Select Committee on European Scrutiny Minutes of Evidence


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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