Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 20-39)


8 JULY 2003

  20. It has been my impression on attending one or two of the meetings of the Standing Committee on the Convention that the Commons has struggled to find a quorum, so there is a huge gap. Can I urge you to make sure that whatever White Paper is published it is published well before 8 September when we come back since the only window in which both Houses really can debate this is clearly going to be the September session?
  (Peter Hain) That is not a matter for me. It is a matter for the Foreign Secretary but I will certainly convey that point to the Foreign Secretary. Can I say too that it is not for want of trying to stir up debate on my part, or even the Minister for Europe's part, who is doing a series of meetings right across the country, or in the questions we have answered, the sessions such as this before both Houses' Scrutiny Committees and debates on the floor that have been staged, some in Government time. We have not been seeking to avoid debate. There has been a low take-up of participation in it.


  21. Secretary of State, this Committee will be doing a report and, as indicated by Lord Wallace, obviously it is going to be very helpful to us if we have the White Paper to feed into this report, so I would like to endorse what my colleague has said.
  (Peter Hain) We do want to see publication as early as possible after Part III of the draft constitutional treaty is finalised.

Lord Jopling

  22. With great respect, Secretary of State, it is a matter for the business managers that documents are prepared in good time for debates because, speaking as a former business manager, you will get the hell and fury of the House upon your head unless you ensure that there is adequate notice of proposals before they are debated, and I hate to argue with you but it is a matter for you as well as for the Foreign Secretary.
  (Peter Hain) I was being polite in deferring to the Foreign Secretary's current responsibility for the text and so on, but I fully take your point.

Lord Williamson of Horton

  23. My question is about the real issues in the  Convention and in the Intergovernmental Conference. What in your view are the most significant reservations or difficulties that other Member States see as we come up to the next stage? Of course, you cannot pre-judge how it is going to turn out but perhaps we can identify a few issues which look as though they might be a little fraught in the next stage and it will be helpful for us to know what you think about that.
  (Peter Hain) There was quite an opposition from some of the smaller Member States, the more federalist-minded ones, if you like, to the proposal for an elected full-time President of the Council, but I think pretty well everybody, including even the most federalist-minded European parliamentarian, has now accepted that that is part of the deal for a more effectively functioning European Council and therefore more effective leadership of Europe. As far as the issues coming up are concerned, there is a whole number of countries, ourselves included, Ireland, Spain, Poland, Estonia, Sweden, Denmark, who are concerned about the remaining issues about cross-border tax fraud. We have preserved unanimity on the essential national interests on tax but there is embedded in the new draft constitutional treaty a proposal to move to majority voting on cross-border tax fraud, which might sound on the face of it a perfectly sensible thing to do. Who could object to attempts to make sure that perhaps some of the slower Member States enforce their obligations in respect of cross-border tax fraud that might hit, say, a British company, but our concern is that, having opened the door to that, it will then allow proposals to come forward from the Commission in particular to extend the remit in which it could start to interfere with wider tax matters which we are not prepared to accept. There are a lot of other countries in our position. Did I mention Ireland? They are certainly in that position, and the others that I referred to. I think there are around ten. That is pretty significant a blocking group and I think we can see that off. There was originally a proposal for a legislative council. The idea which was the one promoted most actively by Giuliano Amato, Vice President of the Convention, was for all legislation to be negotiated in the sectoral councils but then to come to a new legislative council to be finally legislated for and voted on and national country positions declared in public, transparently. It is a very compelling argument in lots of ways for Europe's legislation to be done in public, but we felt very strongly that this would effectively take away from, say, the transport ministers or the agriculture ministers or the cabinet ministers and their juniors, those with a real grip on the policy and accountability for the policy, their negotiating role. There are also other reasons why we objected. This has now been as it were transmuted into an extension of the General Affairs Council into the General Affairs and Legislative Council. As you, probably more than most, will know, there was always a category item on the General Affairs Council, "Reports from other Council formations", so you could see this as a kind of almost third reading on, say, the Transport Council's negotiated new legislation, for example. We are still uncertain what it would really mean. The more it has been reported back by government representatives to their cabinets the less the Member States have liked the idea and there has been a bit of a revolt from other cabinet ministers of the different Member States. I think that is going to be quite contentious. France is particularly objecting to majority voting on cultural matters. I think this is about the proportion of French-made television programmes, so that is going to be interesting. France is generally in favour of qualified majority voting when its national interests are at stake, but there you go.


  24. The Danes seem to be worried about what the impact of the treaty would be on their opt-outs. Do we have any concerns about our own?
  (Peter Hain) About our opt-outs? Are you thinking of Schengen, for example?

