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11 October 2007

 

Mike Gapes Esq, MP

Chairman

Foreign Affairs Committee

Committee Office

House of Commons

London SW1A 0AA

 

 

 

I welcomed the opportunity to discuss the EU Reform Treaty with you and the other members of the Committee on October 10. Andrew Mackinlay asked, and I agreed, to provide factual references on where the red lines were protected in the actual Treaty text published in English on October 5. As the Government set out in its White Paper "The Reform Treaty: The British Approach to the European Union Intergovernmental Conference, July 2007", the red lines are:

 

- Protection of the UK's existing labour and social legislation (relevant text in Annex I);

- Protection of the UK's common law system, and our police and judicial processes (text in Annex II);

- Maintenance of the UK's independent foreign and defence policy (text in Annex III); and

- Protection of the UK's tax and social security system (text in Annex IV).

 

The red lines that we asked for have been achieved in this draft, and I believe that this will be confirmed in the final conclusion of the Intergovernmental Conference to be signed in December. The following are the main points for each of the red lines. The Annex gives the relevant Treaty and other texts. I will be happy to provide further details or commentary as necessary, and will write separately on the other questions raised.

 

 

The Charter of Fundamental Rights

 

The Charter of Fundamental Rights is intended to record, not create, rights. The Government pledged that nothing in the Charter of Fundamental Rights would give national or European courts any new powers to strike down or reinterpret UK law, including labour and social legislation. This will be achieved in the Reform Treaty via a package of safeguards:

 

1. A clear provision in the Treaty stating that courts, including the ECJ, must have due regard to the "Explanations" detailing the sources of the rights contained in the Charter when interpreting its provisions;

2. "Horizontal Articles" setting out the precise scope and application of the Charter. These confirm that the Charter cannot be used to expand any of the EU's powers;

3. A specific UK protocol, with legal force, that guarantees that the Charter does not create any greater rights than already apply in EU law, or extend the powers of any court - European or domestic - to strike down UK laws; and

4. A Declaration of the 27 Member States on the Charter underlining that it does not extend the EU's powers to act.

 

The text of the Charter of Fundamental Rights will not be included in the text of the Reform Treaty. Therefore it is not printed in the draft text. However Article 1, point 8 of the draft Treaty (which will become Article 6, Treaty of the European Union) provides that it shall have the same legal value as the Treaties. The Charter will be published, with the Horizontal Articles and Explanations (setting out the existing sources of the rights it records) in the EU's Official Journal. The Protocol, which is also legally binding, and has the same status as the Treaty, will form part of the Treaty.

 

 

Justice and Home Affairs

 

The Government was clear that we needed to protect our common law system and police and judicial processes. This meant that no Justice and Home Affairs proposal should be imposed on the UK against our will and we therefore needed the full right to choose, across the board, whether to participate in EU co-operation in JHA.

This will be secured in the draft Reform Treaty by an extension of our existing opt-in covering Title IV of the current Treaty on the European Community (on asylum, immigration and civil law matters) to all JHA proposals, and by amendments to the existing Schengen Protocol. The details are extensive, covering "transitional measures", amendments to existing JHA measures, and measures building on Schengen acquis. I can provide a commentary on what is very dense procedural text if that would be helpful. In addition, the draft Reform Treaty includes an 'emergency brake' which Member States can pull where they think a proposal will affect fundamental aspects of their criminal justice system.

 

For measures already agreed under intergovernmental "third pillar" arrangements, we have ensured that there will be no extension of ECJ jurisdiction for the UK unless the UK agrees to it. In other words, we will choose whether or not to participate.

 

The new Treaty will also make explicit, for the first time, that national security remains the sole responsibility of each Member State.

 

 

Common Foreign and Security Policy

 

The Government is committed to ensuring that the UK should retain its independent foreign and defence policy. The Reform Treaty will confirm that CFSP will remain an intergovernmental process. In fact, CFSP remains distinct from other policy areas, in a separate Treaty. In effect, we have retained it in a separate pillar. Unanimity in decision-making will remain the rule (i.e. the UK will hold a veto), legislative activity is excluded, and the ECJ will not have jurisdiction over CFSP except, as we discussed, on consequential questions of boundaries and sanctions.

 

As is the case now, it will be the Heads of State or Government (in the European Council), acting by unanimity, who set the strategic interests and objectives of the Union. It will be the Member States (in the Council) who then task the new High Representative for Common Foreign and Security Policy to take forward activity under the CFSP.

 

The preceding is all in the Treaty. Two Declarations will confirm that all 27 Member States agreed that provisions on CFSP will not affect the responsibilities of the Member States, as they currently exist, for the formation and conduct of their foreign policy, or of their national representations in third countries and international organisations.

 

 

Tax and Social Security

 

As our White Paper[1] reiterated "it is long-standing Government policy that tax matters should continue to be decided by unanimity." The current Treaties guarantee this and there will be no change to the status of unanimous decision-making on tax in the draft Reform Treaty.

 

The Government was clear that the UK should have the final say on any matters affecting important aspects of its social security system - including cost, scope, financial balance or structure. This was achieved by a strengthened 'emergency brake' mechanism. This provision allows any Member State to refer a proposal to the European Council, for decision by unanimity, where it might affect important aspects of its social security system. If the European Council does not reach agreement within four months, the proposal will automatically fall. This means that under the terms of the Reform Treaty, the UK retains ultimate control over any proposals which might affect important aspects of its social security system.

 

I am copying this letter to the Chairman of the European Scrutiny Committee, the Chairman of the Lords EU Select Committee; the Clerks of all three Committees; Tom Hines, FCO Scrutiny Co-ordinator; Guy Janes, FCO Parliamentary Relations Co-ordinator; and to Les Saunders at the Cabinet Office European Secretariat.

 

I have arranged for the annex to this letter to be placed in the Libraries of both Houses.

 

 

DAVID MILIBAND

 


[1] "The Reform Treaty: The British Approach to the European Union Intergovernmental Conference, July 2007"