Examination of Witnesses (Questions 520
- 539)
WEDNESDAY 16 JANUARY 2008
Rt Hon Jack Straw MP, Ms Rebecca Ellis and Mr Kevan
Norris
Q520 Chairman:
Can I just ask one further question then? That deals with the
situation, assuming the UK is successful in the negotiations and
a satisfactory result emerges. Suppose the negotiations fail to
satisfy United Kingdom's concerns and as a result the refusal
to opt in is maintained. Is there any problem about that? Do you
see any disadvantage or ill-will resulting from that?
Jack Straw: People always talk about ill-will
and it is sometimes said, and I have had this put to me myself,
that I ought to concede a point because otherwise there will be
ill-will. I then say, "Do you think the officials of country
X or country Y would be saying the same thing to their ministers,
or would they be saying, `We should dig in. We have got our national
interest'?" I am afraid to say I take the rather crude approach
of saying that we are going to dig in. That sort of point is normally
put to you by people who want you to shift and they will come
up with any argument to get you to shift. There are plenty of
arguments the other way. My own sense from working within the
European Union over these years is that you have to have a serious
approach. You have to show you are committed to the purpose of
the institution. You do not think that anybody who lives across
the Channel has got two warts and a tail and gets up in the morning
to try and worst the United Kingdom. I do not think any of those
things. Then you develop good personal relationships with people
and of course you are willing to help them to where they have
a national interest. Where it is second to the United Kingdom
and they have a national interest, you can help them, and I think
provided you do all those things doing what we have done in respect
of Rome I can be—can be—a perfectly appropriate and
potentially successful approach, but other approaches may also
be appropriate.
Q521 Chairman:
I perhaps might mention, although it is a little outside the scope
of what we have been looking at in this inquiry and I do not think
we should go into it too deeply, one other point mentioned by
Mrs Wallis was a feeling of concern as a British European MEP
about situations in which they were participating (in her case
I think as Rapporteur) on a proposal where the United Kingdom
had not in fact opted in, a sort of West Lothian question in the
European Parliament.
Jack Straw: I think in a sense ... No one has
taken this point against us, that in those situations our MEPs
should not take part in the vote. What we would be seeking to
do in those circumstances is to provide our MEPs of all parties
with briefing about how, although we were not opting in, they
could make the instrument more satisfactory because it is bound
to have some kind of impact upon us. It would be very, very odd,
I think, to say that the Members of the European Parliament, who
are elected by voters, should have their ability to vote on individual
instruments determined by the position of the government of their
host country, with which they may have profound disagreements.
I am not bothered about that argument.
Q522 Lord Jay of Ewelme:
It was not just the voting but that there might be a disposition
not to elect, as Rapporteur of the group or a member of the committee,
into a measure or an area on which the UK was opting out. I think
that was the new departure in the European Parliament.
Jack Straw: If I may say so, My Lord Jay, that
is a good point! You would expect me to say that.
Q523 Baroness O'Cathain:
I think Baroness Ludford also had the same view because she was
in a similar position.
Jack Straw: Yes. In the world in which we are
living we are not signing up to this Treaty with the idea that
we are going to opt out of all the instruments. We will be signing
up to it with the idea that we are going to cooperate to the maximum
extent consistent with our national interests and we will opt
into matters. So I think it is going to be less of a problem than
she anticipates.
Q524 Chairman:
Can we move on to national parliaments. Sir David Edward, the
former British judge on the European Court of Justice, as well
as the Law Society of Scotland have highlighted the need for close
consultation with devolved institutions regarding both the exercise
of the opt-in and the monitoring of subsidiarity. May we ask what
plans the Government has to ensure that such consultation takes
place?
Jack Straw: My Lord Chairman, there are very
well established arrangements for cooperation with the devolved
administrations at the moment and the principal machinery for
that is the joint ministerial committee on Europe, which is chaired
by the Foreign Secretary or in his or her absence the Minster
for Europe of the day. The representatives of the devolved administrations
attend that. There are also good and satisfactory arrangements
for resolving most matters by correspondence in the normal way.
