Examination of Witnesses (Questions 340
- 347)
TUESDAY 8 JANUARY 2008
Mr Jo Leinen, Mr Timothy Kirkhope, Mr Richard Corbett
and Mr Elmar Brok
Q340 Lord Maclennan of Rogart:
It is partly referring back to the issue of comprehension of the
public and is the Laeken Declaration about strengthening that.
I wondered if you felt that the public's understanding of the
political issue within Europe would be helped in this age of political
celebrities by that provision regarding the election of the President
of the Commission. It does seem to me that opens up the possibility
of the public understanding a great deal more about what the Union
is doing if candidates are offered in the parliamentary election
which have to be taken into account by the Council after the event
before nominating someone for that role. It would be very interesting
to hear whether you think that is strengthening the Parliament,
strengthening comprehension and strengthening the President of
the Commission.
Mr Leinen: As standing rapporteur for
the European political parties in the Parliament I very much welcome
this question because, for me, it is a key question for linking
the institutions to the citizens, communicating Brussels to our
citizens and, in a way, being more transparent and more democratic.
From 2009 onwards the President of the European Commission should
not be designated behind closed doors in the European Council,
after the elections it should be an open process before the elections.
We have a plurality of ten political families a wide spectrum,
much wider than we know it at national level, of political ideals
and political concepts that exist. I would like to see those European
parties taking their responsibility and have the courage to nominate
a top personality who runs in the election campaign for the position
of the Commission President. I might remind you that in the elections
of 2004 it was clearly stated by one political party, "If
we win these elections, if we are the biggest group in the Parliament,
we want to have the President of the European Commission"
and in the days after the elections in the European Council there
was a candidate from another political family and he had no chance
because that bigger political family was saying, "You are
not the winning team, we are the winning team and as it is at
a national level so it should be at a European level" and
we had the first priority and they found Mr Barroso to do the
job. I hope that in 2009 this method will be more general and
this game that the citizens understand and the media like to communicate
and see the difference, "What is the difference in the choice
we get if we vote for this party, this party, this candidate or
that candidate?" is facilitated by the new Treaty. The President
of the European Commission will be elected by the European Parliament
on the basis of the results of the European elections. This phrase
in the Treaty is very helpful to promote this mechanism.
Q341 Lord Blackwell:
Can I just go back to the red line on the area between justice
and security. I think this is an area where there is a fundamental
debate between many in the UK and in Europe on whether this is
an area where legislation should be at the European level or the
national level. The UK Government says that we have an opt-out
or an opt-in so we do not have to accept any legislation in this
area unless we decide to, but if you take that body of European
law which is going to develop alongside the fact that the European
Court will have jurisdiction in this area and will be trying to
apply principles that say laws should apply across the European
Union and the Charter should apply across the European Union,
is it realistic that in five or ten years' time there could be
a substantially different body of UK law from European law in
these areas or is this, in effect, just temporary window dressing
and sooner or later the UK will have to be drawn into the mainstream
of the area of freedom, security and justice?
Mr Brok: There will not be the possibility that
via the Court of Justice what the other countries have decided
will become British law in practice. It will be the case that
Britain will consider in certain cases, because of the fight against
terrorism and organised crime, whether it is appropriate not to
join certain mechanisms or not and in the system it is the right
of the British Government or British Parliament to do so or not.
In the long run, because here we are in a common fight, I believe
that Britain will join in on a lot of these questions because
it will see the need for that, but I can understand the political
sensitivity where at the moment in Britain this is not politically
possible and, therefore, we agreed to the possibility of the opt-ins
and opt-outs which gave a lot of possibility for flexibility to
Britain in this case. For example, in the Schengen Agreement we
see that a lot of cases do not apply to Britain and Ireland. I
believe Ireland is more and more unhappy about this situation,
that because of their relationship on this question with Britain
they have to follow Britain but they still have controls at British
harbours and airports. At the end of the day Britain is one of
the countries, and Ireland, where I have to show my passport.
The British citizens have to show their passports in 25 countries.
I do not know who is in a better or worse situation.
Mr Kirkhope: I was not going to answer the specific
question raised by Lord Blackwell, someone else perhaps will do
so. I would just like to go back to remarks passed on the question
of this constitution or "non-constitution". In a way
it is to do with the aspirations of the people who are involved
in it and projecting it. Unfortunately, from the point of view
of the British public, had we started out and stayed with a clear
treaty dealing, as Laeken suggested really, with the relationships
between European institutions and protection of national parliaments,
and we had gone down that route very strongly then that might
have been a clearer message rather than the message which came
across. My colleagues say this was never a constitution, this
was always a Constitutional Treaty, but we all know all Treaties
are constitutional. I was a whip at Maastricht and I know very
well the constitutional nature of these sort of rather heavy Treaties.
