Examination of Witnesses (Questions 1-19)
RT HON
JACK STRAW
MP AND MR
DAVID FROST
15 SEPTEMBER 2004
Q1 Chairman: Foreign Secretary, welcome
once again to the European Scrutiny Committee. We are a bit in
the hands of the gods today as we do not know if there are going
to be Divisions or when there are going to be Divisions. That
is outside our control. If that is going to happen, it will happen,
but we welcome you and David to our meeting. I will just kick
off without too much preamble. Foreign Secretary, the need to
bring Europe closer to its citizens was identified by the Laeken
Declaration as a central objective of the Convention. The Constitutional
Treaty appears greatly to increase the powers of the European
Parliament, an institution which fewer people are voting for,
except in the last election year where not enough people voted
for it. In what respects has the Constitutional Treaty advanced
the Laeken objective?
Mr Straw: I think it has advanced
the Laeken objective in a number of ways. First of all, there
is a single document (too long, but nonetheless a single document)
which does set out in a logical way how the European Union in
the future will work. Before, as you know, you have had to go
to essentially four overlapping treaties and if you really want
to know how it works you have then also got to look at some key
aspects of the European Court of Justice case law. Now in a logical
sequence you can see what the aims of the Union are, where its
powers come from and, as I said in the House last week, critically
(as Article I-9 makes clear) the powers derive from Member States
and the competences are governed by the principle of conferral.
Then, as you know, part two sets out the Charter, part three are
the very detailed Articles but they are all there, and in part
four there are various general provisions. And the Treaty includes
a provision by which Member States can, if they wish, withdraw
altogether from membership of the European Union, which again
underlines that this is a union established by international treaty
from which Member States can withdraw if they wish; it is not
a federal superstate in any sense of that word. So that is important.
On the issue of ECJ jurisdiction now being clear on the face of
it, the point about the reference to the primacy of European Union
law where it may be in conflict with domestic law, that has always
been the case, as we know. What we now have is that it is spelt
out on the face of part one of the text. So that is one thing.
Secondly, we are getting much improved systems for decision making.
There are many of those, but the most important one is to make
the voting system much more transparent. It is fundamental, it
seems to me, for any kind of democratic government to operate
for people to understand what is needed to make a decision. We
know what is needed to make a decision in the UK; it is half the
votes. Because this is not a federal superstate, where there is
not unanimity which is clear we have had to move to qualified
majority voting, which means, as it were, a super majority. But
the existing Nice system is unbelievably complicated and unless
you happen to know that it was got together in a smoke-filled
room in the small hours of the fourth night of Nice you do not
know what its reason is. What you see here is a very clear system,
which is, I may say, advantageous to the UK, which is 55:65 (55%
Member States, 65% of population). Then there is the issue of
the role of national parliaments and making all that transparent
through the subsidiarity protocol. On the issue, Mr Hood, of the
European Parliament, yes, it does extend co-decision. I do not
happen to believe that that is against the interests of national
parliaments but I am aware (thank you for letting me know about
this) that the Danish parliament, I think, has raised some issues
about how co-decision will work and whether it could undermine
the role of national parliaments. Whatever else people here may
feel about European parliamentarians, they are elected. They are
there to do a job. Generally, they do a job on behalf of their
Member States and, as colleagues from around the table may know,
I organised a full day seminar just a week ago for all Members
of the European Parliament elected from the UK, regardless of
party, because there was an overriding national interest. The
message to them (and they were briefed by officials as well as
by ministers) was that they should see the Foreign Office and
see government departments as a resource for them to represent
UK interests. So we are happy to look at the anxieties of the
Danish Parliament and I gather that COSAC are going to do so as
well, but I suspect their worries are unfounded.
