UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1015-i

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

EUROPEAN SCRUTINY COMMITTEE

 

 

INTERGOVERNMENTAL CONFERENCE FOR A REFORM TREATY

 

 

Tuesday 2 October 2007

MR JIM MURPHY MP, MS SHAN MORGAN and MR MIKE THOMAS

Evidence heard in Public Questions 1 - 100

 

 

USE OF THE TRANSCRIPT

1.	This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
2.	Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.
3.	Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant.
4.	Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.

 

Oral Evidence

Taken before the European Scrutiny Committee

on Tuesday 2 October 2007

Members present

Michael Connarty, in the Chair

Mr David S. Borrow

Mr William Cash

Ms Katy Clark

Jim Dobbin

Nia Griffith

Mr David Heathcoat-Amory

Kelvin Hopkins

Mr Lindsay Hoyle

Angus Robertson

Mr Anthony Steen

________________

Witnesses: Mr Jim Murphy MP, Minister for Europe, Foreign and Commonwealth Office, Ms Shan Morgan, Director, EU and Mr Mike Thomas, Legal Adviser, Foreign and Commonwealth Office, gave evidence.

Q1 Chairman: Welcome, Minister. It is good to see you back. You came before us on 4 July when you gave us evidence on the IGC Mandate. Things have moved on since then, in the sense that much has been published both arguing that the duty for a Constitution of Europe and a Reform Treaty are two different things, two different animals and will produce two different results; never in the same pamphlet; usually two opposing views of the decisions. We would like to explore further with you some of the matters that have been taking up the attention of the Committee in this session. Sadly, because we only completed our consideration of the Committee's draft opinion on that matter today, the Report will not be available and we cannot therefore put the conclusions of the Report to you and give you a copy of the Report; which is a pity for us because I think there were some gems in there you should have a look at. I am sure the Foreign Secretary will see a copy before he comes before us on 16 October. In the meantime, I am sure the members of the Committee in studying these matters will have quite a few questions to put to you without actually reading from the text. May I start very simply by talking about the vexed question of the transparency of the IGC process, which did exercise us the last time you appeared before the Committee? In the letter to us of 22 February, the then Foreign Secretary said the "Government welcomes parliamentary contributions to the debate". Really is this welcome not rather hollow when you consider, for example, the IGC Mandate itself was first seen, as you gave as evidence, 48 hours before the European Council which had to consider it; and that no text of the draft Treaty was made available in English until after the House went into Recess so it had not been seen by the House formally in English until then; and that the Presidency is now pressing for an agreement in mid-October? I think the Foreign Secretary will go to a meeting on 18th where, if the Commission timetable is fixed, they will expect to reach a conclusion when, quite frankly, the House has not been sitting and the political processes of most parliaments have been in suspension. Really can you say that the parliamentary contribution to the debate has really been welcomed, since there really has been none?

Mr Murphy: Thank you, Chairman, and thank you for your warm welcome. I am pleased to be able to return here again before your Committee today. I look forward to having the opportunity to read your Report when it is published; and, as you rightly say, the Foreign Secretary will be appearing before this and other committees as we continue to take up invitations to give evidence and offer observations on various select committees of the House. What I would say in response to that opening comment, Chairman, is that I have tried, and I hope the Committee would accept, at every opportunity since my appointment to this post to be as open with this Committee, open with Parliament both in accepting invitations to attend evidence sessions and also in the production of documentation in an open way and, unless I am told otherwise by yourself, Chairman, and the rest of the Committee, that we have actually passed to all the relevant committees of the Commons and the Lords, and I think also the Libraries of both Houses, all the Presidency papers that have been available. Really the committees have seen what we have seen. On the specific point about the Recess, of course that is a truism; it is an observation of fact; but all I would add, Chairman, is whether we would wish it to be or not that has been the practice in so many of the previous treaties; and think the dates of that are a matter of public record. I cannot really add to what I said when I gave evidence before about the build-up to the June European Council; but what I would say is that the Portuguese Presidency certainly does intend to come to a decision on a treaty in October, as you rightly say; and at that point legal experts will again look at it and jurislinguists will look at it with a view to formally agreeing it in mid-December. That is the timeline at the moment; it is a timeline that I set out to the Foreign Affairs Select Committee, I believe, a couple of weeks ago. It is at that point the UK, along with others, would enter into the formal and political parliamentary ratification consideration process. You are right, Chairman, in your earlier comment that the content of the IGC Mandate was agreed to way back under the German Presidency, and that is the situation we are now in. The formal parliamentary process in addition to the select committees will be through a Government bill through the House of Commons and the House of Lords, and both Houses of Parliament will come to a conclusion as is entirely the right thing to do.

Q2 Chairman: It would be unfair for people to think that the European Commission and those around about the European Presidency, both the last one and the present one, were involved in a process to keep the parliaments, what you might call the "awkward people", out of scrutinising the document; because in reality it will be concluded and then the debate will be about the conclusion and the final document without really parliaments engaging in the process at all?

Mr Murphy: I think, Chairman, looking at the previous treaties, Nice, Amsterdam and Maastricht, the IGC process met during the UK parliamentary recesses. It is not intended to try and achieve what you are suggesting. It is a fact that there is a determination to get on, to deliver a treaty that reflects the Mandate, and then to enable parliaments, if indeed that is the wishes of the 27 Member States. You are right, we will have a conversation through that process about whether there should or should not be a referendum (I note again that only Ireland currently intends to have a referendum) so at the moment the intention is for 26 of the 27 parliaments to consider, debate and potentially ratify this new Treaty. There is no question whatsoever of the intention being that Parliament is sidelined. In fact, as others have observed, the content of the Treaty itself gives greater powers to parliaments.

Q3 Angus Robertson: Before going into some of the detail of things, we are fortunate to have you here today obviously and the Foreign Secretary later this month. Do you agree that it would be important to speak to the Foreign Secretary before the IGC is part of the scrutiny process?

Mr Murphy: The formal agreement on a Treaty will be in December.

Q4 Angus Robertson: Do you agree that it would be important for us as a Committee to hear from the Foreign Secretary before the meeting in October?

Mr Murphy: I think it is important for the Committee and the Foreign Secretary to find a date that suits both of you.

Q5 Angus Robertson: How would that be possible if there was a General Election in October?

Mr Murphy: Mr Robertson, I do not think we could usefully speculate on speculation.

Q6 Angus Robertson: I would be right in thinking that if there was a General Election there would be no scrutiny?

Mr Murphy: The fact is that we are committed to the timetable I have alluded to already. Whether there is an Election is not a matter for me or indeed this Committee.

Q7 Angus Robertson: It is a statement of fact that there would not be scrutiny, there would not be a scrutiny session with the Foreign Secretary if there was an Election in October because there would be no Parliament?

Mr Murphy: Of all the things that may or may not happen if there was an Election, and there are many hundreds of things and we can speculate as to whether that would be one of them, but regardless of whether there is an Election or not in the short-term, regardless of that, and regardless of when an Election would take place, the UK Government intends to put a bill before Parliament and for Parliament to scrutinise the bill in detail and have the opportunity to vote on it, regardless of when there is an Election.

Q8 Mr Hoyle: Obviously, Minister, you are quite right to say that Parliament will not be sidelined. Do you think the public will be sidelined from a referendum, in your view?

Mr Murphy: Mr Hoyle, while we agree on so many other things, we have a difference of view on this.

Q9 Mr Hoyle: I did not express mine. I am glad to hear that you know what my view is!

Mr Murphy: The fact is that the UK Government intends to seek ratification of this Treaty in a similar process to that which has been achieved under previous UK endorsements of treaties and that is true of our system of parliamentary democracy and the sovereignty of Parliament. That is our constitutional sentiment. We can have a conversation as to whether the Irish constitution sentiment is a more attractive one or ours. I certainly prefer ours.

Q10 Mr Hoyle: So you rule our a referendum completely?

Mr Murphy: We have said very clearly, the Prime Minister has said again, that if we achieve our red lines he sees no need for a referendum.

Q11 Kelvin Hopkins: First of all, I entirely accept your goodwill on this and intent on these matters; I am not so convinced about the previous Prime Minister's - the fact that it was all stitched up just before the Recess and the week before he went. I think the new Prime Minister is much more objective about these matters and one would hope he would defend Britain's interests in a very genuine way, and indeed the interests of Europe. I believe there is a very powerful case for delaying the whole process, shall we say, for another year to give much more thorough discussion about all aspects of the whole of the Treaty, because it is more significant than other treaties. Without you committing yourself, would you take that message back to the Prime Minister, that there is a case for delaying whether or not there is a General Election?

Mr Murphy: I am not sure, Mr Hopkins, there is a compelling case for the type of the delay that you suggest. Thank you for your kind comment about my approach thus far. I do not think there is a compelling case for the type of delay that you wish, although we are operating of course within a timetable, which we have already said, of agreement across all 27 Member States by June 2009. It will ultimately be up to Parliament, both the House of Commons and the House of Lords, whether it wishes to pass, delay, oppose or amend the bill that we put before the House and that, I am sure, will be part of the conversation of both the House of Commons and the House of Lords; but I do not see the case for the delay of a year.

Q12 Angus Robertson: Minister, if I can return to the question of the area which the Chairman started on which is the IGC process, and ask you a couple of detailed questions about that. You remarked in your evidence to the Foreign Affairs Committee on 10 September that the previous Foreign Secretary was speaking about the specific content of the IGC Mandate when she said to us on 7 June there had been no negotiations. Can you explain this remark, given that the IGC Mandate was not seen by anybody representing the UK until 19 June, some 12 days later?

