Examination of Witnesses (Questions 1-19)
Mr Geoffrey Hoon MP, Mr Peter Storr and Ms Shan Morgan
1 NOVEMBER 2006
Q1 Chairman: Minister,
may I first welcome you and your officials on behalf of the Committee.
We are always grateful when ministers take time out of their busy
schedules to accommodate us. I am not sure whether, having regard
to the press today, to be grateful that you are going to be dealing
with at least one problem area of our questions or disappointed
that you are not able to deal with them all. However, you know
the procedure we adopt. We are on air. You will get a copy of
the transcript and an opportunity to correct or add to it as would
be helpful. Meantime, it will be on the web. You also have had
a copy of questions one to eight. Under our present procedure,
we now distribute copies of those questions to those present at
the meeting so they may the better follow the evidence as it emerges.
We understand that you wish—and no doubt it would be helpful
for us if you were to—to make some introductory remarks
with regard to the overall picture we are going to be looking
at.
Mr Hoon: I am grateful for this opportunity and I
apologise for delaying you slightly. I do attach great importance
to these opportunities. I know that there was a suggestion that
we should explore wider issues than simply justice and home affairs
and I am absolutely willing to do that. Indeed, if there is time
today, I am perfectly willing to talk in general terms about that
approach. I think I might be in a better position to give you
more detail in due course than I can today but I am not against
discussing these issues. I had assumed the Committee would have
wanted to concentrate on justice and home affairs but if it goes
wider I am sure I will be able to cope. Could I introduce my co-witnesses?
Shan Morgan is director of the European Union in the Europe Directorate
General in the Foreign Office. Just to demonstrate the excellent
relations between the Foreign Office and the Home Office, Peter
Storr is director and international director at the Home Office.
I am delighted to have him here showing just how closely we work
together. I found the material that you produced extremely helpful
and interesting. Indeed, I do wonder whether in the specific areas
that we are going to look at today I can add much to the thoughts
that you have already had, since you have rather effectively summarised
what I think is probably my own thinking on the various questions,
but obviously we can pursue those in rather greater detail. I
have always made clear that I prefer to try and answer questions
rather than set out our thoughts so perhaps we could start on
that straight away.
Q2 Chairman: As you appreciate, our
first question is directed to the Constitutional Treaty and generally
it would be helpful to know what the government's position now
is on that and on its possible revival. Are we looking to any
possible progress in the near future and, if so, in what areas?
Mr Hoon: I do not want to sound like an old-fashioned
needle stuck in the groove of an old-fashioned record but we are
at the present time still reflecting, as we agreed that we would
in the last full Council meeting. There is work under way in the
United Kingdom. I said to Parliament last week that I hoped to
be able to offer some thoughts on the basic principles guiding
the approach of the government towards the Treaty. My Rt Hon friend,
the Foreign Secretary, made clear yesterday that I would be trying
to set out some thoughts to Parliament shortly. I cannot do that
today and therefore I will not go into a great deal of detail,
but it is clear that we have to find a way forward that satisfies
the politics of those countries that have not ratified—and
I think it is fair to say that in the United Kingdom we tend to
see it from that end of the telescope—and there are important
politics in those countries that have ratified. I have spent quite
a lot of time lately talking to various Spanish ministers and
they make the point at every opportunity that they held a referendum.
That referendum was passed on the advice of the government; for
them to go back and say, "Actually, something different might
now be necessary" is obviously difficult for them politically.
To try and find a way that satisfies both the countries that have
ratified and those that have not is obviously part of the delicate
compromise that will have to emerge. I think it is important that
the United Kingdom is seen to be in the lead on this subject.
It is something that we have taken extremely seriously both in
the negotiations leading to the Constitutional Treaty and since,
but at the moment I cannot help you further than that.
Q3 Chairman: Can we turn to a group
of questions about the passerelle, particularly
Article 42 of the Treaty of the European Union? If you remember,
you had some foretaste of this because we met back in July when
you were appearing before Lord Grenfell's Select Committee and
I asked you a couple of questions about the passerelle.
That was before we had published the report—the one I am
now holding up: The Criminal Law Competence of the European
Community—which was published at the very end of July.
One would hope perhaps you have now had an opportunity to read
that. Have you had a chance to read it?
