Examination of Witnesses (Questions 40-59)|
8 JULY 2003
40. I note that Pat Cox has been pressing to
know how the European Parliament can be associated with the IGC.
I am assuming, drawing from your earlier response when I raised
the issue of the level at which negotiations are going to take
place and that European institutions would not be there, that
Pat Cox's wishes to be associated with the working IGC will probably
not be satisfied.
(Peter Hain) If I may just quote, "The European
Council agreed that the IGC be conducted by Heads of State"as
I said earlier"and the European Parliament would be
closely associated and involved in the work of the IGC."
That is a quote from the European Council at Thessaloniki.
41. That seems to be slightly at odds with what
I understand is the view, that the European institutions will
not be involved and that the work will be done by state officials.
(Peter Hain) In the past the European Parliament had
observers, so there has been a linkage there. The conclusions,
as set at the Thessaloniki Council, said that they would be able
to participate, but in the end this is a legal Treaty signed by
Heads of Government on behalf of sovereign Member States and the
European Parliament cannot be a party to a legal Treaty in that
way. It can have its say. Given that it was very strongly represented
in the Convention, maybe that is sensible, but in the end sovereign
governments made these decisions, us alone.
42. And they will be heard.
(Peter Hain) They will be heard but not decided.
Lord Scott of Foscote
43. Secretary of State, I just wanted to ask
you a question about the way in which the proposed Constitution
is going to affect national parliamentary scrutiny. If I could
just set the framework for the question. When the European economic
community began in the 1970s and this country joined scrutiny
arrangements were put in place. At that time unanimity was required
in order for legislation to be produced from Brussels which was
going to become binding in this country. The function of scrutiny
was quite clear at that time. It was the only form of UK legislative
influence or control, although it was not really control, over
what legislation was going to become binding on the citizens of
this country. That degree of influence diminished to a degree
when qualified majority voting came in for First Pillar matters
in the 1980s. It diminished further when co-decision of the European
Parliament came in. We now have proposals for considerable extensions
of both those matters, the extensions of qualified majority voting
in the Council and the extensions of co-decision by the European
Parliament will be involved in producing legislation. All of this
changes the function of the scrutiny which will be exercised by
national parliaments and may require a rather different approach.
First of all, is this something to which the UK Government has
given thought, about which it has concerns or proposals? Secondly,
as far as I know there are no provisions in the proposed Constitution
about any new procedures or functions for scrutiny. Thirdly, if
that second premise is right, is this not a matter which ought
to be the subject of thought and concern, giving national parliamentary
scrutiny a rather different role under the new Constitution than
it has previously and historically had?
(Peter Hain) First of all, the draft constitutional
Treaty does not alter the status quo on the scrutiny reserves
on national parliaments. There is nothing in the treaties or the
Council rules and procedures on the scrutiny reserves and I do
not think that needs to be crystallised in the treaties. The draft
protocol on the role of national parliaments provides for the
early transmission of documents direct to national parliaments
to assist their endeavours to be involved in scrutiny at as early
a stage as possible and I think this is absolutely right. Of course
there is also in this draft constitutional Treaty something which
I argued strongly for and it was part of the Prime Minister's
original proposals in his Warsaw speech three years ago, which
was to give national parliaments a right on subsidiarity and proportionality
to determine whether new proposals coming from the Commission
met those tests of subsidiarity and proportionality. We have achieved
a situation where effectively national parliaments now are able
to vet any new proposal for legislation or some new initiative
from the Commission and to track it through the subsequent process
of negotiation of the Council to Parliament to see whether it
should be done at a national state level or at a Brussels level.
That is something completely new which I would have thought would
be welcomed by our Parliament and I hope by your Committee and
puts both Houses in the position right at the outset of effectively
saying to Brussels, "No, you shouldn't do this at a European
level, this is a matter properly for nation states to undertake."
44. There was a proposal for a red card procedure,
was there not?
(Peter Hain) Yes.
45. I cannot remember what the proportion was,
I think it was that if two-thirds of national parliaments objected
on subsidiarity grounds to a particular proposal from the Commission
they can block it. As I understand it that has gone at the moment,
it is only the yellow card procedure holding it up. I also understand
that the UK Government does not accept the red card procedure.
Why is that?
(Peter Hain) We argued strongly for a red card procedure,
but it became evident that in order to win agreement to the principle,
which is a pretty revolutionary principle for the European Union,
that national parliaments effectively vet new proposals and have
an arm lock on them so that national sovereignty is preserved
always, the Commission, feeling extremely aggrieved that its rights
of initiation were being transgressed, its historic embedded rights
of policy, you could not get a consensus for a red card procedure.