  25. Yes, I am.
  (Peter Hain) On the frontiers issue, we are pretty confident that we have got where we need to be to protect our national frontiers. Sarah is reminding me that we are. And obviously there is our opt-out on the euro as well.

  26. You mentioned the Council formations. Do you foresee the possibility of greater transparency there too, that they might open up their meetings?
  (Peter Hain) Yes. That is something that I argued most strongly for. It was in principle half accepted by the Seville European Council last year, but I think there is general support for the principle of transparency while legislation is taking place.

Lord Jopling

  27. Secretary of State, you will know that there is a good deal of anxiety about the extension of QMV. I wonder if you could summarise where you think we have got to with regard to the possible extension of QMV into CFSP matters? You will remember the Government talked about thick red lines that the Government was not prepared to cross but, looking at Article 9 of the draft, where QMV will be used, where the Minister for Foreign Affairs and the Commission make a joint proposal, that seems to be a wide-open door, particularly when in the Commons on March 20 Mr Ricketts said that it was extremely difficult to draw any kind of arbitrary point along a continuum from foreign policy through to defence policy. You have made it very clear, and you have said yourself, that there is not much sense in extending QMV to foreign policy. It seems that this draft is opening a good deal of foreign affairs matters as well as lapsing on to defence matters to be decided by QMV when the Government have said quite clearly that they do not like or want anything of the sort. Again, in the final paragraph of Article 9 there is a whole lot of other matters which are not described earlier which again the Council will act on by qualified majority. We could find ourselves, could we not, with a whole raft of defence and foreign affairs issues being decided by QMV?
  (Peter Hain) I think not, though your question is a very fair one. On defence I do not think there is any prospect of that happening at all. I think on security and defence policy that is a red line for us that is shared across the board. Of course, we already have, and you may be referring to this in part at least, QMV for adoption of joint actions, common positions for taking decisions on the basis of common strategy, in other words, implementing a policy agreed by unanimity. In fact, it is not often used. I am not sure that it has been used at all since that provision has been adopted. I do not think it has been used. I think the position we have of the draft Articles retaining unanimity as a general rule for CFSP is the right position. As you say, the only net change to the existing Treaty provisions for majority voting on CFSP is to introduce it for proposals by the European Foreign Minister following a specific request to him or her from the European Council. If the European Council agreed a policy and asked them to go away and come back with a position jointly with the Commission, if it is a Commission area of competence, then as it is stated at the moment the principle of unanimity is transgressed. It will still be retained if there is a national interest at stake, that is provided for. The fact that the European Foreign Minister (we do not like the term but that is what is in the Constitution) or the European Foreign Higher Representative, whatever the final language is, is appointed by the Council and accountable to the Council, in other words Heads of Government like ours and their foreign ministers, I think is sufficient protection that national interests are not going to be transgressed and that we need not be as alarmed as perhaps we might be at first sight. It is still an area subject to negotiation in the IGC and there are a lot of other areas like that.

  28. I would like to ask you exactly where we are now with regard to national vetos. In the proposals which have been put before us what is the status of the Luxembourg compromise which, as you will know, some people regard as the right of one nation to veto, but of course it is nothing of the sort because if one nation seeks to veto it has to get the qualified minority in order to support that demand for a veto under the Luxembourg rules. Will that continue or is it to be scrapped in favour of a proposal whereby one member of the Council may declare that for important and stated reasons of national policy it intends to oppose the adoption of a decision to be taken by qualified majority and a vote shall not then be taken, but the Council can, by qualified majority, refer the matter to the European Council for a unanimous decision? Can you tell us just what changes are going to happen, if any, to the right for a national veto?
  (Peter Hain) The Luxembourg compromise remains a working method for the European Union. That was not challenged in the Convention, in fact I do not even recall it being discussed. I think everybody accepts that when vital national interests are at stake then the European Union can only function in that kind of way. The unanimity of the European Council and the retention of the emergency break whereby a vote will not be taken if a Member State refers to reasons of national policy in respect of the CFSP both remain. I think we have what we need there. There is a very lively debate that I have had almost continuously for the last part of the proceedings with Joschka Fischer. He was saying how can we have a situation where a very small island—and I will not name the country, I will leave it to your imagination as to what that might be—blocks the whole of the 25 Member States with all the vital global interests at stake and by retaining unanimity are we not effectively freezing Europe from acting in a way that we would all agree with? My response to that was that I understood the point he was making, though I think in practice that is very unlikely. The sheer weight of the pressure from the other 24, including all the big Member States such as ourselves, on that small Member State I think would preclude that from happening in practice. I will not speculate on any further examples that might happen for diplomatic reasons. I think we need to balance the importance of unanimity, because this is a national sovereignty issue in the end, with the fact that Europe does need to move forward. We saw, for example, on the Berlin plus arrangements for peacekeeping operations in Macedonia and so forth how, effectively, there was a stand-off between Greece and Turkey—Greece being a Member State and Turkey not—which prevented very sensible arrangements from going forward for a couple of years. That is deeply frustrating, but in the end that is the only way Europe will win.

