Examination of Witnesses (Questions 500
- 519)
WEDNESDAY 16 JANUARY 2008
Rt Hon Jack Straw MP, Ms Rebecca Ellis and Mr Kevan
Norris
Q500 Chairman:
Thank you, and as such therefore would be subject to the opt-in?
Jack Straw: Yes, because the anxiety of the
people who raised this is that if it came under some other instrument
it may be an instrument under which we do not have an opt-in power.
Q501 Chairman:
So even in the areas of the environment and ship source pollution
in future amendments and fresh measures will be, in your view,
under 69B(2)?
Jack Straw: This is my view and also, more importantly,
the clear advice I have received.
Q502 Chairman:
Thank you. Can I move on then to the emergency brake and enhanced
cooperation, questions 5 and 6? How will the Government approach
use of the emergency brake in the field of criminal cooperation
and judicial matters, bearing in mind the existence of the UK
opt-in in the whole area? I think the question there is the issue
of whether it is really conceivable that it will be used.
Jack Straw: It is certainly conceivable. We
would not have spent quite so much time working on it and on the
precise mechanisms of the opt-ins/opt-outs if it were not conceivable.
My Lord Chairman, how often it would be used I cannot be certain.
What we would like is a situation where the measures which come
forward are ones which we support in principle and then after
a period of negotiation we support in detail and they go through.
We have not got a list of possible proposals from the Commission
where we say, "Not on your life, whatever happens. We are
either going to opt-out or, if we start negotiations to opt in,
we will pull the emergency brake." However, even were the
emergency brake to be not actually exercised in the five years
or so it does not mean that it serves no purpose because the nature
of negotiations (any negotiations but particularly those in Europe)
is that the fact that you have a possibility of doing something
which could be inconvenient and literally just occupy a lot of
time in the European Council, particularly the emergency brake,
would be in certain circumstances a negotiating card which you
could deploy to your advantage. So I think it is helpful, as I
say, but also in terms of the opt-ins it is an important protection.
It means that in the areas where the emergency brake applies if
we support the principle of an instrument which is being put forward
we can opt into it and in extremis, having opted into it but then
some unforeseen difficulty arises from the way in which it is
being negotiated which does affect "some fundamental aspects
of our criminal justice system", then we can pull the emergency
brake. So it is an additional protection and I think really rather
an important one. Again, it is quite a paradoxical point but I
think the effect of it may be to provide greater confidence to
British Government to get involved in opting into instruments,
which is actually in principle what we want to do, and having
done that then some additional surety which will get a satisfactory
answer so that we do not have to apply the emergency brake.
Q503 Chairman:
Jumping ahead, can I ask whether the UK can in effect opt back
out of the measure into which it has opted, for example where
the measure has been significantly amended?
Jack Straw: Once a measure has become law and
we have not exercised the emergency brake, we do not have a right
to opt-out at that stage. That would produce a situation which
nobody could tolerate because you have to make decisions. It does
not amounting to opting out of a measure, but it does mean, as
I have described, that we could opt in and take part in the negotiations
and then find that there is some really overwhelming difficulty
with the instrument as drafted and we are in a qualified minority,
and we then decide to pull the brake.
Q504 Lord Blackwell:
I have two specific questions, if I may, one on the emergency
brake. Could you clarify what legal distinction there is between
the emergency brake and the old Luxembourg Agreement, the Luxembourg
compromise? Is the emergency brake effectively a political agreement?
If we said this was against our fundamental whatever the words
are and the others said, "Come on, you're having us on. We
want to go ahead with this anyway," is there any legal basis
to this emergency brake and who would adjudicate?
Jack Straw: There is certainly a legal basis.
Ultimately the adjudication would fall to the ECJ, but I think
one fundamental difference is that the Luxembourg compromise is
a political agreement and no more. It is about how the Union should
operate in practice but it has absolutely no legal basis whatever,
whereas this has a legal base, so I think it changes the terms
of trade very significantly indeed. I am trying to think whether
I remember witnessing in the European Council in the five years
I sat in it to someone deploying the Luxembourg compromise, but
others around the table are better informed than I am.
Q505 Lord Jay of Ewelme:
Normally one uses the words as a threat to strengthen the negotiating
hand.
Jack Straw: Yes.
Q506 Lord Blackwell:
I accept the political impact is quite powerful, but I am just
wondering whether in reality there are any legal teeth to this.
Jack Straw: I think the practical effect of
the emergency brake will be stronger precisely because it has
a legal basis, and that then means the Commission has to engage
in the matter. Of course it will engage where the Luxembourg compromise
is exercised, but it is a different degree of engagement. It is
not a loosely drafted compromise going back to the 1960s, it is
in the current legal base.
Q507 Lord Blackwell:
So in the final degree it would be the ECJ, if it came to it,
that would opt to it?