I think it is being unfair to suggest that this was not intended
by the vast majority of people involved to be a constitution for
Europe. That, of course, sent warning bells immediately ringing
in the UK, it did not matter which government was in power, the
point is it was something in the British public's perspective
which anyone could have seen coming really because it was something
which was anathema to them having no single written constitution
of our own. Once our media, which is well-known for its lack of
objectivity, got hold of this lot it was almost inevitable that
there would be a mass reaction which would make it even more difficult
for politicians who were taking a sensible approach, a realistic
or pragmatic approach, to come out of this with anything that
would satisfy the British people. That is where we are. On this
business about opt-outs, yes, I think opt-outs are not honest,
I do not like opt-outs. I want us to be protected, of course,
but having opt-outs is a little bit unrealistic in the sense that
most of the opt-outs that we are talking about, and Richard does
not use the term "opt-out", in my view are challengeable
in a number of ways legally, and particularly in relation to the
Charter. Speaking as a lawyer as well, but only a rather simple
lawyer, nevertheless it seems to me the chances of the Charter
of Fundamental Rights not being utilised in terms of the UK position
is very small indeed, I think we will see that. The final thing
I will say is when you look at other areas, such as defence, for
instance, what I regret very much is although one can argue separately
about the need for a European Defence Policy and the High Representative
position, or whatever the term will be in due course, it does
seem to me that with other organisations which are established
and well-established historically, such as NATO, there is going
to have to be a lot of thinking in terms of our relationships
on a wider scale and this is probably going to cause some harm
in relation to a purposeful approach to defence, particularly
in a very dangerous world as we all know.
Q342 Chairman:
I want to bring Lord Mance into this but I noticed Mr Corbett
wanted to comment on what had been said before. If you could do
that fairly briefly because I think we all want to hear from Lord
Mance on this.
Mr Corbett: Following what Tim said, I think
it is all a question of definition, what is a constitution and
what is not. You can define these things in different ways, and
they are defined in different ways. The Canadian constitution
until recently was an Act of the British Parliament; part of the
British constitution is the Act of Union with Scotland, which
was an international treaty. Let us not get into definitions.
We are talking, nonetheless, about the basic rulebook of the European
Union, what it can do, what it cannot do and how it functions,
whatever you want to call it. Just leave it at that. That being
said, the use of the term "constitution" was one of
the problems in the Netherlands when they rejected it, the fear
of statehood that Elmar Brok talked about. In the UK it was the
term "constitution" that gave rise to demands for a
referendum saying, "This is not like any other international
treaty, we have never ratified international treaties by means
of a referendum, this is different because it is called constitution".
That has now gone, all that aspect of it has gone, it is now a
normal international treaty which some say is 98% identical in
its content but human beings and chimpanzees, I gather, are 99.2%
identical in their DNA and the 0.8% is rather important I would
suggest. That is the same here, it is the difference which is
rather important. The bit that gave rise to concern, calling it
a constitution, has gone. The price we pay is that it is a less
readable text and I would suggest that the British constitution
is not very readable, it is not codified and it is not a very
readable text either, and we are going to have to live with the
fact that our rulebook is a set of treaties.
Mr Brok: If it became more unreadable it would
become more British!
Chairman: I will call on Lord Mance and
after there have been reactions to what Lord Mance says I will
call on Lord Dykes, but I very much want to keep on the institutional
aspects because we have got a number of them still to deal with.
Q343 Lord Mance:
I hope I am not going to deviate too much. I just wanted to follow
up one or two points about the opt-out. I fully appreciate the
point about exceptionalism and the complication and fragmentation,
so it was not really that. I also do not want to go into the Charter,
if you call the Declaration or the Protocol an opt-out or an opt-in
or, indeed, go into the question of what the Protocol means. I
really want to look at the freedom, security and justice area,
Title IV, which will certainly lead to more situations where the
UK will have to consider whether to opt-in, and criminal law especially,
I suspect, is the area. I just wanted to ask whether you could
help as to whether you see negative implications, apart from the
point about exceptionalism, if the UK does exercise its right
not to opt-in. There has been one template example, it seems to
me, recently, the Rome I negotiations on proper law where the
UK did not opt-in, but has then taken part in negotiations which
have led to a result. We have not obviously decided whether to
opt-in at this stage but one can see it might be embarrassing
and very irritating if we did not. On the other hand, assuming
we do, will the process have suggested that in future there will
be any real difficulties if the UK in more frequent situations
does not initially opt-in? Do you see any practical difficulties
about the operation of the Title IV right not to opt-in in future?