They seem to have worked and I hope they continue to work. In
addition to that there is a longstanding protocol which I think
was originally devised at the time of the devolution settlement
in 1998/9 about matters such as the attendance and speaking of
ministers of the devolved administrations. It is done on a case
by case basis but at the last two JHA Councils I have attended
the Scottish Executive has asked if one of their Ministers, in
fact the Solicitor-General for Scotland, can attend. He has and
he has been fully involved in the briefings. On one occasion,
which was about suspended sentences, which has always been a matter
for devolved jurisdictions, because he had a direct interest in
it he spoke on the matter.
Q525 Chairman:
Just to take the examples of Rome I, Rome III and the maintenance
proposal which we were discussing, there was no problem about
differences of view between different parts of the United Kingdom
about that?
Jack Straw: I have certainly received no information
about that.
Ms Ellis: No, not to my knowledge.
Jack Straw: When I told the Council that we
were minded to opt into Rome I, subject to all the things we are
having to do, the Member of the Scottish Executive was in the
room at the time and he fully participated in the briefing, and
so on.
Q526 Baroness O'Cathain:
Are you satisfied that the others—obviously Scotland seems
to be deeply involved, but Scotland does take its responsibilities
quite seriously—what about Wales and Northern Ireland? Do
they actually have any locus in this and do they regard it as
important?
Jack Straw: Because the Wales Act is not a separate
jurisdiction at all, and although Northern Ireland is it has the
same common law base as England and Wales, there are fewer issues
that arise. In any case, at the moment justice is not a devolved
matter in Northern Ireland, so I am not aware of any of these
issues arising. For Wales part of the settlement is that justice,
home affairs, policing, all of this, really the whole dossier
within the JHA field is covered by the United Kingdom Government.
Q527 Baroness O'Cathain:
Is that likely to continue, because there are moves obviously
to give them more devolution?
Jack Straw: The British Government has no plans
to change the devolution settlement for Wales. There are some
provisions in the latest Wales Act.
Q528 Baroness O'Cathain:
Yes, I saw them.
Jack Straw: But the overall sentiment is that
it should be a single jurisdiction, and I can explain why. One
look at the border between England and Wales gives one an appreciation
that it is a rather different kind of border than that set by
Hadrian's Wall, I can tell you. It would be immensely complicated.
Baroness O'Cathain: Offa's Dyke!
Q529 Chairman:
I think we will not cross that border! Can I ask then—and
I hope we can deal with this quite quickly in order to get on
to the Charter—on the transitional provisions what does
the Government in fact anticipate will happen regarding re-negotiation
or conversion? Does it anticipate that there will be large-scale
conversion by amendment in order to bring existing Pillar 3 measures
within the jurisdiction of the European Court of Justice, and
in that context what does the Government understand constitutes
an amendment under the Protocol?
Jack Straw: My Lord Chairman, as you will be
aware, under the terms of declaration 50 for the Protocol, the
Commission and Council in the European Parliament are invited
to make rapid progress in repealing and replacing existing Third
Pillar measures to bring them under a First Pillar legal base.
It is unlikely to be able to repeal or replace all of those, but
we expect that the Commission will table measures repealing some
of the more significant existing Third Pillar measures. For example,
this could include the European Arrest Warrant or the Eurojust
Council decision. It has been the subject of informal discussions
with the Commission, including discussions I have had with Commissioner
Frattini, and I think they are going to approach this in an obvious
way and they will deal with the areas which are most significant
and maybe most in need of amendment or of coming early to the
First Pillar legal base, because they all come into the First
Pillar legal base after five years in any event. I want the British
Government out of the JHA departments to be heavily involved in
that because one of the problems with some of the existing instruments
is because a Third Pillar is in different language and there may
be ambiguities in the language which is satisfactory in the absence
of any ECJ jurisdiction but not with that becoming a reality.
Do you want to say any more on this, Rebecca?
Ms Ellis: No.
Jack Straw: Then apparently it was the right
answer!
Chairman: Thank you very much.
Q530 Lord Blackwell:
Can I just ask, one of the consequences of moving into the First
Pillar, as I understand it, is that the ECJ has jurisdiction?
Jack Straw: Yes, that is the consequence.
Q531 Lord Blackwell:
Does the Government have any concern about that applying to any
existing measures?
