Examination of Witnesses (Questions 20-39)
31 MARCH 2004
MR DENIS
MACSHANE
MP, MR SIMON
MANLEY, MR
TOM DREW
AND MR
ROB TINLINE
Q20 Mr Cash: Yesterday on the floor of
the House, as you remember very well, Minister, we had a bit of
an altercation, and with the Foreign Secretary, on paragraphs
157-163 of the House of Lords' Report on The Future Role of
the European Court of Justice which was published a few days
ago. My first question is, do you agree that it is essential to
know where the dividing line is between EU competence and national
competence and who will adjudicate on this, the European Court
of Justice or the national courts? This is basically what we call
the KK question about primacy.
Mr MacShane: This is one of the
most interesting legal discussions in current international legal
theory and seminars, conferences, books are written about it,
speech after speech after speech. It is called the competence-competence
issue. I am not doing the full German pronunciation but it begins
with a "k" in each case. The debate is who has competence
over who.
Q21 Mr Cash: It is KK, not OK.
Mr MacShane: It is a perfectly
valid point of greater interest in a constitutionally federated
state like Germany where someone has to adjudicate between the
different federal components of the state and the Karlsruhe German
constitutional court is concerned about its own prerogatives.
I would draw the Committee's attention to paragraph 162 of the
conclusions of the House of Lords' European Union Committee Report
out just recently called The Future Role of the European Court
of Justice. Paragraph 162 says: "In practice, competence-competence
issues may be no more likely to arise in future than in the past.
Were a problem to arise, the community courts and national courts
would and should seek to work together in a spirit of mutual respect
and co-ordination". In other words, if one court says "we
are competent to define the interpretation of our national law
and, indeed, other international law, at what stage does the European
Court of Justice lay claim to have superior competence. Yes, it
is a tricky area but it always has been and has been since 1957.
In the 1972 European Communities Act we wrote into our law that
the European law would have primacy in the areas where European
law needs to be applied. We need that, it is absolutely vital,
vital protection, I put it to the Committee, for British national
interests in the area of securing a single market. Without the
threat of the European Court of Justice hanging over the heads
of France, I do not think the French would have lifted their ban
on British beef. I tracked French public opinion and there was
very, very aggressive hostility to what they perceived as being
a very lax Government approach before 1997 to assuring the safety
of British cattle. The European Court of Justice clearly had competence
in that area and it made the French Government think again. As
I say, we can rerun yesterday's debate if you want, Chairman,
and Mr Cash and I had exchanges, he had a point of order which
the Speaker ruled to be a debating point, but—
Mr Cash: We are here in a Select Committee,
Chairman, if I could continue with my questions because these
are very, very important matters.
Chairman: You can certainly ask your
questions, Mr Cash.
Mr Cash: I will indeed. The same report
in paragraph 159 says that the Treaty provides for the classification
and division of competences set out in the Treaty and adds: "The
critical question is which court, the Court or national courts,
will finally decide whether a matter falls within Union competence".
The Minister has just indicated that he sees this as a very important
question. They go on to say: "This is not just a drafting
question, but an issue touching on the fundamental nature of the
Union and its relationship with the Member States". I heard
the Minister a few minutes ago talking about referendums as being
ridiculous, but the whole basis of the Government's view about
such matters as referendums depends on whether or not there is
or is not a change of a fundamental nature of the Union and its
relationship with the Member States. If the House of Lords is
right then it follows that there ought to be a referendum because
one cannot survive without the other.
Chairman: There is a question coming,
is there?
Q22 Mr Cash: The question is where they
say that they want the Government to provide their views on this
important question, which is set out in paragraph 163, "The
Government should set out their view on the Kompetence-Kompetence
question", surely this is now the time, being the Minister
responsible for this and having read this report quite obviously,
to give us the view of the Government on this issue. What is the
Government's view?
Mr MacShane: The Government's
view, Chairman, is very simple. We have not provided our formal
reply to the House of Lords' Report and it would be improper for
me, as it were, to anticipate what will be a very considered reply,
particularly checked by legal officers because this has got real
legal brainpower put into it by Members of the House of Lords'
Committee with a judicial background, but conclusion 161 says
quite clearly "The draft Treaty does not resolve the question
of Kompetence-Kompetence" because in a sense it cannot, it
is an eternal debate. It goes on to say: "However, the draft
Treaty reaffirms and strengthens the position of the national
courts . . ." I welcome that as someone defending our national
judicial system, ". . . by seeking to define the division
of competence and by restating explicitly the principle of conferral".