Mr Corbett: This has to be looked at case-by-case
and we will see. In practice, in most cases I think the UK will
want to opt-in, and it will want to do so because the nature of
European legislation in this area is not to create a single penal
code or a single criminal law, it is to deal with those aspects
where there is a trans-national dimension, international criminality
or where there is a problem in civil law in terms of divergent,
national legislations where people have families in two countries
or businesses in two countries, those aspects of it. The type
of legislation that will be adopted will not be harmonising everything,
it will be dealing with those trans-national aspects where Britain
will often have a shared interest in trying to deal with the problem
in question. Remember, irrespective of the opt-in or opt-out,
to adopt anything at the European level you need the approval
of a very large majority, if not unanimity in some cases, in the
Council of Ministers, a Council composed of national ministers,
members of national governments accountable to national parliaments,
not people predisposed to harmonising everything at a European
level if there is no case for it, their job is rather the contrary,
to keep national margins of manoeuvre wherever possible but, where
necessary, to agree common rules. Given that, in most cases I
think in practice the British will usually want to opt-in and
not out.
Q344 Lord Mance:
Are you saying initially because I was really directing my attention
to the possibility that—
Mr Corbett: Yes, initially.
Q345 Lord Mance:
Would it create problems or irritation, or anything more than
irritation if, in fact, the UK on a number of occasions did not
opt-in initially but asked to take part in the negotiations as
it did in relation to Rome I and ultimately hope to reach an agreement?
Mr Corbett: Elmar is itching to answer that
one.
Mr Brok: It is not an answer to all the questions
on home and legal affairs, but in practical terms there would
be much more pressure on certain European countries to join in
than on Britain or Ireland. For example, the Czech Republic could
have this opt-out and with all the borders with other Member States
around it that would create a much bigger problem than Britain
would create for others on this question. Because it does not
have such an impact on the other countries because of this situation
there will be less pressure on Britain to join in as there would
be for a central European country.
Mr Kirkhope: Schengen is a good example. Talking
about being outside Schengen, of course we are inside an awful
lot of Schengen. We have been opting in or signing up to a considerable
number of provisions of Schengen, particularly on the co-operation
front, for some years now. We all agree that co-operation is a
very important thing.
Mr Leinen: Richard was mentioning when we talk
about criminal law, which is sensitive, but when it comes to civil
law and Rome I, and you mentioned it, if you have opt-outs then
contracts and commercial trades and exchange could be harmed in
a common market.
Lord Mance: I am sure that is why the
UK has taken a vigorous part in the negotiations.
Lord Dykes: We have to finish at eight
o'clock so I will make this as a quick comment, but if people
want to regard it as a question as well I am happy with that.
Just to remind Timothy Kirkhope in the most polite form, of course,
that the problem really started on his analysis when Tony Blair
changed his mind from saying it was not only an indispensable
Constitutional Treaty for Britain—"indispensable"
is a very strong word—and did not need a referendum, and
there was just a very short moment, of course, one recalls when
Chirac was thinking, as they are doing now, of having a congress
of both houses rather than anything to do with the referendum
but then he saw the pressure and the Murdoch press reaction and
all that, that was the tragedy. It was a failure of national leadership
as big as not joining the euro or the other previous examples
of hesitation on Britain's part. I think you saw it in a particular
light afterwards and welcomed what had happened whereas most people
looking back on it in history will find it was a serious mistake.
I hope that is the case anyway. Presumably Elmar Brok and others
on your committee would hope in practical terms as politicians
you are going to have pretty famous people as candidates for this
particular process of the election of the Commission President.
It is only a draft report I know, but it is an excellent report,
and I congratulate you. In nine and ten of the conclusions, and
that must be a task that even Timothy Kirkhope would agree with,
there is the difficult task of getting these things over to the
public in the Member States. It is much easier with these six
core countries for obvious historical reasons: Germany a spectacular
example of leadership in Europe on many occasions, not least giving
up the only successful currency and joining the euro. Gosh, if
Britain was able to do some of these things and not just the Single
Market, I would be very pleased looking back on European history.
