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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 166-iii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE FOREIGN AFFAIRS COMMITTEE
Developments in the European Union
Wednesday 12 September 2007 MR. JIM MURPHY, MS SHAN MORGAN and MS SHELAGH BROOKS Evidence heard in Public Questions 207 - 307
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Foreign Affairs Committee on Wednesday 12 September 2007 Members present: Mike Gapes (Chairman) Mr. Fabian Hamilton Rt hon. Mr. David Heathcoat-Amory Mr. Eric Illsley Mr. Paul Keetch Andrew Mackinlay Sandra Osborne Mr. Greg Pope Rt hon. Sir John Stanley Ms Gisela Stuart Richard Younger-Ross ________________ Examination of Witnesses
Witnesses: Mr. Jim Murphy MP, Minister for Europe, Ms Shan Morgan, Director, European Union, and Ms Shelagh Brooks, Legal Adviser, Foreign and Commonwealth Office, gave evidence.
Q207 Chairman: Before we begin, I ask all members of the public to switch off their mobile phones. Good afternoon, Mr. Murphy and colleagues. We are very pleased that you have accepted our invitation to come here this afternoon. We are meeting in the recess, and as far as I am aware, we are the only Select Committee so to do-as we did last year. The reason why we are meeting is that we clearly believe it is important that proper parliamentary consideration is given to what is going on with the European negotiations and the reform treaty. This is the first opportunity for parliamentary scrutiny since the draft reform treaty was published, so we are very grateful to you and your colleagues for being here this afternoon. Will you introduce them to us and then we shall begin? Mr. Murphy: I will allow them to introduce themselves. Ms Morgan: I am Shan Morgan, EU Director at the FCO. Ms Brooks: I am Shelagh Brooks, Legal Adviser at the FCO. Q208 Chairman: Thank you. Let us begin with the process and how it is unfolding. The Foreign Ministers met on 7 and 8 September. I should be grateful if you would give us your take on where things are following that meeting and say how the remainder of the intergovernmental conference process is likely to develop. I was at a conference in Poland last week, and the Polish political crisis means that an election will be called on 21 October. Do you envisage that that in any way will affect the timetable for the IGC, and what might happen in the rest of this year? Mr. Murphy: First, thank you for your warm welcome, Mr. Gapes. When I first appeared before the Committee prior to recess, I said that I would be happy to give evidence during recess. Without wishing to get off on a discordant note, it is my understanding that I have accepted one other invitation, to appear before the European Scrutiny Committee during the recess. I do not wish to steal the Foreign Affairs Committee's thunder, but I am appearing before both. Chairman: It is after us. Mr. Murphy: You are right-you are the first in the recess. You were right about Poland. It is a matter of public record that there will be an election on 21 October. In a political sense, the two main parties have signed up to the broad thrust of the mandate. Some of the issues that were outstanding for the Poles were resolved in the discussions in June. It is certainly my understanding that the Polish are represented in these forums through the President, and the presidential elections are not due until 2010, although these things are not always 100% predictable. There is a political continuity of a bipartisan approach to the major issues. Then there is also the fact that the President has represented Poland, and the fact that Poland signed up to the mandate in June. In terms of the further timetable, a General Affairs Council will meet on 15 October, which will be attended by the Foreign Secretary. On 18 October, there will be an informal meeting of the European Council, and it is at that point that there will be agreement in the heads of the text. Then the jurists-linguists will become deeply involved to ensure that the texts of the treaty reflect in exact detail the processes that have taken place up until now. With the proposal from the Portuguese presidency for a December agreement at the EU summit, the proposal is for the Prime Minister to attend that. That is the timetable between now and then. I assume that there will be an opportunity for this Committee and others to keep abreast of the issue and continue to probe and investigate, not least because the Foreign Secretary is appearing before you on 10 October. Chairman: That is right. Mr. Murphy: And I have accepted other invitations to other Select Committees, so when we receive invitations we will continue to find ways to remain connected to the UK parliamentary process. Chairman: Thank you for that. May I bring in Mr. Mackinlay? Q209 Andrew Mackinlay: Our impression was buttressed by an article in The Times today, which says that, even as we speak, legal experts are involved in checking the draft treaty, and that the Prime Minister himself has asked to be reassured-or there is some doubt-that there could not be European Court of Justice oversight of our foreign and security policy. I put that to you for a variety of reasons. It would seem that we are still putting the rivets in the ship as it goes down the slipway. Can you amplify the particular example that I gave, because it seems to me that it is pretty fundamental. It would suggest that the late Prime Minister and/or officials were asleep when they should have been clarifying the point, which we are now told is having to be clarified. Finally, although you have said that you of course will be available through the parliamentary process, and the Foreign Secretary is meeting us, there needs to be a stage in which we have a definitive final document and a time to digest and scrutinise it. At this stage, we are doing it while the thing is still being constructed. What do you say to that? Mr. Murphy: Thank you, Mr. Mackinlay, for raising that issue. It is an opportunity to deal with one of the issues that have appeared in today's media-the issue of ECJ jurisdiction on the common foreign and security policy. The treaty is pretty clear. I have looked at it, and it says that the Court of Justice of the EU shall not have jurisdiction with respect to CFSP. That is pretty clear. Q210 Andrew Mackinlay: So what's the beef? Why is it being pursued this afternoon? Somebody somewhere must have some doubts. Mr. Murphy: I cannot speculate on why the issue has ended up in today's edition of The Times, but the position is clear. We have said throughout the process that we negotiated a mandate with which we are content, and we do not wish to reopen that mandate. That is what I have said in all the deliberations throughout the process. To extend ECJ competence into CFSP would reopen the mandate. We are confident that the text will reflect the position that the UK negotiated and that was agreed by all 27 member states. Q211 Andrew Mackinlay: When the process is complete, how much time will we as parliamentarians here at Westminster have to digest the text and scrutinise yourselves about the final version, before it is confirmed or ratified at a European Council? Such things have a habit of falling in parliamentary recesses. That is demonstrably not a problem for us-we are here-but most of our good friends the press are very absent. Other people go to sleep and stay away, but some of us want to be on the ball. We want to have no difficulty in getting at you. Once everyone is lined up and all the skittles are in place, what time will we have to examine the text and probe it?
Mr. Murphy: In the 10 years in which I have been in Parliament, I have never considered you to have any difficulty in getting at me or anyone else. The timeline for that opportunity would be between the October informal Council and the December summit-that would be the time of most opportune investigation and reflection on a text. Quite likely, however, that would not be the end of it. The Government intend thereafter to seek parliamentary approval-in both the Commons and the Lords. Every parliamentarian, and the relevant Select Committees, will play an active part. Q212 Andrew Mackinlay: Don't pull that one on me. You know that that legislation is to enact a treaty; it is not an opportunity to scrutinise. I welcome legislation, but legislation is after the event. I am surprised that you look bewildered; all the legislation on Maastricht and all those other things has been to enact and to give force in British law to the treaty fixed. So don't pull that one. Mr. Murphy: A formal negotiation process is not going on; the UK negotiated its deal in June. What I was alluding to was that, when a text is available in October to December, the Committee will have an opportunity to be involved in that conversation. As you know, Mr. Mackinlay, I would never try to pull anything over or at you. I spent some of the summer reading some of the Hansard reports of some of the treaty debates. Parliament quite rightly does not just debate the relatively short Bill before it but debates the issues in the treaty as well as issues that quite often are nowhere near the treaty. It is Parliament's right to do so, of course. Q213 Sir John Stanley: Minister, the answer that you gave to Mr. Mackinlay's first question does not seem to me, as I heard it, to be consistent with the memorandum that you submitted to the Committee on 5 September. The memorandum is EU34 in our numbering. In it, you said, "The Treaty's provisions on the CSFP will not be subject to the jurisdiction of the European Court of Justice (ECJ), except in certain very limited circumstances." In your own memorandum, therefore, you acknowledged that in some undefined, very limited circumstances, the provisions on CSFP will be subject to the jurisdiction of the ECJ. Will you tell us what are those certain very limited circumstances that have been referred to? Mr. Murphy: It is certainly my understanding, Sir John, that there are currently two circumstances where ECJ jurisdiction applies-I look for guidance, of course, from one of my colleagues, but my understanding is certainly that the treaty, in and of itself, does not extend the list of competences in terms of CFSP. One relates to the issue of sanctions, and my understanding is that it already exists, although I cannot recall which treaty it emanates from-I think that it is in the treaty establishing the Union. The second area of CFSP competence for the ECJ-[Interruption.] So one is in respect of sanctions, and the other one, it says here, in the relevant articles, relates to "the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences". So the existing competence is about the areas of Union competences and also about sanctions against individuals on CFSP. The example that I have used in conversations I have had with colleagues on this issue, Sir John, is of a sanction on an individual-say, for example, Mugabe. The collective of the European Union may wish, as a matter of foreign policy, to exercise a sanction on such an individual, and that power already exists, so the treaty in itself does not extend it, and the mandate is clear about that. Q214 Sir John Stanley: Yes, but your very next sentence, Minister, reads as follows: "The interpretation and application of these provisions, in the light of the Declaration, will therefore be determined in the course of decision-making on the CFSP". As I read that, it suggests that how far these very limited circumstances go will be dependent on the further negotiations on the terms of the treaty, which are still to be concluded. That would suggest to me, and possibly many others, that there is still a quite wide and as yet undefined area of foreign policy that might fall within the jurisdiction of the European Court of Justice. Mr. Murphy: With respect, Sir John, that is not the case. There is not a process of negotiation ongoing. There is a mandate, there is an arrangement and there is an agreement with all 27 member states. We expect that mandate to be respected. There is not a process of negotiation ongoing about ECJ competence and CFSP-there is no such process ongoing today and there will not be as part of this process. We are very clear: we have an arrangement, we are content with it and we will not be shifting from the arrangement that we agreed to as part of the process, and the treaty does not change that. Q215 Sir John Stanley: Well, I only refer you to your wording and I take it very seriously. You say that "The interpretation and application of these provisions...will therefore be determined in the course of decision-making on the CFSP", which to me suggests that there is still a wide potential area of jurisdiction for the ECJ, which could include scrutiny of European foreign and security policy. Anything that is interpretive