Mr Murphy: Mr Robertson, clearly we spent some time on this subject when we met before in my first week in the job before the Recess and went through the detail about the nature of negotiations, the nature of conversations and everything else. I am not sure there is much I can add, apart from what I put on the record to this Committee at the time when I previously gave evidence; and I stand by the evidence that I gave as an accurate reflection as to what happened as to whether there were negotiations; the timetabling and choreography of it; the role of the German Presidency; and whether there was or was not negotiations in advance of that.

Q13 Angus Robertson: Sticking with this general issue, the Committee wrote to you on 11 July and you were asked to explain whether ministers and departments were consulted about the draft IGC Mandate during the 48-hour period before the European Council. Would you please answer the question now?

Mr Murphy: Chairman, I omitted to introduce my co-witnesses today and that is bad manners on my part.

Q14 Chairman: I was going to suggest that they might answer as they may have been there before you were and might have given some information about who was and was not consulted, since you had just been telling us second-hand because you were not the Minister at the time!

Mr Murphy: Just for the record, can I introduce Shan Morgan and Mike Thomas. Ms Morgan may wish to comment on that.

Ms Morgan: Thank you, Chairman. It was an unusual process, in that there was, as the Minister said, no negotiation in the run-up to the June Council until we saw the text for the first time only a couple of days before the June Council itself. That was, of course, the choice of the Presidency to decide how they wanted to conduct the preparations. They chose to handle the thing very tightly, and not to show texts at any point in advance. It was unusual but it was their prerogative. So we did not see, as the Minister said, any text at all until two days before the June Council when the focal points, of which I was one, were given the text at five o'clock in Brussels and able then to return it to London so that legal experts and others from a range of departments could have a look at it in time for the June Council.

Q15 Angus Robertson: Were ministers and departments consulted in that 48-hour period?

Ms Morgan: During that period all departments were able to have a look at the text that we had received from the Presidency to prepare the UK delegation for the discussions at the June Council.

Q16 Angus Robertson: Can you elaborate a little bit on that? They were able to see it?

Mr Murphy: Questions about these sorts of things are through me, Mr Robertson. Shan Morgan has put on record they were able to see it; it was sent to them as ministers in the relevant departments, which would impact on their role, their policy and their view; and that is what happened.

Q17 Angus Robertson: An email was sent round to all UK government departments in that 48 hours explaining the position and asking for their feedback?

Mr Murphy: What I could do if it would be helpful would perhaps be to return to that in writing, through you, Chairman, if that would be appropriate to say whether it was an email or whether it was a letter. I am not in a position to know, Mr Robertson.

Q18 Angus Robertson: Forgive me, Minister, we have already written and asked you this.

Mr Murphy: That is right, Mr Robertson, but I am not in a position to tell you today whether it was an email or letter, and whether it went to every government department of the United Kingdom. I can offer to get that response to you over the next day or so.

Q19 Mr Cash: Minister, in fact at this very time I was constantly onto the Library asking them if they would get hold of a copy for me, because I had heard that it had already been put in the process; and the Library asked repeatedly and could not get one. It really goes back to the question which was raised earlier about not just keeping people in the dark, but deliberately ensuring that people did not know what was going on. The question which interests me is this: if you are prepared to do that to Parliament, and effectively to exclude Parliament from the process at that time - we hear a great deal, as we said earlier, about parliamentary contributions to the debates - do you not accept, contrary to what the Foreign Secretary said with what I regarded as breathtaking arrogance the other day that it is only Parliament that should decide these questions, that to have a referendum, as you did in 1975, actually enhances Parliament because in order to have a referendum you have to have parliamentary authority? There is a point at which Members of Parliament, including members of the Government, have in my opinion the duty to have some humility about the fact that this enormously important Treaty should not just be decided in Parliament but it should be handed back to the people because it is so important and has the constitutional characteristics which I think you will find when we produce our Report are there for all to see. In other words, why will you not hold a referendum when you have said in your evidence to the Foreign Affairs Select Committee on 12 September that a referendum would be required where there is substantial constitutional change?

Mr Murphy: Mr Cash, there is an awful lot in that. Perhaps, Chairman, with your permission I could just make the observation that Mr Cash has the benefit, over a long period, of being remarkably consistent on this view of course in terms of the need for referendums on European treaties and the need to have a referendum on Maastricht. Where I do disagree with Mr Cash is any suggestion of arrogance or otherwise. Mr Cash, I hope you would accept that I have tried at every opportunity to be available to give evidence; the availability of the documentation, being placed in the Library of both Houses, as I said it would be; material provided to the Committee; and until the Committee says otherwise, with the degree of satisfaction with the material that has been provided, I shall have to assume that that arrangement I agreed to when we met before is working in the way that it should do. In terms of whether there should be referendum - that is a much bigger question, Mr Cash. We could, if we wish, spend the rest of our day discussing that. All I would say is that only Ireland, of all the 27 Member States, currently intends to have a referendum on this Treaty, for the specific reasons of the domestic constitutional arrangements where members of the Dáil are not representatives but messengers to the Dáil. The Irish themselves have made it clear that the UK position is entirely different from that in Ireland. Only recently the Dutch Council of State has made it clear there are real and substantial differences between the original Constitutional Treaty and this Reform Treaty where even in the Netherlands, where there was much speculation on this in recent weeks that there may be a referendum, the Dutch Council of State has made it very clear that the proposed Reform Treaty differs distinctively from the Constitutional Treaty.

Q20 Mr Cash: You did say, with reference to all the other treaties, that the referendum had not been held. You do accept, do you not, it was a Labour Government under Harold Wilson that held a referendum on, as the Act itself said, "an Act to provide that the holding of a referendum on the United Kingdom's membership of the European Economic Community...". The accumulated treaties since then are vast. Millions of people have not actually had a chance to vote on that question: why will you not do it?

Mr Murphy: Mr Cash, it is not for me to accept or not accept. That is just a statement of history that that is what happened in the past in terms of our one ever UK-wide referendum. Mr Cash, we simply disagree about our approach here. Myself and the Government believes fundamentally that the constitutional principles, the constitutional heritage, the way in which we ratify treaties in the United Kingdom is the correct and proper way in our system of parliamentary democracy to deliver. In that we find ourselves in the overwhelming mainstream of other European Member States each and every one, with the exception of Ireland as I say, intends to undergo a system of parliamentary ratification because constitutional treaty has been abandoned; we have said that repeatedly and all Member States have said so. This Treaty is different in style and in content from the Constitutional Treaty and we see no case, as long as we secure our red lines, for having a referendum.

Q21 Chairman: We will come to that vast question about the similarity or dissimilarity of the treaties hopefully a little later. Can I just tidy up this process whereby a treaty appeared. Through you, Mr Murphy, to Shan Morgan, was there at any time, during the process where you were acting as one of the focal points, anyone from the Commission or the Presidency saying, "We are working on a draft"? Or did somebody just suddenly produce a draft like "Here's one we've baked before"? It just seems to everyone in the country, and certainly in the political sphere, that it is not possible to produce a vast document of 277 pages out of thin air and with no previous work. No matter how much the Commission tells us that it is efficient, it is not that efficient.

Mr Murphy: Chairman, of course I take up your invitation to leave Shan Morgan to add to these comments. Certainly it is my understanding that my predecessor, Mr Hoon, set out the UK approach in a written statement on 5 December 2006. It is also my understanding that on 19 June at 5 pm the Presidency provided the first draft of the IGC Mandate at a meeting of all focal points in Brussels, of course with the European Council then meeting subsequently on 21 June.

Q22 Chairman: I think he was reading from a minute of our Committee actually when he said that, because it was sent to us by yourself. We are just trying to get some understanding of where it came from and to pretend to people that no-one was drafting a treaty.

Ms Morgan: Chairman, I can only endorse what the Minister has already said and what has been said at previous hearings, that there was no text under discussion. We saw no text at any point until the 19th.

Q23 Chairman: My question to you was not that. My question was: did no-one from the Commission or the Presidency indicate to you in any of your contacts before that someone was in the process of drafting a text?

Ms Morgan: The Presidency who obviously led the negotiations would not discuss draft texts at all.

Q24 Chairman: Or indicate there was drafting going on?

Ms Morgan: No, they did not. I am sorry.

Mr Cash: What is the point in UKREP? What is the point in having people out there on behalf of us in Brussels if they cannot even find out if there is this massive volume of paper which nobody can see?

Q25 Chairman: We are talking about the Foreign Office here and not UKREP. You are saying no-one indicated at any time that a drafting process was going on?

Ms Morgan: That is right, Chairman. We understood of course that there would have to be a draft produced at some point. We were never told at what point.

Q26 Mr Heathcoat-Amory: We have had this truly astonishing admission which is now out in the open that the British Government and all Member States were only shown this document 48 hours before the European Council, and no complaint was made by the British Government about being bounced in this way. The Mandate is now binding on the Intergovernmental Conference; it is a Mandate; and the British Government has said it wants no changes. All the parliamentary debates we are now going to have cannot amend it. That is just window-dressing. This will be unamendable. I find this really awesome in its implications. Not only did Parliament not get any sight of this document but, according to what you said earlier, it is doubtful even that other departmental ministers saw it, except perhaps in an email, and they could obviously not respond on a concerted way in 24 hours. My question to you is this: how is this consistent with all the assurances we get about closing the gap between the people of Europe and the European Union? I remind you, Minister, that the 2001 Laeken Declaration said that Europe had to be brought closer to its citizens. Indeed more recently the European Council has said, "The EU should reinforce communication with its citizens". How can this communication exist at all when even the House of Commons, and most other government departments, do not see sight of a document that is agreed in 48 hours?

