Examination of Witnesses (Questions 240-259)
RT HON
JACK STRAW
MP AND MR
DAVID FROST
8 FEBRUARY 2005
Q240 Mr Cash: If there was a no vote,
as I put to the Prime Minister the other day at Prime Minister's
question time, which would be an expression of the national interest
which you have been harping on about just now in a big way, would
you not agree that it would be absolutely essential following
such a no vote to repeal the Bill, if you have managed to get
it through the House of Commons and the House of Lords by then?
After all, if the national interest has been reflected by the
no vote, it would not make any sense at all to keep that Treaty
enshrined in an Act of Parliament for all the reasons that we
discussed in our previous discussion about the competing competences.
Mr Straw: Frankly, I think it
would be a waste of parliamentary time to do that.
Q241 Mr Cash: It could be done in a day.
Mr Straw: The Bill makes it very
clear that our ratification does not come into force until there
has been a referendum and that is conclusive.
Q242 Mr Cash: You have not answered my
question. Would you not agree that you should repeal the Act as
well?
Mr Straw: It would be a complete
waste of parliamentary time.
Q243 Mr Cash: You really think so?
Mr Straw: Yes, I do.
Mr Cash: I am astonished by that.
Q244 Mr Heathcoat-Amory: You have frequently
said that the EU Charter of Fundamental Rights creates no new
rights; it simplify codifies what exists and indeed the commentary
you have just published does say that in terms. It says that the
Treaty makes clear that the Charter contains rights which already
exist and whose detail is defined elsewhere. To take one example,
Article 13 of the Charter, Part II, says that scientific research
shall be free of constraint. It is obviously important in the
EU legislation in this area. The scientist wants freedom against
attempts to constrain him on animal rights grounds or whatever.
Interestingly, your commentary against that Article says that
it has no equivalent in the current Treaties or in other parts
of the Constitutional Treaty and also does not exist in a separate
European Convention on Human Rights. Therefore, that is a new
right. Why are you saying that it does not create new rights when
your commentary admits that it does?
Mr Straw: What it then says is
that the right is produced primarily for the rights to freedom
of thought and expression, exercised having regard to Article
1 to 61 of the Constitutional Treaty and may be subject to limitations
authorised by Article 10 of the ECHR. With luck, the freedom from
constraint for arts and scientific research is in practice a right
which is exercised by anybody across Europe at the moment and
so is the respect for academic freedom. If that is going to be
the basis of the argument between those like you who want a no
vote and those like me who want a yes vote, I am very happy to
join with you.
Q245 Mr Heathcoat-Amory: I am sorry;
that will not do. It is nothing about respecting scientific freedom.
It is a right that says scientific research shall be free of constraint.
That is unconditional. This is an important, new right. You say
there are no new rights in the Charter. Your commentary agrees
that this does not exist in the existing European Convention and
does not exist elsewhere in the Treaty. This is a new right. Why
are you saying that the Charter creates no new rights?
Mr Straw: It is a declaration
of rights that already exist. Those rights certainly already exist
and they would exist here and elsewhere across Europe.
Q246 Mr Heathcoat-Amory: Can you tell
me where they exist?
Mr Straw: In practice, they exist.
Q247 Mr Heathcoat-Amory: Rights do not
exist in practice unless they are written down.
Mr Straw: We in this country had
a whole series of rights to freedom of speech, to freedom of association,
to freedom from arbitrary arrest, which were not codified for
a very long time but they were still rights which existed. They
did not begin to be codified until British lawyers drafted the
European Convention of Human Rights. Even then, there was a decision
made in this country not to incorporate that codification of rights
into British law until we passed the Human Rights Act in 1998,
but it did not mean that we had to wait until 1998 until there
was a right to freedom of speech and association in this country
any more than we have to wait until this before there is a right
of freedom from constraint of academic and scientific research.
On your point about animal welfare, there are other rights and
duties which any court has to take into account. Any rights which
are in this text can only be exercised where they deal with EU
law and powers. Personally, I think it is a good thing that where
proposals are being put forward—for example, over conditionality
of research provisions—by the European Union they are subject
to being measured against that right because there are some people
around, as we know, who have a particular view about constraining
some research—for example, stem cell research. I would not
wish ever to be party to that kind of constraint and I am delighted
that what has been a longstanding right for British scientists
and British arts researchers is now being reflected in a codification
in the Charter. It is a protection for our scientific endeavour.
Q248 Mr Heathcoat-Amory: It is very unsatisfactory
that you have not been able to tell me where that right exists
already. You have waffled on about freedom of expression. This
is not the issue. This is an unconditional right to freedom of
research which some of us are alarmed about because we believe
that that should be balanced against other rights.
Mr Straw: Lord Goldsmith has said
it does not create any new rights.