is, by definition almost, likely to create an unknown degree of competence of jurisdiction as far as the ECJ is concerned. Mr. Murphy: The CFSP has been kept in a separate treaty. It remains intergovernmental, and unanimity is the rule, with those two exceptions-the exception of the sanctions and the second one about adding more detail. They are about an existing power to monitor the boundary between CFSP and other EU policies, plus new jurisdiction to review, judicially, sanctions measures affecting people. Those are the two exceptions at the moment, and it is certainly my understanding that they already apply. The Government will not be signing up to a treaty that extends things beyond those two. Q216 Sir John Stanley: I should just like to add that this is an absolutely crucial area for this Committee, so, Minister, if, when you have looked at the transcript of this exchange, there is anything further that you wish to add to your evidence, I am sure that the Committee would appreciate it. Q217 Ms Stuart: Minister, I wondered whether you wished to correct yourself when you said that CFSP will remain a separate treaty. Surely you meant to say "separate article"-we do not need a separate treaty for this. Mr. Murphy: By the end of this, we will have two treaties as part of this process, as you know. The treaty on the European Union will amend existing provisions on European security and defence policy, CFSP and EU institutions. In that sense, it is intergovernmental, and unanimity-that is the point I am making, of course. The first treaty is on the function of the union. Q218 Ms Stuart: Can I come back to the question of where negotiations are taking place? The previous Foreign Secretary told us that no negotiations were taking place. There was an exchange of letters, which they replied to, but there were no negotiations. There is then the intergovernmental conference mandate, which appeared from platform 123/4 in "Harry Potter", by the sound of it, because there were no negotiations. You now tell us that the negotiations have come to a conclusion because you are happy with the mandate. Again, no negotiations are taking place. When, within the last nine months and in the six months ahead, are negotiations taking place? They must be somewhere. Mr. Murphy: You accept, Ms Stuart, the point I made earlier about two separate treaties and amending two treaties? But on this specific point about negotiations: those took place around us at the meeting in June under the German presidency. That was when the process was brought to a head, in terms of the content of the mandate and a deal that all 27 member states could sign up to. We are now involved in the well-established process of legal experts from all the member states coming together to create legal detail around the specific content of the political commitment and the mandate. There is not a process of detailed negotiation going on at the moment. The UK intends to make sure that the precise wording reflects the mandate that we signed up to, and that is what is ongoing. Q219 Ms Stuart: If, as you say, the only time that negotiations take place is, as it was then, at the IGC meeting, do you need to take some parliamentarians with you to the next Council meeting, so that there will be parliamentary representation in negotiations, if that is the only way Parliament can have any input in any of them? Mr. Murphy: No, I do not think that that is necessary. As I said, the point at which negotiations took place was in June. I read, of course, the transcript of previous hearings on this matter with the previous Foreign Secretary, and I was asked about these issues in negotiation at the European Scrutiny Committee, as has been asked about. The negotiations were in June, we got a deal that we are comfortable with, and it is now about us ensuring that the detail is reflected. The relevant parliamentary Select Committees will want to make sure that we have achieved the detail of our mandate, and that is entirely right and proper, but there are now no negotiations. Q220 Ms Stuart: So no input from Parliament? The only thing that you concede is that, after you have finished negotiations, Parliament may or may not satisfy itself that you had a good deal? Mr. Murphy: Ms Stuart, I am not sure that I am conceding that-I am celebrating the fact that Parliament must, rightly, be satisfied that the treaty and its content are in the national interest of the United Kingdom. We have been very clear about that from the beginning. Q221 Mr. Keetch: I want to pursue this by following up what Gisela Stuart said, and also what Andrew Mackinlay said. The idea that Parliament will scrutinise the treaty is balderdash. The reality is that Parliament will either enact a Bill to put that treaty into UK law or not. Presumably if Parliament decided not to enact that treaty into UK law, it would mean a brake on the process, rather like the French or the Dutch referendums were. Then the whole lot would have to go back into the sausage machine for renegotiation. The reality is that Parliament will not discuss the treaty; all Parliament will do is enact a Bill to ratify the Government's decision to sign the treaty. Is that wrong or right? Mr. Murphy: The point is that Parliament will not negotiate the treaty. It will discuss and decide whether to ratify the treaty. A reading of Hansard from the previous treaty ratification process-which I alluded to in an earlier answer-makes it clear that it is the detail of the treaties that is discussed. For the treaty to have effect in the EU, every one of the 27 member states will have to ratify it. Q222 Mr. Keetch: But it is a yes or no decision. Parliament will not scrutinise that treaty-effectively, it will say, "Yes, we agree to that," or, "No, we don't." Mr. Murphy: What will happen with this treaty is similar to what happened with previous treaties. Parliament will come to a view on the treaty, through the vehicle of a Bill, as with the Single European Act, the treaties of Maastricht, Amsterdam and Nice. That is the established way in a parliamentary democracy and how we do this in the United Kingdom. All other 26 member states will decide for themselves what is the best way of going about their process of ratification, but I note in passing that the vast majority of member states intend to do so through parliamentary ratification, with only our good friends in Ireland opting for an alternative process. Q223 Mr. Keetch: I want to come on to that point. Mr. Murphy. I do not in any way say that what you have said is incorrect, but the idea that Parliament would have scrutiny over the treaty is a bit of a red herring because, effectively, all that Parliament has is a yes or no decision. Presumably, if we said no, the treaty would have to go back into the sausage machine. You mentioned on BBC Radio 5 Live on 5 September that only Ireland would be holding a referendum. Do you still stand by that? Do not you think that other countries might hold referendums? Mr. Murphy: I cannot second-guess every other member state in the EU; it is, of course, a matter for them. At the moment, the only country that has declared its intention to have a referendum is our friends in Ireland. Yesterday, I spoke to Dick Roche, Ireland's European Minister, and it is clear from our conversation, yet again, that he acknowledges that Ireland has an entirely different democratic architecture from the UK's. He emphasised yesterday-he is happy for me to share this with the Committee as he has already said it publicly-that the UK has a system of parliamentary sovereignty, which we all know and celebrate, but in the Republic of Ireland there is no such process. In fact, he explained to me-Mr. Mackinlay will know much of the detail because he is an historian of Irish parliamentary process-that the TDs are messengers to the Dail. That is a clear and important distinction. There is no concept in the Irish constitution of parliamentary supremacy and, therefore, they have to ratify treaties by means of a referendum, as they have chosen to do so. Q224 Mr. Keetch: Are you saying that you stand by your statement of 5 September that only Ireland will require a referendum? Mr. Murphy: I do not have the transcript of the Radio 5 Live programme, but I will say that no other member state currently intends to have a referendum. As I have said, only our good friends in Ireland intend to have a referendum. Q225 Mr. Keetch: I have just two more quick questions. Can you guarantee that the decision of Parliament will be held after the Irish referendum? It seems to me that it will be a bit of a waste of parliamentary time if we go though that process and the Irish then reject the treaty in a referendum. I am sure that there are lots of other things that we could do that would be valued by our constituents. Can you guarantee that any Bill put before Parliament would come only after an Irish referendum or any other? Mr. Murphy: First, I should have mentioned that, with this treaty, we intend to use the same process that three previous Prime Ministers have used with five different treaties-a process of detailed parliamentary scrutiny whereby the House of Commons and the House of Lords give their consent, if they so wish, to a reform treaty. That is the correct way in a parliamentary democracy, separate, of course, from the Irish system. With regard to the point about whether the House of Commons should organise its business around the detail of when Ireland intends to have a referendum, I am not sure that that is something that we would ever be attracted to. Q226 Mr. Keetch: It seems a waste of our time to have that whole process if the Irish then effectively veto the treaty. My constituents will say to me, "Why are you having a process of ratifying a treaty if there is any possibility that the people of Ireland can reject it?" It seems to me that we should get through the process of Ireland saying either yes or no-and, indeed, Poland, the Czech Republic, Portugal and Denmark, which might also want referendums. Mr. Murphy: Mr. Keetch, with respect, I think that that is an entirely unworkable suggestion and, upon a moment of reflection, you will accept it to be so. The flipside of the argument is that a member of the Dail might say, "We should not hold our referendum until the British have ratified the treaty. What is the point of going through a massive referendum campaign if Britain, the Czech Republic, France or Germany do not ratify it?" That would not be a coherent way for the mother of Parliaments to organise its business, around the ill-defined timing of an Irish referendum. The Irish do not know when they are having their referendum. Q227 Mr. Keetch: Let me give one other small point that could enable the mother of Parliaments to allow the process to go forward. I do not know what the final treaty will say, which is why I think that it is wrong at this stage to say that we either do or do not need a referendum. However, in the final Bill that is presented to Parliament, would you allow Parliament to make the final decision on whether there should be a referendum in the UK? Mr. Murphy: The UK Parliament will decide what is in the UK's interest, and the Irish referendum will decide what is best for Ireland. We cannot timetable our procedures here in the House of Commons around what is going to happen in Ireland or elsewhere. Parliament will have the final say on the treaty and on whether it chooses to ratify it-[Interruption.] Chairman: Through the Chair, please. People on the list are patiently waiting, and I will not have people jumping in-[Interruption.] No, Mr. Mackinlay, you will put your hand up and I will call you in due course as I will everyone else. Mr. Eric Illsley is next. Q228 Mr. Illsley: I should like to clarify one or two points because we are getting really bogged down in all this. Can you confirm, Minister, that no other country will be able to amend the treaty either, because it was agreed in June by all 27 countries? They are all in the same position as we are; the question is simply whether they ratify by a referendum or through their Parliament, as we will. We are not doing anything different from what any other country is doing, and we are not being denied an opportunity of taking this mandate or the text apart because we are not having a referendum. No other country can either. Is that right? Mr. Murphy: That is right. Mr. Illsley: Thank you. Mr. Murphy: All 27 member states signed up to a mandate in June. I suspect that there will be domestic pressure in some other member states to tweak aspects of the mandate. However, it is not our intention to reopen the mandate. From my conversations with other Europe Ministers in the past few weeks, I can say that there is no intention to reopen the mandate. Of course, there are press speculation and press coverage and comments on the