Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 40-59)


8 JULY 2003


  40. I note that Pat Cox has been pressing to know how the European Parliament can be associated with the IGC. I am assuming, drawing from your earlier response when I raised the issue of the level at which negotiations are going to take place and that European institutions would not be there, that Pat Cox's wishes to be associated with the working IGC will probably not be satisfied.
  (Peter Hain) If I may just quote, "The European Council agreed that the IGC be conducted by Heads of State"—as I said earlier—"and the European Parliament would be closely associated and involved in the work of the IGC." That is a quote from the European Council at Thessaloniki.

  41. That seems to be slightly at odds with what I understand is the view, that the European institutions will not be involved and that the work will be done by state officials.
  (Peter Hain) In the past the European Parliament had observers, so there has been a linkage there. The conclusions, as set at the Thessaloniki Council, said that they would be able to participate, but in the end this is a legal Treaty signed by Heads of Government on behalf of sovereign Member States and the European Parliament cannot be a party to a legal Treaty in that way. It can have its say. Given that it was very strongly represented in the Convention, maybe that is sensible, but in the end sovereign governments made these decisions, us alone.

  42. And they will be heard.
  (Peter Hain) They will be heard but not decided.

Lord Scott of Foscote

  43. Secretary of State, I just wanted to ask you a question about the way in which the proposed Constitution is going to affect national parliamentary scrutiny. If I could just set the framework for the question. When the European economic community began in the 1970s and this country joined scrutiny arrangements were put in place. At that time unanimity was required in order for legislation to be produced from Brussels which was going to become binding in this country. The function of scrutiny was quite clear at that time. It was the only form of UK legislative influence or control, although it was not really control, over what legislation was going to become binding on the citizens of this country. That degree of influence diminished to a degree when qualified majority voting came in for First Pillar matters in the 1980s. It diminished further when co-decision of the European Parliament came in. We now have proposals for considerable extensions of both those matters, the extensions of qualified majority voting in the Council and the extensions of co-decision by the European Parliament will be involved in producing legislation. All of this changes the function of the scrutiny which will be exercised by national parliaments and may require a rather different approach. First of all, is this something to which the UK Government has given thought, about which it has concerns or proposals? Secondly, as far as I know there are no provisions in  the proposed Constitution about any new procedures or functions for scrutiny. Thirdly, if that second premise is right, is this not a matter which ought to be the subject of thought and concern, giving national parliamentary scrutiny a rather different role under the new Constitution than it has previously and historically had?
  (Peter Hain) First of all, the draft constitutional Treaty does not alter the status quo on the scrutiny reserves on national parliaments. There is nothing in the treaties or the Council rules and procedures on the scrutiny reserves and I do not think that needs to be crystallised in the treaties. The draft protocol on the role of national parliaments provides for the early transmission of documents direct to national parliaments to assist their endeavours to be involved in scrutiny at as early a stage as possible and I think this is absolutely right. Of course there is also in this draft constitutional Treaty something which I argued strongly for and it was part of the Prime Minister's original proposals in his Warsaw speech three years ago, which was to give national parliaments a right on subsidiarity and proportionality to determine whether new proposals coming from the Commission met those tests of subsidiarity and proportionality. We have achieved a situation where effectively national parliaments now are able to vet any new proposal for legislation or some new initiative from the Commission and to track it through the subsequent process of negotiation of the Council to Parliament to see whether it should be done at a national state level or at a Brussels level. That is something completely new which I would have thought would be welcomed by our Parliament and I hope by your Committee and puts both Houses in the position right at the outset of effectively saying to Brussels, "No, you shouldn't do this at a European level, this is a matter properly for nation states to undertake."

  44. There was a proposal for a red card procedure, was there not?
  (Peter Hain) Yes.

  45. I cannot remember what the proportion was, I think it was that if two-thirds of national parliaments objected on subsidiarity grounds to a particular proposal from the Commission they can block it. As I understand it that has gone at the moment, it is only the yellow card procedure holding it up. I also understand that the UK Government does not accept the red card procedure. Why is that?
  (Peter Hain) We argued strongly for a red card procedure, but it became evident that in order to win agreement to the principle, which is a pretty revolutionary principle for the European Union, that national parliaments effectively vet new proposals and have an arm lock on them so that national sovereignty is preserved always, the Commission, feeling extremely aggrieved that its rights of initiation were being transgressed, its historic embedded rights of policy, you could not get a consensus for a red card procedure. The yellow card procedure is where at least one-third of national parliaments say this is not a matter for the European Union to act on, it is for them and I cannot conceive of the Commission proceeding blindly. I think in practice the yellow card will become a red card, not least because if you get a third of national parliaments objecting it would be very surprising if a third of governments did not object as well. You have not got quite what we would have liked in the sense of a pure vetting process, but in practice I think it will be such a deterrent on the Commission in bringing forward any new proposal knowing that the yellow card procedure exists that I think effectively it will considerably affect how policy is developed.