Can I just comment, I hope very much that the press in Brussels,
and therefore the national press liaising with their colleagues
in Brussels, when the Treaty is ratified, we hope, and I agree
it is a long process, it takes time, will take an interest in
these matters so that extremely famous people are on the television
in the national Member States. There are only a small number of
politicians in the Member States now, and Elmar Brok is one of
them. I pay tribute, by the way, to Elmar Brok and his work as
ein erstkassiger kampfer der europaischen geschichte,
and in Britain as well. I remember him vividly in the early 1990s
very elegantly and politely giving some important advice to some
of our colleagues on the Commons' European Scrutiny Committee
about some of the realities of these things. The more that is
done the better. If you can combine that with the public's growing
interest, including in Britain, by the way, becoming very European
minded as a national constitution, on the practical stuff of Europe
like the mobile phones and reducing charges here and there, all
the things they hear about of the Commission's good works in those
matters, and the Single Market and all the rest of it, and if
only they would take an interest in the euro if the British press
would talk about that as well, that will all come. If you can
combine those two things as well as the institutional explanations
that the new candidates and the winning candidate who becomes
the President eventually can do, it is a long process but do you
feel the press in Brussels are beginning even to think about it,
or is it too early?
Chairman: We are short of time and I
do want to ask Lord Plumb to come in. I would like to hear from
the four of our colleagues from the European Parliament how they
think the relationship between the four important officials in
the European Union will work. How will they work together? This
is a very critical constitutional issue for us. That will be our
last question but, before we do that, let us get Lord Plumb in.
Lord Plumb: Thank you, my Lord Chairman.
I know just how difficult it is to get a word in with the colleagues
who are sitting in front of us, I have had a bit of experience
of that in the past! We are a scrutiny committee, and as a scrutiny
committee our Chairman will have the responsibility of going back
to the House of Lords and in 17 or 20 minutes, at maximum, he
will have the opportunity of saying to the House of Lords what
we have scrutinised. I hope we can report scrutinising the facts
rather than the fiction or some of the perception that so many
people in our country have of what this is all about. What you
have said has been helpful but, at the same time, it wants a lot
of scrutinising. The question I want to pose is on co-decision.
It is exactly 20 years since the co-decision procedure started,
and I remember it extremely well and the concern we had at what
it was going to do. How has it worked so far? How is it going
to work in the future, because now you are bringing in budgetary
affairs and agriculture and all that implies because of the reformed
Agricultural Policy? I am going to leave it there because time
is pressing. There are a lot of things we could follow-up on and
a lot of things we ought to follow-up on because I do not think
we are in a position at the moment, in spite of the things you
have been saying and interesting though they are, to be able to
put together a paper based on those facts which would satisfy
our own people and then, of course, satisfy those who are in the
other place and from there on, of course, satisfy the 40 or 50
million people who might have a say on this once it gets out into
the country.
Q346 Chairman:
Thank you very much indeed. In the last minutes we have, could
we ask our colleagues how they think this sort of minuet is going
to be danced by the various high officials? Is anybody going to
come out as top dog? Is the permanent President going to be calling
the shots? What is the relationship going to be with the High
Representative? Will the President of the Commission feel that
he or she is losing a little authority because of the new Council
President, and where does the rotating Presidency come in? If
you can address some of those issues for us it would be very helpful
to us for our inquiry.
Mr Brok: This question that Lord Dykes and others
have raised about the candidates for the Commission Presidency
is an important question, not perhaps in 2009, that might be too
early, but in the 2014 European elections. If the political families
come out with their nominations for Commission President then
the job is done with legitimacy because the vote of the citizens
is for the President of the Commission because he is part of an
election campaign. We have to be careful in 2009 in which order
these positions are nominated before we come to a situation where
public control is there. We have to clarify, and Lord Kerr knows
this better than all of us, the President of the European Council
is only responsible for preparing meetings of the European Council,
he is not responsible for the legislative Councils or the General
Affairs Council or the Foreign Affairs Council. It is very important
that we require these three positions. The High Representative:
is he a High Representative for his own service or in the legal
sense is he also the Vice-President of the Commission in a practical
term, not just a legal term. It will be very important in 2009
in which order and what type of people are nominated at the beginning
for that because the type of people set realities, and here I
am a little bit concerned about that and we have to be careful
in the course of the coming year how this is done. The last thing
I would say is in answer to what Lord Plumb said about the co-decision
procedure. The European Parliament acts in a very responsible
way where it has competences. It is the same everywhere in the
world, if people get responsibility they will act responsibly.