side. However, we do not intend to reopen the mandate, and we are very clear about that. All 27 member states seem to be in a similar position. Q229 Sandra Osborne: May I ask the Minister about a wee bit of the substance in relation to the treaty? One of the main ideas of the constitution was to fulfil the declared aim of bringing the EU closer to the people, but there will not now be a single treaty. Has the EU abandoned the whole idea of making it clear to ordinary Europeans exactly what it is up to? Mr. Murphy: There is an awful lot in that question. I start from the premise that the solution to the disconnect between Europe as a political concept and its institutions, and the people of the member states, does not rely on institutional tweaking or rearrangements. That is a false premise based on a false analysis that says, "The problem is that the people do not feel close enough to the structures." For me, the only way in which Europe can properly connect and gain a degree of affection is when it actually delivers on the things that matter to real people rather than the things that matter to politicians. We must have, for example, conversations about how we deliver better on things such as the environment, national security and economic dynamism. I have reflected before on the issue of jobs: there are 92 million economically inactive people in the European Union. How do we deal with that? That is the type of conversation that would reconnect people to the idea of Europe. Small successes such as lower mobile phone charges, easy movement across borders for holidaymakers and cleaner beaches are the solution to that disconnect at a political level. To think that the solution to the disconnect is structural is to use a false premise. However, you are right to say that we have absolutely abandoned the constitutional concept. I do not think that Europe will have a constitution in our lifetimes, Ms Osborne. Chairman: I shall take two more interventions on this issue-first, Greg Pope, then Andrew Mackinlay. We will then move on to Richard in the next section. Q230 Mr. Pope: I want to go back to a point raised by Mr. Keetch; either you did not answer it, or perhaps I did not understand the answer. I just want a clarification. Will Parliament be able to decide whether or not there is a referendum in this country, or is that decision for the Government? I think there is a very strong case for saying that Parliament should decide whether there is a referendum. I put it to you that I suspect that there is a majority in Parliament for a referendum. Mr. Murphy: On that specific point, my reading of recent history on that is that there was a demand for a referendum on the Maastricht treaty. There was a vote in Parliament. That, of course, is a matter of public record, and I cannot see any reason why that sort of principle should not be retained and maintained. That is an issue for Parliament if it so wishes to express that opinion. Q231 Andrew Mackinlay: On that point, can you give an undertaking this afternoon that the draft legislation consequent upon this treaty, when it comes before the House of Commons, will be framed so that such an amendment can be tabled? As you know, you must have regard for the long title, and if the thing is drawn too narrowly, anybody who wanted at least to test whether or not Parliament wanted a referendum would fall at first base. In view of what you said to Mr. Keetch and Mr. Pope, it seems not unreasonable to ask that this afternoon you reassure Parliament and many people, friend and foe alike, that the legislation will be drawn so as it is competent for a Member to table an amendment saying, "And this matter shall be put to a referendum." Mr. Murphy: I shall address that specific point and pick up on the other two questions that have been posed. [Interruption.] I hope that you will allow me to conclude my answer before you humph at me. I suspect that you will not enjoy the first part of the answer but perhaps you will be more reassured towards the end. We have not got to the point of having a formal treaty text. We certainly have not got to the point of drafting a Bill-quite rightly-so I shall not speculate about its content, long title, length, number of clauses and everything else. But-thank you for not humphing until I got to this point-as I say, there is the precedent of legislation on Maastricht and other treaties whereby Parliament was able to table an amendment demanding a consultative referendum. I believe that was the situation in respect of Maastricht, and the Government at the time were opposed. I cannot see that it would be beyond the wit and wisdom of men and women to frame the legislation in such a way that the type of referendum that Mr. Pope, Mr. Keetch and yourself have talked about could be given effect through Parliament. Chairman: We have to move on; I call Mr. Younger-Ross, who has been very patient. Q232 Richard Younger-Ross: Thank you. I am slightly puzzled and bemused because the opening line of the IGC mandate says, "The IGC is asked to draw up a Treaty". Yet you seem to be telling us that they are going to draw up a treaty and we have no input in that process. Mr. Murphy: First, Mr. Gapes, I realise- Richard Younger-Ross: I am Mr. Younger-Ross. Mr. Murphy: I know that. Mr. Gapes, I realise that those who record our proceedings will not have an accurate reflection on how to use the Glaswegian word "humph", and I do not know to correct that in terms of the parliamentary record. I think that the general tone of my comments gives it a certain definition, but I shall write to the Committee to clarify what I mean by it. Mr. Younger-Ross is right that Parliament in the United Kingdom does not negotiate the content of a treaty on the Government's behalf. Those are our constitutional arrangements. The Government of the United Kingdom negotiates on behalf of the United Kingdom. Parliament then, through our parliamentary procedures and the nature of our sovereign arrangements, then agrees-or disagrees-to allowing that treaty to come into effect. Those are the arrangements that have been in place and they will be in place for this treaty too. Q233 Richard Younger-Ross: The purpose of this Committee and the European Scrutiny Committee is to examine what your Department is doing. You keep telling us that there were no negotiations before June, and the previous Foreign Secretary said that there were no talks, discussions or negotiations. You now tell us that, in fact, we discussed and agreed this all in June. Are you really telling me that we agreed the whole of the IGC process-the mandate and all of that-in less than a week? Mr. Murphy: Yes. Q234 Richard Younger-Ross: So we have a major document, which will change the constitution of the European Union-sorry, it will not, of course, be a constitution; it will fundamentally change the legislation, rules and regulations of the constitution- and we signed up to it in a week. Mr. Murphy: Your premise/question is based on the belief or view that this all came out of the blue. The conversation about the initial constitutional treaty went on longer than any human being wanted it to, or than was natural in any of our processes. It went on for a number of years, as you know, Mr. Younger-Ross. The referendums changed the direction. There will no longer be a constitution. There is a process through the IGC and the German presidency, which I think handled it pretty skilfully and effectively to get agreement from all 27 member states. That process took place in June, and the previous Foreign Secretary was absolutely correct in what she said to this, and other Committees on the matter. Q235 Richard Younger-Ross: The then Prime Minister contradicted her and said that negotiations and talks had been going on for years. Mr. Murphy: Mr. Younger-Ross, I have just said that talks have been going on for years and that there were negotiations about the constitutional treaty-of course there were. That is a matter of repeated public record. What the previous Foreign Secretary spoke about were the negotiations about the specific content of the IGC mandate in June, and you and I are both aware that that is what both of them were speaking about. Q236 Richard Younger-Ross: Minister, this comes to the nub of the matter. Scrutiny requires that these Committees are able to discuss what those negotiations are with the Ministers, and are not blanked off and told that nothing happened. For what reason do we have a reform treaty and not a constitutional treaty? Do we have a reform treaty purely on the basis that it is two existing treaties? Are the contents of those treaties not fundamentally the same as they would have been in the constitutional treaty? Is it not just spin that makes us call it a reform treaty and not a constitutional treaty, because it is two elements rather than one? Mr. Murphy: No. First of all, I think that the phrase you used, Mr. Younger-Ross was "blanked off". That is not what we are doing. We are telling you the truth. You may enjoy a different answer, but it would not be accurate to give you one. We are telling you what happened in terms of the process of negotiation. That is being accurate and informing the Committee of the actual process rather than it being "blanked off" -it is nothing of the sort. With regard to the previous constitutional treaty and the reform treaty and the difference between them, all 27 member states-I have said this previously-have agreed that the constitutional approach has been abandoned. That is what all member states have agreed to. All member states have moved away from the constitutional approach both in content and style, but the UK in particular has moved further away from the previous constitution than any other member state of the European Union. That is a consequence of it achieving its red lines, a protocol on the fundamental charter, on justice and home affairs, and all sorts of other issues. Additionally, and importantly, we have moved away from the trappings that were spoken about in the constitutional approach: the flag, the motto, the currency, the anthem. All of that important symbolism has been abandoned as well. Importantly and crucially we are not refounding the EU based on one new consolidating treaty. The architecture of the EU remains on the basis of a collection of different treaties rather than one. All of that is of crucial importance when you consider the aspects of whether it is or is not a constitutional treaty, even before we discuss the UK's specific deal on our red lines. Chairman: Mr. Illsley please, with question 7. Mr. Illsley: I am sorry? Andrew Mackinlay: The script, dear boy. Mr. Murphy: I was kind enough to send you a tome of paperwork-that is the one piece of paper I haven't got. Q237 Mr. Illsley: I have the negotiations of the mandate there, I just lost the will to live for a minute. Before the June council was there any discussion of the idea of removing the constitutional element of the treaties and bringing it within a single treaty structure, rather than this apparently somewhat cumbersome idea of amending the two treaties together? Was there any discussion of just the one treaty? Mr. Murphy: I think that there was. Some had a grand ambition and an established ambition to bring all the treaties under one body of text and call that a constitution. We can debate that retrospectively if we wish, but in terms of what has happened, what we are now committed to as part of the IGC mandate is a traditional reforming treaty, in the way that I have outlined in answers to previous questions. The concept of bringing together all the powers, competences, rules and everything else into one consolidated, specific treaty and giving it the name of constitution is no longer on the cards. It is no longer on offer and, as I speculated with Mrs. Osborne, I do not think that it will be-certainly not in our political life, but maybe not in our life at all. Q238 Mr. Illsley: No, what I meant to ask was whether any discussion was given to the idea of having a single treaty, but without the constitutional power-in other words, to remove the idea that it would be a constitution? That is the root of the problem that we have had since 2004. The whole procedure has been given an importance that it simply does not deserve by the unfortunate use of the word "constitution". Was any consideration given to simply removing the constitutional element and having a single tidying-up treaty? Mr. Murphy: I was not party to those conversations, because at the time I was discussing how to reform incapacity benefit at the Department for Work and Pensions, but if the Committee is comfortable with it, I will undertake to get access to all the conversations and negotiations of that time and share the appropriate details with the Committee on that specific point. Chairman: That is helpful. Thank you.
