Examination of Witnesses (Questions 188-199)
MR JO
LEINEN, MR
RICHARD CORBETT,
MR ANDREW
DUFF, MR
ALEXANDER STUBB
AND MR
GYÖRGY SCHÖPFLIN
25 JANUARY 2005
Q188 Mr Connarty: Can I welcome our colleagues
from the Constitutional Affairs Committee of the European Parliament
and also welcome some of our colleagues from the Slovenian Parliament,
who are here to observe the operation of a public evidence session.
I believe, Mr Leinen, there is a wish to make a statement. I do
not know whether every one of your delegation wishes to make a
statement?
Mr Leinen: No. If you want I will
say a few words and then we will go into the debate.
Q189 Mr Connarty: You wish to speak on
behalf of your Committee? Before starting, can I say to you we
have had a letter from one of your Committee—who is not
here—saying he believes—and it is Mr Alistair who
believes—he represent a different view from the members
who are here. When we ask questions of the Committee can I suggest
that you might deal with his concern in trying to give us a view
of the breadth of opinion in your Committee about anything we
ask rather than the individual opinions of the members who are
here. That takes care of the concern he had.
Mr Leinen: Chairman, and indeed
colleagues, many thanks for the invitation. We are delighted to
be here. It is our first visit as European Parliament to our colleagues
in the national parliaments, and we will have some 10 or 12 more
visits mainly to the countries where there will be a referendum
on the new treaty. Our delegation is composed of Mr Stubb from
Finland, Mr Duff from Britain, myself from Germany, Mr Corbett
from Britain and Mr Schöpflin from Hungary. In a vote on
12 January, and an overwhelming majority recommending the ratification
of this new treaty, our analysis came to the conclusion that there
is not one single step back compared with the existing Treaty
of Nice but there are many steps forward for a European Union
that is more transparent, more democratic and more efficient.
Some steps are more ambitious, some others are less ambitious.
Our vote was 500 in favour and 137 against. This morning coming
to this place I looked into a paper that is distributed in Brussels,
New Europe, and there was an article by an honourable member,
Roger Helmer. Roger Helmer was expressing his feelings which the
137 might share and I would like to quote two phrases: "This
is the Constitution that makes the end of Britain as an independent
nation" and "This is the end of freedom and democracy
as we know it". This is, of course, as you see a wide range
of opinions that we get in the debate and we will have that in
the next 18 months on the ratification in the 25 countries. Just
to answer your remark about the composition of our delegation.
The European Parliament is defining its delegations according
to the well known d'Hondt system and this delegation of five members
is two from PPE, the biggest group, two from PSE and one from
the Liberals. In our debate in the Committee we said every group
in the Parliament will have the chance to participate. We may
have 10 or 11 more missions, but it is not a habit in any way
in the Parliament that if you have voted you compose your delegation
out of majority and minority, you compose it out of political
groups, so others will be part of the delegation on other occasions.
Mr Connarty: That is helpful, thank you
for your opening statement. As you know, we are involved as a
Committee in taking evidence from a number of sources on the Constitution,
sometimes in detail and sometimes in the generality of its impact.
We are going to stick to that format, and I am sure your evidence
will be very helpful to us in our report to the United Kingdom
Parliament.
Q190 Angus Robertson: We are looking
at nine particular aspects of the Treaty and the first aspect
which we are keen to find out a little bit more about is the subject
of the Council of Ministers meeting in public: the idea of transparency
and openness, meeting in public as an important decision-making
body so the public can see what goes on, also debate in this Committee
too. To what extent do you think that there would be genuine discussion
in public in the Council when legislating and is there a risk
of much of the real discussion taking place in Coreper,
and being referred upwards to the European Council, or simply
carrying on in the corridors when one is not under the gaze of
the public or journalists who might want to cover such meetings?
Are there any loopholes in the Treaty text that we should be watching
out for? There are two questions there: firstly, the issue of
the effect of transparency in the Council of Ministers and, secondly,
are there any loopholes in the Treaty text to watch out for in
this context?
Mr Leinen: Mr Stubb worked in
the Council before coming to the Parliament, he might answer your
question.