Mr Hoon: My officials have read it in detail.
I cannot say that I have started at the beginning and worked all
the way through, for which I apologise to the Committee but I
have looked at important parts of it.
Q4 Chairman: I hope your officials
found it useful.
Mr Hoon: It keeps them awake at night.
Q5 Chairman: At all events, since
then there has been some correspondence with ministers and you
have been alerted to our having received three letters in point
from Baroness Scotland at the Home Office, the Minister of State,
dated 4 October; the following day from Baroness Ashton at the
DCA; and more recently a letter not to us but to our sister committee
in the House of Commons, the European Scrutiny Committee there,
from Joan Ryan, the Parliamentary Under-Secretary at the Home
Office. Those letters begin to suggest that the prospects of invoking
Article 42 of the passerelle to transfer matters from the
Third to the First Pillar are on the back burner. We would be
very interested indeed in your views as to whether that is a correct
reading of trends.
Mr Hoon: I think it is fair to say that there
is not any great enthusiasm at the present time, although I would
recognise that that lack of enthusiasm is not all for the same
reasons. Germany for example has reservations because it would
regard the use of the Article 42 passerelle as being a
species of cherry picking to which they are opposed politically.
We are probably amongst those countries—and this was really
the conclusion of the discussion at Tampere—that still have
some considerable concerns about the implication of the use of
the Article 42 passerelle and believe that, following the
discussion, there is not a huge enthusiasm amongst any Member
States for taking it forward at the present time. I set out in
a number of answers to parliamentary questions the fact that I
think it is important that we continue to consider in the abstract,
for the moment, how the Article 42 passerelle might be
used and how it might benefit the United Kingdom and indeed other
EU Member States, but I emphasise at the moment, in my opinion,
this is a matter of intellectual inquiry only. The political result
of Tampere was that one country was enthusiastic and supported
outright the idea of using the Article 42 passerelle, eight
were pretty firmly against for one reason or another but not always
for the same reasons. At the moment, I would say that we were
somewhere in the middle with some reservations, not rejecting
it outright, but acknowledging that there is no great enthusiasm
at the moment politically for taking this forward. Whatever discussion
we have about the Article 42 passerelle I hope you accept
from me that it is a rather theoretical discussion at the moment.
Q6 Chairman: Are there no enthusiasts?
I thought the French were originally enthusiastic.
Mr Hoon: I cited Germany and I do not particularly
wish to pick just Germany out but there are two levels to this
debate. There is the substantive level of the debate concerned
with the actual provision itself and what it might achieve; there
is necessarily though—you were right to start here—a
debate about its position inside a Constitutional Treaty which
the majority of Member States have ratified. The cherry picking
aspect is quite important to the real world consideration of what
happens next. Since I cannot answer the question on the Constitutional
Treaty for the reason I have set out, there is also the aspect
of that in relation to simply dealing with the Article 42 passerelle
on its own. That is why I say if we have a discussion about it—I
am sure we will—it will be a fascinating but rather abstract,
theoretical discussion rather than a practical discussion of something
that is going to happen in the near future.
Q7 Chairman: I am sure you accept
that there would be undoubted benefits. You may say they would
be outweighed by disadvantages but decision making would become
easier. Difficult areas—the fight against international
crime and terrorism—might be better able to be taken forward
constructively if there was this new approach.
Mr Hoon: In the parliamentary answers I have
given, I hope that my answers reflect precisely that point. I
agree with you that there are clearly potential benefits in relation
to providing greater safeguards, not least at the external frontiers
of the European Union, although I must say in parenthesis I asked
Peter this question earlier on today in preparation for our discussions
this afternoon. The view of the Home Office is that there are
not practical proposals at the present time that could be taken
forward by greater use of majority voting. Balanced against that,
I think we have to be clear that the down side is the idea that
Community competence in whole areas of our criminal process would
not be unnecessarily complicating to our domestic arrangements.
Indeed, given our commitment to subsidiarity and the need to ensure
efficient arrangements, not least in our own courts, we are certainly
not saying that there would be any benefit in whole scale use
of the passerelle in this area. What I want to do is to
maintain our rather flexible position that says certainly we can
theoretically see the advantages and the benefits. There are some
drawbacks. We would be quite pragmatic in our use if we got to
that stage, but I would emphasise I think we are well short of
that. I think Peter ought to fill in on the Home Office view of
whether there are practical applicable laws that might be brought
forward and might benefit from the use of greater qualified majority
voting.