Q239 Ms Stuart: It may be helpful-your legal advisers can interrupt me if I am wrong-to try to recast this. So far, if anybody listening to us has the vaguest idea of the difference between a constitutional treaty, a reforming treaty and an amending treaty, I applaud them. Let us start with 2002-the Laeken declaration and the convention on the future of the European Union. At that point, the UK Government were not in favour of a constitution. In summer 2002, by virtue of an article in The Economist, the UK Government suddenly said, "Actually, we don't mind a constitution." In 2003, a draft constitutional treaty was handed over to the IGC, which then negotiated. By 2004, it came back, still largely the same document in terms of its legal packaging, but now called a constitutional treaty. At that stage, Parliament was told in a number of terms that it was a treaty enacting a constitution. Am I right so far? Mr. Murphy: I will allow you to finish your question, and then I will answer that. Q240 Ms Stuart: No, it is quite important. Do your legal advisers have that understanding? The document that started as a constitution and was then simply called a constitutional treaty was still the constitutional approach. Is that so? Mr. Murphy: On that specific point, you are clearly closer to this- Q241 Ms Stuart: No, Minister, I want to stress to you why it is so important, because so far I have singularly failed to pin down what abandoning the constitutional process means. In order to do so, I should like to pinpoint the last moment when we still thought that we were in the constitutional process. Mr. Murphy: Ms Stuart, I do not think that I need to take up your invitation to receive advice from my legal advisers. I suspect-well, I know-that the last time there was a commitment to a constitution and a constitutional process was prior to the referendums in France. That was pretty clear. As we trailed through the process and the two referendums in the Netherlands and France were held, it was pretty clear that the constitutional approach-the overarching consolidation of all treaties into one-had been given a pretty severe rejection by the electorate of those two states. Ms Stuart: I know. Never mind about that. Mr. Murphy: At that point, it was clear that the constitutional approach would no longer be one- Q242 Ms Stuart: Minister, please. We are talking about some very precise legal points that I want to pin down. It does not matter what the French and the Dutch have said about it. Would you say that the document that the French and Dutch voted on was one by which we still adhered to the constitutional process? Mr. Murphy: It was a referendum on a treaty for a constitution for Europe, yes. Q243 Ms Stuart: So it was-fine. In a letter to me, the Foreign Secretary said, "The agreed basis for the new Reform Treaty states that 'the constitutional concept, which consisted in repealing all existing Treaties and replacing them by a single text called "Constitution", is abandoned.' The Reform Treaty will be clearly based upon existing EU Treaties, and will be a traditional 'amending Treaty'". Lawyers, take note; please listen to this very carefully. Even the document handed to the French and the Dutch for a vote did not bring together in a single document all the previous treaties. It itself was an amending treaty because the Euratom treaties were never renegotiated. Those treaties, which were part of the treaty of Rome, were amended in the protocol. In other words, even the thing that you insist was the constitutional approach by your own legal definition was already an amending treaty. Now you say that you have abandoned it, but I suggest that you never had it in the first place. They were all amending treaties, and what we were told to have a referendum on in 2005 was an amending treaty. Mr. Murphy: Ms Stuart, given your involvement in these issues, you have had a deep knowledge of them over a prolonged period. However, the fact is that all 27 member states, based on strong and clear legal advice and the formulation of the policy, have said absolutely that what we had before was a proposal to have a treaty based on the constitutional concept. Q244 Ms Stuart: Never mind, Minister. The other 26 are irrelevant. I would like you and your legal advisers to explain to me whether, in the light of what I have just said, your saying that you have abandoned the constitutional approach has any meaning. If the Euratom treaties were already an amendment to the original ones, they were all reforming treaties. Mr. Murphy: What was previously on offer was a constitution for Europe. That is clear. Every member state was clear that it was signing up on that proposal to a constitution for Europe. Now, because of the referendums, we have moved away from that approach and we have made that pretty clear. I hope that the conversation in the next few months will be about where we go now and how we deliver and make Europe more effective through its reform. You were right, as well, in saying at the outset that you were not sure that everyone in the country was following the detail of our conversation. We would all have to do a huge amount of work if, despite the previous established procedures for ratifying treaties in the United Kingdom, we were ever to have a referendum; it would be important for such issues to play an important part in that. However, we have moved away from the constitutional approach and we will not come back to it. Q245 Ms Stuart: Will you define what "moving away from the constitutional approach" means if it is not in respect of replacing it with just one document-which, as I have just told you, does not wash? Mr. Murphy: Moving away from the constitutional approach- Q246 Ms Stuart: Which is what? Mr. Murphy: Moving away from the constitutional approach is the declaration by all member states of their clear determination not to have a constitution for Europe. That is what it is. Ms Stuart: No- Mr. Murphy: That is what it is, Ms Stuart. Q247 Ms Stuart: That is like sitting in front of a piece of cream cake and saying, "You will not make me fat-I declare that you contain no calories." The cake would still have them. What can I tell anybody down in the pub about what "we have moved away from the constitutional approach" means if you do not accept my legal definition. It does not wash. Mr. Murphy: I am not sure that either of us should regularly have such conversations in pubs. The fact is that we have moved away. I do not think that you and I will have a meeting of minds on the issue at any point between now and the process through Parliament. Nevertheless, the fact is that all the member states have made pretty clear what they intend to do. It is very clear. We are no longer going to have the approach of that single consolidated text replacing previous treaties. We are not refounding the basis of the European Union, and it is important that we should not do so. Q248 Chairman: May I take this a bit further? Some people argue that abandoning the constitutional treaty and going back to a basis of having parallel reform treaties involves a loss of clarity and transparency and therefore makes all this about how the European Union functions less comprehensible to the public-and also, not least, to those of us who try to follow it; clearly, most members of the public do not try to comprehend it. What would you say to that? Is it regrettable? Mr. Murphy: There is an enormous challenge for the European Union and also for member states about our level of understanding and informed conversation and debate on the European Union and the issues surrounding it. I would rather that we had a degree of understanding and a greater informed conversation about the nature of Europe and the big challenges that it faces. That is a challenge for members states and the European Union but, as part of that, it is important as we have this conversation to consider the previous constitutional treaty. I am picking up on your point, Mr. Gapes, and that made by Ms Stuart. I cannot add to that which the European Union and member states have declared in their mandate. I know that the Committee will have it, but I wish to quote from the draft IGC mandate. It states, "The constitutional concept which consisted in repealing all existing treaties and replacing them by a single text code of constitution is abandoned." That is very clear. Mr. Gapes, you are right that it is a challenge for all of us to talk about what Europe can do as a collection of sovereign states working together and what we should not be doing. That is an important conversation. Q249 Chairman: The origins of the whole process of the convention and everything else go back to 2001 at Laeken when the EU said that it would make itself closer to its citizens. Clearly, we now have-six or seven years later-a very difficult reform treaty process, and it is hard to see that it has made, is making or will make, the EU closer to its citizens. Mr. Murphy: I do not want to be implicitly critical of any individual but, as I said in answer to Sandra Osborne, I do not think that public affection for Europe or what Europe is seeking to achieve will be met or achieved through structural change. Of course, structural change is a means to an end to reform Europe, make it more effective and deliver the things that really matter to people, but let us put aside for a moment the conversation about whether the reform treaty should be through Parliament or a referendum. At the end of the process, having a treaty in place will not in itself-as we know-lead to a reconnection between the public, Europe, its agenda and challenges. Affection for Europe will be driven by Europe's capacity to deliver on things that matter to Europeans, not by a treaty and certainly not by the previous approach of a constitution. Q250 Chairman: Let us assume that, by one means or another, the reform treaty is ratified in the 27 member states. Is that the end of the process or will we have another spate of institutional reform and measures coming forward or the attempt to take things further in other countries? Mr. Murphy: That is an important point. The United Kingdom Government's very strong view is that there are now challenges on delivery. With the reform treaty in place, Europe has the tools to do the job on the issues that matter-certainly for many of our constituents-and, for the foreseeable future, there will be no need for a return to reform treaties or otherwise, with the possible exception of further expansion. Q251 Chairman: That is the UK view. Is that the view of the Italians, the French or the Dutch? Is that the view in other parts of the European Union? Mr. Murphy: I am not a spokesman for the Governments of other member states, but my conversations with other Ministers show that there is a determination to put the conversation about structures behind us when we conclude the reform treaty and deliver on the things that are more important. None of us comes into politics-I hope-just to introduce treaties of reform, important as they are. That is the same in other member states. I have meetings with Ministers in other Governments who share that ambition and determination, but the one caveat that I should offer is that, in our continued ambition for EU membership for other states, it would need a process to be ratified. That is an important caveat. Q252 Andrew Mackinlay: The treaty itself facilitates subsequent amendments of the treaties. Those procedures allow for changes from unanimity to qualified majority voting. To follow up the Chairman's point, if the treaty is approved and it is all structured, there will be facilities under it for it to be altered subsequently, but not for having an IGC. I refer particularly to page 14 of your document, which does not use plain English. Under the heading "Simplified Treaty Revision", the document says, "The Reform Treaty will extend these procedures including to allow for changes from unanimity to qualified majority voting, or from other legislative procedures to co-decision...without a formal IGC." It then goes on-ambiguously-to say that "any...changes must be agreed unanimously." I read that and read it again, and it seems that you have conflated what might be our aspiration-that unanimity will prevail-with the view that the treaty, in your words, facilitates and eases further treaty alterations and amendments by unanimity. Can you just explain that to me? This paragraph simply did not make sense, and now is your opportunity to tell us whether I am correct in thinking that you will not need an IGC in all cases to amend the treaty in future if these provisions go through. Mr. Murphy: What we are talking about, of course-I think that this may be described in the document, but I did not have a chance to read the whole paragraph when it was mentioned-is the passerelle process. What is intended there, absolutely, is that there would have to be unanimity. At one level, on areas of modest reform, the idea is not to open up a whole IGC process in the way that has perhaps happened in the past. When you open an IGC process, the temptation for other member states may, of course, be to say, "Well, we've got a process now. Let's put other things into it." What we are saying here is that the passerelle is about minor changes that would not require an entire IGC process. However, the new general rules on passerelle-this may be in- Q253 Andrew Mackinlay: But minor is in the eye of the beholder, is it not? Supposing you have a majority of states who say, "This is just logical-it's a minor amendment," but the United Kingdom says, "Hang on a moment-we don't think it is." How do you reconcile those positions if you have provided institutionally for qualified majority voting and the majority says, "This is minor." I simply do not understand that. It was your words that I read out. This is not a trick question. I just do not understand how you can say, "This is minor," because the term "minor" is subjective. Mr. Murphy: On the specific point, if there was going to be any proposed change that the United Kingdom considered substantial, we would insist on an IGC process. I cannot speak for other member states, but I am working on the assumption that that would be their approach. In terms of the general passerelle clauses, which are in the document and referred to in the treaties, there is a triple lock, which I hope would reassure you, Mr, Mackinlay. The process would require unanimity in the European Council, the consent of the majority of MEPs and a veto by any national Parliament. That is an important set of protections around the process. Chairman: On the same point, I will call Gisela Stuart and then Paul Keetch. Then I will move on to David Heathcoat-Amory. Q254 Ms Stuart: Minister, may I invite you to replace "modest" with "incremental"? One single issue may be large or otherwise-it might relate to unanimity on the seat of the European Parliament, which currently goes out to Strasbourg. For the French, I am sure that that would be quite monumental, but we would regard it as a blessed-you know. So let us not have a value judgment-the word "modest" is a value judgment-and let us stick to "incremental". You are quite right that there is a lock, but, in UK terms, that would mean that because an IGC is not required, an issue could be brought to Parliament in the shape of a statutory instrument. Parliament has a six-month period-[Interruption.] Would you like me to give you a moment to read? Mr. Murphy: No. Q255 Ms Stuart: Parliament has only a six-month period in which it can lodge its opposition. So you could have a statutory instrument on an incremental change, which would come in at the end of the summer recess and the beginning of when we come back. The Government always have an inbuilt majority on an SI and they would hardly give Parliament enough time to build up a head of steam to oppose something that they had just unanimously agreed. Can we at least agree that it is not modest by definition; it is incremental, because they could have one of those every time they meet. Also can we agree that the parliamentary lock has some weaknesses because of its time and because, in the UK context, it could be in the shape of a statutory instrument? Mr. Murphy: I will not take up your kind invitation to replace your words with my own. I will quote from "The Reform Treaty, The British Approach to the European Union Intergovernmental Conference", which was published on 23 July. Mr. Mackinlay helpfully drew my attention to the correct paragraph. On page 14, it states: "The UK will insist that any