Mr Murphy: Mr Heathcoat-Amory, this process, as you know, has been going on for a number of years - the conversations, the discussions, the debates around the time and the context of a constitutional treaty. As I said when I gave evidence on 4 July to the Committee, we went into this in great detail and it is not as if this is now out in the open; I was very clear when I gave evidence on 4 July about the process. I think others observed I was frank and open when I outlined in great detail the process that went on. What you are getting today is confirmation of what I was saying on 4 July. As to whether this in itself, if it had been done in a different way in terms of events around the German Presidency, would make a contribution to closing the gap between Europe, the EU and its citizens, my view (and I think you know this, Mr Heathcoat-Amory) is the solution to the gap between citizens of Member States and the European Union is not solved by structural change; it is resolved by Europe proving that it adds value and improves people's lives on things that matter to them and which they care about, and it changes and improves their lives. That is the solution, in my view, to closing the gap between Europe and its citizens; not in itself with this Treaty; not other treaties; not any other treaties that may, in decades to come, come forward. It is about delivery on security, environment and flexible economy - those are the issues, I think. To think there is a structural solution to the gap in delivery and perception I think is false. I do not believe it to be the case. I do not believe it to be the case in UK domestic politics; I do not believe it to be the case in international politics; nor in the European Union.

Q27 Mr Heathcoat-Amory: Your view is not shared by the leader of your Party, the Prime Minister, who was a member of the European Council that said that the EU should reinforce communication with its citizens. Is it not a good start that people, or at least their elected representatives, should be shown a document negotiated or drawn up in secret by the German presidency, which even the four focal points did not know existed and then 48 hours later the European Council met and then it is all over? It is agreed and there is a Mandate which has to be agreed by an Intergovernmental Conference, and then there will be an Act of Parliament and the document is unamendable. Do you think that in any way discharges this aspiration that the EU should reinforce communication with its citizens?

Mr Murphy: Mr Heathcoat-Amory, my view (and you are asking me for my view) is that communications is part of it, it is an important part of it; and I went through in some detail in front of the noble Lord Lord Grenfell's select committee in the other place some of the details and reforms that have taken place in terms of how Europe seeks to communicate using information technology, using the internet, open-streaming and all those sorts of issues to close the gap on communication. I will add to my earlier point that structures and communication, either individually or a combination of both of those, do not close the gap. It is delivery that closes the gap. For those of us who believe that Europe can have a positive and constructive influence on the citizenry of the United Kingdom, it is not about structures and it is not about communications, although both are very important; it is about delivery in a way that improves people's lifestyle that will close this gap.

Q28 Jim Dobbin: Minister, in order to bring the Committee up-to-date about where we are now with the IGC, could you explain to us what happened at the Viana do Castelo meeting on 7 and 8 September, and the line taken by the UK Government?

Mr Murphy: There was an informal meeting of Portugal and I had not attended so I am asking Mr Thomas or Ms Morgan as to whether we have any details. We are not in a position to respond to that.

Q29 Jim Dobbin: This is just a straight question. We are asking to be updated really on what happened there.

Mr Murphy: I will happily update you but we are not in a position today, Chairman, to provide you with that. I did not attend the committee that is being alluded to Mr Dobbin.

Mr Hoyle: Why can we not have the information?

Q30 Chairman: It was an informal foreign affairs council. It should be something I presume that they would tell you about and if the IGC was discussed. They are not keeping secrets from you now!

Mr Murphy: I am sorry, Chairman, I had not heard the full question. The Foreign Secretary attended, of course and there were conversations specifically about, obviously, the Treaty. The Foreign Secretary, along with other leading politicians from Member States, made it pretty clear that we did not want to re-open the Mandate. From my conversations with the Foreign Secretary, there seemed to be a unanimous agreement that there was a determination to stick to the Mandate; and that is what seems to have been reflected in the technical and legal working groups a well. There is a real determination that continues to be both in the informal meeting and the more formal processes to deliver on the Mandate and to do so within the timescale we have put on record. In these meetings there is also an opportunity to discuss other issues, of course, Chairman, not least issues such as Kosovo and other issues that are important to Member States and the European Union.

Jim Dobbin: I apologise that you could not follow my Scottish accent, Minister!

Mr Hoyle: Obviously a different clan!

Q31 Jim Dobbin: I am from the east of Scotland and you are from the west of Scotland.

Mr Murphy: That is right. A different part of Scotland and now a different part of the United Kingdom, Mr Dobbin.

Q32 Nia Griffith: It is a little concerning, Minister. This meeting in September was given to us as perhaps one of the potential milestones where there could be some feedback, some reporting back as to how things are going. Certainly some of the MEPs have raised concerns. I would like to know in what ways you think the process can be more transparent? We just get the general feeling that everything is being terribly rushed, there has been very little opportunity for feedback and, as we understand it now, the European Parliament will be publishing its own proposals for amendments but the Presidency does not intend to hold any meetings at official political level before the informal Council on 18/19 October at which it is seeking political agreement for the final text. As I say, you have given us only the very briefest of references to what we had hoped would have been perhaps a bit more feedback from the 8th and 9th, and now we seem to be hurtling towards yet another final meeting practically with very little opportunity for a wider debate. What is the absolute urgency that everything has to be done so quickly? What mechanisms do you think could be introduced to perhaps give people more of an insight into what is going on?

Mr Murphy: The timeline ahead of us, as you rightly say, is 18 October, the informal European Council, to get that high level political agreement and then for the legal experts to carry out work to make sure that it has been a thorough process and is legally watertight and, indeed, the legal text reflects what 27 Member States wish it to reflect. There will then be a more formal process in December. Where the House of Commons, where Parliament and where committees play a part is both through hearings, through evidence sessions such as this, and the report to the Government that we will all have the opportunity to read when you publish, but ultimately the more substantial role that Parliament will have is the one which is to come to a view on the Treaty by virtue of the Bill that Government will put to the House of Commons and to the House of Lords and will follow a similar process to the one taken by previous governments on previous Treaties. This does feed into a wider conversation about the nature of the British constitution, the nature of British democracy, the nature of parliamentary sovereignty and all of those other issues which have been long fought for and long established. There is a conversation, of course, which does rage about whether Parliament is sovereign or whether a referendum or a plebiscite is sovereign. Previous governments, three previous Prime Ministers on various Treaties, rightly in my opinion, took the view that Parliament was sovereign and it is a similar approach we are taking here. If the question is are there things we can learn from this process, of course there are things we can learn from the process and it is a process that has now gone on for four years or so, at least. Mr Heathcoat-Amory has been through the whole process and I am sure it feels a lot longer. There are things we can learn, of course, about communications, processes, all those sorts of issues. My expectation, Ms Griffith, and hope would be that there will be a learning process, but not a learning process that we would have to put into place any time soon on the basis that the UK's expectation is we have had enough Treaties, we have had a series of Treaties over 15 or 20 years, and we think we have the structures in place to deliver what we wish to deliver. It is now about putting the political energy and parliamentary energy into ensuring that Europe and its institutions or Member States deliver the type of things that are important. Yes, there are always learning experiences but with the exception of enlargement, and the UK remains committed to a continued enlargement of the European Union, I would expect that there would not be a need for further structural change through a Treaty for us to then implement that learning experience.

Q33 Mr Hoyle: If I can follow on from what you said, Minister, why do we not stand on the manifesto of saying that we should have a referendum?

Mr Murphy: Mr Hoyle, I guess that is an issue that you and I will discuss in meetings of the Labour Party.

Mr Hoyle: I wondered why we had not.

Ms Clark: We understand ---

Mr Steen: Could I ask what the answer was because I could not understand what the Minister said on that.

Chairman: I do not think we will reprise it.

Mr Steen: Was it recorded?

Chairman: It was recorded.

Q34 Ms Clark: We understand that Poland is pressing to have a Protocol along the lines of the UK Protocol in relation to the Charter of Fundamental Rights. Could you confirm that this is the position and indicate if the UK is supporting Poland on this point?

Mr Murphy: It is my understanding that Poland is attracted to having a Protocol on the Charter of Fundamental Rights. Ultimately it is an issue for them if they wish to have that. On the basis that we alone have a Protocol on the Charter at the moment, in principle we are comfortable with others wishing to do that. What we are not comfortable with doing is opening up the whole Mandate again and for people to begin to unpick the entire process. There was also some speculation that Ireland would be interested in achieving a Protocol on the Charter which I now understand not to be the case. I wanted to inform the Committee of that because I think it was just that, it was speculation rather than a firm intent.

Q35 Chairman: Was that the sort of thing that was discussed at Viana do Castelo? Was that what was going on?

Mr Murphy: I do not know if that was specifically discussed but we are aware that Poland would wish to have a Protocol.

Q36 Chairman: But you did not talk to anyone about it?

Mr Murphy: Chairman, I did not attend, it was the Foreign Secretary.

Q37 Chairman: Ah, it was the Foreign Secretary, the Government, but the Government did not talk to anyone about it. It is a mysterious process. You can see why there is growing incredulity among the public about things that are shifting in discussions when nobody is admitting they are going on, certainly no-one is writing them down and no-one is reporting them back. It is a very, very difficult process for people to give any credibility to and at the end of the day the Treaty, therefore, is undermined by this process of secrecy.

Mr Murphy: Chairman, it is probably a matter of open and public record that the Poles are attracted to having a Protocol. In terms of was that specific point discussed at the informal meeting, there are two options really. I undertake to come back to the Committee and, of course, it is something that will be a question that you will be able to put in your evidence session to the Foreign Secretary.

Chairman: Mr Hopkins, I think you wanted to ask a question.

Q38 Kelvin Hopkins: First of all, the draft that was presented, was that in French or in English? The 48-hour draft that went round to government departments, was that in French or in English?

Mr Murphy: The Mandate was in English.

Q39 Kelvin Hopkins: A more important point is that there is a slight sense that the Foreign Secretary has not briefed you before coming to this meeting about what took place at Viana do Castelo. This is slightly worrying.

Mr Murphy: That is not the case at all, Mr Hopkins. Myself and the Foreign Secretary speak probably each day on all sorts of issues. The fact is that I am not aware whether he spoke specifically to the Poles about a Protocol on the Charter.