Mr Storr: The key issues, as we look across
the range of justice and home affairs for the Home Office, are
clearly the immigration and asylum agenda, counter-terrorism and
tackling organised crime. In those fields there is not, in my
view, any particular piece of legislation which is blocked as
a result of unanimity which would be unblocked if there was qualified
majority voting. There are individual framework decisions which
are not making particularly quick progress in the Justice and
Home Affairs Council for one reason or another. Generally speaking,
those do not pertain to the key areas which I have outlined.
Q8 Chairman: With regard to those,
are we now talking of the consequences of the European Court's
decision in the case of The Commission v the Council?
That gave some criminal law competence in the environmental field
under the First Pillar to the Community.
Mr Storr: No, I was not referring to that. I
was simply trying to answer the question which was, as I understood
it, whether there were particular proposals in the form of framework
decisions that were being blocked or slowed down in the three
areas which I outlined.
Q9 Chairman: I thought there were
some framework decisions that are now being held up because of
that particular case.
Mr Storr: There are because of that particular
case.
Q10 Chairman: That, in a sense, would
be unblocked if there was a use of the passerelle to transfer
these matters to the First Pillar.
Mr Storr: Those would be but I did qualify what
I said earlier by referring to the three aspects of the Justice
and Home Affairs Council which represented priorities for the
Home Office.
Mr Hoon: I also think that there are theoretical
benefits. We have to acknowledge that, as the European Union continues
to enlarge, there will be practical difficulties about enacting
legislation. Shan reminds me about the quality of legislation.
Ms Morgan: Experience has shown in the past
that measures negotiated under unanimity can sometimes suffer.
The end result can be effectively the lowest common denominator
which can be to our disadvantage if we are looking for ambitious
legislation, although the opposite works against us in areas that
we would regard as highly sensitive.
Mr Hoon: In terms of the potential benefits
of speed and quality, I want to keep our position relatively open
so that we can make a judgment. It does come back in a practical
way to how we might respond.
Q11 Lord Lester of Herne Hill: I
hope what I am about to ask does not sound too European. If the
starting point is that, with enlargement, one plainly needs more
efficient mechanisms in order that the European sail boat can
move forward and not stay in the doldrums, it must be right that
one needs at least to cherry pick from what is called the Constitutional
Treaty to obtain more efficient mechanisms. I am sure that is
not controversial.
Mr Hoon: It would be controversial at the moment
in Spain and Germany, for example.
Q12 Lord Lester of Herne Hill: Because
they want the whole thing, but leaving that to one side, if one
then comes to justice and home affairs, as I think you are implying,
it must be sensible to have a mechanism in which transnational
problems—say, terrorism or serious crime—are dealt
with transnationally as well as nationally and in which therefore
there could be qualified majority voting and a sharing of state
sovereignty. Is that right?
Mr Hoon: I am going to be very legalistic and
pedantic. Of course, we can have transnational solutions without
necessarily having qualified majority voting. Where I think the
importance lies—and I broadly agree with your approach,
having been pedantic—is in ensuring that in the areas that
you describe with 27 or more Member States we can reach decisions
in the timescale and at the level of quality that are addressing
the problems we are trying to resolve. My instincts are in that
direction provided that we do not in the process end up with a
whole swathe of proposals to harmonise and standardise some aspects
of the criminal procedure that we both were probably once upon
a time more familiar with, you perhaps more recently than me,
where frankly that kind of Community competence is not necessary
and would not be appropriate.
Q13 Chairman: We have been circling
around the question of what the government's position is as to
the use of the passerelle. How literally would you
subscribe to the second paragraph in the Parliamentary Under-Secretary's
letter to the chairman of the European Scrutiny Committee in the
House of Commons which ends: "The government considers the
current debate to be over and that we should instead focus on
practical measures in the current JHA agenda"? Do you see
it in as bleak terms as that?