As all Members of the Committee will be aware, this refers back
to Part I, Title III Article 9.2 of the Union competences which
states: "Under the principle of conferral the Union shall
act within the limits of competence conferred upon it by the Member
States". This is the absolutely fundamental point about this
new Constitutional Treaty. It states in terms that the European
Union has the right to act within the limits of competence we
give to it conferred upon it by the Member States and the European
Court of Justice then operates again, in my analysis, within that
limit. Okay—we are repeating yesterday's debate—if
you do not like any of this we have an option and that is to leave
the European Union. If we want to have any shared competences
of any sort on the Single Market or any other area, we will need
an arbiter to tell us what it is and the Treaty as defined, and
the House of Lords Select Committee's report, makes clear the
strict limits of this. We can ping-pong endless quotes out of
these conclusions, Chairman, we did a bit of it yesterday, we
are doing more of it today. I defy anyone to read the conclusion
in paragraphs 155-174 of this excellent report, and there are
areas of ambiguity, I accept that point, but the main thrust is
that it is "a reaffirmation and strengthening of the national
courts" and in paragraph 157 it states: "The Constitution
makes clear that primacy only applies to the constitution of Union
law that has been adopted in exercise of the competences that
have been cited to institutions".
Chairman: Hold on a minute. I am sure
this is a very interesting report and I am sure when all of the
Members read it they will be even more interested in it but the
purpose of today's evidence session is not to discuss the House
of Lords report. The point has been made and there are other Members
who want to ask questions.
Q23 Mr Connarty: Minister, on the question
of tax and social security I might make the judgment that in negotiation
there have been some very practical and sensible steps taken by
all of the parties, including the United Kingdom. It does appear
clear that QMV is now going to be provided for in terms of tax
on administrative cooperation, tax fraud and tax evasion and some
company taxation matters. On that tax position it does seem that
the red line now is "as long as it does not affect the fiscal
regime of the United Kingdom", which appears to be the definition.
How can you do these things and also in some cases use QMV for
some company tax clauses without affecting the fiscal regime?
I am not saying it is a good or a bad thing I am just saying it
does seem to me we have moved to a more reasonable position in
what is supposed to be a free market. On social security, it does
appear that social security for migrant workers has been moved
from a position of unanimity in Article 42 to QMV despite the
United Kingdom's opposition. Though there is, again. an ability
to call into question any changes that might infringe the United
Kingdom social security system there has been a move. It does
seem in a free market you may have to do these things. The red
lines may be there but they have moved in stages towards what
is more of a free market principle than we had in the original
discussions.
Mr MacShane: Mr Chairman, Mr Connarty
is right to draw attention to Part III of the Constitutional Treaty
Articles 62 and 63 where in essence there is, in my judgement,
the contradictory language he talks about in the Council of Ministers
acting unanimously, in other words each country have a veto and
then says for the implementation of that unanimous decision Qualified
Majority Voting may be possible. We are certainly not happy with
this and this is an area where we need to get the language a lot
tighter and clearer. Our core principle is set out in the White
Paper—that was put to Parliament and it was adopted by Parliament—to
change that we would have to come back to Parliament. The Foreign
Secretary was very clear in his instructions to our negotiators
that this is the White Paper which must guide our hand as we move
through the next round of finding a text that may or may not be
presented at the end of June. You are right to draw attention
to this, I fully accept that. It bears different interpretations
but we do need to have clarity, certainly on social security,
that is Part III, paragraph 21. That language there is unacceptable,
we have to change it.
Q24 Jim Dobbin: The first part of my
question the Minister answered in response to Mr Heathcoat-Amory
earlier on, going back to a possible red line issue, the provisions
requiring respect for the common law tradition and the "emergency
brake" allowing a Member State to refer a proposal to the
European Council have been criticised by some Member States, will
the United Kingdom consider making that a red line issue?
Mr MacShane: Our view is that
key areas of criminal procedural law have to be maintained as
a matter of unanimity, in other words of national discretion.
There is a slightly mistaken belief that there is British legal
tradition and then there is a uniformed continental legal position.
That is not the case. Each country has very varied legal tradition
and they all understand that their people do not want to see those
altered or controlled by Brussels in any way. Equally there are
areas where we need to co-operate. I was criticised after a Today
interview by some of the press for talking about the European
Arrest Warrant. We already have agreement on that, in fact it
is other governments who are blocking it or other vested interests,
other countries who are blocking it. I think for dealing with
the mafia, dealing with organised crime and dealing with terrorism
a European Arrest Warrant is a very good thing. We already have
an order to give effect to competition law and the power for investigators
to come into companies to seize documents if they suspect a cartel
is in operation. I also think it is useful to have certain minimum
standards, that is to our benefit, because we want our British
citizens when they are arrested to have the fairest possible treatment.
You can do that through bilateral diplomatic protest, and I have
been involved in one or two cases in the excellent organisation
which Mr Jacobi runs called Trials Abroad. It is far better we
seek to have with a very light touch some minimum standards across
Europe that all European citizens know if they are arrested for
any reason these are their rights. I do not want to say that it
is impossible to debate the issue in a broader European context
but I do insist that key areas of criminal procedural law are
the ones which matter, habeas corpus, trial by jury, and
they are not going to be transferred in any way to the jurisdiction
or oversight of Brussels.