Jack Straw: Well, they would, but it is extremely
rare for the ECJ to arbitrate over the decision-making process
in the European Council. I wish them well! What happens in the
European Council is that the pressure in the European Council
is to seek agreement, or if there is not agreement at least to
seek agreement about a form of words so that everybody can go
home. No one should underestimate that pressure if you have been
stuck in one of those airless rooms, as some people around this
table have. Also, it is just the desire for the Union not to appear
to be divided. Both arrangements have the same principle, which
is to accommodate a particular and overriding national interest,
as one of the Member States sees it. But as I say, the interesting
thing now is that there is a legal base for it.
Q508 Lord Blackwell:
Yes. The second specific, if I may, is that under enhanced cooperation
one of the things which can happen is for a group of countries
to go ahead with the European Public Prosecutor. Is it envisaged
that a European Public Prosecutor would be eligible to execute
a European Arrest Warrant?
Mr Norris: The starting point is that unanimity
is required to establish a European Public Prosecutor. If that
unanimity was not forthcoming and a number of Member States went
and established a European Public Prosecutor just in relation
to those states, then that development would not affect the non-participating
countries. So what you could not have is a European Public Prosecutor
being developed by nine Member States under the enhanced cooperation
procedure and, assuming the UK was not part of those participating
Member States, for the UK then to be affected by that development
for a European Arrest Warrant.
Lord Blackwell: Thank you.
Q509 Chairman:
Can we move to the question of opt-ins, which again you have already
directed some remarks to, and can I ask first, in June 2004 Mr
Browne, MP, set out the Government's policy for opting in under
the existing Title IV Protocol and said that it was to review
each proposed measure individually and to opt in when it is in
the interests of the United Kingdom to do so. Is that policy likely
to change?
Jack Straw: No, and one of the reasons it is
unlikely to change is because Mr Browne, when he set out the Government's
policy in June 2004, quoted the statement I made as Home Secretary
in March 1999, so that seems to be a good base for this. I do
not want to disagree with myself, although one is entitled to!
The thrust of that was that we wished to cooperate in areas of
justice and home affairs but maintain control of our own borders.
I have already set out that we want to see cooperation. It is
in our interests. There is a separate issue about border control
where I believe, and so does the Government, that for reasons
with which everybody here is familiar there are overwhelming arguments
for us having separate border controls, but that does not stop
very intense cooperation, including within the Schengen system.
Q510 Chairman:
Can I then go back to the question of the flexibility given by
the opt-in. You have already mentioned that there will be now
an opt-in for policing and criminal justice, although at present
subject to unanimity, and there will also be a right not to opt
into Schengen building measures in areas where we do cooperate.
At present we are bound to opt in, so that I think this Committee
has identified as a change which gives greater flexibility. Is
there any other point which arises in this context?
Jack Straw: I do not think so, unless either
Rebecca or Kevan want to add one.
Mr Norris: I think the only addition is that
it has now been put beyond any doubt that the opt-in applies to
amendments to measures, which are amending measures that we are
participating in, which we would argue is already the position
under the Protocols, but insofar as there was doubt in that respect
that has now been resolved, so that is quite clear.
Q511 Baroness O'Cathain:
So in theory you can make a statement that you are always going
to be opting out on that no matter what amendments are brought
in, is that it?
Mr Norris: It will come to a situation where
we opt in to a proposal which is adopted and, maybe a few years
later, amendments are brought forward to that proposal which take
the proposal in a direction that we would not support.
Q512 Baroness O'Cathain:
So we could opt out?
Mr Norris: I am quite clear that we are not
bound to participate in that amendment. So not only do we have
a choice whether to opt into the original proposal but we also
have a choice whether to opt into any subsequent amendment to
that proposal.
Q513 Baroness O'Cathain:
Although you have actually opted in?
Jack Straw: Yes.
Mr Norris: We have opted into the original,
for example the European Arrest Warrant, but if there was an amendment
brought forward to that measure which we did not support then
we have a right not to participate in that amendment.
Q514 Baroness O'Cathain:
I see, because earlier on you said that once you opt in you have
had it.
Mr Norris: There are two different things.
Q515 Baroness O'Cathain:
Yes, but this, of course, is due to the amendments because the
thing changes?
Mr Norris: There are two cases. If we opt into
a proposal, we cannot then opt out during the negotiating procedure.
So having opted in we are then like all other Member States and
if that measure is then adopted we are bound by it. But if in
two or three years' time a new proposal is brought forward to
amend that measure, then the opt-in clearly applies and we again
can decide not to opt in at that stage.
Q516 Lord Jay of Ewelme:
But then the measure unamended would continue to apply to us,
would it?
Mr Norris: Yes, it would continue to apply to
us, unless the fact that we are not participating in the new amendment
would render the original measure inoperable.
