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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 166-iv House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE FOREIGN AFFAIRS COMMITTEE
Developments in the European Union
Wednesday 10 October 2007 DAVID MILIBAND, MS SHAN MORGAN and MR. MIKE THOMAS Evidence heard in Public Questions 308 - 410
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Foreign Affairs Committee on Wednesday 10 October 2007 Members present: Mike Gapes (Chairman) Mr. Fabian Hamilton Rt hon. Mr. David Heathcoat-Amory Mr. John Horam Mr. Paul Keetch Andrew Mackinlay Mr. Malcolm Moss Sandra Osborne Mr. Ken Purchase Rt hon. Sir John Stanley Ms Gisela Stuart ________________ Examination of Witnesses
Witnesses: Rt hon. David Miliband MP, Secretary of State, Ms Shan Morgan, Director, European Union, and Mr. Mike Thomas, Legal Counsellor, Europe, Foreign and Commonwealth Office, gave evidence.
Q308 Chairman: Good afternoon everyone. Foreign Secretary, your first appearance before the Committee is very welcome. We obviously know your officials from previous sittings. This meeting is very important and there is a lot of public interest in the matter. Are you content with the documents that were agreed last week by the expert working group and the process so far? When will your legal linguistic experts complete their examination of the text? David Miliband: I hope that you will first give me a couple of minutes in which to say how delighted I am to be here. Our colleagues will say that I have always sought to have a close, productive and engaged relationship with members of Select Committees in respect of those Departments for which I have previously been a Minister, and that is certainly my intention now. It is my very strong view that all aspects of policy, but perhaps foreign policy in particular, benefit from the degree of ventilation that can be provided by Select Committee inquiries. The Committee should never be in the position where it feels that it is not getting the co-operation and engagement that it wants from the Foreign Office. I know that we shall focus on the European treaty today, but other pressing foreign policy issues of immediate concern have also been flagged up, so we have made provision to extend my time here to ensure that we have as long as possible to cover them. I look forward to that, too. As for the legal texts that were deposited in the Library and with the Clerks of the Committee as promised last Friday, the work will continue right through until final signature in December because it is right that we continue to be focused until the December Council when it is planned that Heads of Government will finally sign a new treaty and thereby move to the next stage of ratification. The documents that were published are important. For the first time, legal text has been produced that allows us, in one person's view, to establish the ogres that are lurking, and in another person's view, to demolish the myths. It is good to have them. Obviously the Prime Minister talked about them at Prime Minister's questions today. They respect the so-called red lines in the four key areas and, for the first time, they give concrete legal form to things that have not had much publicity so far, but are important. For example, for the first time in the history of the European Union, the treaty will establish that national security is a matter for nation states. The documents are important. They will be discussed next week at the European Council by Prime Ministers and Heads of Governments, but we shall be working on them all the way through. It is certainly one area in which the Committee has shown interest before and there is more work to be done. Q309 Chairman: You said that you will be working on the texts until December. Will any issues require a significant amount of more work or are you at the point when you think that it is just a question of a small number of modifications, interpretations or translations of words? David Miliband: Rather than speaking in general terms, let me give one important example that has been raised by the Committee. It is our clear view and that of our European colleagues that the role of national Parliaments should be increased in the new set-up. One aspect is that it should be for national Parliaments to decide how they shall contribute to the processes that have been established. But certainly in respect of what I believe to be a misunderstanding about the intention of the mandate, it is clear to us that we need to make clear that, when the text states that Parliaments shall contribute to the functioning of the Union, that means that they shall be able to choose to do so in their own way and time. It is obviously for Parliament to choose how it does its own business; that is just as true for our Parliament as for others. That is one example of where there is more work to be done, including by-I always get this wrong; I do not know whether it is the jurists/linguists group or the linguists/jurists group-the group of jurists and linguists that is going to work on this. You also asked, I think, about process, which is something that the Committee has highlighted. I do not know whether you want me to comment on that or whether you want to come back on what I have said. Q310 Chairman: If you could say something in general, we shall come to some specific questions in a