Q249 Jim Dobbin: My question is about
the scope of interpretation of rights and principles, Article
II-112, which is contained in paragraph 3. It states that Charter
rights which correspond to European Convention rights are to be
given the scope and meaning as the latter, but that this "shall
not prevent Union law providing more extensive protection."
How can the Union provide more extensive protection to one right
without restricting another—for example, in the case of
privacy under Article 8 and freedom of expression under Article
10? Will this provision undermine the balance which the Strasbourg
court has achieved between conflicting rights?
Mr Straw: As you will be aware,
this issue of potential conflict between the European Convention
of Human Rights—if you like, the Strasbourg rights—and
the Charter was very much in the minds of the drafters of the
Charter and for that reason there are horizontal Articles which
tie the Charter provisions to their sources, especially to the
ECHR. On II-66, that corresponds to Article 5 of the ECHR and
II-99, the right to vote, corresponds to Article I-10 of the Constitutional
Treaty.
Mr Frost: What Article 112(3)
is trying to do is to say that where a right is mentioned in the
Charter and in the Convention you define the Charter right in
terms of the Convention. I am not a lawyer but I understand the
provision that provides for the EU to provide more extensive protection
where it wants is something that is common to certain other human
rights instruments, and also in the ECHR.
Q250 Mr Tynan: We have had a number of
experts here and there seems to be a disagreement as regards their
interpretation of the Treaty and your own. Evidence given during
our inquiry indicates that the impact of the Treaty is unclear
in a number of areas and particularly so in respect of the interpretation
and application of the Charter of Fundamental Rights. Are you
saying that is not the case? You are saying there is no ambiguity
at all there?
Mr Straw: I am aware of the differing
views that you have been offered and I have seen a short summary
of those. Some experts are more relaxed about the effect of the
Charter than others. I can only offer you the negotiating history
in respect of the Charter and our own best opinion but also draw
your attention to the text of the Charter. It spells out in these
horizontal articles—for example, in the new numbering, II-111—that
the Charter does not extend the theme of EU law beyond the powers
of the EU or establish any new powers or tasks for the EU or modify
powers and tasks defined in the Constitution. I understand that
people are interested in this because, unlike any other European
country, we are less familiar with declaratory statements of rights
which are formally codified than are they. That was why it took
such a long while for a British drafted codification, which was
the European 1951 Convention, to become incorporated into British
law. There were anxieties on both sides about what that would
mean but we are now getting on for five years since the Human
Rights Act came into force the interpretations by our courts have
not been unexpected. It seems to me to have been very sensible
for our courts to be able to interpret the European Convention
but also, as Parliament itself decided in 1998, for other legislation
to be measured against the human rights legislation. We have got
used to that. The Charter is of less significance in many ways
than the European Convention of Human Rights because in respect
of fundamental human rights it is simply a repetition of what
is in the European Convention. I genuinely do not think there
will be a problem. I understand the anxieties but it is because
of those anxieties that we worked so hard to get these horizontal
articles in and we worked hard and successfully to have proper
recognition made in the text of the Treaty for the explanations.
Q251 Mr Tynan: You reject the idea that
much would depend on the interpretation of the European Court
of Justice as regards where there is a belief by experts that
there is not the clarity that is required in order for decisions
to be made?
Mr Straw: By definition, any law
from a local byelaw to something very substantive will finally
depend for its interpretation on the decision of the court. Words
generally mean what they say. The European Court of Justice, contrary
to the parody of it, is alive to the fact that it has to operate
with care in a situation in which they are one part of a supra-national
organisation , where Member States have different legal traditions
and very great pride in their own national sovereignty. I have
read out details from two cases already. The evidence of the way
in which the ECHR operates is that they are much more alive to
the need to cut what the Strasbourg court calls a margin of appreciation
for individual Member States than some people think.
Q252 Mr Tynan: There is a feeling that
if you hire a QC and you do not get the answer you are looking
for you hire another one. The danger is that the general public
are going to be asked to endorse the Treaty. If there are issues
that experts declare are unclear, would you think it fair for
the public to be asked to make a decision, on support or otherwise,
on the basis of the Treaty not being as clear as it should be?
Mr Straw: I do not think these
things are unclear. We have pinned them down. That is the point
of the horizontal articles. It will not stop some people arguing
that in any event they dislike the Charter. If you read what is
in the horizontal articles, words do mean what they say. Everybody
knew what was being said around the room. Everybody knew what
we were deciding when I got agreement to pinning down the status
of the explanations and I do not think there will be a problem.
People have already been trying to say, "This is going to
be a problem. That is going to be a problem. The Charter will
lead to the end of civilisation as we know it." May battle
be joined. I do not happen to think it will and I happen to believe
that it is in Britain's interests. The closer we get to the referendum,
the more British people will come round to that point of view.
Q253 Mr Connarty: These answers strengthen
my opinion that we are going in the right direction in this venture.