fundamental change to the treaties will still require an IGC." That is the Government's position. As for the timing of SIs, it is not a Government Minister who is responsible for such timings. It is for the usual channels-the Government and Opposition Whips-to timetable SIs. I served on European Standing Committees A, B and C for 18 months and my general view was that that was not an experience that every Member of Parliament celebrated. [Interruption.] Mr. Younger-Ross, I do not think that you were a member of all three; I was. My general observation is that we could improve-and I made that point at the European Scrutiny Committee. We should look at ways to improve, for example, parliamentary scrutiny of European legislation through the Standing Committees. I do not think that we have got it right. It is not for me to decide how we get it right. That is an issue for Parliament. That is my sense, having sat there for that period of time-often for a two or three meetings a week, each of which lasted two-and-a-half hours. Five was the quorum and there was often a struggle to reach it. Q256 Ms Stuart: That has got nothing to do with the question. The question is the amending of treaties, changing from unanimity to QMV, could in the UK context be achieved through statutory instruments, which European Standing Committees do not deal with. You are telling us that we only have the reassurance of the Government when the matter is significant, which has no legal merit and is not legally binding. I remember one of your predecessors standing in the Commons assuring us that the charter of fundamental rights had no more force than The Beano. Now we are discussing what is legally binding in reforming treaties. Unless Parliament has a much tighter definition of what is significant, I would suggest that the safeguard, while sounding impressive, is not effective as a triple lock. Mr. Murphy: On that again, Ms Stuart, we have to disagree. The triple lock we have signed up to is very strong. It is based on what I have said: domestic parliaments, a majority of MEPs and unanimity in the European Council. That is a strong and watertight triple lock. Chairman: A brief question from Paul Keetch on this, and then David Heathcoat-Amory. Q257 Mr. Keetch: You mentioned MEPs. We are told that there was a meeting yesterday of the European Parliament's Constitutional Affairs Committee. Apparently, the President of the European Parliament invited members of national parliaments to attend. I do not know whether you were invited to attend, Mr. Gapes. I certainly was not. Chairman: No. Andrew Mackinlay: The Dail Eireann was represented. Mr. Keetch: Yes, members from Portugal, Lithuania and Malta were there, but possibly none from Britain. I would be interested to know why British Members of Parliament were not invited. On a very specific point, you say that MEPs will play some part in this process. In a paper that was passed to us just before this Committee started, we were told that the matter was raised at that meeting. There is something of the West Lothian question coming up in the European Parliament. If the UK has an opt-out on Justice and Home Affairs Council issues, should British MEPs be stopped from voting on such matters in the European Parliament? Have you heard about that? Regardless of your point of view on the West Lothian question as a Scottish MP, I take it that you would assert the right of all MEPs, whether they are British, Lithuanian or Irish, to participate in all discussions of the European Parliament. Mr. Murphy: I have a general view that there should not be different classes of parliamentarian. I believe in the United Kingdom and in the United Kingdom Parliament. We should have one class of MP in this Parliament, and we should have a similar approach in the European Parliament. Mr. Keetch: I am grateful. Chairman: Mr. David Heathcoat-Amory. Thank you for your patience. Q258 Mr. Heathcoat-Amory: The new treaty brings majority voting into more than 40 new areas and removes the national veto accordingly. As we have just heard, it also brings in a fast-track way of introducing majority voting to new areas without an intergovernmental conference. You are arguing that that is of no real consequence and that there should therefore be no referendum. Is it not interesting that when the former Prime Minister announced a change of heart on the referendum in 2004, he did not rely on textual analysis or even the substance? Instead, he said that the question was one of resolving "once and for all whether this country...wants to be at the centre and at the heart" of Europe. He famously added, "let the battle be joined."-[Official Report, 20 April 2004; Vol. 420, c. 157.] In other words, he did not get into the terribly confusing debate about what is and is not significant. He said that the question was about our relationship with Europe and about giving people a vote on it. I have his statement of 20 April before me. Do you agree that those were valid reasons for granting a referendum? Mr. Murphy: In my view, referendums should be reserved for areas of substantial constitutional change. That is why we had a referendum on Scottish devolution, which was an important constitutional change for Scotland. There is a continuing conversation about whether there should have been a UK referendum on Scottish devolution. I do not agree that there should have been. You asked my opinion, and I have stated what I believe to be the benchmark. The exception, of course, was the 1975 referendum. My argument against having a referendum is not based on a careful contextual analysis of the previous Prime Minister's comments and assertions. As you say, the reason why I am arguing against the referendum is not because of disagreements over QMV or anything of that sort; it is because we now have a treaty that is similar in its reforming approach to previous treaties. We did not have referendums on them; Parliament quite rightly at great length discussed and then ratified each of them in turn. That was the right thing to do in a system of parliamentary democracy and that is our intention this time, too. Q259 Mr. Heathcoat-Amory: So we have a clear difference. In 2004, Mr. Blair did not refer to the content-indeed, he could not, because the constitutional treaty had not then been agreed. Instead, he referred to resolving our relationship with the European Union. You are saying that that is not a valid reason for having a referendum, which is interesting because it is a clear difference between you and the position of your party's Prime Minister a few years ago. I just want to establish that. It follows logically from what you have just said, but I just want you to confirm it. Mr. Murphy: Mr. Heathcoat-Amory, that is not what I said. If you analyse the record of our proceedings, you will see that, and it would be helpful if you did not claim that I said something that I did not say. You invited me to share my opinion with you, and I have done that. The treaty that is now under consideration and which will be put before Parliament is similar in nature and takes a similar approach to previous treaties. On that basis-in our long-established system of parliamentary democracy-it is right that we deal with it through the House of Commons and the House of Lords in the same way as we have previous treaties. Q260 Mr. Heathcoat-Amory: The point that I made to you is that those reasons were not given by Mr. Blair in 2004. Indeed, he went almost entirely on resolving this relationship, which you have not referred to. There is no other way of describing it; there is a difference here. I would like to tie you down a bit about the supposed difference between a constitution and a treaty, and remind you that when the German presidency wrote to member states in April, Mrs. Merkel suggested using different terminology without changing the legal substance. In other words, if we look at the substance rather than the label, she is saying that it should be the same. The fact that that is how it has turned out is endorsed rather powerfully by the man who drew up the first text, Valery Giscard d'Estaing, who has said that "In terms of content, the proposals remain largely unchanged. They are simply presented in a different way." If we cut away the question of what it is called, and look at what it does, such as on majority voting and the other areas we have touched on, it is the equivalent of, if not much the same as, the previous treaty, so, why are you abandoning the promise of a referendum? Mr. Murphy: You and I have had the opportunity to rehearse some of these arguments in the media, and it is right that we now have the opportunity to do so in the Committee. German politicians, such as Mrs. Merkel or others, are quite clearly referring in a domestic context to the version of the treaty that they are signing up to. They reflect the fact that they do not have the protocol on the charter or the opt-in process in justice and home affairs, and that more QMVs apply to Germany than to the United Kingdom, for example. Each of the member states and prominent politicians in those countries, quite rightly and entirely properly, make observations about how the treaty will apply in their country and for their electorate. Equally, it is right and proper that we do the same, which is why I have said on a number of occasions that not only have we moved away from the constitutional concept, which has been abandoned, but the UK has a unique deal. Among all the 27 member states, the UK's version of the treaty that we seek to implement is the furthest from the old constitution. The President of the European Parliament, Hans-Gert Pöttering, referred to this when he said: "Since making the charter legally binding and extending the 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, for better or for worse,"-I suspect that he may think for worse-"much of its substance will simply not apply in Britain." Mr. Pöttering is not a political ally of mine; he is, of course, a very prominent conservative politician, and that is his observation. And observations about the UK position have been made by other prominent European politicians. Comments by the Taoiseach, a great individual who provides strong leadership in Ireland, about the position of Ireland are being played back into the UK debate. That is simply the terms of the debate. The Taoiseach refers to the deal that Ireland has got, the UK Government will refer to the deal that the UK has got. That is why we are confident in terms of our deadlines; the substance of this treaty is substantially different to that of the constitutional treaty. Q261 Mr. Heathcoat-Amory: Actually, the Taoiseach in Ireland has said that over 90% of the new treaty is the same as the conventional treaty. Mr. Murphy: I think he said 95%. Q262 Mr. Heathcoat-Amory: Let me finish. Other leaders in Europe, including Prime Ministers and Foreign Ministers have said it is up to 98%. I will compromise and say that it is 95%. Mr. Murphy: I think that the Taoiseach said 95%. Q263 Mr. Heathcoat-Amory: Well over 90%, anyway. They are all saying it is over 90%, and yet you are saying that it is so different as to render the previous promise on a referendum null and void. Let me refer you to one other document: the mandate governing the forthcoming intergovernmental conference. You said that it says the constitutional approach is to be abandoned, which is, of course, about the title rather than the substance. That mandate, which is published, also explicitly says that the reform treaty, "will introduce into the existing Treaties...the innovations resulting from the 2004 IGC". That was, of course, the one that drew up the constitutional treaty. Even the mandate says that the innovations will all be rolled over into the new document, so how can you engage in a trustworthy way with electors-in the way that the new Prime Minister says that he wants to do-when you pretend that this is a completely different document and that therefore previous promises to hold a referendum, including manifestos promises, are inoperative? Is this not a breach of trust with the electors? Mr. Murphy: Not at all, because, as I have said, all member states have agreed that we are not going to have a constitution. I do not think that there will be a constitution for Europe in my lifetime. We have abandoned the constitutional approach and the constitutional concept. The reform treaty is different in content and approach from the old constitutional treaty; the trappings of the constitution are gone, and gone for good, I hope. There are new UK-specific safeguards, which are of crucial importance: a protocol on the charter of fundamental rights; the guarantees about the existing powers of member states to formulate and conduct their own foreign policy; the extension of the justice and home affairs opt-in; the strengthened emergency brake on social security; and the fact that it is made specific for the first time that national security is the preserve of member states. These are all important parts of a UK-specific version of the treaty that we intend to take through Parliament and have ratified by Parliament. The Italian Interior Minister, Mr. Amato, reflected on 6 September that, "In the debate about the European constitutional treaty, we were talking about a treaty which would repeal all the existing main treaties. That would have been a new constitution, a new start, however what was agreed in Brussels at the European Council was not that. It was a cluster of amendments to the existing treaty. That is a crucial difference." What we now have is a treaty similar in approach to the previous reform treaties-Maastricht and others. We had a debate in Parliament, before my arrival, of course, and others had an opportunity to vote on the demand for a consultative referendum. I did not have the opportunity to vote on that, but others did. Their made their public position clear about parliamentary scrutiny and the need for a referendum. That is a matter of public record. Chairman: I think that we will want to discuss a number of those issues in detail. We are running quite short of time and I do not want to spend too long on this point. I call John Stanley on this wider issue and then we will go on to some specifics. Q264 Sir John Stanley: We are perhaps agreed that the central issue here is whether the substance of the proposed reform treaty is such as to warrant going through a proper, direct democratic process through a referendum. What is immaterial is how the new treaty gestated and how previous treaties were treated by previous Governments. What I simply do not understand from your answers to Mr. Heathcoat-Amory is how you can sustain the argument that this treaty is not, in essence, as far as the UK is concerned, of the same substance and content as the previous one, upon which your own Government and your own party made a commitment to have a referendum. Even if you accept the quite dubious premise that all the opt-outs are legally watertight-there is huge doubt as to how watertight and valuable they will be; no doubt we shall come to that a little later-when one compares the two texts it seems that this treaty simply rearranges the parsley around the chicken. The chicken is just the same as the one that was previously rejected. Mr. Murphy: As a vegetarian, I do not know how to match the metaphor about chickens and parsley, but I shall try to do so. I do not accept, Sir John, the assertion that underpins your entire comment-that what happened before is immaterial. What happened before reflects the type of democracy that we have in the United Kingdom. We all celebrate the fact that we have parliamentary sovereignty, and we all seek to defend it. To suggest that it is immaterial that previous treaties were ratified in the established UK tradition is quite wrong. It is of absolute material significance, because it is the correct approach. It is our intention to take a similar approach- Q265 Sir John Stanley: Why did your Government make a commitment to hold a referendum on the previous treaty? Mr. Murphy: Because it was a constitutional treaty, and we said clearly that it was a constitutional treaty. This is a standard reforming treaty in the spirit of the previous reforming treaties, and therefore it is not in any way immaterial. I referred earlier to the commitment by all member states that the constitutional concept should be abandoned. We have a specific deal unique to the United Kingdom. That is why it is different-very different indeed. Chairman: Can we now move on? I call Fabian Hamilton.