moment. David Miliband: On process, I would say-obviously I was not the Foreign Secretary in the first half of this year-that, if one steps back, it is clear that Mrs. Merkel was dealt a pretty tough hand when she took over the presidency on 1 January. There had been 18 months of this so-called "period of reflection" or "pause for reflection", and the debate had moved on in a significant and positive way in that, in the words of the Dutch Council of State, the centralising and federalising ambitions that had motivated some of those who had pushed for the constitution had been rebuffed. But she had 27 member state Governments who were having their own debates, and she had a tough hand in trying to bring them together. Mrs. Merkel decided to approach it with a distinctive-I think that that would be a diplomatic way of putting it-approach, which was to talk to all 27 Government bilaterally through the focal points group, which actually met four times not three; I think that we have alerted the Clerk to that. She had those bilateral discussions and then, on 19 June, she produced the draft treaty. I say that that was distinctive; it reflected the difficulties of the hand that she was dealt. But I do not move away at all from what the former Prime Minister said after the European Council in June: that Mrs. Merkel really did an outstanding job in pulling together a mandate for an intergovernmental conference that reflected and respected the different interests of different nations. Q311 Chairman: Before we move to some more detailed questions about process, can you clarify whether the UK Government submitted a legal opinion to the working group of legal and linguistic experts? David Miliband: This was raised, I think, by an MEP either last week or the week before. It was a group of legal people, so they were expressing their legally informed views as they went along. I know of no "legal opinion," "single legal opinion," or, as there was talk of somewhere, some special, written legal thing. I saw that, but I do not know whether it was in the papers or in the briefing. I have been errant in one regard-I should have introduced my colleagues. I am sorry about that. Shan Morgan is the director of EU policy in the Foreign Office; Mike Thomas is here from our legal department. I hope that it is okay with the Committee, if at certain stages in the discussion when we have a particularly detailed legal or policy discussion, for me to bring them in and let them provide the details. I genuinely want to ensure that the Committee gets all the facts and figures that it needs. Q312 Chairman: So to be clear, there was no legal opinion submitted by the UK to this working group. David Miliband: I do not understand; Mike can say, but it is absolutely clear that it was a legal group, so we had legal work going on all the time, but I do not know what document they could be thinking of. Mr. Thomas: No, and there was not a mechanism to submit legal opinions to the group. Mr. Purchase: Quill pen? Q313 Chairman: Maybe a pigeon. Finally before I move on, if this informal council next weekend fails to reach a unanimous agreement for some reason, let us say because of the politics in Poland, what will happen? Is there a plan B? David Miliband: I would not want to speak for the presidency. The Polish election is obviously taking place and all sorts of things are said during election campaigns. We are happily in a period in which we do not have to feel that every word is quite taken to have such geopolitical significance, but, as I say, I would not want to speak for the presidency, but it has been clear that the final signature happens in December, so that gives it scope to make sure that the proper systems are followed. Q314 Mr. Purchase: Do we not have to take as gospel every word in the manifesto? David Miliband: Who said that? Mr. Purchase: You talked about "during election campaigns." David Miliband: I said that we are not during an election campaign at the moment. Mr. Purchase: Agreed, we are not. But you mentioned- David Miliband: Manifesto commitments are very important. Mr. Purchase: You said that, maybe, in an election campaign- David Miliband: Things are said. Q315 Mr. Purchase: Yes, okay. Things are said. In our election campaign in 2005, we set out clearly that we would campaign for the European constitutional treaty. Now, it has all changed, and I am one who does not think that we now need a referendum. But at that time, we said that should that constitutional treaty come before us, we would have a referendum and we would campaign for it. May I ask you, Foreign Secretary, in the light of what you have just said about campaigning, would you have been happy to campaign for that full constitutional treaty? David Miliband: I shall certainly answer that. Just to be absolutely clear, though, when I referred to "things" being said I meant the words being used in campaign speeches in Poland, which are different from what is written in a manifesto. I stand by the manifesto that you and I stood on. It seems to me that we should. As you say, there are two significant changes-well, there are actually three. They are changes of structure, of content and of consequence. The change of structure that has occurred is that the attempt to collapse all previous existing EU treaties-notwithstanding the interesting debate you can have about Euratom; but, none the less, we know what