The yellow card procedure is where at least one-third of national
parliaments say this is not a matter for the European Union to
act on, it is for them and I cannot conceive of the Commission
proceeding blindly. I think in practice the yellow card will become
a red card, not least because if you get a third of national parliaments
objecting it would be very surprising if a third of governments
did not object as well. You have not got quite what we would have
liked in the sense of a pure vetting process, but in practice
I think it will be such a deterrent on the Commission in bringing
forward any new proposal knowing that the yellow card procedure
exists that I think effectively it will considerably affect how
policy is developed.
46. I think there is a pretty widespread dislike
among parliamentarians and members of the public generally of
legislation by the Executive that the elected Parliaments cannot
control. The red card procedure would have gone some way to checking
that. The yellow card procedure does not, although I take your
point that it might lead to that in practice. Although it is in
the Constitution, it is not a block in the Constitution, it is
merely a delaying process. Moreover, in the Constitution at the
moment there are proposals for comitology decisions, former European
Union secondary legislation to be able to be objected to both
by the European Parliament and by the Council, but under the present
proposals the Commission can override them both and proceed. That
is Executive legislation. In practice there may be checks, on
paper there are not. That is just not satisfactory, is it?
(Peter Hain) We would have liked a red card proposal
and still would. If we can get it in the IGC, we will get it.
In practice the realpolitik of it, as I have already said,
is that it is very unlikely that if a third of national parliaments
and therefore in all probability a third of national governments
say, "No, this is not something you should be doing,"
it will not be changed or withdrawn. I suppose you could see circumstances
in which something that Britain would thoroughly approve of, including
our Parliament, say in respect of some agricultural policy reform
where you might just about be able to imagine a third of national
parliaments saying no to something perfectly sensible, the Commission
would argue that the European interest is being held up. There
are arguments on both sides of this, but we would prefer a red
card. In practice a yellow card is a pretty revolutionary change
and I think if properly made use of by both Houses of Parliament
in Britain it will have a big effect.
Lord Cavendish of Furness
47. I wondered if the Secretary of State had
answered Lord Scott's point about the secondary legislation and
the checks and balances there.
(Peter Hain) You mean whether the European Parliament
should have the call back right?
Lord Scott of Foscote
48. The position at the moment under a proposed
regulation coming out of Brussels is that the Commission proposes
some form of secondary legislation, if it is the right sort of
subject matter it goes to the European Parliament for comments
and objection, it goes to the Council for comments and objection,
but the Commission can as a last resort, if it wants to, override
both. That is the proposal.
(Peter Hain) I have consulted both of the constitutional
anoraks sitting either side of me and they are not sure of the
answer to your question either, so I think this is something that
I had better come back to you on.
49. Would you say that it is improbable that
you would see national parliaments having direct access to the
Court? What could be within their rights?
(Peter Hain) The draft subsidiarity protocol provides
for Member States to bring a case to the ECJ on the grounds of
infringement of principles of subsidiarity on behalf of their
national parliaments. It does not, however, extend the right of
direct access to the ECJ or to national parliaments themselves,
they do so through their Member States.
50. This has been a bone of contention on this
Committee in the past.
(Peter Hain) I understand that.
Lord Williamson of Horton
51. The yellow card procedure applies to proposals
from the Commission which come forward and then national parliaments
can take a view on that, but of course there are quite a lot of
legislative decisions now which do not come from the Commission
at all. Certainly on the Sub-Committee I am on, we get more that
do not come from the Commission than those that do because it
deals with the common foreign and security policy and that will
still be the case after the constitutional Treaty comes into effect,
Article 39(7), says that the European Council and the Council
of Ministers can act on proposals from a Member State or from
the Minister for Foreign Affairs or from the Minister with Commission
support, but there would not be a draft proposal from the Commission.
There is a certain area, if I may say so, where the Commission's
role is very subsidiary. I think it is important to identify that
that is the case.
(Peter Hain) I think it is. I will check on this,
but I am pretty sure that the spirit at least of this proposal,
as any new legislative proposal coming from wherever it is initiated
from, is that this subsidiarity mechanism applies and it also
tracks it through the process. One of the points made to me in
the context of the Convention was that actually sometimes it is
the Council or the Parliament that amends Commission legislation
that threatens subsidiarity or proportionality more than the Commission's
proposal might have done.