Q25 Chairman: Minister, I now want to
move on to number five, questions on terrorism itself. How do
you respond to criticisms that not all the proposals in the Declaration
on Combat Terrorism relate to terrorism as opposed to crime generally?
Mr MacShane: It is a fine dividing
line. I have long been of the belief, and have made many speeches
to the effect since I have been a Minister, dealing not just with
Europe but with other parts of the world where the linkage between
terrorism, drug smuggling and people movement could all be hugely
aided by much greater transparency in financial flows. The issues
of banking secrecy, tax evasion and tax havens are, in my view,
very closely linked to terrorism. If you cut off the financial
source of the terrorist you will deliver them a very serious blow.
On data protection, this morning I read that finally European
countries have come round to accepting our point of view that
mobile phone records should be kept for a longer time to be accessible
to police officers. I do not know anything about what happened
last night and the reports which are in the paper today but I
suspect some interception of telephone tracking may have contributed
to that. It seems to me to be an absolutely indefensible part
of fighting crime. One way of dealing with terrorism is to treat
it as a heinous criminal act and to employ the full force of criminal
investigation to undercover the perpetrators.
Q26 John Robertson: Page four of the
Declaration refers to the examination of proposals for the retention
of communications traffic data, what data are involved and why
should the data be retained?
Mr MacShane: As I just said, it
is to provide access to investigators of communications which
they suspect may lead them to find the perpetrators, planners
and terrorists of criminal acts. It is a debate, of course, which
we all have to have continually between the right to privacy and
the protection of traditional civil liberties and the right to
protect ourselves from terrorist activity or serious crime.
Q27 John Robertson: Who would have access
to that?
Mr MacShane: I assume the appropriate
police authorities in the national countries who share an awful
lot of information as to the intelligence and security in discussing
their assessment of the threats that individual EU Member States
face, whether from crime or from terrorism.
Q28 John Robertson: What is the likely
cost to the service provider? Is the proposal proportionate to
the likely effect on the prevention and detection of terrorism?
Mr MacShane: I will have to write
to you on that, I do not have that detail at my fingertips.[1]
Q29 John Robertson: Who will check that
there is not an infringement of human rights in this?
Mr MacShane: This is part of that
debate we are having in our own country, and we want to get the
balance right. I believe myself that most European citizens are
content to see more access of financial traffic and telephone
traffic to investigators if it helps to track down terrorists
and serious crime. Exactly the same objections were raised about
the European Arrest Warrant when it was first mooted. I do not
know if there are many Members of the House or many Members of
the public who would now say we should not have a European Arrest
Warrant even if there are some gentlemen somewhere who remain
opposed to it.
Q30 Mr Cash: I would certainly be one
of them. Could I say this, with regard to the dividing line in
relation to what is in the national interest in relation to the
question you have just been asked and what the European Union
Treaty provision is and the division of confidence do you not
think a new red line would be a good idea, namely to have a provision
put forward by the Government and that we would pass an Act of
Parliament, the effect of which would be to say that our courts
would be obliged to follow the latest inconsistent enactment provided
it was clear and unambiguous if it happened to differ from the
European Community's Act 1972 or anything which arose from it
flows so that then the judge in this county would be able to determine
the matter in the context of British domestic constitutional law?
Mr MacShane: Mr Cash, you are
driving me back on to one of your favourite terrains. I am happy
with the red lines we have in the White Paper, I do not want to
detract from that.
Chairman: We have moved on to terrorism
as well!
Q31 Mr Tynan: The European Council recently
passed a Declaration regarding combating terrorism, obviously
we need as much support as possible within the European Union
and on a worldwide basis in order to defeat terrorism, how does
the Minister feel about cross-border pursuit, ie the French foreign
police and security forces carrying out operations in the United
Kingdom? Would you be content with the French police pursuing
operations in Kent from their control point in the Channel Tunnel?
Mr MacShane: Whenever I go to
Brussels I go through that fine noblely entitled railway station
called "Waterloo" which means so much to the French
and there is a gentlemen there in a French képi controlling
my passport. I am afraid the French are already here, just like
when you get on a train at Gard du Nord you will find a sturdy
British official keeping a beady eye to make sure that only honest
men and women bringing back their brioche get on the train. I
think this is a thoroughly good thing. Cross-border hot pursuit
is less an issue for us than I imagine it might be. For example
if you drive between Italy and France now there is no border,
it is like driving between England and Scotland, I assume the
police in Cumbria are allowed to cross—it is something that
the Scottish nationalists have not stopped yet—in hot pursuit
of a criminal.
Q32 Chairman: Please do not rise them,
they do not need any encouraging.