Moving to some of the technical questions that people ask about
the policies that were made that the Council would meet in public
but only when deliberating. The concern people have that it may
push some of the real negotiations off the Table. At your last
appearance before us you made clear that if the Council delegated
most of the detailed negotiations to COREPER these negotiations
would remain closed to the public, simply because they did not
take place in the Council itself. Have you given any thought to
how to ensure that there is genuine discussion during the public
meetings of the Council?
Mr Straw: The honest truth is
that I have not given as much thought to this as perhaps I should
have done. It is partly because of my own experience in the last
four years where there is very little by way of formal legislation
that we deal with in the General Affairs and External Relations
Council. It is something I need to follow up with colleagues.
Whether decisions are brokered in COREPER or brokered in the room,
the truth is that since everybody is always seeking a consensus
in the EU and not a bust-up, sometimes the consensus require unanimity;
in every other case it requires a qualified majority. There has
to be a lot of very detailed negotiation and you cannot get the
ebb and flow of detailed negotiation if it is done under television
cameras. People simply are not willing to take part in that. Everybody
understands that. It is different from legislating on the floor
of the House of Commons. It is more like operating in a Cabinet
committee.
Q254 Mr Cash: Those get leaked all the
time.
Mr Straw: Fortunately, less than
you think. It is important that, at the point where there is legislation
with a capital `L', the public should be able to see this. It
arises outside this and it is something we need to do more of
in any event. I will follow it up.
Q255 Mr Bacon: Are you saying, in the
light of what you said earlier, that ultimate legal authority
in this country if this goes through would continue to rest in
the Queen and Parliament and not in this Constitution as interpreted
by the European Court of Justice?
Mr Straw: Yes. What this Treaty
does is to establish the limits of the European Union and make
it clear in an early Article that the powers of the Union are
conferred by Member States on the Union. This is Article I-11
in the new numbering. The limits of the Union competences are
governed by the principles of conferral but the use of Union competences
is governed by the principles of subsidiarity and proportionality.
Under the principle of conferral, the initial act within the limits
of the competence is conferred upon it by the Member States. This
is an inter-governmental Treaty. This is another reason, for those
who are worried about the creeping competence of the EU, why we
voted for this document rather than being against it. When we
sign up to this, we accept certain obligations. One of the things
we accept, as with any other treaty, is the obligations under
international law which derive fundamentally not from this or
the European Court of Justice but from the international law of
treaties. It will be for Parliament to decide. If Parliament decides,
because Parliament is sovereign and rightly so, you may say, that
it wants to leave the European Union, it can do so. If it wants
to decide to bust up with an organisation of which it is a member,
it can also decide to do that but there will then be consequences
because actions have consequences.
Q256 Mr Bacon: You said to this Committee
that you were against the passerelle clause. Can you say what
is the difference between the passerelle clause and Article IV-444,
page 226?
Mr Straw: The difference is that
originally, as I recall, it was not possible under the original
passerelle for one Member State to veto a change. There is an
absolutely fundamental difference. I am completely against that
because it meant that Treaty articles could have been changed
against our say so. When we started these negotiations in the
autumn of 2003, we made it clear there was no way we would sign
up to this unless that was changed. Anyway, it has been changed.
Q257 Mr Bacon: In other words, if the
European Council may adopt a European decision authorised or cancelled
out by qualified majority in that area or that case, that European
Council adoption can only occur unanimously?
Mr Straw: Yes, that is right.
In the Bill, my concern was to ensure that provisions which gave
the British Parliament powers would be pinned down in this Act,
on the face of the Act, and were not just left to Standing Orders.
By clause two of this Bill, there is a specific procedure by which,
subject to the decision of the House of Commons and the House
of Lords, I am proposing that there should be parliamentary approval
for treaty changes. Unless there is positive approval, the message
has to be sent back by Parliament to the EU that we are against
it. People cannot just hide away an issue and, by the effluxion
of time, hope that we have agreed it. There is very strong protection
here.
Q258 Mr Connarty: When we took evidence
from the European Parliament's Constitution Committee, they did
refer to evidence they had given in writing to say that they intended
using an ability they had to bring forward some minor amendments
to the Treaty whenever they thought it necessary. I presume you
are aware of this. This would presumably have to be through a
process of approval similar to the one you have just mentioned
in Article IV-444?
Mr Straw: There is no provision
in here by which the Treaty can be amended without the approval
of the British Parliament. In some cases it requires a full inter-governmental
conference and full ratification. In other cases, it is to do
with amendments of Part 3 articles as specified by Article IV-444.
There is a more streamlined procedure but the British Parliament
still has to make the decision and it has to be an affirmative
decision.
Q259 Chairman: Can I ask if a transcript
of the public meetings of the Council will be published to ensure
that the proceedings are genuinely on the record?
Mr Straw: It is an oxymoron, I
think. There is always a very public press conference.
Chairman: No; it is the meetings of the
Council.
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