Examination of Witnesses (Questions 40-59)
11 DECEMBER 2003
RT HON
JACK STRAW
MP, MR KIM
DARROCH CMG AND
MR JOHN
SAWERS CMG
Q40 Andrew Mackinlay: This actually operates
on 1 May because there is no treaty and therefore there will be
a very enlarged Commission, will there not, whatever happens?
Poland, Hungary, the Czech Republic, Estonia, Latvia, Moldovia,
they get a commissioner, do they not? How does that work?
Mr Darroch: They do get a commissioner
each, yes. How we work out that period when existing commissioners
all have their portfolios and we have the extra commissioners
coming in but there are no portfolios to distribute to them until
the new Commission comes in in November of next year is still
to be decided.
Q41 Andrew Mackinlay: In November next
year Nice still operates, does it not? Will the treaty trigger
from then?
Mr Darroch: But this Commission
finishes at the end of 2004.
Q42 Andrew Mackinlay: I do understand
that. At this moment in time we are heading for a Commission of—help
me—28?
Mr Darroch: Twenty five. Under
Nice you get a commissioner each, one commissioner per country,
so we will be on 25 commissioners from November.
Q43 Andrew Mackinlay: But we have not
discussed how that should operate because you hope to avoid it
by the treaty, do you?
Mr Darroch: No. There will be
a period under the Nice treaty when we are at 25 commissioners
and it will be for the new President of the Commission to decide
how to allocate portfolios at that time. The problem is the interim
period when you have in theory commissioners from the accession
states but all the jobs already distributed.
Q44 Andrew Mackinlay: They will be like
non-executive directors, will they? Would that be a fair analogy?
Mr Darroch: We
have to work it out.
Q45 Ms Stuart: I was very struck when
I looked at the Italian notes that there was a special protocol
on the Danish opt-outs. Why is it necessary to spell those out
and how is our opt-out protected? I would be grateful for an explanation.
Mr Straw: Mr Darroch is the expert
on that. Mr Darroch: What the Danes are seeking
is a different opt-out from their existing opt-out in relation
to justice and home affairs. They want an opt-out that is like
ours, which is an opt-in. It gives you the option of opting in
to those bits of Justice and Home Affairs that you want to. They
have asked for a redrafted Danish protocol which looks like our
protocol and that is why there is a special negotiation about
the Danish protocol.
Q46 Ms Stuart: If someone says, "Where
can I see in this draft that the British opt-outs are protected?",
which page do I go to?
Mr Darroch: It is obviously a
key objective that the British opt-outs are protected in their
entirety. It is not in the text that the Presidency have circulated.
The final bit is still being worked out with the lawyers.
Q47 Mr Maples: Foreign Secretary, I just
want to take you back, and we went over this last time, to the
Charter of Fundamental Rights. I do not intend to labour the point
and you came back to the Committee with some explanations of Articles
51 and 52 that obviously the Government has had some say in inserting.
I simply put it to you that this is still full of ambiguities.
I do not think you need to be a very good lawyer to be able to
get the Court of Justice to find a way of using this charter to
affect, or at least guide, the way in which it interprets the
rights of the European Union and the powers of the European Union
to do things. For instance, it says that the charter does not
extend the field of application of Union law beyond the powers
of the Union or establish any new power or modify powers and tasks
defined in other parts of the constitution, but that is not an
exclusive removal of the effect of this charter on things that
the European Union does any more than this clause 52.5 which you
referred to because it is not clear, I do not think, which parts
of the charter contain principles and which do not. I would suggest
to you that if what you are saying in your letter[19]
in response to what Ms Stuart and I raised last time is correct,
if your interpretation of these articles that the Government has
put in is correct, then the charter effectively has very little
legal significance at all, which is, I imagine, the way that both
the Government and I would want it to be. We want to have it laid
down what the powers of the Union are and not give the Court of
Justice, which has a very constructivist approach to the treaties,
all sorts of avenues down which it might go. If that is the case,
why do we not just simply seek to have it taken out? I see the
charter as a series of aspirations. It is a statement of some
fairly common, political, non-legal principles. I think most of
us could subscribe to it as a philosophical statement of good
intentions, but there is a huge danger, I would suggest to you,
and the Government must agree there is a huge danger or it would
not have sought to get these parallel articles put in alongside
it. Would we not be better just to say "Let us leave this
out. Let us not even leave the possibility that the ECJ[20]
could start using these articles in the charter to affect the
way in which it interprets the Union's powers"?
