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Letter to the Chairman of the Committee from the Minister for Europe, 2 October 2007
Thank you for inviting me to appear before the Committee on 12 September. I promised to come back to you on a number of points which were raised during the discussion.
Common Foreign and Security Policy
You asked for a note on the External Action Service (EAS) that explains where we are at the moment. As I set out in front of the Committee, the draft EU Reform Treaty provides for the creation of an External Action Service. That is set out in Article 1, point 30, which amends Article 13 of the Treaty on European Union. Paragraph 3 of that new article states that:
'In fulfilling his or her mandate, the High Representative shall be assisted by a European External Action Service. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from the relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States.'
Member States will not discuss the possible scope, remit or operation of the External Action Service, together with the Commission, until a Treaty has been agreed and signed. This is made clear in a Declaration on the EAS which will be attached to the Reform Treaty. This states that:
'following the signature of the Treaty modifying the Treaty on European Union and the Treaty establishing the European Community, the Secretary General of the Council/ High Representative for the Common Foreign and Security Policy, the Commission and the Member States should begin preparatory work on the External Action Service'. [1]
Decisions on the functioning and organisation of the EAS will be taken by the Council, acting by unanimity, on the basis of a proposal from the new High Representative for Foreign Affairs and Security Policy, once the Treaty has entered
into force. This too is clear from the draft Treaty text. That decision will be subject to Parliamentary scrutiny in the usual way, and I will update on the Committee on the progress of this issue.
You also queried whether the High Representative and the EAS "will take on a persona and a role whereby they will have a dynamic that grows over time." The role of the High Representative is very clearly set out in the Treaty. He or she will be tasked by Member States on foreign policy, and it is Member States who decide CFSP policy, by unanimity. Equally, as the new Treaty makes clear, it is Member States, acting by unanimity, who will decide on the role, scope and operation of the External Action Service. So no evolution of this role unless we agree.
On the subject of European Court of Justice (ECJ) jurisdiction over the Common Foreign and Security Policy (CFSP), as I said before the Committee, the Reform Treaty will expressly exclude ECJ jurisdiction over the CFSP, except in two limited areas. The first relates to the power of the ECJ to monitor the boundary between the CFSP (which will be contained in the new Treaty on European Union) on the one hand, and other EU policies under the Treaty on the Functioning of the European Union (presently called the Treaty establishing the European Community) on the other. The ECJ already has this task under the current treaties. The second limited area of ECJ jurisdiction relates to the right of natural or legal persons to ask the ECJ to review the legality of a CFSP decision which imposes sanctions on them. New text in the Reform Treaty will set out, more clearly than before, that ECJ jurisdiction is otherwise excluded from CFSP. This, of course, was a key objective for the UK. The new text (Article 1, point 27 - amending Article 11 (1) of the Treaty on European Union), reads:
"The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions [i.e. the CFSP]..." [2]
The abandonment of the 'constitutional' concept in the EU Reform Treaty
Eric Illsley MP asked for further details of the process of discussion leading up to the June European Council, where all Member States agreed to abandon the 'constitutional' concept. Following the rejection of the Constitutional Treaty in France and the Netherlands, two founding Member States, it was clear that a fundamentally different approach was needed. At the June 2005 European Council Member States agreed on a period of reflection in their countries on the best way forward. The June 2006 European Council agreed to extend the period of reflection for a further 12 months. The Government set out its general approach to agreeing a new Treaty in the then Minister for Europe's Written Ministerial Statement of 5 December 2006. During the German Presidency of the EU, as the Committee is aware, there were a series of meetings of 'focal points' - two officials from each Member State - at which UK officials repeated the Government's publicly stated position. These meetings took place on 24 January and on 2 May. No text was provided or discussed at these meetings - the first draft text of an IGC Mandate was not provided until 19 June. On 25 March, the German Presidency, along with the
Presidents of the European Commission and European Parliament, signed a 'Berlin Declaration', setting out the aspiration of "placing the EU on a renewed common basis" before the European Parliament elections in mid-2009. There was no mention of the old Constitutional Treaty in this political declaration. There followed a series of unilateral statements by a number of Member States, in public. For example, the Dutch Prime Minister Jan Peter Balkenende meeting the Prime Minister in London on 16 April said at the press conference afterwards:
"we should work with the idea of having an amending treaty...it shouldn't have the characteristics of a constitution."
