Examination of Witnesses (Questions 300
WEDNESDAY 6 MARCH 2002
HAIN MP, MR
300. I listened very carefully to the views
the Minister expressed as a pro-European realist. Would he have
expressed similar views ten years ago to those which he expressed
today, just out of interest? When we were taking evidence from
equally distinguished witnesses last week there seemed to be quite
a body of opinion that subsidiarity in practice is being applied
very differently from how it is imagined it will be applied under
the treaties. My concern is that we pride ourselves in this country
on not having a written constitution. Is it the Minister's view
that what will emerge from the European Convention will be precisely
that, a written constitution, under the argument that what we
are seeking is a broader, more defined definition of how subsidiarity
should work in practice?
(Mr Hain) To pick up some of the previous points,
I do think, without repeating myself, that there is an issue here
about subsidiarity which needs to be constantly scrutinised and
ultimately there needs to be as it were a court of appeal. Whether
that court of appeal is through national parliaments meeting in
the form of a second chamber, as the Prime Minister suggested,
an idea which has not won much support outside the Government,
or whether it should be through court action is something for
us to discuss and again I would be interested in the Committee's
views, Chairman. As regards a constitution, we are opposed to
the idea of a European constitution if it became a blueprint for
some kind of federal superstate, so those who have that ambitionfor
instance, the Belgians mightwe would flatly oppose. If
on the other hand we were talking about simplifying into one really
accessible document the tangled web of treaties that govern the
European Union and which are not easily accessible, in fact are
very impenetrable to the average citizen, if we were talking about
assembling the existing treaties, not re-negotiating them but
assembling them, in a straightforward and easily digestible form
in which subsidiarity itself would be more clearly entrenched
and addressed and therefore be more easily scrutinised, that is
something we would be very interested in and open to, depending
on what was in it and what the ultimate objective of the blueprint
301. What is the difference between that and
a written constitution?
(Mr Hain) You mean as far as Britain is concerned
or as far as Europe is concerned?
302. In effect it would be a constitutional
treaty, would it not?
(Mr Hain) It would, yes. It would be a re-working
of the existing treaties and any amendments that were to be agreed
at the IGC into a new treaty. Yes, indeed, it would.
303. Could I just ask your views now and your
views ten years ago?
(Mr Hain) I do not know that I had actually thought
about European constitutional matters ten years ago unless you
can dig out some paragraph in a book I wrote or whatever. I have
always been pro-European. I voted, I think, along with you in
the 1975 referendum to stay in the European Union. I think that
is right, Bill.
304. I voted yes in 1975. I voted no to European
government at Maastricht.
(Mr Hain) So did I, but that is entirely another matter.
305. I did not intend discussing this but I
feel that there are so many things to take up. Looking at the
speech made by the Foreign Secretary in The Hague on 21 February,
it is quite clear in his statement that he said that action should
be taken by the Community only if it could do a better job than
the Member States, which we all agree is the concept behind subsidiarity.
He then went on to suggest that it might be necessary to have
some way of referring what appears to be a breach of that subsidiarity
rule to the European Court of Justice. Clearly there is another
aspect to how this might be dealt with by having a collection
of European scrutiny committees from the European Union meeting
together where they have the power to decide that something has
been done in breach of that subsidiarity rule because of qualified
majority voting. Therefore it should be a matter that should only
be allowed to go through at European level on a unanimity basis.
Later in his speech the Foreign Secretary says: "As both
I and my successor as Home Secretary, David Blunkett, have argued,
asylum and immigration policy should be conducted more efficiently
for all if QMV were the rule. Such a move would basically be in
Britain's national interest." My sense is that such a view
would not be the feeling of this Parliament or the people of the
United Kingdom. That is one area quite clearly where they see
unanimity as being a protection for the United Kingdom in a very
volatile situation. We have had some very disturbing incidents
clearly with people who are seeking asylum in this country, such
as the incident that happened at the detention centre recently.
There is an example where clearly there would possibly be a different
view taken by the people in the country, yet we have a clear message
coming out from the executive at Cabinet level of this country
that they would give that over to the European Union. Where do
you think the resolution of that lies? How do you stand in the
debate between favouring either a constitutional court or the
European Court of Justice as against a gathering of the scrutiny
committees of the separate parliaments having the triggering mechanism
for a challenge to a breach of subsidiarity? Is it not so fundamental
to this debate because people are beginning to worry that there
is a European Union legislation procedure out there that has no
way of being stopped by their elected parliamentarians here?