  29. Can we take it that the Government will continue to stridently oppose the Franco-German proposal to the Convention which called for an extension of QMV in the event of a national veto issue being referred to the European Council?
  (Peter Hain) Yes.

  Lord Jopling: Thank you.


  30. I am slightly puzzled, Secretary of State, as to why it is that when commentators address the scenario of a 24:1 case we always assume the one to be a small country when in fact it might be a very large one.
  (Peter Hain) This was the example quoted to me. I think it reflected, to be frank, the realpolitik of foreign policy which is that it is very unlikely indeed that we would be in that position, in fact I would say near impossible. Can I just make one other point to break the impasse between those wanting more QMV on common, foreign and security policy and those like ourselves for whom unanimity was an essential sovereignty principle. I argued—and this was agreed—that the European Council could agree by unanimity to move towards majority voting if it chose to do so. Obviously that would include us deciding that we would give up our veto. That provision is there in the draft Treaty. I think that is a commonsense way forward to avoid the situation of the very small veto being exercised. That is on a case by case basis, this is not a general policy.

Lord Lamont of Lerwick

  31. One of the red line issues was that the Charter of Fundamental Rights would not change domestic law. I wonder if you would comment on the impact of the Charter of Fundamental Rights on the 1951 Geneva Convention on Refugees. The Prime Minister has expressed his dissatisfaction with it, he expressed the view that it needed changing because it was not appropriate to modern conditions. The Charter now enshrines it. Is the Government's policy not negated? The Government is saying the Convention needs changing and yet the Charter prevents them from changing it.
  (Peter Hain) First of all, we opposed a straightforward insertion of the Charter into the new constitutional Treaty without very important safeguards on it and we negotiated very hard and expertly in the case of one of your colleagues, Baroness Scotland, who turned the whole debate around from a position where it was pretty well only ourselves, Ireland and Denmark with perhaps a bit of support from some of the newer Member States, we were under pressure to accept the wholesale implementation of the Charter, to the one we now have which is a whole series of safeguarding arm locks around it. First of all, a horizontal clause that stops it coming down and changing our domestic law in areas where European competence does not apply, in other words the Union's powers cannot be extended, secondly, the preamble was inserted, and thirdly, there was an important principle agreed which is that in the Constitution there will be a linking reference to the commentary that requires due regard to be paid by the European Court of Justice to the commentary, which again is a safeguard in terms of interpreting the Charter, a safeguard in terms of any untoward impact on our own domestic law. I think there is still some negotiating detail to get right to secure the right wording and the right place for that.

  32. On the specific point of asylum policy we have lost the thread, have we not?
  (Peter Hain) I think the Prime Minister said we would not resile from the European Convention on Human Rights.

Lord Hannay of Chiswick

  33. Secretary of State, I note what you say about making sure that the European Court of Justice cannot overrun these limitations, but have you thought of the need to ensure that the Commission is bound not to do so too? The most frequent way in which the European Court of Justice is brought into action to overrun things that we believe we have carefully negotiated in treaties is when the Commission chooses to take a different interpretation, it says it is not bound by a Treaty which is entered into by Member States and then you are off to the races.
  (Peter Hain) I think we will cross that hurdle if we need to.

  34. I think in the process of the Inter-Governmental Conference it would be as well to make sure that the Commission is more formally bound by some of these guidelines—this is on the Charter I am talking about, not other matters where under the Treaty they have a perfect right of initiative and so on. I am not suggesting that their powers under the Treaty should be reduced, but it is terribly important that they sign up to some of these qualifications that are entered into the Charter because they are by far the most likely people to get a case before the Courts of Justice.
  (Peter Hain) I think that is a very important point and I will take that point back and put that into the negotiating arena for the IGC. If there is anything more to be said about it perhaps I could write to you on that or, alternatively, the Foreign Secretary or the Minister for Europe can do so.
  (Mr Drew) The institutions will be bound by the provisions of the Charter in the same way as Member States while implementing Union law, so the Commission would be bound by the Charter in that way.