Mr Hoon: I was hoping to answer the question
in a more diplomatic way, as might be expected from a Foreign
Office minister, but I think that is a very good shorthand for
what I was saying earlier. We have judged politically that the
debate at Tampere means it is unlikely to move ahead any time
soon. I took rather longer to say something fairly similar in
my parliamentary answers on this subject, but I am perfectly happy
to discuss this in the abstract. I think I rather agree with the
noble Lord Lester in the sense that as we move forward and if
we are going to continue to move forward, which we must, there
could well be areas where using qualified majority voting would
be sensible, but I think we would want to try and focus those
in on those areas where it would provide practical benefits for
the United Kingdom and for EU Member States to tackle the kind
of things which the noble Lord was referring to.
Q14 Chairman: You cannot yet identify
any particular proposal that would meet that criterion?
Mr Hoon: As Mr Storr made clear, there is none
on the table at the present time. Therefore, I have to say that
I agree with the noble Lord Lester. There must be issues of this
kind that are likely to affect us in the future. That is why I
think it makes sense for us to remain relatively flexible in our
approach to it but there is none currently under consideration.
Q15 Lord Tyler: The minister from
the Home Office is saying that the current debate is over. From
what you have just said, I take it you would say that the current
debate is adjourned pro tem and that a different set of
political and diplomatic circumstances would have to occur for
that debate to be reopened. What we are concerned with is the
practical ways either to accelerate those new circumstances or
else to find other ways round those circumstances to achieve the
ends that I think we all share round this table. I wonder whether
you would like to comment on that?
Mr Hoon: I want to demonstrate just how joined
up we are. In the answer I gave to Parliament I did use the phrase
"the current debate". I said "to be over"
but all the words are there even if they are in a slightly different
order. I cannot say that this will not come back. It is in the
Treaty. The Chairman referred to a debate about this in France.
There was some talk that the Finnish presidency might consider
bringing it forward. That was why it was on the agenda at Tampere.
It seems to me the results of that are pretty clear in terms of
current lack of enthusiasm. That is why both ministers have said
that the current debate is over. I can conceive of the circumstances
in which it will come back. I just do not think that is any time
soon.
Q16 Lord Mance: The lack of enthusiasm
and the fact that the United Kingdom sits in the middle may perhaps
be attributable, may it, to the fact that we would have an opt
in, whereas other countries would be bound axiomatically by majority
voting?
Mr Hoon: Our position is perfectly poised in
the middle, but also with the kinds of safeguards we have available
to us. Our position is doubly beneficial. It allows us to take
forward proposals where we see vital national interests being
enhanced as well as obvious European interests but it would allow
us, even within the proposals taken forward, to cherry pick. I
cannot think of a better expression. It is an unfortunate one
but that is what we would be able to do. We would be able to select
those areas where we would opt in. That is doubly helpful as far
as the UK is concerned.
Q17 Chairman: Having regard to that
being the strength of our potential negotiating position: heads
we win, tails they lose—
Mr Hoon: I would not put it in that way.
Q18 Chairman: Even if that mis-states
it, we have, for the reason Lord Mance suggested and you accepted,
quite a strong position. That might be thought to have tipped
us towards greater enthusiasm than other, less advantaged states.
Mr Hoon: We have a strong position. I do not
think it is heads we win and tails others lose because that, if
I may say so, is inconsistent with your final observation about
alleged lack of enthusiasm in the UK. I simply think we just have
to be very careful not to allow greater confidence in this area
than can be justified, not by some abstract concern about sovereignty
but more about practicality. I think it is really important that
we preserve the best part of our criminal process, recognising
that there may well be real benefits for a more European approach
in the longer term and on top of which we do not want to be left
out of what might be a rapidly developing area of legislation.
Q19 Lord Clinton-Davis: Are there
any discussions proceeding at the moment with other countries,
both for and against the proposition?
Mr Hoon: I rather think Tampere drew a line
under those discussions for the moment, which is why we have answered
the questions in the way that we have. I am sure, with your very
great experience of the Commission and the European system, that
I cannot rule out officials certainly in the Commission thinking
thoughts along these lines. It is clearly possible that this would
come back in the December Council. I do not want to speculate
about that because at the moment I simply do not know. It has
not been around for a time which is why we are having this conversation.
I am not a gambling man but I would not say the prospects were
more than 50/50.
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