Q2 Chairman: Well, you have pre-empted
my next question, Foreign Secretary, because I raised it at the
COSAC Chairman's meeting this week from the information we got
from our colleagues in the Folketing Committee in the Danish Parliament
and frankly it is quite alarming. Here we are talking about hoping
to increase the role of national parliaments within the European
Union and then we find out that the co-decision, which we think
is an extension of the democratic deficit we all talked about
years and years ago, is happening where there are something like
115 proposals out of 403 passed at first reading agreements, where
the agreements were done and set in stone without any involvement
whatsoever of the national parliaments.
Mr Straw: Sure, but that is where,
if I may say so, the subsidiarity protocol needs to apply because
the requirement under the subsidiarity protocol (and Mr Frost
can correct me where I err; he always does) requires that the
Commission informs national parliaments of all draft laws. Up
until now, although there has been a protocol about subsidiarity
there has been no mechanism. That has meant that in some systems,
including ours, the foreign ministries have taken it on their
shoulders to inform national parliaments. In many countries it
does not happen at all and therefore you can get this kind of
deal without it being scrutinised by national parliaments. But
if I may say so, Mr Hood, if the European Parliament had no role
and if you had a subsidiarity mechanism there is an even higher
likelihood of a deal being struck within the institutions (i.e.
by the Council of Ministers alone) and still less chance for there
to be an intervention by national parliaments.
Q3 Mr Cash: That does not give me complete
confidence in the system if in fact we look at what national parliaments
are. They are people who are gathered together representing constituents
and voters in general elections. The idea that the European Commission,
the European Parliament and the Council of Ministers effectively
can come to a deal to bypass the will of the electors of this
country in relation to many issues (for example, as our Chairman
has just indicated) is a complete outrage. It should be stopped,
should it not?
Mr Straw: Mr Cash, the European
institutions can come to a deal, as you describe it, whether or
not the European Parliament is itself involved. If we take the
European Parliament out of the equation altogether you can still
have at the moment, although not in the future, an arrangement
whereby the Council of Ministers and the Commission come to a
deal and that is then struck. So what you are objecting to is
a way in which the European Union generally operates at the moment
rather than to the involvement of the European Parliament.
Q4 Mr Cash: So you can see that what
I am saying is that it is effectively an undemocratic system,
bypassing the electorate of this country?
Mr Straw: No, it is not an undemocratic
system. I fully take on board the fact that you do not like the
European Union and you would wish us to be withdrawn from it.
That is fine.
Q5 Mr Cash: I never said that.
Mr Straw: Well, okay, but I can
be forgiven for thinking that!
Q6 Chairman: Could I just say that I
support the European Union and I do not want you to underestimate
how I am concerned about it. I am quite alarmed with what I find
out from information and the brief that came from the Danish Parliament.
What is happening here, to us at first sight and we are going
to investigate it now hopefully, is that things are being fast-tracked
through between the Commission and the European Parliament and
the Council without us as national parliaments having a sight
of it. I do not want, as a member of the Scrutiny Committee, to
rely on the information coming from the Government or the Executive,
which this Committee is supposed to be scrutinising. It is not
acceptable.
Mr Straw: Indeed, and that is
why we have been so active in supporting the subsidiarity arrangement,
so that you would not have to rely on the British Government for
the time that you do. Could I just say that the problem we have
with the "fast-track" (which is still getting on for
a year away, as Mr Frost has kindly reminded me) would arise to
an even greater degree, not a lesser degree, if the European Parliament
was not involved at all. Because then a deal could be struck simply
between the Commission and the Council, and indeed on those areas
where the co-decision is not involved it is struck. This other
point is really important and I need to get it on the record.
The governments who are represented around the table in the councils
of ministers all, without exception, derive their authority from
their own national parliaments, every single one of them, because
this is a democratic Union. So we are representatives of the national
governments and therefore not directly the national parliaments,
of course, but our mandate has to be delivered by the national
parliaments and we always have to take account of what our national
parliaments are going to say and do about the decisions we make.