Jack Straw: This was the subject of very considerable
negotiation. There will come a moment when there will be a number
of measures, more important ones, which have been amended, because
they have been amended or put into the First Pillar, which we
can make judgments about those, and they almost certainly will
be amended. On the rest, those which are still extant after the
five years, they will get imported into the First Pillar and we
have a power to opt out of the lot.
Mr Norris: Yes, that is right. There is a five
year transitional period, after which ECJ jurisdiction will apply,
but six months before the end of that period the UK can opt out.
It can decide, rather than accept ECJ jurisdiction, to opt out
of the existing Third Pillar measures.
Q532 Chairman:
We can then opt back into individual ones, can we not, under Article
10(5) of the Protocol?
Mr Norris: Exactly, yes.
Q533 Chairman:
And there is an incentive to do so in the sense that one might
bear some financial consequences if we opt out of the whole lot?
Mr Norris: Correct.
Jack Straw: What this means, My Lord Chairman,
is that we have an incentive to go through it.
Q534 Chairman:
The amendment process?
Jack Straw: The whole lot, to identify those
where it frankly does not matter if they are just imported into
the First Pillar and make sure that it is those which are actually
in the unamended list after five years.
Q535 Chairman:
Is there going to be a problem? I asked about the meaning of the
word "amended" because on the face of the language any
amendment in the next five years automatically brings it, so to
speak, under the jurisdiction of the European Court of Justice
however minor, is that right?
Mr Norris: I think that is right, yes, but of
course it will only bring it within the jurisdiction of the ECJ
vis-a"-vis the UK if we opt into the amendment.
Chairman: I see, yes.
Q536 Lord Jay of Ewelme:
Do you see circumstances in which they decide, on something like
Eurojust, that it was important and they wanted to bring it under
the new arrangements, so they would repeal the existing measure
and then just put forward precisely the same one but under Community
arrangements, i.e. with the ECJ operating?
Jack Straw: Against earlier ECJ jurisdiction,
as it were?
Q537 Lord Jay of Ewelme:
I am thinking of something which is now under the Third Pillar
but which, rather than waiting for the five years or amending
it, they decide simply to repeal it but then introduce precisely
the same measure except for the change in institutional arrangements.
So the question for us would then be, do we opt into something
which on the substance is exactly the same as now, which we are
opted into, but it is just the institutional arrangements that
are changing?
Jack Straw: I think if that were the case—and
I assume the argument for that, rather than just leaving it for
the five years, would be that there was a desire to have ECJ jurisdiction
at an early stage—I cannot see any other practical advantage
of that if it is the same instrument. It would depend, Lord Jay,
on the case, but if we had been opted into the instrument and
it had not been causing us any problems and we were signed up
to it, I think there would have to be a very significant case
made to opt out of it at that stage. I cannot think of an example.
Lord Jay of Ewelme: Thank you.
Q538 Chairman:
May we move on to the Charter of Fundamental Rights? The first
question is a general one: what impact, if any, will the new Article
6 of the Treaty of the European Union declaring the binding nature
of the Charter of Fundamental Rights have?
Jack Straw: That Article obviously has to be
read in the context of our Protocol and the Protocol, as I said
in my introduction, My Lord Chairman, is very clear in not extending
the ability of the ECJ to find that the laws, regulations, admin
provisions, practice or actions of the United Kingdom are inconsistent
with the fundamental rights, freedoms and principles which it
reaffirms. It goes on to add extra belts and braces to that.
Q539 Chairman:
Can I just follow that up? The Charter, and in particular I think
the recitals to the Protocol repeat it, does no more than reaffirm
rights and principles which already apply at some level. If they
already apply, then it might be said, might it, that it is not
the Charter which is extending the ability of the Court of Justice
of the European Union, it is the already existing rights and principles
which we should worry about, or consider at any rate?
Jack Straw: It is a nice point. Rebecca, go
on.
Ms Ellis: I think the Court already makes reference
to the Charter in its decision-making and we do not expect that
to change. Article 6 of the new Treaty in the European Union will
essentially set out very clearly what effect we expect it to have.
It will make the Charter legally binding but will not change the
level of protection which is afforded for particular rights. The
rights which exist already in existing sources are things which
are already justiciable in a number of different ways depending
on what that particular source is.
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