Q266 Mr. Hamilton: Minister, if the constitutional treaty was acceptable in 2004-albeit subject to a subsequent referendum that we had to abandon due to the decisions of the French and Dutch people-why have we now requested and negotiated the four areas of amendment in the red lines? Why have they come in now when they were not there before? Mr. Murphy: With the benefit of hindsight that no one enjoyed in that period, my sense, to pick up again on the question that Ms Osborne asked, is that there was a view that the solution to the disconnect-the lack of connection and affection for Europe-was simply about getting structures right and having a relatively maximalist approach to European structures. The referendums in the Netherlands and France put paid to that. They forced a rethink among politicians and the political class across Europe. Q267 Mr. Hamilton: So have we a lot to thank the French and Dutch peoples for? Mr. Murphy: Of course, that depends on your perspective. It put a brake on the direction of travel that the European member states collectively had embarked on. Throughout the continent-particularly in France and the Netherlands-it forced a serious rethink about their relationship with the European Union. It had an impact across the whole European Union. It is probably that more than anything else that led to a rethink, a reformulation and a much more modest reforming treaty being born. Q268 Mr. Hamilton: We have now negotiated the four red line areas that we previously endorsed and have negotiated, as you emphasised, an almost separate form of the treaty for ourselves. Do you think that that has damaged us with our EU partners and set us apart? Mr. Murphy: It is clear that some other member states and prominent politicians in other European Union Governments would rather that we signed up to their version of the treaty and that there was a universal approach, but we made it clear as part of the deliberations over the reform treaty that that was not our intention. Given a choice between doing what is in the UK's national interest or, for its own sake, pleasing politicians in other member states, we chose to do the right thing, which was to negotiate a specific UK version of the treaty to implement here. Other member states will offer their own comments on our deal. Q269 Mr. Hamilton: Do you think that it is a damaging precedent? Surely, if Poland is unhappy with certain aspects, it can then negotiate its own version, or other EU countries can negotiate their own special versions of the treaty. Have we not just created a precedent that others will follow? Mr. Murphy: It is not a precedent in that sense. The UK has not participated in important European projects in the past-it was a mistake, I think in retrospect, but we did not that anticipate that-right at the commencement of the European Community. Even more recently, we have chosen-rightly, unless economic circumstances are different-not to participate in the euro or in the protocol and the charter of fundamental rights. There is some discussion that the Poles possibly, and the Irish-I understand that there is a conversation in Ireland-about whether they would have a protocol. I think that they probably will not end up having one, but it was a conversation for a while in Ireland. It is not a precedent or a principle specific only to the United Kingdom. Q270 Mr. Hamilton: Tony Blair said frequently that he wanted to put Britain at the heart of Europe, but do not the red line areas that we have negotiated and the precedent that we have set simply confirm to our European partners that we are not in the heart of Europe, that we do not buy into the European project and that we do not want to be part of what they want to achieve? Mr. Murphy: I think those red lines set out a demarcation in terms of where the Government feel is it appropriate for the EU to have competency and a role, and what the Government think is the right balance between European co-operation and specific national interest. We can only take the words of other prominent European politicians as to where the UK stands and its role in Europe. There is a continuing great affection and respect for the UK across Europe and beyond, and there is a real enthusiasm for many of the agenda that we are placing at the heart of the conversation such as environmental protection, economic dynamism and national security issues. I should also, Mr. Hamilton, have referred to the fact that, for example, in the Schengen agreement we take a different approach. I do not think that that has harmed our reputation in the way that others thought it would. We remain determined to play an active part in a European delivery of the things that are important to us. Q271 Chairman: Can we now move on to one of the red line areas that you mentioned: the charter of fundamental rights? I will bring in Mr. Heathcoat-Amory in a minute, but before I do, I would like to ask whether you agree that the Government would have far less trouble with the TUC if we did not have a red line on the charter of fundamental rights, and had three red lines rather than four? Mr. Murphy: The TUC will make its own position clear for its own purposes. We think that four red lines are the right balance for the UK. It is a stronger deal because we have those four red lines. They are the four red lines that we said we would deliver on, and so we did. Some people will remain perturbed or unhappy about that, but that is the deal we negotiated. Q272 Chairman: But, on balance would you accept that the arguments that are coming from the trade union movement on the treaty are rather different to those that are coming, for example, from The Daily Telegraph? Mr. Murphy: They are different arguments but we have done the right thing in the interests of the UK economy and the deal that we struck in June. Chairman: No doubt we will come back to this later. Q273 Mr. Heathcoat-Amory: If there is a dispute in future about the validity or effectiveness of the opt-outs, who is going to decide it? For instance, suppose the Commission or another member state does not like the way that the charter of fundamental rights does not apply over employment law in some way, because it supposedly gives us an advantage, and it decides to challenge our opt-outs. Or, in the field of foreign policy, suppose that there is a claim that we ought to be bound by EU solidarity, and therefore there is a dispute. Which body or court will decide it? Mr. Murphy: First, I am sure that it was inadvertent but you called it an opt-out. It is not an opt-out, it is a protocol, and those are different things of course. What is clear about the protocol is that if the treaty is adopted and the protocol is adopted, it becomes part of EU law. In that sense, the European Court of Justice oversees these matters. The fact is that it will be an established part of European law, and in that sense watertight because of its placement there. Q274 Mr. Heathcoat-Amory: So it is the European Court of Justice. That is in line with the existing treaty provisions. It is the guardian of the treaty, it interprets the text and it decides disputes between member states or the Commission and other institutions. So the matter is going to be decided not by the British Government, by Parliament, or by the House of Lords or any supreme court here. It is going to be decided by a European Union institution. Can I draw your attention to article 9 of the draft text of the new treaty, which, as usual, carries forward from the constitution. It states that "The institutions shall practise mutual sincere co-operation." It lists the institutions, one of which is, of course, the ECJ. Others are the Commission and the European Parliament. Therefore, the decider in any dispute would be an EU institution that is required by treaty law to practise mutual sincere co-operation with the institution that would be bringing the case against the British Government. Do you think that that is a fair way of deciding something as important as that, and are not we again exporting an important element of self-government? Mr. Murphy: Not at all, Mr. Heathcoat-Amory. It is peculiar to be accused on the same day of doing two things that represent polar opposites on this issue. My friends in Brighton are going to have an observation about the protocol in the charter, which is critical from a perspective that is diametrically opposed to your own. It is important to be clear that the charter itself brings about no change in UK law and preserves the current position in UK law. It does not introduce new rights for any court in Europe or a domestic court to strike down any UK law. It is important to be absolutely clear about that. Both the charter and the protocol are part of European law. As I have said, the charter does not change the current position. Rather, it puts a series of existing rights that are found all over in different treaties and places and helps it to be transparent, but it does not change UK law at all. The ECJ ultimately looks at European law, but on the basis that the protocol is legally binding and accepted to be legally binding by all 27 member states. The truth is that not all of the other 26 member states are content that we have the protocol and there is a degree of frustration about that, but we negotiated a deal that was specific to the UK for clear purposes. Mr. Heathcoat-Amory: You are making assertions about our opt-outs. I am sure that they are sincerely held and you believe that they are watertight. However, we know that a number of other member states resent our opt-outs, and indeed there are people in this country who do not like the way that the charter will not apply. On questions of criminal justice, immigration and foreign policy, there will be plenty of disputes in the future that cannot be envisaged. Therefore, your version may not hold. I am interested in who will decide that, and I put it to you that there is a new provision in the new text that requires the deciding body-the ECJ-to practise "mutual sincere co-operation" with the very organisations that may bring a case against us. I do not think that that is a fair way of deciding British policy, and I am surprised that you have not picked that up and referred to it in your answer to me. Mr. Murphy: Much of this language about mutual sincere co-operation is in the context of previous treaties such as Maastricht and others. With regard to the specific point that you made, I am not making an assertion. I believe that it is not an assertion and many people know that it is not. Articles 1 and 2 of the UK-specific charter are not assertions, but statements of what will become European law if the treaty is ratified. They are not a Jim Murphy assertion, but European law, and there is an important distinction between the two. Q275 Mr. Heathcoat-Amory: But law has to be interpreted. There are disputes in our domestic courts, and lawyers make their living out of different interpretations of the law. I put it to you that when there is a dispute, it will not be Mr. Murphy deciding the matter-I wish it was, as I am sure that you would decide extremely effectively in our favour. Instead, it will be a court that not only is a European institution, and therefore bound by concepts of ever-closer union, European integration and so on, but is required under a new article of treaty law-it is not in the existing treaty-to co-operate with the Commission. I do not think that that is impartial arbitration or judgment at all, and you have not answered that point. Mr. Murphy: You make your point, Mr. Heathcoat-Amory. All that I can do is simply refer you to what is proposed to be a legally binding protocol in European law. The position is very clear in terms and is stated in the proposed protocol. It is also clear that if someone tries to use the charter alone to create new rights, the UK's position will be protected by the protocol. The ECJ has the role that we all know that it has, but-it is important to be clear about this because of conversations that are happening elsewhere today-the charter does not create new rights or introduce new powers for a domestic or European court to strike down a UK law. The protocol is an additional guarantee for clarity and the avoidance of any potential doubt. It will have the status of EU law. Q276 Sir John Stanley: Minister, in its paper on the reform treaty and the British approach to the European Union intergovernmental conference of July, your Department chose, from time to time, to put into bold sentences that it thought were of much importance. One of those sentences on page 8 says, "The IGC Mandate contains a declaration confirming that the 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." Can you confirm to the Committee that there can be no certainty that declarations