Mr Stubb: I have had 10 years
as a civil servant, within the realm of the Council. I have two
main points. The first one is that it is possible already for
the Council to meet in public; that decision was taken in Seville
in 2001. The second point is the European Parliament was pushing
for a so-called "legislative council", a clear second
chamber, if you will, which then would have always met in open,
but perhaps one should never under-estimate the capacity of Member
States to want to keep some parts of the negotiations behind closed
doors. It would be very optimistic to say that everything would
move directly from Coreper to the European Council, there is of
course the Council in between. There is a general tendency in
Council meetings to try to keep so called "heavy business"
a little bit outside the meetings. What has happened, a factor
after the Seville decision, is that many of the main decisions
are now taken over lunches and in those lunches even civil servants
are kept outside the room. But I do think the new treaty does
give a glimmer of hope and basically, especially if parliamentarians
or anyone who wants to see the Council legislate in public, it
forces it to do so more often. I do think that areas related to
justice and home affairs and, of course, pure foreign policy,
which are not necessarily purely legislative, in the future will
still remain within closed doors. I do find this very unfortunate
because—the last point I want to make—many times in
the Council I have seen ministers have tapped each other on the
back and said "Wonderful compromise", five minutes later
they have gone in front of their national press and said: "Sorry,
cannot do anything about it, the EU decided over our head".
Mr Duff: Good afternoon everyone.
Can I supplement that. I think that it is a very important step
forward for democracy. The drafting of the clause is quite clear
that it must be the deliberations and the decisions, in other
words the voting and the discussions which formulate the decisions.
Of course, there will be private discussions, that is necessary,
there is a negotiation. It is a thing which we, you and the European
Parliament have been pushing for, for a very long time. It will
greatly facilitate the scrutiny from national parliaments of the
performance of their ministers in Brussels. There is an extraordinary
transformation from a minister who is a member of the executive
here, when he flies to Brussels he becomes a legislator, and it
is important that he performs and speaks in public. This will
see that this happens. I think if there is a pitfall it is that
the European Council of the Prime Ministers and Presidents will
become even more closeted and secretive. If I can offer you a
friendly word of advice, if it was me here scrutinising what is
going on, I would try to get the Prime Minister to speak to you
before meetings of the European Council and afterwards, as is
the practice in Finland and I know elsewhere.
Mr Connarty: Do any other members want
to contribute?
Mr Steen: First of all, welcome. I do
not know whether you are aware but several months ago this Committee
had a short debate about whether we should meet in public here.
I am glad to say the Conservatives carried the day and they agreed
that we should meet, against the minority, the Labour Party were
in the majority . . .
Mr Connarty: Mr Steen, I am not sure
we are here to discuss that in this Committee.
Mr Steen: I thought you would like to
know about this because it reflects very much on what you are
saying. Having agreed we should meet in public, the Leader of
the House of Commons said we should meet in public but that was
about six months ago. There is no appetite for meeting in public
because of the complexity of the matters we are discussing. I
do not think it is a case of wanting to keep our deliberations
behind closed doors but it is because of the problems of the amount
of papers we go through and all the rules and regulations and
directives. I am wondering whether you feel that meeting in public
will require an enormous education of the public to understand
what you are about, just as there is an enormous problem in this
country with the public understanding what we are doing here,
mind you they have not had the opportunity yet but if they did
come they would not understand.
Mr Connarty: I presume that is in reference
to the Council meeting in public?
Q191 Mr Steen: Yes.
Mr Leinen: All of our committees
are public. We have meetings only on some decision points on the
agenda that are not public. The European Parliament is public,
the media are there and the interested public are there. I think
the Council have a double function: it is an executive and it
is a legislator. This publicity is only meant for the Council
as a legislator—when they vote legislation, laws that apply
to all the 450 million citizens, I think the citizens have a right
to know how they voted in that meeting—not when the Council
are deliberating about other matters, as a body that is the executive
of the European Union, then they stay like every government in
the meeting room, not in public.
Q192 Mr Connarty: Can I ask an additional
question on that. How much difference will public meetings of
the Council make to the actual legislative process and relationships?