Kelvin Hopkins: Just to pick up a point that you made earlier on about the structures not being important, delivery being important. That has the flavour of "Don't worry about democracy as long as we have got the policies right" and, again, that is slightly worrying. Clearly the European Union is very worried about structures, they are constantly trying to change structures to abrogate more power to the Commission in particular. If structures were not important the European Union would not be pushing through Treaties like this.

Mr Cash: Like 1984.

Q40 Mr Cash: Is that not the case?

Mr Murphy: Mr Hopkins, what I said, and I think this will be reflected in the record, is that structures in themselves do not solve the problem about the gap between citizens and the European Union. Of course, structures are important, it is important to get the parameters, it is important to get the rules, it is important to have a common understanding of relationships, but my observation today, as has been in the past, is that I have never had the view that in and of themselves structures or, indeed, communications will magically transform people's perceptions of Europe. People's perceptions of Europe are partly shaped by history but increasingly shaped by their own personal experience, and that is what will change people's perceptions of Europe for better or for worse based on their own experience of their everyday lives being improved.

Q41 Kelvin Hopkins: There is a point I have made a number of times in the Commons. Whenever I speak on platforms about Europe, which I do frequently, I talk about would the people in the audience, whoever they might be, prefer to have a Europe which is made up of independent democratic nations which co-operate voluntarily on matters of mutual interest, or do they want to have progressive transfer of sovereignty from parliaments to the European Union? Invariably people say, "We would like a looser association of independent democratic states co-operating voluntarily". That is what they say on every single occasion. Even Government ministers have agreed with that view, and from our Government I may say. Would the peoples of Europe not be much happier with a loose association of independent democratic states co-operating voluntarily for mutual benefit?

Mr Murphy: Mr Hopkins, we entered into a conversation similar to this briefly in my last evidence session when I gave you my reflection on the nature of Europe and, worryingly, on that occasion Mr Cash signified his agreement with my view, although we have substantial disagreements, and I will put that on the record as well. I do believe fundamentally in sovereign states agreeing through Treaties to co-operate on policy and working together through structures for the betterment of their citizens, but it is about sovereign nations willingly co-operating and willingly entering into legal agreements with one another for the common good of our own citizens and other citizens. That is my view. It is also my view that this Treaty is entirely in keeping with that view of the world.

Chairman: Nia, you had better rescue him before we burst into tears!

Q42 Nia Griffith: Minister, if I can go back to the fact that we were expecting some sort of progress update from the Viana do Castelo meeting and the fact that three weeks have gone by since then. I think the real issue is this: Britain has got a very specific approach to the whole idea of the Treaty. In the summer we had the four red lines very clearly marked out and, as you said, the Mandate has been preserved. Quite clearly other European nations must be saying, "Britain seems to be having opt-out clauses, exceptions or whatever". What is the atmosphere? Is there any pressure or any bullying of any sort which would be trying to push Britain toward things that the Prime Minister quite clearly said in the summer we would not be going down that route on?

Mr Murphy: Ms Griffith, there is certainly no attempt at bullying. There is a universal acknowledgement that the UK is determined to sign up to a UK specific version of the Treaty. We have made it clear and we have not made it a secret. We have been pretty straightforward, we have been tough in our negotiations and we have said that the Treaty must reflect the Mandate and we have made it very clear that should be the case. Are others delighted with our approach? Probably not, but there are federalists who would like to see a much more integrated Europe who, I am sure, would not be instinctively comfortable with our approach of defending UK interests, but we are determined to continue to do that and achieve the UK's red lines. I recently met with Hans-Gert Pöttering, the President of the European Parliament. It was the first occasion I met him, I met him in Strasbourg. He is a lovely gentleman, a conservative by commitment and by politics. He said on the record that since making the Charter legally binding and extending Community competence to JHA were two of the most important features of the original Constitution the deal struck by Tony Blair in June means that, and these are his words: "for better or for worse much of its substance will simply not apply in Britain". In other Member States, and in the Commission and in the European Parliament, I suspect there is a wish that we did not have much of our negotiated position but we have and there is now a respect that that is our negotiated position and, more importantly, we have made it very clear that we are not shifting from our position and we are determined to achieve our position.

Q43 Mr Cash: Minister, I would like to turn to the question of the Reform Treaty by reference to its equivalence to the Constitutional Treaty. In the first place, I would just like to clear one point regarding the IGC Mandate. In it, it says at paragraph two of the General Observations, "The word 'Community' will throughout be replaced by the word 'Union' and it will be stated that the two Treaties constitute the Treaties on which the Union is founded and", this is highly important, "the Union replaces and succeeds the Community". So all the Treaties which were previously under the generic character of the Treaty of Rome are merged into those which are generically the same as the Maastricht Treaty, so you have the Economic Treaties merged into the Governmental Treaties. There is also an overarching single personality and a self-amending text. You said when you came to the Foreign Affairs Select Committee on 12 September that you would regard the referendum as required if there were substantial constitutional change. You also said in front of the Foreign Affairs Committee on 12 September that the substance of this Treaty, that is the Reform Treaty, "is substantially different to that of the Constitutional Treaty". I have got two fundamental questions. I have got here a list of 440 provisions which were contained in the original Constitutional Treaty, all but two of which are included in the Reform Treaty. So, of 440 provisions there are only two provisions which are not substantially the same, yet you say: "the substance of this Treaty is substantially different to that of the Constitutional Treaty". By definition, that has to be complete nonsense. You cannot get away from that. The second thing is the question of whether or not there is substantial constitutional change. I would like you to tell the Committee, first of all, how this Treaty is substantially different from that of the Constitutional Treaty and, secondly, what makes you say, if you do say it, that this Reform Treaty is not substantial constitutional change.

Mr Murphy: Chairman, I am not in a position, because I do not have the document that Mr Cash has before him, to ---

Q44 Mr Cash: You have seen all the other documents over the months.

Mr Murphy: I am happy to receive that and reflect on it in terms of the assertion that Mr Cash has made.

Chairman: It will be published as an annex to our report. That information is in the public domain.

Mr Cash: You can have it now.

Chairman: He cannot have it now.

Q45 Mr Cash: Can he not? Well, he ought to have it.

Mr Murphy: In response to your point, I simply do not agree that is the case at all. Mr Thomas may wish to add. In terms of what is different in the Constitutional Treaty, look at the text, look at the commitments, look at the Mandates. Compared to what was in the Constitutional Treaty, CFSP is in a separate Treaty with the no pillar collapse; the High Rep for Foreign Affairs and Security Policy, not a Union Minister for Foreign Affairs; two declarations on CFSP confirming that all countries see CFSP as the responsibility of Member States; on JHA we have got the UK specific extended opt-in on Justice and Home Affairs. Unlike in the Constitutional Treaty, national security is the sole responsibility of each Member State. There are articles about the operation of police co-operation. There are differences in the institutions, in the symbols. There is no Treaty reference to the primacy of EU law and explicit provision for competence to return to Member States if all countries agree. That is a list. I am sure we can exchange lists but it is a matter of public record that these are differences between the previous Constitutional Treaty and this Reform Treaty. Mr Cash, I know, as I have said before, you are a fair and open-minded man, as am I ---

Q46 Mr Cash: Not on this subject.

Mr Murphy: I think we both are, I would not be so hard on yourself. The fact is that others who were keener on the constitutional approach now acknowledge that there has been substantial change. The Italian Interior Minister, Amato, spoke last month about this and reflected on the substantial differences between the Constitutional Treaty and the Reform Treaty. There is a general acceptance by Amato, Pöttering and others, and, as I referred to, Dick Roche, the Irish Europe Minister, about the substantial differences in their own domestic arrangements for the Reform Treaty but also an acknowledgement that while every Member State has moved away from a constitution no other Member State has moved away from the Constitution other than the United Kingdom by virtue of the Protocols and opt-ins that we have negotiated and the red lines that we are determined to stick by.

Mr Cash: One last question and that is this: when you see our report which we agreed this morning, and I hope you get it pretty soon, I think you will find ---

Chairman: It will not be available until the 10th, Mr Cash, because of the problems of printing. It will not be placed on the record until the 10th of the month, I am afraid.

Mr Cash: Allowing for the fact that I am told it will not be until the 10th, the Foreign Secretary is going to come back on the 16th and I strongly suggest that you and he have a serious conference together about what you have just said because I think you will find that on a substantial number of issues we differ very much from the response you have just given on this issue of the difference between the Reform Treaty and the Constitutional Treaty. I will leave it at that for the time being.

Mr Steen: Minister, I have always thought of myself as a reasonable man, as somebody you will find on the Clapham omnibus. I am not terribly intelligent but ---

Chairman: First class.

Mr Steen: --- interested and concerned. As I have experience of being a reasonable man and the fact that I have got Agatha Christie's home in my constituency, I do tend to think that there may be a plot somewhere. In this case, being the reasonable man I am ---

Mr Cash: Mr Poirot!

Q47 Mr Steen: I have just been wondering, listening to your answers, and this is no discourtesy to you, whether ministers actually get programmed by some sort of computer and whether you have been programmed to respond in the way you do because the word "Constitution" has come out of the discussion. When the word "Constitution" is in the discussion you will be saying, "We must have the referendum of course", but take the word "Constitution" out of the discussion and you immediately argue very forcefully that this is just a Treaty like everything else. If Mr Cash is correct, and he usually is on these sorts of matters, and there is only a couple of changes between this Treaty and the Constitution, I do not understand, unless you have been programmed, why you are so adamant that the British people after 30-something years should not be given a chance to express whether they want further integration, which this must be, or whether they do not. I am not a raving euro sceptic, I am a reasonable man on the Clapham omnibus concerned, just like you are, to get the best for the British people. I must tell you the one thing that makes me think there is an Agatha Christie plot is I happened to be in Brussels meeting one of the Heads of the DGs, who is passionately pro-European and wants the whole lot to be federal, and he asked me one very telling question at the end of a meeting which had nothing to do with this. He said, "Do you think if we change the name from 'Constitutional' to 'Treaty' we will be able to get it through the British Parliament?" The amber light went red at that point. With your answers as well I cannot understand why you are resisting the idea of a referendum unless you know which way the British people will go, which would be diametrically opposite the way that you are arguing the case. I am worried to protect you from what might happen if you pursue that line and whether you could re-programme the computer to put the word "Constitution" in so you will get different answers.