appended to treaties will necessarily be legally binding? Mr. Murphy: Sir John, I am looking at page 8- Chairman: We are talking about the British declaration on common foreign and security policy. Sir John Stanley: It is the last sentence of the penultimate paragraph, Minister. Mr. Murphy: What is clear, Sir John-of course, you will come back on this-is that CFSP will remain a matter for unanimity and will remain intergovernmental. Q277 Sir John Stanley: Can I just have the answer to my very specific question, Minister? Would you like me to repeat it? I asked whether you can confirm to the Committee that there can be no certainty that declarations appended to treaties will be regarded as legally binding. Mr. Murphy: Sir John, I think that you are aware that declarations are political commitments on behalf of the member states of the European Union, and these issues will remain matters for unanimity. In that respect, there is an agreement and a declaration by all 27 member states-a very clear political commitment by all 27 member states. Q278 Sir John Stanley: Thank you. You have confirmed what I expected you to say, which is that this is a political agreement, but the declaration does not necessarily have any legal force. Thank you, Minister. Mr. Murphy: Sir John, the point is that we have agreed to this as one of the 27 member states. Every one of us has agreed that the substantial issues of CFSP remain a matter for unanimity. The whole CFSP proposals were, of course, part of the Maastricht deal in 1993, so this is not new at all. However, it is important to have the declaration and for the UK to have worked with others to achieve it. Sir John Stanley: Minister, I merely wanted your confirmation that the declaration does not have legal force. Thank you. Q279 Chairman: Can I take up further issues related to this? Under the proposals, the high representative functions merges the Externals Affairs Commissioner with the Council's high representative for foreign policy, Mr. Solana. As a result, the Commission's staff and budget will now be under a high representative who is accountable to the Council of Ministers and, therefore, to the member states. His budget and those working for him were previously with the Commission. He will form what is called an external action service. In our report last year, our Committee explicitly said that there should not be a "foreign ministry" of the European Union, nor any ambassadors or foreign service. Can you assure us that that will be the language that continues to be used after the agreement-if there is one-on a new, reformed treaty? Mr. Murphy: I give you the assurance absolutely that we shall not be having a European Foreign Minister. We shall have a high representative, as you mentioned. Terminology is important, of course, and that is the tone of terminology that should be reflected throughout-both in the debate and in agreements. Q280 Chairman: But can I put it to you that, in practice-once you establish the position of high representative-that person will be known popularly as the EU's Foreign Minister? Once you establish that person with a budget of billions of euros and a staff of hundreds if not thousands-1,800 was the figure, I think-they will take on a persona and a role whereby they will have a dynamic that grows over time. That is obviously the intention. How will that relate to the proposal before us, which seems to be that national Foreign and Commonwealth Office and other countries' staff will be seconded to work in that structure? Will those staff be accountable to the high representative or will they remain accountable to their member Governments? Mr. Murphy: I am sure that you are right to strike a note of caution on all that. However, there is already a high representative who has that title. Q281 Chairman: With a very small staff. Mr. Murphy: Of course, but it is a matter of conjecture whether the title itself leads to the person being described as a Foreign Minister-either in the past or in the future. On the external action service, there has been an agreement for its commencement, but the detail is still being worked out. However, I know that it will be proceeded with on the basis of unanimity in the negotiations. Q282 Chairman: What about the people who work there? Mr. Murphy: The detail of all of that is still to be worked out. Q283 Chairman: Perhaps we can have a detailed note that explains where we are at this moment. Perhaps also-before the Foreign Secretary appears before us in October-we can have a note then as to where we are at that point, assuming that there are discussions if not negotiations between now and then. The issue is clearly one that we shall need to come back to, because it is fundamental to the way in which foreign policy works in this country. Mr. Murphy: I shall happily take up the invitation to provide whatever information is available. Andrew Mackinlay: Mr. Chairman, can I ask that the Foreign Secretary also make some proposals in relation to future parliamentary oversight? Chairman: If there is time in the next 10 minutes we shall get to ask a question on that. We now move on to some questions about justice and home affairs. Q284 Sandra Osborne: How would you envisage that the UK's opt-in on police and judicial co-operation in criminal matters will actually work in practice? Mr. Murphy: In practice, it would be a case of the United Kingdom Government considering the detail of any proposal and deciding at that point whether it would be appropriate for the UK to opt in if it were in our national interest. It will be on a strictly case-by-case basis. That UK distinction from other member states is important; they do not have such an arrangement in the reform treaty. That is our intention, however: to deal with proposals case by case on the basis of what is good for Britain. Q285 Sandra Osborne: Do you think that that would be likely to cause resentment among the other member states? Mr. Murphy: That picks up a little on the point made by Mr. Hamilton, which is that we have a record of being involved centrally in those parts of European Union decision making and policies with which we strongly agree, those that we do not share an ambition over and those that we think are not in the UK national interest to remain distinct from. I do not say that it is universally popular, but it is a well established British position and it is taken through in our opt-in on justice and home affairs. Q286 Sandra Osborne: In terms of explaining matters to the public, it might be quite helpful if we could have some examples of the issue into which the Government would not wish to opt. As the matter is currently explained, it does not really mean a lot to people. Mr. Murphy: That is a fair point. Q287 Chairman: I am conscious that you have been here nearly two hours, Minister. I am wondering whether it would be possible for us to have another 10 minutes beyond 4.30 pm so that we could ask you a couple of questions about Russia as well as the European Union? Mr. Murphy: Okay. Chairman: Thank you. Let us move to social security. Q288 Ms Stuart: I am sure that you will be glad that I have a brief question, Minister. One of the four red lines is social security and the strengthening mechanism, and the emergency brake on social security. As a former Social Security Minister, I wonder whether you can give us an example of what you think we had in mind about what might happen? It seems an incredibly widely phrased provision and something that would affect fundamental aspects of the social security system, including scope, cost or financial structure. You must have had some possible scenarios in mind. In case I have misread the text, I must say that I am assuming that the brake means that the Council will have to act in unanimity. Mr. Murphy: On the latter point, yes. As for what we have in mind, we have in mind any potential future development that we did not agree with and that was significant to our social security system, whether it be a new approach to benefit exportability, a new approach to benefit entitlement or any such issues. It is not aimed at a specific new proposal out there in the ether of our distant horizon, but it is an important wide-ranging protection, as you acknowledge, Ms Stuart. Chairman: We now come to questions about the role of Parliaments. Q289 Richard Younger-Ross: One of the bright points of the reform treaty is the fact that there will be additional scrutiny by national Parliaments. The proposals are that sets of votes should be allocated to the national Parliaments, and if one third of the votes cast say that something is a matter of subsidiarity and therefore legislation should not apply, the EU constitution proposing it would have to review its proposal. I believe that that is called the "yellow card". If 50% of those voting decide that it is a matter of subsidiarity and not within the jurisdiction of the EU, the Commission would have to look at it in greater detail. We could have the position in which the majority vote in the European Parliament or 55% in the Council would be sufficient to kill off a proposal. That is referred to as the "orange card". The orange card system came into the negotiations rather late in the day. Minister, can you say whether both the yellow card and orange card mechanisms for oversight of subsidiarity will be available? Mr. Murphy: Yes. Q290 Richard Younger-Ross: Thank you, Minister. Can you say how those proposals will work within the British Parliament? Mr. Murphy: Yes. I am surprised that this has not caused greater excitement in the Westminster village because the plan is that each member state Parliament will be allocated two votes. Our intention as a Government-it is an established arrangement-is to have one vote for the House of Commons and one vote for the House of Lords. That is our intention. Q291 Richard Younger-Ross: How would we use that vote? Who would decide on which way it was cast? Mr. Murphy: The House of Commons and the House of Lords would vote on those issues. Q292 Richard Younger-Ross: So it would be a vote of the whole Chamber-not of a Committee, and not in respect of a statutory instrument? Mr. Murphy: We are going to work through the detail. It is a new proposal, a new protection and a new brake. It is an important new power. We will have conversations through the usual channels, Select Committees and others, about the detail of it and the most appropriate way of proceeding. However, as I confirmed to the House of Lords scrutiny Committee-I think that it was pretty pleased-there will be one vote for each Chamber in the Palace of Westminster. Q293 Richard Younger-Ross: We are delighted that we will have the vote and that the Back Benchers of this House may have a say. I am slightly sceptical; they might have a better say in the House of Lords. I am not sure about how much ability we at our end of the House will have to override what a Minister might have already said in the Council. However, the document says that "National Parliaments shall contribute actively to the good functioning of the Union". I believe, Minister, that when the House of Lords suggested that that rather imposed duties on Parliament and that the wording was probably inappropriate, you took the point and said that you intended to return to the issue in the IGC. Have you been able to do so? Mr. Murphy: We are looking at that through the process that is going on now. When the issue was raised with colleagues, it appeared that it was a matter of drafting rather than of intent, so it is not something to rectify or that would lead to our having to reopen the IGC mandate. It involves a specific word; the problem is one of drafting rather than one of purpose and intention. Q294 Richard Younger-Ross: What would be the implication if the word "shall" was correct and was not a drafting error? Mr. Murphy: It is a drafting error, so I shall not speculate about what the alternative intention would be if it had been put there on purpose. It was not. Q295 Richard Younger-Ross: Is the word "shall" going to remain? Mr. Murphy: That issue will feed through to the technical legal working groups-whether the word "shall" remains or whether we remove it. That is what the lawyers are looking at. It is an issue of drafting. The full picture is as follows. My French is pretty rudimentary, but the issue is about translation from French into English. In the French text there is no obligation, so there is no equivalent in the French version of the text to the word that has now found its way into the English version. I hope that that helps clarify the issue. Q296 Richard Younger-Ross: My knowledge of French is probably even smaller than yours, Minister. However, my knowledge of lawyers is probably comparable. Whatever the intent behind a word, if a