Q7 Mr Connarty: Could I ask a simple
question. At what point in the procedure will this Committee or
the committee in this forum get notification and be able to scrutinise
the process? At the moment there are deep concerns that we are
not engaged early enough. Now we have the fast-track process,
which may exclude us altogether. So at what point will we actually
know what is being discussed?
Mr Straw: Well, this is Article
5 of the Protocol: "Any national parliament or chamber of
the Member States may within six weeks from the date of transmission
of a draft European legislative act send to the President of the
European Parliament, the Council and Commission a reasoned opinion
why it considers the draft in question does not comply with the
principle of subsidiarity." There was a requirement, I think,
earlier in the Article on the European Commission—this is
Article 4 of the earlier protocol, I think, on information to
national parliaments: Article I: "Commission consultation
documents, (Green and White Papers and communications) shall be
forwarded directly by the Commission to national parliaments upon
publication. The Commission shall also forward the annual legislative
programme as well as any other instrument of legislative planning
or policy to national parliaments at the same time as to the European
Parliament and the Council."
Q8 Mr Connarty: Then the question I must
ask is, can you give this Committee and thus Parliament a guarantee
that we will be notified in time to be able to apply that subsidiarity?
Mr Straw: Yes, I think I can.
Mr Frost: I think one can give
that guarantee because Article IV of the earlier Protocol says
that there has to be a six week gap between transmission and the
appearance of any proposal on a Council agenda. That is the reason
for the six weeks within which Parliament has to give its opinion.
So the Treaty should provide that Parliament will always have
sufficient time to give its opinion before anything appears on
the Council agenda. That is why the two periods are the same.
Q9 Mr Connarty: As we know, that timetable
can collapse and we have found this in the past. I am looking
for some kind of guarantee and therefore what I am asking is that
the process will be taken as seriously by the Executive as obviously
the Chairman tells you we take it ourselves.
Mr Straw: May I say that I take
it extremely seriously. As you know, I have sought within the
responsibilities of Government not to encroach on the prerogatives
of Parliament to get on the front foot on this issue for a variety
of reasons, including the fact that I am profoundly committed
to parliamentary democracy, but also from a governmental point
of view I do not happen to think that there is a clash or a conflict
between good decision making by Government and governments and
good scrutiny by Parliament. I think that one helps the other.
Q10 Mr Cash: Does scrutiny involve detail?
Mr Straw: Well, Mr Cash, it might
do. It depends obviously on the legal basis for any decision,
but if the legal basis for a decision is unanimity then for sure
if the result of the scrutiny—although the Article is about
scrutinising things on the basis of subsidiarity in terms of the
yellow card, the opinion of the Committee may be based on any
other issue. It will be based for sure on the merits of the case
and if this Committee is to say, "Look, we think this is
bad for following reasons, subsidiarity, proportionality, merit,"
or all three, then of course the Government would take account
of that, very clearly. We have to make the decisions because that
is the job of Government.
Q11 Mr Cash: What decisions could you
make?
Mr Straw: Well, as I say, if the
legal basis of the draft legislation was unanimity then we could
decide to veto it, in which case end of story. If it is by QMV
then we could decide to vote against it and if we had a blocking
minority we could stop it. If I may just say, Mr Hood, one of
the things which has not really been written up is that initially
under the fresh proposals the voting system, which is uncontroversial
in the UK, was 50:60, 50% of Member States and 60% of population
and that is now 55:65, and that actually helps a country like
the UK which from time to time has to organise a blocking minority.
Q12 Mr Heathcoat-Amory: I am extremely
alarmed by what I have heard so far, Foreign Secretary.
Mr Straw: I am trying to be reassuring,
Mr Heathcoat-Amory.