For example, do you think a transcript will have to be produced
of those meetings with everything that is said in that public
meeting being available to the public?
Mr Corbett: That will be a matter
for the Council. I expect they may well wish to because if the
meeting is in public there may be other people, such as journalists,
making their own transcript, and they would rather have an official
transcript which is agreed and is an accurate reflection of what
everybody says but that is for the future. The key thing, I think,
is in terms of public perceptions, that legislation, as a matter
of principle, should be adopted in public, seeing here how your
representative voted, but also just to give people an idea. For
instance, we all have an idea of what the UN Security Council
looks like because we have seen it on television, we know how
they sit, we know that it is representative of the states around
the table, they sometimes vote and so on. None of us has seen
that on television from the Council. The Council, which is the
least known of the EU institutions in the wider public, despite
being the most powerful, will become better known.
Q193 Mr Connarty: Can we turn to another
question. The Charter of Fundamental Rights is available and there
is a debate about whether putting the Charter of Fundamental Rights
into this treaty will change its relevance and will change its
powers. We have been given the explanation that the Charter will
apply when Member States ". . . act in the scope of Union
law . . ." and the wide interpretation which could be given
to this on the basis of Article II-88. How firmly based is your
Committee's claim—which I believe you have made—that
the incorporation in the Charter will not result in the extension
of EU competence, especially in social and economic matters?
Mr Leinen: I think in the Articles
of the Charter itself there is a double security, it is not an
extension of EU competences but really being obliged only in the
scope of matters which are in the competence of the EU and only
to public acts that are coming from the EU. So it is not applying
to acts that are coming from the Members States or from regional
or local authorities. I think there is a double security already
in the Articles of the Charter but Mr Duff as a member of that
Convention knows more.
Mr Duff: I was, and indeed rapporteur
for the Parliament on the Charter. The purpose of the Charter
is to safeguard the citizen from an abuse of the great power that
is now exercised in Brussels by the EU authorities. It is important
that it is seen in the context of the whole Constitution, the
principle of subsidiarity, the principle of respecting the domestic
dispositions of all the Member States, the conferral of competences,
which is clearer I hope, if not completely simplified at least
an awful lot clearer than it is under the present treaty. The
Charter, of course, will change the performance of the courts.
At present, a plaintiff—and there have been several plaintiffs
who waived the Charter, as it were, to substantiate their plea
without success because the Court has said: "This is very
interesting but it is voluntary, it is a political code of conduct,
it is not mandatory." As soon as the Constitution is in force
it will become binding upon the EU itself, which is important,
and the agents of the EU, including Member States, regional and
local authorities and things like Europol, who are charged to
carry out the law and policy that flow from the decisions of the
EU. In theory, the scope of the Charter, therefore, is quite strictly
limited and quite clearly defined, I think more clearly defined
in the horizontal clauses which have emerged from the IGC than
we succeeded in the convention or indeed in the first convention
which drafted the Charter. I think that the British, despite much
controversy, have improved the clarity of the legal certainty
as far as the Charter is concerned. What will happen in practice
depends upon the courts and we have all sorts of courts in 25
Member States who could do different things, but we have the Supreme
Court in the ECJ, which is in the process of developing great
expertise in the field of fundamental rights, very sophisticated,
in close conferral with the Strasbourg Court. I am sanguine about
the prospects. I think it will assist the institutions but, above
all, the citizen.
Q194 Sandra Osborne: In relation to clarity
and the role of the courts, we have received evidence during our
inquiry from several witnesses who I do not think would agree
with your interpretation. They submit that the impact of the treaty
has interfered in a number of areas and most comprehensively so
in respect of the interpretation and application of the Charter
of Fundamental Rights, therefore much will depend on interpretation
by the European Court of Justice. Is it satisfactory, do you feel,
for citizens to be asked to make a decision in the treaty when
the impact of important parts of the treaty are unclear? Do you
accept that is the case?
Mr Duff: If you are asking me
if I am in favour of a referendum or not, I have to be quite honest
with you, I am not. We are where we are. I agree with you that
decisions are very sophisticated and complex and, to be honest,
as well, I think I would have preferred the Westminster Parliament
to have shouldered responsibility for the decision.