Mr Murphy: Chairman, apart from acknowledging that I do not think anyone has evidence at all that you are not a reasonable man, Mr Steen - I am happy to put that on record until such time as we discover otherwise - I do not think the world is arranged in the way in which the former owner or resident of that famous address in your constituency would suggest. That has not been the case in the previous Treaties, on Maastricht, and of course I did not have the opportunity to vote for or against a referendum on Maastricht.

Q48 Mr Steen: It did not have the word "Constitution" in it.

Mr Murphy: Which of course you did, Mr Steen. The fact is that we have moved away from the Constitutional Treaty both in content, style and purpose. We are not re-founding the European Union on a single Treaty as the old Constitution would have done. As this process has evolved, I have tried ---

Q49 Mr Cash: It says, "The Union replaces and succeeds the Community".

Mr Murphy: As this process has evolved, I have tried to avoid praying in aid specific constitutional settlements in other countries, apart from Ireland where there is a specific case. The reason I mentioned the Dutch was simply because there was a similar conversation in the Netherlands and I think it was in this Committee, possibly the Foreign Affairs Select Committee, where there was allusion to the fact that the Dutch may end up with a referendum because of the supposed constitutional nature of this Treaty. The Dutch State Council has been very clear and they went through it with extreme thoroughness devoid, as I understand it, of party politics to-ing and fro-ing, and they have come to a conclusion. They have come to a conclusion and a recommendation for their own government. It is important that we, as a Government, come to a conclusion that is specific to the UK, that protects the UK's national interests and stands up for Britain. That is what we will continue to do throughout this process as we seek ratification through Parliament. I will put it on record again, I am happy for the record to show that as far as I and most others are concerned you are a reasonable man.

Chairman: I doubt whether he has ever been on the Clapham omnibus myself.

Q50 Mr Heathcoat-Amory: Minister, when you said in front of the Foreign Affairs Committee that "the substance of the Treaty is substantially different to that of the Constitutional Treaty", you must have been doing that on advice, so you must have done the same analysis that we have done comparing the Constitutional Treaty with what we now have. We find that pretty well everything is taken forward in substance in the Reform Treaty except for the question of the symbols, the flag and the gold stars, but as that has been common practice for over 20 years that can hardly be a matter of substance. I noticed just now when you were giving some examples of where you said there were substantial differences you mentioned some red lines, which is a separate matter, we are talking here about the main Treaties, and you also mentioned the primacy clause, which is indeed important, the assertion that European law is superior to Member State law. Can I just remind you that the Reform Treaty says: "In accordance with the said case law of the EU Court of Justice the Treaties and law adopted by the Union on the basis of the Treaties have primacy over the law of the Member States under the conditions laid down by the said case law". In substance that is just the same as what the Constitutional Treaty had in it, there is no substantial difference. I am afraid it is disingenuous of you to pretend that is a substantial difference which allows you to assert that whereas the Constitutional Treaty was of constitutional importance, the Reform Treaty is not. Can you provide us with more details, not now but can you write to us in short order because time is short, showing us what you consider to be the substantial differences, not the name changes, not that the Foreign Minister is now called a High Representative, but substantial differences which alter the effect, political and legal, of the Reform Treaty as compared to the Constitutional Treaty. Will you undertake to do that?

Mr Murphy: Chairman, I have already responded to Mr Cash and others on these questions. Of course, I am happy to correspond with the Committee if that is the wish of yourself, Chairman, and Mr Heathcoat-Amory.

Q51 Mr Heathcoat-Amory: Not correspond with us, you are going to now send us these substantial differences. It is an oral request for a written answer.

Mr Murphy: The way we would have to do that is through correspondence, which is why I said I will correspond.

Q52 Chairman: Can I press you a little. I find this very concerning. I have spent a lot of time this summer reading all the various documentation leading up to our presentation and I have to say I am a bit unhappy with what is going on, and I think a lot of it is down to the way the Government is handling this question. It is certainly the reality that I see that the only thing that was new in the Constitutional Treaty that is not in the Reform Treaty that has been signed up to by many countries without any derogations, without any Protocols, is, in fact, Article I-8 on symbols. Everything else that was new in that Treaty is in the Reform Treaty. It is not all binding on the UK but we seem to argue nonsensically that it is different, that the Reform Treaty is different from the Constitutional Treaty, when it is not. Some of the things do not apply to the UK because we have got derogations, opt-ins and Protocols, but in reality for many countries it is what they wanted. They wanted a Treaty for a Constitution and they are going to get a Treaty for a Constitution under the name of the Reform Treaty minus the symbols. If we said that honestly to the public and then explained to the public where we had disapplied or been allowed options to opt-in or not opt-in in certain areas we would get a much more honest debate, but what we get is - you might call it the Government side because it seems to be the Government side - the pro-EU side saying, "It is not the same" and those who know it is not all applying to the UK saying, "It is exactly the same" when they know it is only exactly the same in its wording but does not apply in the same way to the UK as it does to other countries. That is where the problem lies. It is like a dialogue of the deaf, two people are not talking the same language. Is it not better for the Government to say, "The Reform Treaty, if it is applied to countries who want it all without the symbols, is exactly the same as the Treaty that was proposed for a Constitution for Europe, but for the UK it is the same but we are not applying this, this and this"? That seems to me to be a much more honest way to frame it, but it has never been framed in that way by Government ministers or those who defend it, as I might defend it? Is it not time to change the language?

Mr Murphy: Chairman, I am not sure I agree in full with the analysis.

Q53 Chairman: Well, you should.

Mr Murphy: I hope you do not take that as a mark of disrespect. However, you are right in saying that the UK has its specific version as a consequence of ---

Q54 Chairman: Let us start with the first part. Do you agree that all of the new parts that were in the Treaty for a Constitution for Europe, apart from Article I-8 on symbols, are in the Reform Treaty before us?

Mr Murphy: No, I do not agree, Chairman.

Q55 Chairman: I think you will find you are wrong when you read our report.

Mr Murphy: I look forward to reading your report when it is published on the 10th.

Q56 Chairman: I am surprised your officials do not tell you this because it is true.

Mr Murphy: Chairman, the fact is you are right in saying that the UK alone has a distinct version of this Treaty. You are right in saying that and we have argued that case and will continue to argue that case and will continue to defend that case and make sure the Mandate is turned into the Treaty. Where I do not believe you are right is that the Treaty is the same as the Constitution and, more importantly perhaps than myself, a growing number of others are now reflecting that the Constitutional Treaty as was and the Reform Treaty as is are different. As I alluded to earlier, the Dutch situation with the State Council came to its own conclusion. Of course we will continue to read through the detail of the Dutch State Council conclusion but the purpose, let alone the content, of the Reform Treaty is different from the Constitutional Treaty.

Q57 Chairman: I would not disagree with you on that.

Mr Murphy: We are not seeking to re-found the European Union in the way that the Constitutional Treaty was seeking to do. Obviously I do not want to disagree with you just for the sake of it but it is the case that what we have now in front of us is a Reform Treaty similar in approach to previous Reform Treaties rather than a Constitution for Europe. In terms of the magic bullet of how you have a facts based conversation and debate on the one hand, and the much more substantial point about how you then break down many of the barriers and how you can transform people's perceptions of Europe, as I say, Chairman, getting the rules and regulations and parameters is right is important but now, hopefully once we conclude this process, it is about putting the continuing circular conversation about Treaties behind us and getting on putting all the energy that we all have into helping to make a Europe to deliver, if that is indeed what we all believe, which I know you do, Chairman.

Q58 Mr Steen: Can I just ask one final question on this. If you took out the word "Constitution" from the initial Constitutional Treaty, would you have argued that it was a Treaty?

Mr Murphy: I know the benefit of that in hindsight, Mr Steen, but I think the fact is that a Treaty that sought to re-found the legal basis of the European Union, it is hard to have called that anything other than a Constitution in my opinion because it sought to re-found the European Union on a different basis. I think it may have been difficult.

Q59 Chairman: I have a number of final questions but I think you should study the contribution made by Gisela Stuart at the Foreign Affairs Committee about whether the last Treaty for a Constitution was, in fact, a Constitution because I think there are some fundamental questions about Euratom and the fact that it did not replace all the Treaties, it just replaced and moved some of them. My question to you, Minister, is, is it your perception, because it is certainly mine, that every other country must adopt the Reform Treaty with all its parts and also agree to the UK opt-out and all 27 countries must agree that package? So in a sense we are agreeing the whole Reform Treaty with our opt-outs just as they are agreeing all of the Treaty with our opt-outs as part of the deal. In fact, what we are all agreeing is the total Reform Treaty, which is exactly the same in all its new parts as the previous Treaty for a Constitution without Article I-8 about symbols. This idea that there are different Treaties for them than for us, it is the same Treaty we all agree with our opt-outs and Ireland's opt-outs in there. There is one package they will vote on with our opt-outs in it, just as we vote for them to have all of the Treaty without any opt-outs as part of the package. If 27 do not agree to that it falls. It is not like we have a different Treaty from them. I think between now and the time when we meet the Foreign Secretary you might discuss this question and maybe we can have a clearer factually based discussion with him.