Q13 Mr Heathcoat-Amory: Well, you ought
to be concerned too, Foreign Secretary, because you have made
repeated assertions that national parliaments' powers will increase
under the Constitution. We now give you an example of where a
quarter of proposals at the moment involve a short-circuiting
of national parliaments to an informal agreement between the European
Parliament and the Council of Ministers and we have shown you
that this will increase under the Constitution because co-decision
between the Council and the European Parliament becomes a normal
legislative procedure. So what we have discovered will become
a greater problem and in answer to that you simply refer us to
the subsidiarity protocol. It is nothing to do with subsidiarity.
These proposals do not breach the subsidiarity principle, as far
as I know, but we are being cut out of the established legislative
procedure and there is nothing in the Constitution that will repair
that damage. So why do you continue with the assertion that national
parliaments will somehow be in the driving seat?
Mr Straw: Well, first of all,
Mr Heathcoat-Amory, your complaint is about the current situation
under the Constitution.
Q14 Mr Heathcoat-Amory: No, it is not,
it is under the Constitution—
Mr Straw: Allow me to continue.
Your complaint is under the current arrangement, but I am very
happy to have my official sit down with yours, Mr Hood, about
ways in which we can alert ourselves more clearly in Brussels
to when the fast-track is going to be used to ensure that your
Committee is told promptly wherever it is going to be used. The
second point, Mr Heathcoat-Amory, is that as I read these protocols
they place a requirement on the Commission to inform national
parliaments (and therefore this Committee) at the same time as
the European Parliament and the Council are informed of any proposals,
the White Paper and so on, at the same time. So for the first
time there is a requirement on the Commission to tell all national
parliaments about draft legislation or proposals for it immediately.
You are right to say that under these proposed Protocols the power
of a national parliament to wave the yellow card is based on issues
of subsidiarity, but the right to receive the information is an
absolute right not based on subsidiarity. So the Commission cannot
have a look at a draft law and say, "This one does not raise
subsidiarity. We are not going to tell national parliaments. This
one does involve subsidiarity and we are." They have to inform
the national parliaments of every single piece of legislation.
So you get it earlier. It is a major improvement on the current
situation. You get all of it and provided you are properly resourced
and we are giving you proper support, as I hope and believe we
will, you will then be able to raise objections to it on subsidiarity
grounds, in which case you invoke that Article in the Protocol,
or on more general grounds in terms of whether you agree with
the merits. So I think it will be significantly better than under
the current arrangements.
Q15 Mr Heathcoat-Amory: May I just add
a supplementary, if I may, Chairman, because it is not receipt
of information that we want, it is the power to do something about
it. We know this is going on because we have got the figures.
It is not the information we want. We want to be able to scrutinise
and do something about anything objectionable and we are being
cut out of the process and there is nothing in the Constitution
which will repair that; indeed, it will get worse because the
system will become general.
Mr Straw: With great respect,
that is simply the reverse of the case. Scrutiny and subsidiarity
proposals in this document may not be all that you seek but they
are a significant advance on the current arrangements, Mr Heathcoat-Amory,
and I just come back to my point. First of all, currently there
is no obligation whatsoever on the Commission routinely in every
circumstance to tell national parliaments the nature of draft
legislation on White Papers; under this proposal there is. That
is a significant improvement.
Q16 Chairman: Well, it has come to our
notice and we are now going to discuss it or semi-discuss it in
our own Parliament and in our own Committee and we had it raised
in COSAC and it is going to become an issue. If it is not discussed
at the COSAC conference in November, it certainly will be in the
following August, I can assure you.
Mr Straw: Sure, and I would like,
if you are happy about this, to ask my officials to talk to your
Clerk and his colleagues about how we do ensure that the two protocols
together are made fully operational, and on a wider basis than
simply "does this offend principles of subsidiarity?"
Chairman: Thank you for that, but it
is certainly something we are going to come back to. I would like
to move on now.
