there has been a change of competence in the way the constitution - this is getting very anoraky, Mr Chairman, but unless I am wrongly advised, I do not think there has been any change of competence in this area in the draft constitutional Treaty compared with the previous one. Is that right? Mr Drew: Yes. Q29 Chairman: I have the advantage of having my legal adviser on my right hand side here, who tells me that it is a highly technical matter but it may be a bit better than it was previously under the new proposals. I am going to suggest it is something the Committee will want to look into in greater detail, and we will come back on this. It is a highly technical matter according to my legal advice, so I will move on, Minister. Peter Hain: Well, if I can help in the future on that, or if the Foreign Secretary or the Minister for Europe can respond to help you I am sure they would, but I do not believe any substantive change has been made in the way that has been suggested. Mr Connarty: I think we will look forward to that answer, Minister. It is not just an SMP point. If people representing fishing communities do not have a right to speak on it because it has been pledged solely to Europe and there is nothing for us to say at national level, I think that would be very worrying, and I think that is the inference of the question. Chairman: I did not call Mr Connarty to carry on this point. We look forward to the answer. Do you have another question, Mr Connarty? Q30 Mr Connarty: I would like to turn to the institutions, Minister. I was surprised to hear Giscard d'Estaing say himself that the institutional forum contained many uneasy compromises, and he said, "it contained mistakes made by the Praesidium at the express request of the Convention at large". Is the government happy with the Convention's compromised proposals on the reform of the EU institutions, or will it seek substantial changes at the IGC, and could we have an indication of where the government stands on the various proposals? Secondly, does it hold the view that was given in the contribution by you and others that you submitted that the Nice provisions should be retained after 2009? Peter Hain: Firstly, on the last point, I do not think anybody is suggesting that the Nice provisions say, for example, on the numbers of commissioners should be retained after 2009. It is accepted that there will be a change there. Secondly, on the institutions, we were broadly happy with the outcome: we got a key strategic objective achieved in making the European Council and therefore governments stronger by better co-ordination, better organisation, and a full time elected member to chair the Council on behalf of national governments. We were also happy that the European Commission had been strengthened and reformed to make it more efficient, and we were happy that the European parliament, for example, got greater scrutiny rights, which I think is a good thing. The area where we remain doubtful about is this proposal for a so-called double hatting of the existing High Representative, Xavier Solana, and the personnel and external relations commissioner, Chris Patten. The way that has been configured still leaves some room for doubt in a number of areas and we would still need to negotiate the detail of that to make absolutely crystal clear that this new foreign representative role is strictly under the control of governments and accountable to governments, despite the fact that he quite properly, or she, would have access to European resources through the Commission role in a way that is not possible now. Q31 Mr Connarty: Pressing you on this, some of the discussion has been that the Foreign Secretary of Europe, which is the title that has been bandied around, somehow would conflict with the role of the new elected President or chair of the Council, who is seen in the first instance to be the most important person in the joint government bodies. Is that the basis of this? That it would be a conflict of who speaks about Europe? Peter Hain: No, that is not what it is about. The point I was making was whether the Commission in effect got a back door into the common foreign and security policy in areas where it does not have a competence, and if you brought these two posts together, and we are not satisfied with the position as it currently stands, it is satisfactory to the extent that the person is appointed by the Council, in other words by governments and accountable to governments, but some of the detail leaves us uneasy. It is not a question of a conflict of role with the full-time Chairman of the Council or President. What each President of the Council would do is effectively operate for Europe at the level that the post operates now - for example, in international summits with Russia, China, the United States or India, representation at the G8 and so on. But it is very confusing for other presidents and Prime Ministers of other countries when the person changes every six months. They just start to build a relationship, then off they go and it is some other figure. So that is the advantage of that role at a foreign policy level - the foreign representative level will not deal with that any more than our own Foreign Secretary normally deals at the head of government level. He or she would be dealing with the foreign ministers of other nations and other groups of nations, so there is no conflict at all. Q32 Mr Connarty: To the same agenda set by the Council rather than by the Commission? Peter Hain: Indeed. To the same agenda set by the Council. Q33 Mr Marshall: Continuing on the institutional changes, one of the provisions in the draft Treaty is for a legislative council. Will the government seek to remove this provision and, if it fails to do so, do you think that the principle is workable? Peter Hain: Originally, there was a proposal for an entirely new Legislative Council which we saw as a Trojan Horse really for effectively separating legislation from executive policy making, whereby the Commission would be able to get its hands on executive policy making in a way that was not acceptable from our point of view. I think that was part of the agenda behind those who advocated it. There was a very persuasive advocacy in the sense that the Legislative Council would give the opportunity for a final, as it were, almost Third Reading on behalf of government sitting together and whoever was representing government on the Legislative Council. For example, it was argued that the Environment Council could adopt a position that was actually negative as far as the Agricultural Council was concerned or Industry was concerned, so you might want to have a chance of a final look at us - that was the argument put. Anyway, we knocked out the Legislative Council but then it was proposed to change it to the General Affairs and Legislative Council together, so you extended the existing General Affairs Council mandate. Now, effectively, you have in the exercising GOC an agenda item at every meeting called Reports from other Council Formations, what these different councils have been doing, legislating and so on, so you could regard it as a kind of expanded version of that agenda item, and if that was the case then fine, normally it just goes through on the nod, but