Mr Straw: I understand the point
you are making, Mr Maples, and I have some sympathy with it. Had
it been that we had not been able to achieve the horizontal articles
which are to be found in Articles II-51 to II-54, then the case
you make would have been almost conclusive, but what we are dealing
with here is essentially different political cultures and for
almost all Member States, apart from the UK, they are very relaxed
about these proposals in the charter because they are comfortable
with the idea of written constitutions which have aspirational
human rights written in as well as detailed rules about how governments
should operate. In the UK, because there is no single written
text containing our constitutional arrangements, we have a different
political culture although we are moving down this road as we
have done through the Human Rights Act of 1998. What we have sought
to do, and I believe successfully with an addition which is now
reflected in the latest Presidency proposals, is to ensure that
the risk of which you speak does not arise in practice, so you
propose one route to avoid the risk; we are proposing another.
The addition which we have sought and which is now reflected in
Annex 4 of the Presidency proposals, is that in the preamble there
is reference to the explanations and then there is a declaration
of incorporation which takes note of the explanations and the
explanations go into some detail about their status and I will
make sure that they are made available to the Committee.
Ms Stuart: Can I just say that
that is a huge achievement. That was massively resisted. Congratulations
on having got that out.
Q48 Mr Maples: I am not quite clear which
is the bit in Annex 4 that would now be added to these articles.
Mr Straw: I am talking about Annex
4 of the Presidency proposal of the 11th.
Q49 Mr Maples: Mine says the 9 December.
Mr Straw: Sorry, the ninth. Annex
4 has a block saying "Explanation relating to the Charter
of Fundamental Rights".
Q50 Mr Maples: And this will all be inserted
into the treaty?
Mr Straw: Yes. The first paragraph
goes into the treaty; it says the fifth paragraph of the preamble.
The second paragraph is a declaration which is incorporated in
the final act.
Q51 Mr Maples: I will read that. As Ms
Stuart says, this is a considerable achievement and I am delighted.
I simply put to you that there is very great danger in this and
the horizontal articles, as you call them, seem to me to be not
drafted in the way in which we would draft a British statute or
the way in which British lawyers would like to tie things down
much more neatly and tightly. We may well come back to this. I
really do hope that you are right but I suspect that you are not
and that the European Court of Justice will find a way round this.
Mr Straw: Maybe we should have
a side wager on this, Mr Maples, but I think I will be right.
I also say, as the minister who sponsored the Human Rights Act
in this House, that there was broad agreement behind it by both
parties but quite a lot of anxiety that it would tie us down.
In fact, it has not. It has been sensible and what our courts
are now doing is getting used to declaratory rights and being
intelligent and imaginative in their application.
Chairman: We had better leave it there.
Mr Maples will look at your explanation.
Q52 Mr Pope: When I am successful in
persuading the Foreign Secretary of the wisdom of holding a referendum,
how will I persuade my Muslim constituents to vote for the constitution
if there is a reference to Christianity but not to any other religions?
Mr Straw: With difficulty, and
I am not intending that they should be. I refer to a speech I
made last night organised by the Muslim Council of Britain at
the Foreign and Commonwealth Office to celebrate Eid.
Q53 Mr Pope: Could I ask for further
clarification? Is it the British position that there should be
no reference to any religion or that there should be reference
to more than one religion?