Q17 Angus Robertson: Moving on somewhat,
Foreign Secretary, and looking at the Constitutional Treaty, Articles
2 and 3 refer to the Union's values and objectives and these include
a range of different values and objectives, including the protection
of minority rights, pluralism, the promotion of peace and the
fight against social exclusion. I am sure we disagree with none
of that. I would like to ask you what practical difference these
aspirations make by being enshrined in the Treaty and could they
be used in any way, do you believe, to extend EU competences?
Mr Straw: Well, with a bit of
luck each Member State is following these principles but I think
it is nevertheless useful to have them set down. I also say that
they are a beacon for countries wanting to come into the European
Union because one of the great things about the European Union
is that it is not just a customs' union, economic union, but it
is fundamentally a union of values, European values for which
we have all had to fight so hard.
Chairman: The Committee is suspended
for divisions.
The Committee was suspended from 2.54 pm
to 3.47 pm for divisions in the House
Chairman: Welcome back to the Scrutiny
Committee. Understandably, the Foreign Secretary, who is obviously
always busy with his time, has to be away at four o'clock but
to his credit he says that if there are any burning issues he
is prepared to come back at some mutually agreed time and that
is very kind of him. Just remind the Foreign Secretary and the
Committee what your question was.
Q18 Angus Robertson: We were talking
about Articles 2 and 3 of the Constitutional Treaty, the values
and objectives, and the question was what practical differences
do these aspirations actually make and could they be used to extend
the EU competences?
Mr Straw: I think I answered the
first part of that, the practical differences. On the extension
of the EU competences, my understanding is that they could not
because it says in Article I-3(5): "The Union shall pursue
its objectives by appropriate means depending on the extent to
which the relevant competences are conferred upon it in this Constitution."
Q19 Mr Wayne David: Foreign Secretary,
I would like to take us on to consideration of the Council and
how it will function in the future. My understanding is that what
is in the Constitutional Treaty now is that there will be a two
and a half year presidency of the European Council but nevertheless
there will be rotation (as currently exists) for the other Council
formulation, as it says, and I was just wondering what the relationship
therefore will be between those individual configurations and
the overall structure of the two and a half year presidency. It
seems to me quite a complicated and potentially contradictory
situation.
Mr Straw: Mr David, as you know,
the purpose of having this full-time President is better to co-ordinate
the work of Member States in both the European Council and the
Council of Ministers. Although it is two and a half years (this
is Article I-21) it is renewable for one term and the anticipation
is that in practice it will be five years rather than two and
a half. As Article I-21(2) says: "The President of the European
Council shall chair" the European Council, (that is heads
of state and the government foreign ministers) "drive forward
its work, ensure its preparation and continuity and co-operation
with the President of the Commission, and on the basis of the
work in the General Affairs Council . . . facilitate cohesion
and consensus within the European Council" and "present
a report to the European Parliament after each of the meetings
of the European Council." Then it says that it cannot hold
a national mandate. It remains to be seen exactly how this is
going to work out because I think you will also be aware that
whilst we have agreed politically that the presidencies or chairs
of the various functional councils of ministers (as opposed to
the European Council) would be on an eighteen month basis with
three Member States for each team presidency. That is going to
be done not by the Constitutional Treaty but by a decision of
the European Council. So we can modify the arrangement if it is
not properly fitting in. But the idea is that the heads of state
and government elect a President of the European Council, who
in practice is likely to be a former member of the European Council
with that kind of experience, to (as the text says) drive forward
the work of the Council. Most of the work of the Council consists
of actually what we do in the Council itself at its meetings and
in the preparation for those, particularly in terms of draft conclusions.
As you will be aware from your previous background, most of the
implementation of what is decided in the European Council is a
matter for the different functional councils, or in some cases
for the council's representative. So he or she will have to co-ordinate
the work of the team presidencies and help to drive those forward,
which will involve quite a lot of negotiation. Who are appointed
to this job and what kind of staff support they have will be very
important, but I am pretty confident it will work out, particularly
as we happen to have someone in that position, and I am not in
any doubt that it will be better than the current arrangements
where I think you are aware of the defects.
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