word is there, lawyers will latch on to it. I am rather surprised that you are reluctant to say what the implications would be if the word "shall" remained and we were unable to find the form of words that the French appear to have and we do not. Mr. Murphy: As I explained, the issue is that the English is a translation from the French. There is no equivalent word in the French and therefore the issue is about drafting error, not intent. There is no point in speculating about a word that we have no intention of having there. Chairman: I shall take one last brief question on the issue from Gisela Stuart. Then we shall move on. Q297 Ms Stuart: My understanding is that the Dutch Government were deliberately keen on the word "shall". Can you confirm that? Mr. Murphy: No, I cannot. Q298 Ms Stuart: Can you deny it, then? Mr. Murphy: Yes. Q299 Ms Stuart: So no Government in the discussions wanted the meaning of "shall"? Mr. Murphy: What the Dutch Government want-I suspect that they are not alone; they may be joined by the Belgians and perhaps others-is reflected in some of the increased powers for national Parliaments. The intention is not to place a duty on national Parliaments. That is not the Dutch Government's intention and it is not ours-it is not in the Dutch text, either. Q300 Ms Stuart: So we can assume that when the final text comes to us it will say "will". Any court knows what the word "shall" means. If it is meant to mean "will", "will" will be used. Mr. Murphy: I am not going to speculate about which word will replace "shall". My Dutch is much better than my French- Q301 Ms Stuart: It is your English that I am worried about. Will it say "shall" or "will"? Mr. Murphy: Sometimes I think that my Dutch is better than my English. Q302 Chairman: The next time that we have representatives from the Foreign and Commonwealth Office, as well as having a Europe specialist and a legal adviser with you, perhaps you could bring your linguists. Mr. Murphy: Is that to translate from Glaswegian, Mr. Gapes? Chairman: Yes, we will go there as well. There are some things on which we will write to you, but can we ask you some questions about Russia? Fabian Hamilton. Q303 Mr. Hamilton: Thank you. Minister, when you gave evidence to us in July, we discussed the situation regarding the UK and Russia, and our deteriorating relations following the lack of co-operation in the case of Alexander Litvinenko and the murder inquiry. You will recall, I think, that you gave evidence just two days after we expelled four diplomats. Have the measures announced in July had any impact on the UK's official dealings with Russia, including anti-terrorist co-operation? It was also mentioned earlier, in May, that a Minister from the then Department of Trade and Industry, now the Department for Business, Enterprise and Regulatory Reform, would be travelling to Russia in July. Did that Minister travel to Russia, and what was the outcome? Are there any signs that the measures announced in July are getting us any further co-operation from Russia in the Litvinenko case? Finally, what representations has the FCO made about the latest developments concerning the BBC World Service in Russia, and what results have we had so far? Mr. Murphy: The Foreign Secretary announced on 16 July, I think, measures on co-operation with the Russian intelligence services, judicial co-operation and some visa issues. In terms of the announcements, we have not broadened those specific measures. That is the sphere and scope of the measures that we announced, and we remain committed to them. We have not broadened them in any sense. I tried to emphasise when I gave evidence to the Committee in July that our relationship with Russia is such that, if we disagree, we think that it is important for us to say so. Russia remains a very close strategic partner on a whole series of issues, but it would be quite wrong of us not to voice our concerns in the same way that this Committee has voiced its concerns about specifics of the Russian Government and authorities' practices on human rights and other issues. As for the visit by a Government Minister, a visit by Malcolm Wicks took place. I am told that it was very constructive. Ms Stuart: I saw him at the airport. Mr. Murphy: Where were you going? Ms Stuart: Moscow. Mr. Murphy: He was accompanied by a Swedish Minister, to whom I spoke the weekend before the visit about nuclear decontamination and the important issues on which we still remain very close to Russia and in which we have a shared ambition. There was some public comment that we had suspended our co-operation with Russia on anti-terrorism. We have not, and we will not. If our systems in the UK suspect that there is a threat to Russia, it is right and proper that we should share that information with the Russian authorities, and we expect a similar degree of bilateral co-operation from the Russians. It is not about suspending co-operation on anti-terrorism at all. It is about the specific measures announced by the Foreign Secretary in July. The BBC is caught, pretty clearly, in a maze of legal bureaucracy in some of its operations in Russia. Those problems could be overcome if the Russian authorities wished them to be. We continue to believe that the World Service-I think that it is on the FM frequency-should be allowed to broadcast and go back on air. It is within the power and the gift of the Russian authorities to make that happen. The BBC has been frustrated in an important way in broadcasting objective and high-quality journalism in Russia, and there is no reason for it. Having said that, we remain committed to a strong relationship with Russia. I spent the weekend in Ms Osborne's constituency, and spent two or three hours with the Russian deputy Foreign Minister at a fantastic event in Ayrshire. It was clear that Russian Ministers and officials have a continuing desire not to allow the very strong disagreements that we have with Russia on specific matters to contaminate a genuinely important strategic partnership. Q304 Andrew Mackinlay: In the middle of August, I received from our colleagues in the Home Office replies to some written parliamentary questions-I had waited five weeks. I assume that you would have been sent copies. I asked how many requests the Russian Federation had made over the past 10 years to extradite people from the United Kingdom and return them to its justice administration. The initial reply was that there had been about 27 requests, with an indication that none of those had been conceded by the United Kingdom. I queried it, because it was an ambiguous reply in a number of respects. The Home Office then, by letter rather than by parliamentary reply, said that the number was in fact 13 and that there were a number of repeat requests. I want to place that on the record. If you remember, during all the heightened talk at the time of Litvinenko and the expulsion of various people, the British Government were putting around how unfair and unreasonable Russia was in not extraditing somebody to London. There was no reference to the fact that there had not been one extradition at the request of the Russian Federation during the past 10 years. Regardless of whether the number is 13 or 27, that is the fact. Does the Foreign Office have a view on this? Does it think that we are the Archangel Gabriel, Russia is wrong and that we should have extradited to us those whom we want from Moscow but that things should not happen the other way round? That approach is untenable. Mr. Murphy: I am not in a position to comment on the specific parliamentary answers from the Home Office. I shall make it my business to read them, but in mid-August I was enjoying my family holiday in Blackpool. Andrew Mackinlay: So was I, but I phoned them up from my holiday. Mr. Murphy: In Blackpool? Q305 Andrew Mackinlay: No, but carry on. It doesn't matter where you were. What do you say about it? Mr. Murphy: It does matter. Blackpool is an enjoyable place to spend a holiday, but I am not here on behalf of the Blackpool tourist agency. My mother-in-law lives in Blackpool. The serious point is that the Foreign Office's view is that what happened on the Litvinenko case, as we discussed in July, was a matter of such importance- Andrew Mackinlay: To us. Mr. Murphy: It was a matter of importance to us and, given the statement of the European Union, it was a concern to all other 26 member states of the European Union. Nationals of 18 member states had to be tested for polonium poisoning, so it was an issue not just for the United Kingdom, but for others. That is why all member states rightly take a strong view about the murder of one of their citizens on the streets of a capital city. That is our view. Our view is also that there was a lack of willingness and co-operation on the part of the Russian authorities. It would have been within their power, given their system, to have enacted such co-operation, and we took the measures that we did because of that and because of the severe nature of the crime that was committed. Chairman: I am sorry, Mr. Mackinlay, but we cannot pursue this indefinitely. I want to get one last question in- Andrew Mackinlay: I did not want to know about his mother-in-law; I wanted an answer to my question of why he justifies 13 requests being refused and our expecting them to respond to our requests. That is not an unreasonable approach. Chairman: You have placed that on the record. No doubt, you will get a note- Andrew Mackinlay: Or I will get a ticking-off from the security services here in London. Chairman: I call Sir John Stanley to ask our final question. Q306 Sir John Stanley: As you know, some members of the Committee visited Belgrade and Pristina in July. I think that everybody would agree that it is now inconceivable that President Putin will allow a resolution through the United Nations Security Council allowing Kosovo independence. If the current negotiations between Belgrade and Pristina come to naught, as seems likely, is it still the British Government's position that Kosovo should be granted independence? Mr. Murphy: The end point of this process is that Kosovo should be granted independence, yes. Our preference is to establish that through the United Nations. It is a substantial diplomatic challenge. We are not under any illusion as to how difficult it will be, but we continue to work through the UN to help make that happen. Our view is that independence for Kosovo along the lines of the Ahtisaari plan, in the absence of an alternative agreed by Pristina and Belgrade, is the best solution. Q307 Chairman: Minister, in the light of that, you will be aware probably more than anyone, but I was made aware forcefully last week, that there are at least five, possibly seven, EU countries on the record as opposing an independent Kosovo and even opposing the Ahtisaari plan, even though they have signed up to it. Do you expect therefore, in those circumstances, a split within the European Union? Mr. Murphy: That is possible. Other countries have offered their public reflections, in the same way that I have stated our policy today. We are confident in the way in which the process is evolving. The United Kingdom and others have shown a real determination to explore every potential diplomatic avenue, and having done that, we think some of the concerns of other EU member states will be overcome. On that basis, I am confident that the scenario, which in the past would have been possible, is now unlikely to arise. Importantly, it is also about retaining a degree of stability on the ground, because that is going to upset and have a dramatic effect not only for the people of Kosovo, but also on the diplomatic process around us, through the UN and elsewhere. That is one of the reasons why I think it is helpful to confirm to the Committee today that the UK Government have invited the team of unity from Kosovo to meet us in London, to reassure them of our continued support for where this process should conclude, and to encourage them in the same way that we encourage others to retain a degree of patience. That is sometimes difficult, but it is of crucial importance as the process comes to a conclusion, up to 10 December. Chairman: No doubt we will revisit the issue. Having been in Kosovo, it is quite clear that you are facing completely diametrically opposed positions and it seems that there is no possibility of an agreement internally; we will come back to you and press you on the matter over coming weeks. Minister, I thank you and your colleagues for coming today, for two reasons especially: we are in a recess, as we have already commented, and you have given us more of your time than we asked for. We wish you the best for the rest of the summer recess.
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