Examination of Witnesses (Questions 475
- 479)
WEDNESDAY 16 JANUARY 2008
Rt Hon Jack Straw MP, Ms Rebecca Ellis and Mr Kevan
Norris
Q475 Chairman:
Secretary of State, thank you very much indeed for coming. We
are most grateful. We are in the final stages of evidence-gathering
to assist us to prepare a report to feed into the Select Committee
report on the Lisbon Treaty. There will be a transcript of today
and for the record, Lord Wright and I have made declarations of
interest. Mine is the rather interesting reversal of role as a
member of your advisory committee on private international law,
which has looked at the Rome I proposal and other proposals which
may be touched upon today. We would be very grateful if you have
an opening statement to make, and perhaps you would like to introduce
the colleagues you have with you.
Jack Straw: Thank you very much, My Lord Chairman.
Let me first introduce the officials who are on either side of
me. Rebecca Ellis is a lawyer from the Ministry of Justice Legal
Group and Kevan Norris, who is from the Home Office Legal Group.
Thank you very much for the invitation to come before you. If
I may, I would like to make a short opening statement, which may
assist. When I was Foreign Secretary, I not only supported and
helped to negotiate the Constitution for Europe, but I also signed
it, so I was satisfied that it was going to be in the United Kingdom's
interest. But I was aware, of course, of the great controversy
surrounding it. Having said that, I think the deal which has been
negotiated in Lisbon and is now encapsulated in the Lisbon Treaty
is different and better—first of all, it is an amending
treaty, it is not a Constitution—particularly in areas of
justice and home affairs. Secondly, I am clear that these changes
mean there will be no loss of the United Kingdom's sovereignty
on matters of fundamental importance to the United Kingdom and
it does not change the fundamental relationship between the European
Union and its Member States. In that sense it is, if anything,
I think probably less significant than either the single European
Act or the Maastricht Treaty. Let me just deal with the key differences
between the Lisbon Treaty and the Constitution, particularly in
areas of justice and home affairs. Unlike the Constitution, the
Lisbon Treaty provides us with the power to choose whether to
opt into police and criminal judicial cooperation measures and
that, in my judgment, represents a very significant strengthening
of the United Kingdom's position in this field. It enables us
to protect the unique features of our law and our legal system
if we need to. You will also be aware that in addition to the
Horizontal Articles, which we thought were the strong protection
for the United Kingdom's position in respect of the Charter of
Fundamental Rights, we now have a Protocol which we and Poland
have signed and I think anybody who reads it will understand that
it is complete protection. The language is unusually clear for
an EU instrument in being remarkably unambiguous in the protection
it provides. All of this, I think, needs to be seen in the context,
which is that I am in no doubt, and neither is Her Majesty's Government,
that it is in the interests of the United Kingdom and its citizens
to be involved in wider and deeper cooperation on justice and
home affairs. That is something which is pretty obvious for those
who deal day to day with these questions, but it is sometimes
less obvious to my constituents. Constituents who attend public
meetings and come to see me and say, "This is all terrible.
You shouldn't be involved," I then ask them where they go
on holiday and I ask them—and the answer is in the affirmative
in a surprising number of cases, including those on a relatively
low income—whether they or anybody they know has got a house
in Spain or Italy and whether they know anybody who has made use
of his or her right to work in other European Union countries.
A huge number of people take holidays abroad elsewhere in the
European Union, including for weeks and weeks at a time if they
are pensioners. A significant number of my constituents on average
or below average income have got access to houses in Spain or
Italy, or elsewhere, and these days you cannot go into a firm
in my constituency which has not got both quite a number of EU
citizens working for it and which is making use of the right of
free movement of labour abroad as well. I then say to them, "Well,
okay, that's fine. So let's go through where you would be if you
were going on holiday and you ran into trouble with the police
and you weren't within the EU area. You'd have far fewer rights.
Within Europe you would have the ECHR but nothing much more. What
we are seeking to do by the JHA programme is to provide you with
serious rights which are equivalent to those you are able to exercise
here if you do run into trouble with the law." I have got
two cases on at the moment, one in respect of someone who has
run into property difficulties in the EU state and another who
has run into property difficulties in a European state which is
not inside the EU. In neither circumstance is the situation satisfactory
in the way in which we would see it, but the possibilities of
remedy, legal but also political, of actually getting the systems
to work are much more significant in the EU Member State than
in the non-EU Member State. People complain about the foreign
trucks going up and down the M6 and the M65. Then I say to them,
"If you have an accident or there is a collision and the
foreign truck driver is to blame, shouldn't we have clearer remedies
against these people and not just allow them to disappear and
for there to be no remedy?" That also requires cooperation.