Mr Straw: I did not take up the
Chairman's invitation right at the beginning of this session to
offer odds for completion of this treaty draft by the end of this
weekend. However, I would put quite a lot of money on there being
no change to the preamble except the possibility that the quotation
from Thucydides may be removed because Erkki Tuomioja, the Finnish
Foreign Minister, believes that Thucydides is not the best person
to pray in aid on the principle of democracy and has advanced
various arguments to this effect. I do not think it will be there
and the point I have made often enough in the room as well as
publicly is yes, of course, we have a Judaeo-Christian heritage,
but we also have a Muslim heritage. Go to southern Spain, go to
parts of France, go to parts of Italy, do not forget Turkey. What
about countries in the Balkans? We are talking about the history
there as well as the fact that today we have very large Muslim
populations and, I may say, Hindu, Sikh and Buddhist communities
as well, in many countries of the European Union.
Q54 Sir John Stanley: Foreign Secretary,
can I come to Iraq? You say in your paragraph 18, "The Iraqi
Governing Council's transitional plan for the transfer of authority
in Iraq is likely to be discussed". Do you believe that there
will be widespread agreement at the Ministerial Council on the
transitional plan which has now been agreed on the basis of the
one put forward by the provisional authority and endorsed by both
the United States and British Governments?
Mr Straw: I think so. It is, frankly,
at the moment work in progress. I do not think there is going
to be a great deal of discussion on that particular aspect, as
you will be aware. Since the agreement in mid-November there have
been further discussions in the Governing Council. There is the
issue of the position of Ayatollah Sistani, so it is in a slight
state of flux. I do not honestly believe that a great deal of
time will be spent on this. I do not know whether Mr Sawers wants
to add anything.
Mr Sawers: I was not sure which
council you were referring to, Sir John. Was this the Governing
Council in Iraq or the Council of Ministers in the European Union?
Q55 Sir John Stanley: The Council of
Ministers of the European Union, whether the Council of Ministers
of the European Union are going to be signing up to what has been
agreed by potentially the British and American Governments and
the Governing Council in Iraq.
Mr Sawers: I have discussed this
with many of my colleagues and there is in general wide support
in the European Union for the clearer timetable. There is a difference
of view on whether it can be done by this month or by that month,
but even those who were most reluctant and most opposed to the
conflict in the first place welcome this new plan as a step in
the right direction and believe that it is a move to be welcomed,
so I do not think there will be opposition within the European
Union to this plan.
Q56 Sir John Stanley: One final specific
question on reconstruction, Foreign Secretary. Is it the British
Government's policy, as it apparently is the American Government's
policy, that firms within those countries who did not support
the war should be debarred from getting the ability to bid for
the reconstruction projects in Iraq?
Mr Straw: I do not think we have
got any formal policy to that effect.
Q57 Sir John Stanley: Have you got any
informal policy?
Mr Straw: I do not think we have
either. If I am wrong about that I will write to the Committee.
May I just say this, Chairman, that this was a decision made by
the United States Congress about how they spent their tax dollars,
and it is for any sovereign parliament to decide how their own
taxpayers' money should be spent. This needs to be seen in the
context in which, whilst main contractors will be limited to a
list of those countries which have taken part or have been close
allies of the United States, my clear understanding is that there
is no restriction on companies based in other countries being
subcontractors to some of these main contractors and that they
will be very substantial. There are other funds which have been
allocated and approved by the United States Congress which can
be used for contracts with non-ally third countries. The other
point to be borne in mind is that the United States taxpayer is
making a phenomenal contribution to the reconstruction of Iraq,
which in turn is going to benefit the economies of the whole of
that region and also help to trigger the very substantial donations
in the Madrid Conference, so this policy, although I realise it
has caused concern in some quarters, needs to be seen in the round.
Andrew Mackinlay: Two very quick
points if you have time, Foreign Secretary. You and Denis MacShane,
and I welcome this, have recently referred to the President as
the Chairman. I wonder if that could be incorporated in the English
text and/or if you can amplify upon that. Your colleague, Mr Darroch,
did say that the Commission, after accession but before this comes
into place, has yet to decide. I do not want to labour that this
morning but it does seem to me that it is an issue which would
normally preoccupy us as to how the mechanics, the rubrics, of
the Commission work. Perhaps that could be the subject of a note.