Mr MacShane: We need much more
cooperation. Let us get it clear, all national states in the European
Union are developing with increasing rapidity measures to do with
how to counter terrorism. The appointment of the new coordinator
Mr de Vries is not to take over control of that but to put some
energy into asking these committees to produce more rapid work,
and bring it all together to coordinate it. I think we have decided
to set up a counter-terrorism intelligence assessment unit and
that is going to be a unit that will bring together the data of
primary sources and national intelligence and security agencies.
I suspect it is in the coordination, cooperation and consultation
field that we are trying to increase the energy and have more
control, not substitute something in Brussels for what is much
better done in London, Paris, Berlin, etc.
Q33 Mr Tynan: That was a wonderful response
but the question was not regarding passport control it was regarding
a situation where the French authorities were pursuing someone
on suspicion of terrorism on to British soil and the question
asked was, were you content with that? Were you happy with that?
It was direct question.
Mr MacShane: We are talking about
"pursue", we have the Channel Tunnel so there is a bit
of a gap there. We have got to get into the technicalities of
cross border pursuits, although they are more relevant for a country
with a common land border than for the United Kingdom, however
they do need to be worked out. I think what we need to move away
from at the moment is that if a police force in one country wants
to move against somebody in another European Union country the
permission chain has to go through three layers up to the Government
here and then down three layers to the governmental agencies and
the ministries of the country which the police force wants to
take action in. In moving through those layers leakage, delay,
bureaucratic impediments can happen, what we all want to do is
to strip that down to a minimum to make the international criminal
and terrorist feel that we will be much quicker on his tail. I
do not think we are going to have a knock on the door and Inspector
Maigret from Paris saying "hello, hello, hello I have come
to arrest you in the name of French law". I still think that
British national provision will maintain—I do not mean to
be flippant in any way.
Chairman: I do not think it was Maigret
who said "hello, hello, hello".
Q34 Mr Tynan: I know that co-operation
is necessary. I know we have to do things much more quickly and
much more effectively than we do at the present time. I come back
to the question, it was about a practical situation where the
French police were pursuing on British soil a fugitive they were
going to arrest and you would be happy with that, would you?
Mr MacShane: At the moment the
French police would have to tell their British opposite number
they are about to land or arrive if it was a matter of arrest,
and that will be maintained. In principle I am delighted if British
detectives are operational in European Union countries with the
knowledge of their colleagues to track down anybody that threatens
us as criminal, or worse.
Q35 Angus Robertson: This is a small
point, can I suggest that the Minister look closely at the arrangements
between the different criminal jurisdictions in England and Scotland
as being a good model for allowing hot pursuit. It works at the
moment, there are minor issues but they are minor. The Minister
was making a flippant remark earlier but it is a good example
of cross border arrangements.
Mr MacShane: It is an example
of how two quite distinct legal systems can cooperate. This notion
that somehow you cannot have two legal systems within one unitary
framework we prove the opposite in the United Kingdom.
Q36 Jim Dobbin: Minister, we are going
through the pages of the Declaration and we are on page five which
refers to a proposal for a European register on convictions and
disqualifications, what convictions and disqualifications are
concerned? Any conviction or only those relating to terrorism?
What is the purpose of the register?
Mr MacShane: I do not have a list
to give to you, Mr Dobbin, what we decided was that the direction
which the European Union should move and it is now up to experts
to draw up what might be contained in the list of disqualifications.
I have no doubt that will be discussed both in this Parliament
and elsewhere. We obviously want to get it right. We have to come
back with a directive or a legislative framework that we will
report to this Committee.
Q37 Jim Dobbin: That process is on going?
Mr MacShane: It is continuing
at the moment.
Q38 John Robertson: Why is a new intelligence
capacity needed by the Council? What would be the new unit's functions?
Mr MacShane: It is about bringing
together the assessments we have from national agencies and creating,
if you like, a central hub for the exchange of criminal intelligence
and to produce assessments at a more strategic level. If you like
to use that cliché, it is to try at a European level to
have a more joined-up administration of all of the different counter-terrorism
activities of the different agencies across the EU. It is about
consultation, coordination and cooperation, it is not about substituting
Brussels because the real work can only be done within a national
framework.
Q39 John Robertson: Would it have the
powers to require Member States to provide the intelligence they
possess?
Mr MacShane: No because at this
stage we are talking about assessments which are already shared
between intelligence agencies, certainly of the bigger EU countries,
it is not about gathering intelligence in any way but, as I say,
just trying to bring things together so that what Government A
knows but perhaps does not realise is relevant or important another
intelligence agency can say, "now we know that it fits into
our jigsaw" and then we can move forward. It is a question
of sharing assessments and not acting to set up any kind of European
intelligence agency in any way.
1 See page Ev 12. Back
| 