Mr Murphy: Chairman, it is pretty clear that there will be one text but the impact of the Treaty in the United Kingdom will be substantially different from that in other Member States. Every Member State has agreed to the UK's specific version of a Treaty as it will apply in the United Kingdom and those Protocols and opt-ins will be written into Community law and will have legal effect. With respect, I think that is pretty clear.

Q60 Angus Robertson: Moving on to the Protocol, Minister, in your letter of 31 July you explained that the "UK-specific Protocol which the Government secured is not an opt-out from the Charter". Does this mean that the Charter will have some effect within the UK?

Mr Murphy: What is clear is that the Charter, and the rights contained within the Charter, restates - I think this is pretty clear - existing rights which exist in other parts of European law. I think it is sensible that it brings it all back together in one place. It does not create any new justiciable rights in the United Kingdom either for a European court or for a UK court to strike down any UK law, but to make absolutely clear that that is the case we have negotiated that specific UK Protocol.

Q61 Angus Robertson: But will it have some effect within the UK?

Mr Murphy: It does not create any new legal rights.

Q62 Angus Robertson: That is not the question I am asking. Will it have some effect within the UK?

Mr Murphy: It will have the effect of bringing all the rights into the one document in the one place but it will not create any new rights and, therefore, it will not have that effect.

Q63 Mr Heathcoat-Amory: Minister, the Protocol to which you have referred does not relieve the United Kingdom from its duty to apply European Union law generally. Indeed, the Protocol actually explicitly says that it is without prejudice to other obligations of the United Kingdom under the Treaty on the functioning of the European Union and Union law generally. As you know, Article VI, to take one example, does refer to general principles of Union law, so we will have to apply Union law generally notwithstanding this Protocol. So we can imagine a situation whereby the European Court interprets a Directive in the light of the Charter, and does so in a particular way, and the United Kingdom would be bound by that but under these general obligations of Union law. Will that general obligation not trump the opt-out or red line or Protocol to which you have referred?

Mr Murphy: Mr Heathcoat-Amory, with your permission, Chairman, I wonder if I could invite Mr Thomas to offer a legal observation on that.

Mr Thomas: The position is consistent with the Protocol. What the Protocol says is essentially that the position that the Government understood the Charter to produce is indeed the position, so it does not row back on the ability of the ECJ to go on doing what it has always done, which is to interpret Union law, and it will go on doing that. It will do so in the light of the Charter but since the Charter restates existing rights and principles it does not introduce anything new into their deliberations.

Q64 Mr Heathcoat-Amory: That has not quite answered my point. Would it not have been better to say that our opt-out or red line, or whatever you call it, which disapplies the Charter in certain cases is without prejudice to other obligations we have to apply Union law generally otherwise surely the Court will come along and say, "All right, you say you have got a specific disapplication, however under other parts of the Treaty you have a duty to apply general principles consistently as every Member State does" and the European Court, which is the final arbiter, might decide that overrides the specific Protocol on which we are trying to rely? Would it not have been better to make absolutely explicit that the Protocol takes precedence over any other obligations and that has not been done in the Protocol?

Mr Murphy: No, it has not. The reason it has not is because the Protocol is not a get out of jail free card, it is a statement of how the Charter provisions will apply in the UK, "So they will apply, and this is how they will apply". In other words, the Protocol is a different animal from the one you are describing, I think.

Q65 Mr Heathcoat-Amory: So the Charter will apply? If there is a judgment of the European Court which interprets a Directive in a certain way in accordance with the Charter that will be binding on the United Kingdom?

Mr Thomas: The ECJ will have to interpret the Charter insofar as it concerns the UK in the light of the Protocol but, subject to that, the Charter becomes part of the provisions of the Treaty by virtue of the Article which introduces it. The Protocol explains how the Charter will have effect in the UK but it does not say it does not apply to the UK, far from it.

Q66 Mr Heathcoat-Amory: The Charter will not directly apply but the interpretation of the Charter by the European Court could well apply because of this general obligation to apply Union law consistently. The more you talk, the more threadbare becomes the Protocol on which the Government is apparently relying.

Mr Thomas: I think you have to see the Protocol as part of the Charter package, by which I mean all the provisions of the Charter including the so-called horizontal provisions at the back end of the Charter which explain how it works. The other main part of the package is the explanations or commentary to the Charter which the Reform Treaty would require all courts to have regard to when interpreting the Charter and the Protocol. You have to look at the whole package together.

Q67 Mr Heathcoat-Amory: Finally, supposing we insist that the Charter cannot alter British law but the Commission or some other Member States insist that we have to apply Union law generally and, therefore, the case law of the European Court judging a Directive in a certain way should apply to the United Kingdom. If there is a dispute of that nature am I right that the deciding body will be the European Court, which is hardly a neutral observer in these matters given that it is a European Union institution?

Mr Thomas: I will not comment on the last part of that, but on the legal substance of your question the European Court of Justice will continue to be the final arbiter of European Union law.

Q68 Mr Heathcoat-Amory: Even though it will have judged an earlier case and therefore will then be deciding whether it should apply to the United Kingdom. In that sense it is a party to the whole dispute.

Mr Thomas: I do not think you can regard the arbitrator as a party to the dispute. The European Court is the adjudicative body of the Union like any other court, so it is not party to its own proceedings.

Q69 Mr Heathcoat-Amory: No, I am making a different point. It will have decided, in my hypothetical example, whether a Directive is consistent with the Charter, so it will have already sat in judgment on the issue about whether the Charter applies. In my example it is then being asked to decide whether our Protocol is stronger than our general EU obligations in a separate case, but it will have already been perhaps not a party to but it will have been involved in the case about the Directive in question, so the same body will be deciding two aspects of the same case. I put it to you that that does not give them a position of neutrality between the state's rights and the rights of the European Union in this matter.

Mr Thomas: If we took specific examples, including a real Directive and so forth, there are lots of interesting avenues which we would need to explore. The bottom line is that the European Court of Justice has to interpret the Treaties and the law made under the Treaties, including the Protocols to the Treaties, without distinction, if you like. The European Court will not be able to ignore the Protocol which will have exactly the same status as Treaty Articles by virtue of being a Protocol, so it will not be a question of picking and choosing. I think in the abstract I cannot say more than that. After that one needs to get into the detail of particular cases and ---

Q70 Mr Heathcoat-Amory: Are you happy as a lawyer to leave the decision to a Court which is itself an institution of the European Union which obviously has a self-proclaimed interest in ever closer union and has a long record of seeing the gradual accretion of powers by the European Union as a natural consequence of the Treaties?

Mr Thomas: I think you have asked for my political view there, which I will not give you. The European Court is a creature of the Treaties which are themselves the construct of the Member States so, as I see it, what the European Court is doing is what the Treaties require it to do.

Q71 Mr Cash: You have raised, Mr Thomas, if I could perhaps continue this conversation through you with Mr Thomas for a moment, the question of the relationship of British law to European law is settled on the face of it by sections 2 and 3 of the European Communities Act 1972. The question, therefore, in relation to this Charter, Protocol, the application of uniformity throughout the European Union, the cases of Costa v ENEL, Simmental and all the other cases, which by the way did not have their origin in Treaty, they were constructs of the jurisdiction of the European Court itself off its own bat which has been accepted by the European Union, raises a whole series of questions in this Treaty with respect, for example, to where there are complications on British opt-outs or opt-ins in relation to the Charter of Fundamental Rights, Common Foreign Security Policy, the legal obligations imposed on the United Kingdom Parliament, measures relating to criminal law and Title IV, amongst others. In all these cases under this Treaty there are serious doubts as to whether or not it is possible for the United Kingdom to get the measure of acceptance, exemption, that the Government has been seeking both under its red lines and generally. In this very serious situation, therefore, would you not accept that it would be right, and I refer to Mr Murphy here, to agree by commitment, which the Government could give, that because the Government wants to achieve these exemptions for the United Kingdom people in the vital national interests of the electorate it should say in the Bill implementing this Treaty to provide for the words "notwithstanding the European Communities Act 1972" because that would be the only way in which you would, according to what Mr Thomas has just said, be able to avoid the European Court being able to exercise its jurisdiction over these provisions on a uniform basis?

Mr Thomas: On the question of the European Court's jurisdiction, I think it is quite clear that if the United Kingdom is not subject to a measure which is made under the Treaty then the European Court will have no jurisdiction over the United Kingdom's actions in that sphere because it will not be governed by the legislation. The Treaty will make that perfectly plain.

Q72 Mr Cash: Well, it has not done so.

Mr Thomas: We have not got the Treaty yet.

Q73 Mr Cash: No, but I am talking about in the past. Take the Working Time Directive, for example, I remember having discussions with Michael Howard at the time and I said, "If you go down this route it is the old Article 118(a) and it is a declaration, and no more, the consequence of which is you will find yourself caught by this because the European Court of Justice will insist" and so it did, and so we found ourselves caught in it and the present Government is rather unhappy about that in many respects. What I am saying to you is that the evidence in the past is that unless you are crystal clear and use your own Westminster-based legislation where it is express and, where necessary, inconsistent with European law you have to have a notwithstanding provision which says, "Notwithstanding the European Communities Act" and then legislate in the Bill because otherwise you fall into the trap of the European Court applying the legislation against you despite what you have just said.

Mr Thomas: I cannot see any prospect of that happening.

Q74 Mr Cash: I can.

Mr Thomas: As long as the Treaty is clear that certain legislation made under it would not apply to the United Kingdom then in the circumstances when it does not apply neither our courts nor the European Court could make it apply.

Mr Cash: Well, the Merchant Shipping Act is a good example.