The substantive matter which I wanted to ask was this. I remember
in one of these hearings about a year ago—I think it was
with an official; I do not think it was a minister—we asked
about how with the accession of Cyprus into the Union we would
cope with the fact that the people of the Republic of Cyprus are
everybody who is a citizen and that includes the Turkish part
and so on, and how were we going to deal with the question of
free mobility of labour, etc, and at that time your colleague
kicked it into touch. I have no complaint about that. He said
it really was not resolved. We are now coming up to the deadline.
How are we going to deal with people who claim to be citizens
of the Republic of Cyprus for purposes of travel but are working
and living in the Turkish occupied area? It has not been explained
to us how it is going to operate and I think it is a major issue.
If you want to do it by a note that is okay. The second point
which flows from this is this. I remember Robin Cook, when he
was before us, acknowledged . . .
Mr Olner: Ask a question.
Andrew Mackinlay: I am putting
one.
Chairman: We have to finish in five minutes
and I wish to raise Gibraltar.
Andrew Mackinlay: I have suggested
that one of them can be by a note.
Chairman: That is fine. And the second
one?
Andrew Mackinlay: If that is the
mood of the Committee it is all right.
Chairman: You are entitled to put the
question, but I want to get two questions in on Gibraltar.
Q58 Andrew Mackinlay: Carry on. It is
all a charade anyway.
Mr Straw: Mr Mackinlay, on Cyprus
we will let you have a detailed note[21]
about this but it will be much more satisfactory if a united Cyprus,
a geographical Cyprus, becomes a Member of the European Union.
We will be revisiting this matter very actively in the light of
the elections which are being held in northern Cyprus this weekend.
I have been in touch with both my Greek and Turkish counterparts
about this as well as the Greek Cypriot Foreign Minister. It is
always a possibility that the Republic of Cyprus, in other words,
as it were, for the time the Greek Cypriot part, is all that accedes
in membership to the European Union. That is the default option
and we have to work round it but on the details that you have
raised I will ensure you are sent a note.
Q59 Chairman: Minister, you know the
Committee takes seriously our relationship with the Government
of Gibraltar. You will know of various concerns. May I put two
such concerns of the Government of Gibraltar to you for your comment?
First, for the first time the treaty refers to the principle of
territorial integrity and there is a fear that Spain might suspend
her obligations to Gibraltar considering the deposition is based
on territorial integrity. The second concern of several which
I would like to put to you is this, that Gibraltar's participation
in the Third Pillar intergovernmental measures was negotiated
on a case-by-case basis. Justice and home affairs falls into this
category. The question now is, will Spain be able to exclude Gibraltar
from measures building on the existing Justice and Home Affairs
issues? To what extent have the Government considered these two
concerns and sought to meet them?
Mr Straw: I am going to ask Mr
Darroch to deal with your first point, but on the second point,
as you acknowledge, at the moment the territorial application
of the so-called Third Pillar items under Title VI of the TEU[22]
is decided on a case-by-case basis. Under the new treaty all future
JHA measures will apply to Gibraltar, in other words they will
apply, full stop. We do not have to see this as a problem and
it is a logical step following the precedent under the Treaty
of Amsterdam when Title IV as opposed to Title VI of JHA measures
covering areas such as immigration and asylum were extended to
Gibraltar.
Mr Darroch: On the first point
of territorial integrity, we have looked at this provision quite
carefully and have consulted our lawyers and we do not think that
this is a problem or a threat for Gibraltar, but on the precise
legal analysis of why we think that we had better write to you,
Chairman.[23]
Chairman: Foreign Secretary, it is going
to be a very busy couple of days. We wish you and your colleagues
well. Thank you.
19 Please refer to the further memorandum submitted
by the Minister for Europe, Ev 20 Back
20
European Court of Justice Back
21
Please refer to the supplementary memorandum submitted by the
Secretary of State for Foreign and Commonwealth Affairs, Ev 40 Back
22
Treaty of the European Union Back
23
Please refer to the further supplementary memorandum submitted
by the Secretary of State for Foreign and Commonwealth Affairs,
below
Back
| 