if there is an ambition to reincarnate a full-blown Legislative Council that is not something we would be prepared to go along with. Q34 Mr Tynan: Minister, Mr Connarty touched on the Foreign Affairs Minister in kind of competition with the President, or the proposed Presidency. Obviously the fact that 25 countries are going to be part of the European Union and the smaller countries in particular enjoy their time in the sun is in strong opposition to the proposal that there are strong rules about the presidency. There is a feeling at the present time that the smaller countries have been successful in watering down the role of the new President. What would your view be on that? Peter Hain: There was an ambition on the smaller countries to do exactly that. First of all, some of the smaller countries like Sweden backed us all the way, Denmark supported us, and there were changes along the road through the process of the Convention, but when they realised that it was something that was either going to happen or the Convention would be in deadlock they then changed to try to reconfigure the job description and strip away some of the role to do exactly that, and to confine it to just chairing the European Council meetings, whereas we wanted it to co-ordinate the whole work of governments in the European Union including Councils of Ministers, and we have achieved that to all intents and purposes, so I think we have exactly what we want which is a strong representative of governments at the top of the European Union, and I would have thought that would be welcomed by everybody who wants to see the European Union as a partnership of sovereign nation states, not a federal super state. Q35 Mr Tynan: So the view expressed that the Council President has been talked up to be considerably more important compared to the Commission and the Foreign Affairs Minister you would dispute? Peter Hain: I would strongly dispute it. The Council President has the same role as the job has now, pretty well, and I think once that person has been appointed, beds down and starts to operate, then it will become an increasingly formidable role just because of the nature of the way the world is changing, and governments and prime ministers and presidents, heads of other governments, are increasingly seeing the European Union for what it is - a very important, and growingly so, agency for achieving national interests. Having somebody who is there as a full-time person based in Brussels, able to negotiate with the Commission President and the European Parliament President on governments' behalf continuously rather than with prime Ministers or presidents who have to do the awful job of heading up their own governments - it has become increasingly impossible to do both of those things. Q36 Mr Tynan: I understand there is no proposal for the President of the European Council to have their own cabinet: that no longer exists within the proposal that is on the table at present. Is that not a weakening of the position? Peter Hain: No. We did not want a rival bureaucracy set up, or a great big institutional apparatus to underpin the role of the President in the Council. We wanted pretty well the existing Council secretariat to do that job so no, there was no real, as it were, knock back on that position. Q37 Angus Robertson: Minister, can I move things on to the common foreign and security policy? As you will be aware, probably, the German foreign Minister, Joschka Fischer, not long ago proposed the creation of a diplomatic service for the European Union and that it should be under the control of the new EU Foreign Affairs Minister. Can I ask you what the government's view is on the proposal to create such a foreign service for the European Union, and should such a service be under the control of the new Foreign Affairs Minister or, indeed, the Commission? Peter Hain: Well, the idea of, as it were, a fully fledged European diplomatic service was not taken forward by the Convention though it was, as you imply, advocated, and we argued against it. What we did argue for, however, was an end to the ridiculous situation where Xavier Solana, the high representative, as he gave evidence to us demonstrated, could travel to Washington representing the Council and governments but not be able to use the European Union's Commission staff there. This is a ridiculous situation because he was representing the Council, not the Commission so we now have a situation where that artificial distinction is going to be broken down. Already, there is a sensible co-operation amongst European Member States: we represent some Member States in African countries, for example, and they do the same for us in areas where they have a traditional, historical relationship, and we do not have the resources to put in a proper mission. So I think that kind of co-operation will go. But arrival of a diplomatic service? No. Q38 Angus Robertson: In five years' time you do not imagine that there might be even only a small diplomatic service working for the Foreign Affairs Minister? Peter Hain: Yes. Perhaps I need to clarify what I said. There are proposals for a diplomatic service but not as a rival. I think some in the Convention saw that like they saw Europe taking our seat in the Security Council, they had that ambition - well, all of that was defeated within the Convention and we had a much more common sense approach. Q39 Mr Marshall: Could I just probe a little on the role and the position of the European Foreign Affairs Minister? From what you have said, Minister, it appears that the British government is in favour of that position: I wonder if you could make that clear? Secondly, even though the government may be in favour, do the government not see that they could well be in serious difficulties with the duality of the role of this person? You have mentioned one example of where Xavier Solana, when he is at the United Nations, might be in a better position to negotiate if he could use the Commission's staff or whatever, but is not this the crux of the potential problem? That you cannot on the one hand be serving the Member States where the national interest is paramount - you have mentioned that in terms of the common foreign and security policy - but at the same time be a Vice President of the Commission, because in many cases their interests are different. The Commission has got this urge to extend qualified majority power all the time whereas presumably the European Council in charge of common and foreign security policy is opposed to that, and there is a potential danger if you put all of this responsibility in one person? Peter Hain: There is obviously a concern about that and I understand that, but the original proposal for this double-hatted figure, as it came to be known at the Convention, was for a takeover by the Commission through the back door of the common and foreign security policy, and there were still those who wished to see that - if you like the federalists' convention. We saw them all. But to give you another practical example -- 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, Xavier 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 II 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 a 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. |