Q75 Chairman: Can I just remind the Minister and his legal adviser, I asked a question of the Prime Minister about what the red lines would be and the first one he said was "First, we will not accept a Treaty that allows the Charter of Fundamental Rights to change UK law in any way". It is my understanding, and it will have to be tested because these things may be hypothetical until someone takes a challenge, that it will be possible because of the way it is written. It says that the Protocol will not be binding and the European Court of Justice will not have a role except insofar as the UK has already legislated in that area. The point made by Mr Cash about the Working Time Directive as an area where it would be possible for a trade union, for example, to take the matter to the European Court of Justice and ask for a ruling about the implementation in the UK of the Working Time Directive, which may be different from the way the Government at this moment is interpreting and enforcing it, that would be a case where, unfortunately, the Prime Minister's assurance would not be sustainable because we do have law in that area and it would be possible to take that to the European Court of Justice. Is that not correct?

Mr Thomas: I hope I understand the circumstances you are positing correctly. In the case of the Working Time Directive the UK is bound by that Directive as well as every other Member State.

Q76 Chairman: Exactly.

Mr Thomas: So we are in the normal position that cases can go to the European Court for interpretation of the Directive and then for our courts taking that interpretation to decide whether our law is consistent with the Directive. That seems to me to be a paradigm case under the Treaty about the European Court exercising its jurisdiction to interpret Community law.

Q77 Chairman: In any other place where there is employment law where a trade union does not think the Charter of Fundamental Rights is being applied similarly to UK workers as to other workers, there is quite a lot of scope for people to take these matters to the European Court of Justice and request or ask for a ruling that the Charter of Fundamental Rights must apply. That is one of the areas where it does seem to me we have some legal advice that is contrary to the ability of the former Prime Minister's assertion to be sustainable.

Mr Murphy: On that point, Chairman, and then if I can address the point that Mr Cash made, I do not suspect we can stop people trying to take things to the European Court, I do not think that is the world we want to live in.

Q78 Mr Cash: Nor stop them from adjudicating.

Mr Murphy: Article I of the Protocol is pretty clear, that the Charter "does not extend the ability of the Court of Justice or any court or tribunal in the United Kingdom to find that laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms". I think that is very clear indeed in Article I. In terms of the point raised by Mr Cash, you said you raised the point about 118(a) with Mr Howard, and I thought you were going to give us his response at the time. On the specific point how we frame a Bill - we have not got to the point where I have seen a first cut at a draft of a Bill - when the Bill is taken to Parliament, of course, you will exercise, and I do not think I could stop you exercising, the opportunity to make whatever amendments you see fit and the one that you have mentioned today may be one that you would see fit to try and amend. At the moment I cannot usefully speculate on the content of a Bill that we have not yet designed the first draft of.

Q79 Chairman: Can I just say that this little debate has certainly reinforced for me that the first question asked by Mr Robertson may not have been answered in a way that it may turn out in the future because it does appear to me that the European Court of Justice's interpretations based on the Charter of any application of a law that we already legislate in will have some effect on UK law. I find it very difficult, given the legal possibilities, that the assertion made will be sustainable and I do think that the Government has a real problem in delivering on that given that we do not know what cases will be taken to the European Court of Justice in the future.

Mr Murphy: Chairman, we have framed the Protocol in a way that we are certain gives us the protection that we need in terms of what we have said. As I alluded to earlier on, everyone celebrated the fact that we negotiated this specific condition, not least ---

Q80 Chairman: I would say some of my friends in the trade union movement are looking to challenge it as soon as possible.

Mr Murphy: That is right, not least our good friends at the TUC. They were unhappy that we secured this Protocol but the Protocol is very clear on our legal position about what the Protocol helps us to achieve.

Q81 Mr Cash: Chairman, can I just mention what the European Parliament has said about this. This is all part of the process. There was a meeting of the European Parliamentary Constitutional Affairs Committee, and I just flag this up, and in respect of the Charter the following statements were made: "The Charter of Fundamental Rights should not be annexed to the Treaties as a Declaration, but should be formally proclaimed as a stand-alone document before the signature of the Reform Treaty; the Protocol disapplying the Charter of Fundamental Rights from the UK", according to them, "threatened contamination of the whole EU legal system" and Poland was complicating issues by wishing to join the UK in the disapplication of the Charter of Fundamental Rights. What I am trying to say to you in a nutshell is that this is an extremely hot issue. It is a hot issue with respect to the trade unions, it is a hot issue with regard to the Poles and it is a hot issue regarding the European Parliament. The confidence with which you have expressed your view and Mr Thomas has expressed the view that somehow or other this is all fine and dandy is not actually reflected in the extreme concern which is being expressed in the documents I have referred to.

Mr Murphy: Chairman, it is a fact that I have alluded to on two occasions. Others in the European Union would wish that we did not have this Protocol, let us be clear about that. It is not a universally popular measure but we think it is the right thing to do for the United Kingdom. It will continue to be an issue because others do not believe we should have had this, but we are pretty clear it is the right thing to do for the United Kingdom and we will defend it.

Q82 Chairman: Can I move on to another issue. Some of the MEP observers at the IGC are reported as being concerned that the UK might opt-in to measures under Title IV, which we have the right to do, so as to participate in the negotiations on these issues but then opt-out at the last minute when we do not get the text that suits us. What do you say to these concerns? Are they valid?

Mr Murphy: They have not been offered to me, so I rightly accept your observation, Chairman. Again, it is controversial in some quarters, others in the European Union would rather we did not have this specific opt-in arrangement as well. We have got that automatic opt-in to enable us to opt-in on a case-by-case basis and that has now been extended. What we will do, and I do not want to pre-empt decisions years down the line, is we will basically look at this on an individual case-by-case basis and make our decisions as to whether we opt-in. We will judge each one on the merit of what it means for Britain and is it good for our country, is it good for our legal system, is it good for the way in which we operate, and if it is we would consider opting in. We have not yet been confronted with a list of "Are we going to opt-in to this, would we opt-in to that" and the speculation around it, we will just make a case-by-case judgment. We are very pleased that we have the opt-in.

Q83 Chairman: Surely there must be an interpretation by the Foreign Office on behalf of the Government as to what it actually means. If it is interpreted that the opt-in means that you decide you are going to opt-in to a particular Article or subsection of an Article, and once you opt-in it is Qualified Majority Voting, and then along the way in the negotiations you find that what has been offered to you in the negotiations is something you do not find compatible with these aspirations you have put so well on behalf of the British people, et cetera, do you think it is the Government's right to opt-out if the negotiation text at the end of the day is not acceptable? Or do you think the process is one where if you say "We are opting into this section" you take what you get when eventually the text is agreed and put to Qualified Majority Voting? What are the safeguards?

Mr Murphy: Without speculating on a specific proposal ---

Q84 Chairman: You must have done this in the past in opting in. I am thinking of Schengen, for example.

Mr Murphy: In terms of one specific issue and one specific principle that is before us there is the issue about the EU's ability to define what is a criminal offence. That power already exists where the crime is serious and where there is a cross-border dimension, such as people trafficking. That power already exists. In that circumstance, if the UK chose to opt-in, and this is the one I am most involved in, and remained nevertheless unhappy and our discontent or discomfort could not be met then we do reserve the right on that to withdraw ourselves again. I think that is important to put on the record today. If it fundamentally affects our criminal justice system then we have the opportunity to remove ourselves even if we had opted in.

Q85 Chairman: I think you are talking about the emergency brake there, you are not talking about the opt-in. They are two different things.

Mr Murphy: If we had opted in to a JHA measure we could then have the emergency brake which would then take us out if it fundamentally affected our systems.

Q86 Angus Robertson: Minister, I know you are running out of time because you are going to be meeting the European Ministers of the devolved governments in the UK. Much as I would like to see Scotland representing itself directly in Europe, something that you praise the Irish for doing, at the present time it is the UK that represents Scotland, Wales and Northern Ireland, areas where the shared sovereignty in much of the EU's policy area is in fact the Scottish Government, Welsh Government and Northern Ireland as well. Would it be possible for you to tell the Committee which priorities have been shared with you by the administrations in Edinburgh, Belfast and Cardiff that you are taking seriously and you are negotiating on behalf of them within the IGC at the present time? What do you agree with that they want you to pursue and what do you not agree with?

Mr Murphy: You are right to acknowledge that I celebrate the fact that the Irish have the approach that they do, primarily because Ireland is an independent country and it has the right to do what it does. I happen to believe in the United Kingdom. I believe in the union of our islands and I do not believe in breaking up the United Kingdom, and that will not be a surprise to you, Mr Robertson. In that context it is right to celebrate what Ireland does but acknowledge that Scotland achieves, and continues to achieve, much more by being part of a United Kingdom. Forgive me for making that point, Mr Robertson, but I think it was important to make. In terms of the meetings with the Ministers in the devolved administrations later on, the Scottish Executive Minister, Linda Fabiani, will present a paper on her priorities and, as I understand it from the paperwork, her priorities, the Executive's priorities, seem to be around the issue of fishing in particular, and that is something we will discuss this afternoon.

Q87 Angus Robertson: That is a matter, of course, that has been shared with the UK Government by the First Minister already, so obviously it is something you have thought about in some detail and you will have worked out what your position is. Could you share your view with the Committee on how the UK Government will be supporting or not supporting the position of the Scottish Government?

Mr Murphy: The Scottish Executive, of course, rather than Scottish Government. As I understand it, the SNP Executive is opposed to this Treaty in terms of the debate that took place in the Scottish Parliament because of the suggestion that the Treaty in some way reduces Scottish capacity for its fishing industry to continue. That is not the case. We have had that conversation with Mrs Fabiani, we have looked into it in some detail and the Common Fisheries Policy, which we secured the reform of in 2002, can continue to change and evolve but the Treaty in itself, and I will make this clear to the Europe Minister from the Scottish Executive, does not change the role and purpose of the Common Fisheries Policy and the Treaty itself does not change the nature of the Common Fisheries Policy.

Q88 Angus Robertson: So what policies that the Scottish Government has asked you to support are you supporting?

Mr Murphy: The substantial one that I have been approached on is the fishing policy.