  46. I think there is a pretty widespread dislike among parliamentarians and members of the public generally of legislation by the Executive that the elected Parliaments cannot control. The red card procedure would have gone some way to checking that. The yellow card procedure does not, although I take your point that it might lead to that in practice. Although it is in the Constitution, it is not a block in the Constitution, it is merely a delaying process. Moreover, in the Constitution at the moment there are proposals for comitology decisions, former European Union secondary legislation to be able to be objected to both by the European Parliament and by the Council, but under the present proposals the Commission can override them both and proceed. That is Executive legislation. In practice there may be checks, on paper there are not. That is just not satisfactory, is it?
  (Peter Hain) We would have liked a red card proposal and still would. If we can get it in the IGC, we will get it. In practice the realpolitik of it, as I have already said, is that it is very unlikely that if a third of national parliaments and therefore in all probability a third of national governments say, "No, this is not something you should be doing," it will not be changed or withdrawn. I suppose you could see circumstances in which something that Britain would thoroughly approve of, including our Parliament, say in respect of some agricultural policy reform where you might just about be able to imagine a third of national parliaments saying no to something perfectly sensible, the Commission would argue that the European interest is being held up. There are arguments on both sides of this, but we would prefer a red card. In practice a yellow card is a pretty revolutionary change and I think if properly made use of by both Houses of Parliament in Britain it will have a big effect.

Lord Cavendish of Furness

  47. I wondered if the Secretary of State had answered Lord Scott's point about the secondary legislation and the checks and balances there.
  (Peter Hain) You mean whether the European Parliament should have the call back right?

Lord Scott of Foscote

  48. The position at the moment under a proposed regulation coming out of Brussels is that the Commission proposes some form of secondary legislation, if it is the right sort of subject matter it goes to the European Parliament for comments and objection, it goes to the Council for comments and objection, but the Commission can as a last resort, if it wants to, override both. That is the proposal.
  (Peter Hain) I have consulted both of the constitutional anoraks sitting either side of me and they are not sure of the answer to your question either, so I think this is something that I had better come back to you on.


  49. Would you say that it is improbable that you would see national parliaments having direct access to the Court? What could be within their rights?
  (Peter Hain) The draft subsidiarity protocol provides for Member States to bring a case to the ECJ on the grounds of infringement of principles of subsidiarity on behalf of their national parliaments. It does not, however, extend the right of direct access to the ECJ or to national parliaments themselves, they do so through their Member States.

  50. This has been a bone of contention on this Committee in the past.
  (Peter Hain) I understand that.

Lord Williamson of Horton

  51. The yellow card procedure applies to proposals from the Commission which come forward and then national parliaments can take a view on that, but of course there are quite a lot of legislative decisions now which do not come from the Commission at all. Certainly on the Sub-Committee I am on, we get more that do not come from the Commission than those that do because it deals with the common foreign and security policy and that will still be the case after the constitutional Treaty comes into effect, Article 39(7), says that the European Council and the Council of Ministers can act on proposals from a Member State or from the Minister for Foreign Affairs or from the Minister with Commission support, but there would not be a draft proposal from the Commission. There is a certain area, if I may say so, where the Commission's role is very subsidiary. I think it is important to identify that that is the case.
  (Peter Hain) I think it is. I will check on this, but I am pretty sure that the spirit at least of this proposal, as any new legislative proposal coming from wherever it is initiated from, is that this subsidiarity mechanism applies and it also tracks it through the process. One of the points made to me in the context of the Convention was that actually sometimes it is the Council or the Parliament that amends Commission legislation that threatens subsidiarity or proportionality more than the Commission's proposal might have done.