(Mr Hain) As between the different options of European
scrutiny committees or a court of justice deciding these matters,
I think we need to argue these through and we have not taken a
final position as a Government on it. We want to hear the argument
and we are very interested in any thoughts this Committee has.
In respect of the specific issue of asylum, why the Foreign Secretary
referred to that is because of our experience of the difficulties
of dealing with asylum policy, especially the problem of asylum
shopping. This is effectively people crossing the European Union's
boundaries somewhere, let us say in southern Europe or eastern
Europe, and making their way to Sangatte in order to get through
the Channel Tunnel and come here for whatever reason, and thousands
of them are attempting to do so. Our thinking is this, that if
we had an ability to agree at a Community level an asylum policy
that prevented asylum shopping by imposing on each Member State
the same obligations of accepting people across their borders
and then returning them if they were not genuine political refugees,
and if they were to accept the same obligations in respect of
social security entitlements and so on, then you would not have
a situation where Britain effectively was a soft touch, which
is the predicament that both the previous government and ourselves
have constantly had to face and it is very difficult. It could
well be in our national interest to have that issue decided on
a Community basis. It is not something we would have considered
a few years ago but it is a question of what is in our national
interest. If it is better to deal with this problem of asylum
shopping, that everybody makes their way here because we are a
magnet for them, by enforcing the same procedures on everybody
else, then there could be enormous benefits to us. This is an
example of the practical approach that we want to adopt.
306. I am sure you are not saying that we are
a soft touch but we may be perceived as a soft touch, because
it is important to make that distinction. How practical is it
to allocate powers in each policy area between different levels
of government in the EU?
(Mr Hain) You have to look at each area on a case
by case, practical basis. Certainly I did not say we were a soft
touch. I said we were perceived, particularly by human traffickers,
as a soft touch. It is organised criminal activity that is the
problem. It has to be looked at in a practical fashion. There
are certain fundamentals that I have referred to earlier on: taxation,
income taxation, defence, especially committing our soldiers to
areas of conflict, and social security matters and so on, that
we would want to preserve as matters of national policy.
307. The EU's legislative process combines great
length with lack of time for scrutiny when it most matters. Do
you see difficulty in combining adequate opportunity for scrutiny
and at the same time a reasonably rapid legislative process?
(Mr Hain) I know this is a point that has exercised
your Committee, Chairman, and I sympathise with you. If I were
a member of the Committee I would feel exactly the same way. Since
the Amsterdam Treaty where the protocol was agreed imposing a
six-week minimum for scrutiny on the European Union institutions,
we have made some progress. The problem arises at both ends. We
have had a spate of recent initiatives on common foreign and security
policy, and I know there have been problems with that which you
have written to me about, Chairman, and I think our officials
are going to meet on 18 April to seek a way forward, and we genuinely
want to find a way forward. It is not in my interests as a Minister
to have your Committee dissatisfied on this point. We want to
be open and accessible to you, and I hope we can agree that. When
things have come up quickly and something has had to be done quickly,
as we have seen in a number of Third Pillar areas recently following
September 11 on anti-terrorist action, that has created the most
enormous difficulty for you but that has been in exceptional circumstances.
It should not become the norm and as far as we are concerned will
not do so. However, yesterday and the day before I visited Denmark
and Sweden and they have very interesting scrutiny arrangements.
They sit on Fridays, which is not going to be possiblewell,
certainly not desirablefor members of this House, and I
guess not practical. They choose to do that. That puts them in
pole position as far as scrutiny is concerned because they can
have pre-scrutiny on that basis. Their scrutiny hold over the
Swedish Government was explained to me in graphic terms and I
am not sure that either of us would want to go down this road.
My opposite number, Mr Lars Danielson, explained to me how in
the middle of the Nice Treaty negotiations he had an eight-hour
telephone conference call in the middle of the night (although
not entirely in the middle of the night because eight hours probably
would have gone into dawn) with his Scrutiny Committee agreeing
the approach that the Government of Sweden was taking. I am not
sure that this is a road that either of us would want to go down
but it does show how some countries, especially with coalition
governments, where it is perhaps more difficult, deal with the
matter. There are problems at both ends and we will just have
to make it work as best we can.
308. What is your view of COSAC's suggestion
of a minimum of 15 days (or a week in urgent cases) between final
agreement of a text in COREPER and a decision in the Council?