Q89 Angus Robertson: You are not very supportive of that.

Mr Murphy: I have made it clear that is what I have been asked to do and that is what I will respond to.

Q90 Angus Robertson: Minister, of the things that you have been asked to support, what are you supporting? So far it is nothing.

Mr Murphy: The things that we think there are a need for co-operation on is where the Scottish Executive, quite rightly, along with the other devolved administrations continues to play a part and are processes that the Scottish First Minister has put on the record he is very appreciative of in the way in which the Foreign and Commonwealth Office has continued to involve the devolved administrations. That is a matter of public record. Mr Salmond wrote to the Foreign Secretary in July about that. There is strong co-operation and there is a request from Mrs Fabiani for that to continue and we are happy for it to continue and we support it.

Q91 Angus Robertson: I make the slightly glib observation that now structures and co-operation are very important. I asked you for a concrete policy example - policy, not co-operation, not structures, and that is not important apparently going back to your earlier answer, what is important is policy delivering - which policies which the Scottish Government has asked you to support are you supporting.

Mr Murphy: Mr Robertson, the specific concrete example that has been raised and, you are right, you did make a relatively glib statement, but that is something you are entitled to do, of course, is about the Common Fisheries Policy and I have given you my observation on that.

Q92 Chairman: Fine. Can we move on to one last item? I am concerned at the comments made about the informal meeting in Portugal and the general agreement, you said, that the Mandate was not up for amendment. When you last met us we did raise with you the question under Article 8cEU of the role of national parliaments, which says: "national parliaments shall actively contribute to the good functioning of the Union" and then it goes on to say a number of things that we shall do and, of course, it was then, and still is, of deep concern to this Committee that it would appear that the EU is instructing this Parliament how to behave, along with all the other parliaments. You did say that it would be looked at by the Foreign Office in its negotiations. Can you inform us if this will be amended rather than just left in and in the future to be up to hypothetical judgments in the courts? We do think it is a fundamental change in the way a Treaty of the European Union addresses the role of parliaments and should not be allowed to continue.

Mr Murphy: Chairman, on the specific point about that word "shall", we have made some progress and have looked into it in some detail. It is our understanding, as I think I said in July and I certainly said at the Foreign Affairs Select Committee, that it is clumsy drafting rather than policy intent. That observation in itself is not enough, it is important also to reflect my understanding that the French text does not contain the word "shall".

Q93 Chairman: It does not have that in it.

Mr Murphy: It is my understanding that even though part of this was motivated by the determination of our colleagues in the Dutch Government neither is it in the Dutch text, so that reinforces this point. We are determined to make sure that the concerns that you have raised, which I think I have said before are entirely reasonable and we share them, are met and overcome around this issue.

Q94 Chairman: Can I just press you on that. That is all very well but if it is not textually altered then it remains in there and I do not care who is ascribing to a conspiracy theory or that the drafters are also in cahoots with the Commission, it does require to be amended not just to be agreed in general discussion with other ministers that it was a very bad piece of drafting.

Mr Murphy: Chairman, we will make it clear in text and the text will reflect what you are asking today and what I have said previously on record that there is no intention or desire to mandate sovereign parliaments in their actions. That will be reflected in the text.

Q95 Mr Cash: Chairman, you raised an extremely point, if I may say so, with respect to the distinction that is made having regard to the exclusive and so-called binding nature of this Mandate where the legal experts get together, and I have got the note here about the legal experts working group, and come up with the conclusion that somehow or other you can adjust the wording, as for example with regard to the question of the obligation on national parliaments, and that is all right but at the same time, however, the Portuguese Presidency and the Foreign Minister before they took over, when Germany was still in control, issued a statement saying, "There will be no departure from this". I spoke to the Foreign Secretary personally about this and I said, "Is this legally binding on the British Government as far as you are concerned?" and he said to me, "It is binding as far as we wish it to be binding". What I am interested to know is just exactly, as a matter of principle, how this is operating. We have a Treaty, which is a prerogative act, and we have the Prime Minister saying that in line with the sort of considerations of Lord Lester's Bill we are now actually going to take away the prerogative in relation to the declaration of war and the making of Treaties and have it all approved by Parliament, yet at the same time we have situations where in this particular Treaty everything is defined by a legally binding Mandate but it appears that the legal experts can get together and can then decide as to whether or not they are going to re-interpret provisions or not. We had Mr Thomas telling us that actually the European Court of Justice under the European Communities Act, as I put it to him, will have the last say, but he then said, "Ah, but you see there may be questions of interpretation which will let us out of it". I have to say to you, Mr Murphy, that what really worries me about all of this is the extent to which the whole of this racket, which is what it basically is, is being forced through by prerogative act by a former Prime Minister followed by a new Prime Minister against the background of an impending General Election and exceptions are given to the legal experts to make adjustments, for example, on national obligations and the wording but not with respect to the question of whether or not particular provisions will apply to the United Kingdom. In other words, this is developing into an operation which lacks transparency, is not candid, is bypassing the British Parliament to a great extent - we went into that at the beginning - and at the same time bypassing the British people because they are not going to be allowed a referendum. Would you not agree that is a pretty tragic state of affairs and one that should be strongly resisted by the British people?

Mr Murphy: Mr Cash, it will not surprise you that I do not agree. I suspect that is a reflection of an equivalent set of comments you have given on other Treaties, including Maastricht. You have a different perspective on the nature of Europe describing it as "a racket", and it is entirely your prerogative to do that. In terms of the two specific points of fact you raised, firstly, the Mandate is not a legally binding Mandate, it is a political agreement and there is now a process where lawyers, interpreters, go through the process to make sure that a Treaty can be created that reflects that political Mandate that was achieved under the German Presidency.

Q96 Mr Cash: What is the difference between a political and a legal Mandate?

Mr Murphy: Mr Cash, a political Mandate is the Prime Ministers of the 27 Member States have signed up at a political level that the content of the Mandate is something that they would support and they would wish then to be turned into legal text. It is when the legal text becomes available and when the legal text is then turned into a Treaty that you get involved in the legally binding and ultimately when the Treaty is ratified through 27 Member States and comes into effect. That is an entirely different process from what happened under the German Presidency. In terms of the point about the word "shall", Mr Cash, I hope you will accept the fact that that is not an attempt to reopen a negotiation or anything whatsoever, or reopen the Mandate, it is a reflection of what the UK believes it was signing up to. It is a reflection of what the text in other languages currently records. There was no policy intention through the Mandate agreed at a political level to compel Member States, sovereign parliaments, into specific actions. That is shown in the French and the Dutch texts and it should similarly be shown in the English texts.

Mr Cash: That is not what the Presidency is saying.

Q97 Chairman: I want to pursue that point. I am not sure that we have this right. Our understanding, for example, is that the style used in the French text which is under Article 212 of the Penal Code was written in such a way that it did seem to compel France also. It was the way it was phrased which was then rendered that national parliaments "shall" ensure in its translation. Our understanding is that the IGC is specifically not up for amendment without political authority. What we need to get from you to advance us from where we were in July is, is that political authority now agreed that this text will be changed? As you say, in its drafting it was compulsory on everyone to agree with the IGC Mandate, it was mandatory, but it can only be changed if the political will is to change it. We have had several months, so is the political will now to change it?

Mr Murphy: Chairman, the European Council Legal Services agree with us that this was not the intention. It is not something that Heads of Government are actively engaged in on the basis that it is what I said it is, it is clumsy drafting, not a reopening of the Mandate. There was not a process whereby there was an attempt by the European Union or Member States to compel one another into certain actions. The Mandate in the use of that word does not actually reflect what was agreed. Certainly the advice I have, Chairman, and as I said at the Foreign Affairs Select Committee my French is patchy - my Dutch is stronger than my French - it is not in the Dutch text and it is my understanding that it is not in the French text. It is not a renegotiation of the Mandate and the European Council Legal Services agree with us.

Chairman: I look forward to seeing that redraft.

Q98 Mr Heathcoat-Amory: Are we not now paying the price for this incredibly compressed negotiation? You had these focal points, these Sherpas, there since January, they were shown no text, there was no negotiation, and the former Foreign Secretary said there were no discussions. If there had been a transparent process which included this Parliament we would not be in this muddle whereby there is an apparent obligation for us to contribute actively to the good functioning of the Union. If that is interpreted by a future European Court it may find this Parliament or a future Parliament in breach of Treaty law if it became obstructive. This would not have happened if you had just taken it at a slower pace and brought everyone in alongside with you to join in the negotiations. My question to you is just supposing we do not get this change and the word "shall" endures as a potential obligation on this Parliament, can that be amended when Parliament - this Parliament - discusses the Treaty and in any ratification process? If your answer to that is "no" then we are powerless from now on.

Mr Murphy: Thank you, Mr Heathcoat-Amory. With your permission, Chairman.

Q99 Chairman: I am conscious of your time. We did say we would let you go at 3.30.

Mr Murphy: We are confident that this will change. Council Legal Services have been very clear that it is not reflected in other texts, it was not part of the Mandate, and we are pretty straightforward that this should change in the way that I have alluded to your Chairman.

Q100 Mr Heathcoat-Amory: We have a pious hope but no powers.

Mr Murphy: No, we have an absolute determination.

Mr Cash: But notwithstanding the European Community of 1972.

Chairman: I think we have heard these things and they are all on the record. Can I just thank you again, Minister, and Shan Morgan and Mike Thomas. Our report will be in the public domain, we understand, by the 10th of the month and hopefully the points that we have put to the Government, and there are many, many points in there to be answered by the Government, will be answered before the 16th in some written form. If not, we would have to go through every one of them with the Foreign Secretary when he has agreed to come and see us on the 16th. There are many points to clarify before people can be happy in this Committee that our concerns have been answered by the Government in the final IGC negotiations. Thank you very much for your time.