We have seen this change in the working method and behaviour of
the European Parliament. The European Parliament is flexible in
getting agreements in negotiation with the Council when it comes
to conciliation. Here we have a problem with the Council because
not all 27 ministers take part, it is mostly the ambassadors who
have no political legitimacy, who are not ready and able and have
no right from home to make compromises, and it is a practical
problem. That is a decision for national governments, not on our
side at the European level. COREPER in the future should have
ministers from national governments who are in the cabinet and
have political legitimacy. In the long run we must come to that
point because we cannot leave legislation to ambassadors for a
lot of reasons. This has to be considered by national governments
in the future. Sorry, but you know better than me what I mean.
Mr Kirkhope: I think the biggest clash is going
to be that between the new so-called EU President and the High
Representative because here we have a very clear conflict, particularly
in relation to future foreign policy areas. Undoubtedly, the President
is going to have rights to take a lead on foreign policy but immediately
there is going to be a difficulty with the High Representative
in my view and the status of the High Representative, particularly
in relation to the meetings of the EU General Affairs and External
Relations Council. I think that is going to be a real problem
and no-one has a complete answer as to how that is going to work.
For all its deficiencies, personally I think we have one of the
best Commissions that we have ever had, it is a very good Commission
and a very good President. I am very worried about the aspirations
and ambitions of some people. Some of the personalities and names
who have been attached to these positions also worry me very much.
Undoubtedly, democracy will help, but in that particular field
I think there will inevitably be quite a clash regardless of the
UK's interests in relation to foreign policy.
Q347 Chairman:
Thank you very much. The last words from Richard Corbett and Jo
Leinen.
Mr Corbett: It has been said.
Mr Leinen: I will just comment on the last words
from Lord Plumb saying this is not yet satisfactory for a report
in the House of Lords, for the other House or maybe for the 60
million citizens of Britain, and I ask myself what would be satisfactory
for the House of Lords, the other House and the country. I have
to take part in lots of meetings and I think the citizens are
the winners in this Treaty because Europe is able to solve the
big problems we have defined as being better dealt with at the
European level. This is internal security, external security,
the fight against criminality, especially terrorism, the fight
against climate change, energy safety and so on. We have to translate
the Treaty in relation to issues and policies that serve the people.
The difficulty is as long as we only talk about institutions and
procedures it will be very far away from the comprehension as
well as the needs of the citizens. The political class, and that
is all of us, has a duty to translate the Treaty into the practical
consequences it will have for the citizens in Europe as well as
for Europe itself looking at the 21st century in relation to globalisation
and what we are facing in the next decades. This has been a very
good exchange of ideas, a lot of questions, and I thank you very
much again for coming to the European Parliament.
Chairman: Thank you very much indeed
to all four of you. Let me just emphasise, and this may come as
a disappointment to some of you, that the report we are going
to put in is not going to make a recommendation to the House as
to whether or not they should ratify the Treaty; that is for the
House to decide. What we are trying to do, and I think you got
close to saying this yourself a moment ago, is to provide a good
analysis of the Treaty so that it is understood what the implications
of it are for those who will have to vote on the ratification
and, therefore, we are in the process of conducting an analysis
and an impact assessment of the Treaty. It will not be focused
solely on the institutional questions, it will go right through
the Treaty and the different Sub-Committees will have their comments
to make on all other parts of it. It is meant to be a thoroughly
objective report that will assist the House to make up its mind
as to what it wants to do with the Bill when it comes to the House
some time in March very likely. Let me close by saying that we
may have strayed rather wide in our conversation this afternoon,
but it has been very useful to us and I thank you all sincerely
for your contributions to it because the institutional part may
bore the public to tears but it is, nonetheless, a very important
part of the Treaty because from the institutional arrangements
flow so many other things. Therefore, we felt it was very important
that the Select Committee should take the responsibility to look
at the institutional aspects of the Treaty which will form an
important part, of our report. Thank you very much indeed for
giving us of your time, it has been very helpful indeed. We will
send you a transcript of the discussion that you can check through.
We will certainly send you copies of the report as soon as it
is published. We wish you well, the Members of the European Parliament
and your Parliament, with the new dispensations given to you by
the Treaty if the Treaty finally comes into force. Personally,
I look forward to seeing all of you at various other meetings,
where I am sure we will meet in the not too distant future. On
behalf of the whole Committee, thank you for being with us for
so long today and giving us such an interesting chance to talk.
|