When I am able to do that, people start relaxing about this and
they can then see the benefits as well as—and no one really
argues about this—the benefits of cooperation on terrorism
and, for example, organised crime. This then leads on to the issue
which I think is part of the argument about the new Treaty, which
is whether it is acceptable for decision-making to be made principally
by a qualified majority rather than by unanimity. There are people
around your table, Lord Mance, who have had much longer experience
than I have had of negotiations with the European Union, but all
I can say is that even at 15 the old system within the JHA of
trying to secure agreement essentially by international treaty,
by convention, was creaky. I will give one example of this. Ten
years ago exactly we had the EU Presidency. I was in the chair
of a JHA Council and we had before us a draft convention on the
mutual recognition of driving disqualifications—not the
world's most earth-shattering matter, but quite important—and
there was a difficulty because one Member State had a maximum
driving disqualification period of 28 days and all the other Member
States had a minimum of a calendar month. So you can imagine that
there was a wonderful argument about how these were compatible.
After hours and hours and hours in the Council we finally gained
political agreement and subsequently we gained legal agreement.
It took an immense amount of effort and it was signed, but it
is significant that this instrument, ten years on, has still not
been ratified and has not come into force. Meanwhile, what that
means is that bad drivers who get disqualified in one jurisdiction
cannot have a disqualification enforced against them in another
and that has not been in the public interest across Europe. The
other point I would just like to make, and it is my final point,
about the use of qualified majority voting is a slightly paradoxical
point. Some people see this as some kind of sacrifice of our national
interest and implying, as it were, that we will always be in a
minority and always on the wrong side. I do not accept that for
a second. One of the things people forget when they are calling
for unanimity—which has its place, let me say, and I am
very clear about that, in other areas—is that it is in the
nature of negotiations where unanimity is required that you quite
often, in the interests of seeking agreement, reduce and reduce
and reduce to the lowest common denominator and you end up then
with an instrument which is actually not satisfactory to anybody—the
driving disqualification is quite a good example of that—whereas,
in my view and my experience, on the whole because we are one
of the largest Member States in the Union we have, I think, an
influence in the Union which is at least proportional to our size
and our economy, and in many areas larger, and we can and we do
win arguments and it is rare for us to be in a minority. If and
when we do face a situation or we anticipate a situation where
we are going to be in a minority and we think it is not in our
national interest to accept a majority vote, we can decide not
to opt in in those areas where that applies and in certain areas,
as you know, we can apply the emergency brake and it is the judgment
of the Government. But that is quite sufficient protection, an
additional protection, for the United Kingdom's interests. Thank
you, My Lord Chairman.
Q476 Chairman:
Thank you very much indeed. Unless there is anything more you
want to add, I think that probably answers the first question,
what has prompted the changes introduced by the Treaty of Lisbon
in the areas of Freedom, Security and Justice, the merging of
the First and Third Pillars?
Jack Straw: I think so, My Lord Chairman, and
there is the overall issue, which is the more there is movement
of people for whatever purpose and of business across borders
in Europe the more you have got to have a high degree of cooperation
and mutual recognition on legal matters. The second thing is to
say that of course when the Constitution failed we were able to
take stock and to seek improvements, which perhaps had not been
possible at the time of the Constitution.
Q477 Chairman:
Lord Jay has a general question. Can I just ask you first, you
have indicated some areas where there have been problems? Do you
feel that the changes are in practice likely then to be significant?
The driving disqualification proposal, would that have received
the relevant majority?
Jack Straw: If you take that, it is a second
order example, but I am pretty clear that we could have come to
a much better situation on that. The Member State concerned which
had this difficulty at a political level accepted that they should
really go ahead, but it was just going to cause immense problems
within their own parliament, whereas if there had just been a
qualified majority for it they would have said, "Well, we
accept it." I think on the whole it will work to the benefit
of people in Europe and not just to the governments.
Q478 Chairman:
There will be a significant expansion in Community activity and
legislation in this area, Freedom, Security and Justice?
Jack Straw: Yes, and as I think you may have
gleaned when you went to Brussels, the Commission is preparing
for that and so are the Member States, but we have good relations
with the Commissioner and people in the Directorate-General and
I have confidence in the Commission itself that it is going to
do this in an inclusive way and seek the views of Member States
about what the priorities are.
Q479 Lord Jay of Ewelme:
I may say, first of all, it seems rather odd to be sitting here
asking the questions rather than sitting beside you trying to
fend them off!
Jack Straw: It is worse for me, Lord Jay!
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