The then Prime Minister echoed that position, at the same press conference.
And Nicolas Sarkozy said at the G8 on 7 June:
"It should be a new treaty and not a small constitution".
This public approach was not surprising, given the clear signal already delivered by the French and Dutch electorates. In bilateral contacts with each Member State, the German Presidency had asked for their general position on the nature of any new Treaty. The Prime Minister had set out the UK's general approach to any new Treaty before the Liaison Committee on 18 June. Foreign Ministers had a discussion of the issues around drawing up a new Treaty on Sunday 17 June, ahead of the General Affairs and External Relations Council on 18 June. As the Committee is aware, for that discussion the German Presidency produced a short note summarising, broadly, the well-known positions of those Member States who had ratified the Constitutional Treaty on the one hand and of those who had not, on the other. They stated that this reflected the bilateral consultations they had had with Member States. In drawing up a draft Mandate for discussion at the June European Council, the German Presidency took account of Member States' positions, which were public, on the nature of a new Treaty. A draft Mandate was circulated, for the first time, at the third and final meeting of focal points on 19 June. Fundamentally, that draft Mandate reflected the political reality that the 'constitutional' approach had been rejected. There was then an intensive negotiation at the European Council itself on the main terms of a new, amending Reform Treaty, which was reflected in the final IGC Mandate agreed by all EU leaders.
The likely Bill on the EU Reform Treaty
Paul Keetch MP and Andrew Mackinlay MP asked whether "the draft legislation consequent upon this treaty, when it comes before the House of Commons, will be framed so that such an amendment [ie for a referendum on the Reform Treaty] can be tabled?" As I said in front of the Committee, once a final Reform Treaty is agreed, the Government will introduce a Bill to implement it through Parliament. We have not yet considered the content of that Bill; that will be done once a Treaty has been agreed.
As the Prime Minister has made clear, if the final Reform Treaty respects the UK's red lines and is fully in line with the IGC Mandate agreed at the June European Council, the Government will seek to implement it in our national law through
Parliament, as with all previous EU amending Treaties. Therefore, I do not anticipate any provision relating to a referendum being included in the Bill. It will be open to all Parliamentarians, as with any Bill, to propose amendments. Again, as with any Bill, amendments need to be within the scope of the Bill. While scope is a matter for the Speaker, I would not expect it to be difficult to draft a selectable amendment raising the issue of a referendum on the Treaty. The nature of the 2004 Constitutional Treaty
Gisela Stuart MP argued that the Constitutional Treaty was, in fact, an amending Treaty, not a 'refounding' of the EU. In my opinion this is simply incorrect. Her argument appeared to rest on the basis that the Constitutional Treaty did not repeal and replace the Euratom Treaty, which established the European Atomic Energy Community. That is correct. However, the Euratom Treaty deals only with a very limited and discrete area - atomic energy cooperation. The Constitutional Treaty would have repealed and replaced the existing EC and EU Treaties, completely collapsing the pillar structure, and creating a new Union based on a single, 'constitutional' Treaty. So the Constitutional Treaty was not an 'amending' Treaty. In contrast, the Reform Treaty will amend the existing Treaties on European Union and on the European Community and it will leave us with two Treaties - including a separate Treaty governing CFSP - not with one constitution.
The equal status of MEPs
On whether UK MEPs might be excluded from voting on EU issues on which the UK did not participate, such as elements of JHA, I said before the Committee that we believe that there should only be one class of MEP, with full rights to participate in all debates and discussions in the European Parliament. That is in fact the position at the moment. Various national opt outs have existed since 1993 - in no case have they affected the equal status of MEPs from those countries. For example, UK, Danish and Swedish MEPs sit on and participate fully in all aspects of the work of the EP's Economic and Monetary Affairs Committee, although the UK, Denmark and Sweden are not members of the eurozone.
I hope this is helpful. I know that the Foreign Secretary is looking forward to providing further evidence on 10 October.
Jim Murphy MP [1] Unofficial FCO translation of the French text. [2] Unofficial FCO translation of the French text. |