Jack Straw: This was the subject of very great
argument in negotiating the relevant provisions of the new Treaty
and some were suggesting that this would mean that wherever we
exercised our opt-out in respect of an amendment to the existing
measure we would pay a very high price, but I am satisfied that
that would not be the case and in fact the language used is such
that the -
Q517 Chairman:
Inoperable, I think was the word.
Jack Straw: Yes, it is inoperable, and also
words to the effect that everybody has to work to accommodate
all the Member States. But it would be if it was inoperable. That
is a high test, in our view.
Q518 Lord Wright of Richmond:
Do you draw any conclusions from our rather anomalous relationship
with Frontex, which I think is classified as a Schengen building
measure, and would the provisions under the Reform Treaty change
that anomalous relationship?
Mr Norris: They will not. As you know, the provision
under Frontex was that it is a regulation which was adopted to
establish a European border agency. The UK was not allowed to
participate on the basis that that is building on a part of the
Schengen Acquis in which we do not participate, the external border
part of the Schengen Acquis and the European Court of Justice
said that in those circumstances the UK is not allowed to participate
in the building measure. There is nothing in the Protocols which
will change that position, so that will continue to be the case
under the new Protocols.
Q519 Chairman:
May I ask this question, Secretary of State: what about the practicalities
of not opting in? I am afraid this is a slightly long introduction
to the question, but if I can go on and say in relation to Rome
I the United Kingdom did not opt in but was able to participate
in negotiations and this Committee has on its agenda today a letter
from your Under Secretary of State, Bridget Prentice, MP, recording
the Government's assessment that the negotiations have led to
a good outcome on many of the concerns identified and she says
there will be a further consultation, including with this Committee,
on whether to opt in now. There have been two other occasions
in quick succession where the UK did not opt in, Rome III on choice
of law in divorce and the proposal on maintenance orders. Last
week in the European Parliament the British Vice-President, Diana
Wallis, a supporter of close participation in Europe, said to
us that not opting in with a view to negotiating and later opting
in (as may be the case with Rome I, we wait to see) was, although
it is expressly permitted by the Protocol, a one-off, non-repeatable
exercise. Reading the transcript, she had in mind, as I understand
it, Community goodwill and harmony, the ability to maintain cooperation
and influence in other areas. In other words, she was suggesting
that the UK's practical or at least its tactical freedom to refuse
to opt in may be limited. Do you see it that way?
Jack Straw: I do not, as a matter of fact. I
think Rome I is an interesting example of this. You have to make
judgments on the merits of the case, in other words the draft
instrument or the draft proposal. I do not think there is a rule
here, but what I would say—and I was not aware that this
had been said to you—is that I do not accept the conclusions
which Mrs Wallis came to. Since becoming Justice Secretary in
late June, I have been heavily involved in the negotiations to
straighten out what is actually Article 13 of Rome I so that we
are now in a position to opt into it, subject to the consultation
which Bridget Prentice has set out. I think it is fair to say
I know the EU and its institutions pretty well, but I have no
sense whatever in the negotiations in which I was directly involved
with the Commission, for example with Spain or France, that they
resented the process which we were following, and here is why:
first of all, we are self-evidently one of the three largest countries
in the European Union, but in the field covered by Rome I we have
a disproportionate weight because of the strength of our financial
markets and all the instruments which are traded through London
and other financial centres in the United Kingdom. Secondly, we
wanted to see a situation where we could sign up to Rome I, but
those from the legal industry will know that Article 13 was about
which proper law should apply to deft instruments which have been
assigned. The original proposal was one which was completely unsatisfactory
to this country's interests and particularly those involved in
these trades. There was no way we could have opted into it as
drafted, or you could pretend that we were going to opt into it
as drafted, but also what is significant is that other Member
States realised that they had a common interest in us being part
of the instrument, because had we not been part of the instrument—and
it still may happen—and say they stuck to the original wording
in Article 13, there is no question, in my view, that none of
them would have ended up with a further competitive advantage
over the European financial centres which were subject to Rome
I. When I discussed this separately with the French and the Spanish
justice ministers and had quite detailed discussions with them
about what was wrong with it—and I have to say I could not
understand what the merits of it were from their point of view
either because it was going to lead in practice to huge uncertainty
about what proper law would apply, and so on—they were in
the same place as I was in wanting to reach agreement and trying
to understand why we had a point of view. There was then further
negotiation, which I think has resolved the matter in principle
satisfactorily. That is a good example where I think the approach
taken by the British Government—and it was not I who made
the original judgments here—was absolutely correct. There
may be other circumstances in which we judge that the political
market is going to operate in a different way and that it is sensible
for us to get in and say that we are going to opt in. Then, depending
on what the legal base is, we may have a right to apply the emergency
brake, but as I say it is making judgments on the particular circumstances
of the instrument. I certainly do not accept what was said, that
this was a one-off, because there are plenty of further cases
where our disproportionate involvement in the field of commerce,
the financial business, means that the other states have got an
equivalent interest to us in getting us within the instrument.
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