Q195 Sandra Osborne: That is interesting.
Mr Duff: I think that might be
slightly off the issue of the fundamental rights.
Sandra Osborne: It is not unanimous in
your Committee.
Mr Cash: On the specific question,
on the Article II-111 it is stated in the explanation that "the
requirement to respect fundamental rights defined in the Union
context is only binding when they act in the scope of Union law".
We have taken evidence from Professor De Búrca and Professor
Eeckhout, et cetera, and the question I would like to focus on
is the application of this with respect to the question of the
right to strike, which is, to say the least, a pretty important
question and much fought in English law because there is not a
right to strike in English law as it happens, people think there
is but there is not. What it says here is that Article II-11-88
asserts that workers have, in accordance with Union law and national
laws and practices, the right to take collective action to defend
their interest including strike action. Now the same implication
arises in Article II-30 in relation to unfair dismissal which
speaks of the right to protest against unjustified dismissal,
in accordance with Union law and national laws and practice. The
question really is this, is it not clear from the practical implications
of the problem which I have identified that in the context of
what the judges say in the European Court with regard to the legislation
in a given Member State, take the United Kingdom which at the
moment does not have a right to strike, that clearly if it is
laid down in the Constitution that these matters are to be determined
in accordance with Union law and within the scope of Union law,
that our laws will be changed here in this Parliament, to confer
the kind of right to strike and the kind of protection against
unjustified dismissal which is scattered throughout all our employment
acts and, quite frankly, will be a highly contentious issue?
Q196 Mr Connarty: I think there have
been a lot of points made there on which you do or do you not
agree with Mr Cash. Will they be changed by this Charter?
Mr Corbett: Without wanting to
enter into debate about whether under our domestic law there is
a right to strike or not, which I think is a matter of controversy
rather than accepted fact, how would it be affected by this wording
in the Charter? Firstly, a lot of those clauses that you emphasised
were added at the behest of those governments that wanted to minimise
the scope for the Charter to be interpreted in a way that could
interfere with national provisions, so those clauses are added
as a protection. What it does mean, and this is generally true
from the Charter, but perhaps especially in these cases, is that
the Court of Justice could be called upon to overturn European
legislation which sought to restrict, if ever it were to adopt
such legislation, the right to strike, that could be overturned.
It is a protection of national provisions, whatever they were.
On the fact which was alluded to by the previous questioner that
ultimately this can be a matter of judgment of the European Court
of Justice, one big difference between the EU system under this
Constitution and indeed as it is now, with the US Supreme Court,
which is often the comparison made, is that in the US the Supreme
Court judges are appointed by the federal institutions. In our
case, our European Court of Justice, the members are not appointed
by the Commission or the Parliament or with their involvement,
but by the Member States themselves. If there is any possible
bias in the line taken by the Court, it is more likely to be protective
of States' rights and national interests perhaps than is the case
of the US Supreme Court. I think it was a British President of
the Court of Justice who once said: "The Court never makes
a political judgment but it sometimes has to remind politicians
of what they have agreed".
Q197 Mr Cash: Except to say that certainly
the oath that the justices take emphatically takes them outside
the political arena of their own Member State.
Mr Corbett: They are judges, of
course.
Q198 Mr Cash: Exactly. You are making
a more general point, and I think maybe you are right in a certain
sense that there is a tendency for people to be influenced by
their background but as a matter of law there is no doubt that
the members of the Court of Justice have to be above all that.
Mr Corbett: They are judges not
politicians.
Q199 Mr Cash: In our Constitutional Reform
Bill, which I am interested in at the moment, we have a guarantee
of continued judicial independence on which I have got a lot to
say on hopefully next week.
Mr Duff: Can I add a supplement
to Mr Cash. I have read your Bill with great interest. On the
article in the Charter that you referred to, it says also that
the Charter does not extend the field of application of Union
law. Then in Article III-210 subparagraph 6, which concerns social
and employment policy, it says "This Article shall not apply
to pay, the right of association, the right to strike . . ."
so I think you can slumber comfortably.
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