Lord Hannay of Chiswick
52. It seems that the new proposed Treaty is
going to extend CFSP quite considerably and lead to an intensification
of CFSP, yet there is no provision for parliamentary involvement
of either national parliaments or the European Parliament in this
area of a very structured kind. I would not myself favour the
European Parliament being given any additional powers in this
area, but it does seem to me that as this area grows, more and
more is falling between two stools. Have you given any thought
at all as to how that gap can be managed? I launched a proposal
some years ago myself that there should be a Foreign Affairs Committee
of the European Union which would be made up of some national
parliamentarians together with European parliamentarians which
would not have decision-making powers, but would be an advisory
body, and there are no doubt 100 other ways of doing it. The second
question I would like to ask you is about the exit mechanism.
Why is the Government becoming so easily convinced that the European
Union, having lived for 50 or 40 years without an exit mechanism,
now requires one, and do you not think that the one which has
been drafted is deceptively simple in its appearance compared
with what the reality would be? Do you not think that in terms
of members of the euro-zone, you are going to create something
close to moral jeopardy about the euro if a member of the euro
starts to say that it wants to leave the European Union?
(Peter Hain) Well, the exit clause is not something
we particularly argued for, but found its way into the draft Constitution,
and once it had found its way into it, I do not think it would
have been politically sensible to try and pull it out because
then you would almost be conveying the impression to Europe's
citizens that they did not have a way out of the European Union.
Of course every European Member State has the right to withdraw
under existing provisions. So, no, I think that was the right
thing to do given the circumstances. On the question of CFSP,
and ESDP for that matter, I think that the primary responsibility
for scrutiny should remain with national parliaments and that
national parliamentarians should be informed as far upstream as
possible in the policy process. There might be ways of doing that
better, including the suggestion you made, but I think that is
something we can debate.
53. As you know, at the moment they are not
consulted at all on CFSP matters because these are not European
instruments which come to us in the normal course of scrutiny,
so if the General Affairs Council or the External Relations Council
wants to take some subject, like relations with the Magreb or
something, it does not come anywhere near us at all.
(Peter Hain) Well, we do actually submit for scrutiny
CFSP and ESDP documents now to seek to maintain parliamentary
scrutiny reserves unless there is an overriding political or operational
case not to, and we have agreed arrangements with the scrutiny
committees for the scrutiny of documents created in the lead-up
to ESDP operations, so that facility has already been provided
by our Government at least and I think that can be developed.
I agree with you that this is going to become an increasingly
important area for European Union intervention, and quite properly
Lord Scott of Foscote
54. Secretary of State, I was just discussing
with Lord Neill actually what it was that Baroness Scotland had
achieved with regard to the Charter and neither of us was quite
clear. What was her great achievement that you were referring
(Peter Hain) Well, we started off with overwhelming
pressures to stick the Charter straight into the Treaty which
would have effectively allowed our own domestic laws
55. You mean without any horizontal clauses?
(Peter Hain) Yes, there were pressures to do that.
In fact that is why I would say that we are 95 per cent of the
Convention aware, so what she succeeded in doing was negotiating
the horizontal clause with the support and advice of the Attorney
General, also making sure that the preamble was inserted and also
making sure that this link in the Constitution, the "due
regard link", as it were, that the Court of Justice had to
take account of was in, but we have not yet taken a final decision
on whether we accept where the Charter is. It will depend on the
precise terms of the final package.
56. It presents a fairly odd appearance given
that a number of the articles are outside any EU competence at
all and of course with the horizontal clauses to stop them coming
within, still the uninformed person reading it, I think, would
have the pretty odd impression, and probably a wrong impression,
of its effect simply from reading it.
(Peter Hain) I think provided that everybody bears
in mind, including the interested reader, that the Charter was
originally designed, and is still intended, to give the citizens
rights over the institutions, not actually to change our domestic
law and extend the European Union's powers or competences. That
was never the intention.
57. But a number of the articles in the Charter
deal with things which never have been within the EU competence.
(Peter Hain) That is right, which is why we needed
to get these arm-locks on them.
Lord Neill of Bladen
58. Is the Government happy with the position
regarding the Charter given the status that it is given by being
right up front in the Convention? Admittedly, we have got the
horizontal clause, but we have also got the undertaking to make
an indication to join the Convention by the EU as a new corporate
entity or whatever, so you now have this double, tandem system.
Is that the solution you are happy with or is it the best that
can be achieved? How do you feel about it?
(Peter Hain) Well, in an ideal world, we would not
have gone down the route of incorporating the Charter. We would
have preferred it as a statement of declaratory rights.
Lord Scott of Foscote
(Peter Hain) Aspirations, but that was not where the
majority were and, as I say, we have succeeded in negotiating
a position where we think we can live with it, although the final
text needs to be scrutinised very carefully by our legal officers