  35. Is that explicit?
  (Mr Drew) Yes, it is.
  (Peter Hain) We will, nevertheless, check on Lord Hannay's point.

Lord Scott of Foscote

  36. It is inevitable that, as you rightly say, the Commission and all the institutions of the European Union will be explicitly bound by the Charter, but any disputes as to whether their conduct offends in any way against the Charter will go to the ECJ, it is bound to and the ECJ will therefore decide whether what they have done is inconsistent with the Charter. Issues as to whether what they have done is within their competence may tend to be rather overlooked.
  (Peter Hain) Perhaps, but I think that with all the necessary safeguards I described earlier, including the due regard linking reference in the Constitution itself to the commentary, we have the important protection there.

Lord Neill of Bladen

  37. Does the Government place reliance on Article 52 of the Charter which in effect says you can opt-out from particular provisions in the Charter on certain grounds? I raise that because in one of the Articles there is a rule against double-jeopardy, a straightforward statement, a person shall not be tried a second time. We have now the Criminal Justice Bill here raising that possibility. The commentary in the explanatory memorandum of the Charter cites the Convention which has a protocol allowing Member States to have a second trial under strict conditions about new evidence and so on. The route to that is by our Article 52.
  (Peter Hain) My Lord Chairman, I think the danger of appearing in front of your Committee is you get asked questions by experts to which you do not know the answer and I have just been asked one. I will write back to you, if I may, on that point.

  Chairman: Certainly. We will make that allowance for you.

Lord Neill of Bladen

  38. This question is a more general one about giving an account to Parliament of how the new draft Convention differs from the existing treaties. I noticed that in the Greek European Council there was a statement right upfront about how the presentation by Vale«ry Giscard d'Estaing marked an historic step in the direction of furthering the objectives of European integration and said why it was very important. I also noted from one of the press cuttings we have been sent from the Financial Times that "Even Britain, which tried to down-play the text significance to appease critics, has given up trying to pretend it is merely a tidying up exercise." So it is a big deal for some, or it appears to be. Can the Government give an account to Parliament in writing of what are the essential changes that are being made by the new Convention? It may be you will say you have just answered that by reference to the command papers. I think it is very important that we should know what importance is being flagged up by the Government.
  (Peter Hain) I think you are absolutely right and that would be the intention of the White Paper. By the way, as to the reference to "tidying up" in today's febrile media bubble, I was referring to the fact that  three-quarters of the clauses in the new constitutional Treaty are literally taken out of the existing four treaties and slightly differently configured to fit into a clearer text. I do not know what else that is if it is not tidying up, but I never suggested that it was not something important or that the remaining quarter did not involve changes and reforms and modernisations, self-evidently that is the case and very important, too, to design structures which are fit for 25, 27, 28, 30 and more countries than for the original six in the 1950s.

  Chairman: I think this Committee of experts realised that at the time when you said it. Can I go on to the European Parliament question.

Baroness Billingham

  39. I want to ask you a question about the European Parliament. Before I do that, I think the Committee would be very interested to know your response to the Berlusconi issue that occurred a few days ago in the European Parliament. We were all rivetted and appalled. I would like to know how you think in the long and the short-term that particular outburst has highlighted perhaps the future direction that the presidency should take. I remember when I was in the European Parliament, even then we were talking about changes being necessary, there is too much chop and change. That might well strengthen the argument there. I also want to ask a question about the proposed constitutional representation of the Treaty which represents an increase in the powers of the European Parliament. Are these developments compatible with the current inter-institutional balance that we now have?
  (Peter Hain) Firstly, on the incident involving Prime Minister Berlusconi, I think it illustrated—and I note that some European parliamentarians commented that way as well—the case for a stable presidency that Britain has been arguing. It symbolised our argument that Europe every six months changes leadership and veers off in a different direction and sometimes our leadership is good and sometimes it is bad and I will leave it to you to decide what the current position is in this particular six months. We see a strong case for a stable presidency, for a full-time elected chairman of the Council to give the leadership that the Heads of Government, including ours, can have confidence in and that that person is accountable to. On the reforms in the draft Constitution to the European Parliament situation, I think the important principle is we wanted to preserve the institutional balance. The Commission's power needed to be preserved and in some cases strengthened, the European Council's power needed to be preserved and radically strengthened, and the European Parliaments needed to have more influence. So there were proposals for more use of the co-decision procedure particularly in justice and home affairs areas and I think that is a good thing because it brings more scrutiny in particular. The proposal that we welcomed and in some ways proposed, the enhancement of Parliament's ability to scrutinise subordinate legislation, the so-called comitology secondary legislation which has not been properly scrutinised before, I think that will actually enhance the quality of decisions made in secondary legislation.

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