(Mr Hain) I am a little unsighted on that suggestion.
I do not know whether Nick can help me on this.
(Mr Baird) It is certainly quite difficult in practice.
If you took the terrorism agenda-post-September 11, for example,
where you have deadlines set by the European Council for agreement
very swiftly on legislation, you were in that case having a number
of things coming through where the discussion in COREPER and the
discussion in Council were necessarily very close together simply
to keep up with that deadline. It would be very difficult to set
a hard and fast rule in that way without actually making it quite
difficult for the UK in negotiating terms at a crucial stage.
309. Chairman, that is an astonishing answer,
if I may say, and we had the same when we were over in Brussels
the other day from our ambassador. It is this notion that somehow
or other convenience for the purposes of the bureaucrats should
override the necessity in the democratic and accountable parliament
for the parliamentarians to make decisions irrespective of what
government may decide to do, because that is the essence of our
democratic system. I have to say I am absolutely appalled to hear
somebody at such a senior level in the European Department of
the Foreign Office trotting out that kind of stuff. It is just
(Mr Hain) But before we all get on our high horses
on this, this difficulty has arisen in circumstances where quick
decisions are needed. It is not ideal.
310. But, Minister,
(Mr Hain) Could I just finish? In the case, for example,
of the anti-terrorist measures, we had to act quickly. It is not
311. You just shelved it all.
(Mr Hain) It is not something that we want to set
a norm on, but where it is absolutely imperative that the European
Union acts in our own security interests and our own national
interests, I would have thought we could have adopted a practical
approach to this. It is not desirable; it is not something we
want as a common practice and I do not think that you were suggesting
312. Minister, that is a message that we as
a scrutiny committee have to get across to ministers and particularly
to departments. All too often they can use the worst case scenario
of September 11 to justify a particular action, which we would
all understand and sympathise with. My experience, having been
on this Committee almost 15 years, is that there is always convenience
put before proper scrutiny. It should be the exception and not
the rule and that is something that our Committeeand I
am saying this to every minister and every department that comes
before this Committeewants to impress on all departments
of government, that it should be the exception and not just a
cavalier approach to lifting scrutiny reserves. We have decided
as a Committee that we are going to be very keen and very strict
in pursuing departments who lift scrutiny reserves to ensure that
they have a very good reason for doing so. That is a concern that
we have to impress on everyone.
(Mr Hain) I respect that, and I listen to it and will
seek to do what I can about it. I am glad you mentioned other
government departments as well because of course the Cabinet Office
has got responsibility for Community policy. We have responsibility
for foreign security policy and the Home Office has responsibility
for justice and home affairs, so we all have to do it as well
as we can.
313. It is certainly not a problem just within
your own Department, Minister, I can assure you. We find the same
difficulties in every department and it is a line that we are
drawing in the sand.
(Mr Hain) I hear it very loudly and clearly.
314. Could I ask finally what justification
is there for texts which have been radically amended since they
were last scrutinised being put to the Council for agreement without
further time for scrutiny, which links in with the previous comment,
and should safeguards be put in place to stop this happening,
as the Chairman pointed out, except in real emergencies?
(Mr Hain) I think that wherever possible this should
not happen. This is a very undesirable practice.
315. Shall we put safeguards in there to make
sure that it does not happen?
(Mr Hain) Safeguards in?
316. In procedural terms.
(Mr Hain) In this House's rules or do you mean in
terms of the European Union's procedural rules?
317. This House's rules, certainly in terms
of this House's relationship with Government.
(Mr Hain) I know that this is a matter that my Home
Office ministerial colleague had a discussion with you on in October,
about provisional agreements and political agreements. I think
there is something that concerned the Committee. My view is that
those should be the absolute exceptions and there should be as
few exceptions as possible.
318. So you are saying no safeguards?
(Mr Hain) I would like to know what safeguards actually
meant in principle. I think safeguards are a good thing. I would
like to know exactly what proposal you have.
319. I will give you an example. You would perhaps
come to the Committee and ask to have a particular matter dealt
with as a real emergency and therefore ask this Committee to let
you carry on without just going ahead, as the Chairman puts it,
in a cavalier fashion.
(Mr Hain) I do not think we ever go ahead in a cavalier
fashion. Can I have a look at that? I am not trying to dodge the
issue. I would just like to consider the practicalities of it.
If I can help I will.