Lord Hannay of Chiswick

  52. It seems that the new proposed Treaty is going to extend CFSP quite considerably and lead to an intensification of CFSP, yet there is no provision for parliamentary involvement of either national parliaments or the European Parliament in this area of a very structured kind. I would not myself favour the European Parliament being given any additional powers in this area, but it does seem to me that as this area grows, more and more is falling between two stools. Have you given any thought at all as to how that gap can be managed? I launched a proposal some years ago myself that there should be a Foreign Affairs Committee of the European Union which would be made up of some national parliamentarians together with European parliamentarians which would not have decision-making powers, but would be an advisory body, and there are no doubt 100 other ways of doing it. The second question I would like to ask you is about the exit mechanism. Why is the Government becoming so easily convinced that the European Union, having lived for 50 or 40 years without an exit mechanism, now requires one, and do you not think that the one which has been drafted is deceptively simple in its appearance compared with what the reality would be? Do you not think that in terms of members of the euro-zone, you are going to create something close to moral jeopardy about the euro if a member of the euro starts to say that it wants to leave the European Union?
  (Peter Hain) Well, the exit clause is not something we particularly argued for, but found its way into the draft Constitution, and once it had found its way into it, I do not think it would have been politically sensible to try and pull it out because then you would almost be conveying the impression to Europe's citizens that they did not have a way out of the European Union. Of course every European Member State has the right to withdraw under existing provisions. So, no, I think that was the right thing to do given the circumstances. On the question of CFSP, and ESDP for that matter, I think that the primary responsibility for scrutiny should remain with national parliaments and that national parliamentarians should be informed as far upstream as possible in the policy process. There might be ways of doing that better, including the suggestion you made, but I think that is something we can debate.

  53. As you know, at the moment they are not consulted at all on CFSP matters because these are not European instruments which come to us in the normal course of scrutiny, so if the General Affairs Council or the External Relations Council wants to take some subject, like relations with the Magreb or something, it does not come anywhere near us at all.
  (Peter Hain) Well, we do actually submit for scrutiny CFSP and ESDP documents now to seek to maintain parliamentary scrutiny reserves unless there is an overriding political or operational case not to, and we have agreed arrangements with the scrutiny committees for the scrutiny of documents created in the lead-up to ESDP operations, so that facility has already been provided by our Government at least and I think that can be developed. I agree with you that this is going to become an increasingly important area for European Union intervention, and quite properly so.

Lord Scott of Foscote

  54. Secretary of State, I was just discussing with Lord Neill actually what it was that Baroness Scotland had achieved with regard to the Charter and neither of us was quite clear. What was her great achievement that you were referring to?
  (Peter Hain) Well, we started off with overwhelming pressures to stick the Charter straight into the Treaty which would have effectively allowed our own domestic laws—

  55. You mean without any horizontal clauses?
  (Peter Hain) Yes, there were pressures to do that. In fact that is why I would say that we are 95 per cent of the Convention aware, so what she succeeded in doing was negotiating the horizontal clause with the support and advice of the Attorney General, also making sure that the preamble was inserted and also making sure that this link in the Constitution, the "due regard link", as it were, that the Court of Justice had to take account of was in, but we have not yet taken a final decision on whether we accept where the Charter is. It will depend on the precise terms of the final package.

  56. It presents a fairly odd appearance given that a number of the articles are outside any EU competence at all and of course with the horizontal clauses to stop them coming within, still the uninformed person reading it, I think, would have the pretty odd impression, and probably a wrong impression, of its effect simply from reading it.
  (Peter Hain) I think provided that everybody bears in mind, including the interested reader, that the Charter was originally designed, and is still intended, to give the citizens rights over the institutions, not actually to change our domestic law and extend the European Union's powers or competences. That was never the intention.

  57. But a number of the articles in the Charter deal with things which never have been within the EU competence.
  (Peter Hain) That is right, which is why we needed to get these arm-locks on them.

Lord Neill of Bladen

  58. Is the Government happy with the position regarding the Charter given the status that it is given by being right up front in the Convention? Admittedly, we have got the horizontal clause, but we have also got the undertaking to make an indication to join the Convention by the EU as a new corporate entity or whatever, so you now have this double, tandem system. Is that the solution you are happy with or is it the best that can be achieved? How do you feel about it?
  (Peter Hain) Well, in an ideal world, we would not have gone down the route of incorporating the Charter. We would have preferred it as a statement of declaratory rights.

Lord Scott of Foscote

  59. Aspirations.
  (Peter Hain) Aspirations, but that was not where the majority were and, as I say, we have succeeded in negotiating a position where we think we can live with it, although the final text needs to be scrutinised very carefully by our legal officers as well.

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