we are talking about-into a new treaty refounding the European Union. The constitutional concept has gone; it has been abandoned. Secondly, in terms of content, there are significant differences, not least for the UK, which has a number of derogations, opt-outs and other significant issues that make our treaty different. Thirdly, the consequence of the new reform treaty is different as well, because I think that it settles the debate about whether Europe is going to be a coalition of nation states, or whether it is going to move in a more federalist direction. I think it settles it in a way that is not just the British point of view, but the long-standing point of view of other countries as well. Q316 Mr. Purchase: But the answer to my question was yes, you would have been prepared to campaign for a full constitution? David Miliband: Of course. I stand behind the manifesto that we stood on. Chairman: Can we move on? Q317 Mr. Heathcoat-Amory: Secretary of State, the European Scrutiny Committee established last week that the British Government saw no text at all of the treaty before 19 June-that is, only 48 hours before the European Council at which the whole thing was agreed politically. So these negotiations were compressed into a terrifyingly short period of 48 hours. It is not even certain that other Departments were consulted in that short time, so it is not surprising to me that there are a lot of ambiguities and loose ends still to be decided. The European Scrutiny Committee also of course compared the two treaties and concluded that they were substantially equivalent, and it cast doubt on the security of the red lines-the opt-outs and so on. In answering that point yesterday in the House, you implied that the Committee's report was out of date. You said, "The Committee's report was written and printed before the legal text was published on Friday." That was 5 October. We now have the text and, in the light of what you said, I would like you to tell us now what changes you have secured between the original text and the text we have now before us, because certainly the only substantive change I can find is one that is actually very unhelpful to the United Kingdom. It is about the transitional arrangements for justice and home affairs, and the fact that it will become, eventually, subject to the jurisdiction of the European Court of Justice. Perhaps you can tell us what favourable changes you have secured in the latest text. David Miliband: Can I just pick up a number of the points? I shall certainly get to the last one. You said right at the beginning that the Select Committee "established" that it was on 19 June. I think, to be fair, my colleague Jim Murphy appeared before you and sent a letter to you that made that clear. Secondly, you made the point, perfectly reasonably, that if a text is published on the 19th and there is an agreement on the 21st, that is a very compressed period-I think that you said terrifyingly compressed. I think that is a perfectly reasonable point to make. As I said in my introductory remarks, I think that that reflects the difficult hand that Mrs. Merkel was dealt and the way in which she went about putting it into practice. I hope that you will accept that one consequence of the reform treaty, should it pass, is that the system of a six-monthly rotating presidency in which a country is dealt a hand for six months will no longer be the case. None the less, your point that there were only two days is a reasonable one. Obviously, our focus in the discussions that happened in advance of the 19th and afterwards, between the 19th and the 21st, has been on the red lines issue. I think it is important to establish that. You also said that the Committee had commented on the similarity or difference between the reform treaty and the constitutional treaty. It is important, for the record, to be clear what the Committee said. You referred, I think, to what it said in paragraph 45 but not what it said in paragraph 72. In paragraph 72, it was absolutely clear that "for those countries which have not"-underline not-"requested derogations or opt outs from the full range of agreements in the Treaty" the two treaties are substantially equivalent. It is important, not least in the British context, to put that on the table. If you remember, that was the matter of content to which I referred. Notwithstanding that point, in a matter of structure, the reform treaty is different for all European countries, because it does not collapse all previous treaties and create a new one. It amends existing institutions. That point is important for the record. In terms of the importance of the text that was published on Friday, the best area is to go through in detail the arrangements that are being put in place for justice and home affairs and the opt-in that will exist there. If you look, you will see that there is substantial detail in that area relating to how the opt-in will be protected in a whole range of areas: transitional, but also in respect of the Schengen agreement, of which we are not members. If you are asking me where there is a good example of where the legal text takes us, justice and home affairs is a good area to look at. Q318 Mr. Heathcoat-Amory: I put it to you, on the question of the 48 hours, that you just meekly accepted this German timetable. The Sherpas at several focal points-one of them is sitting next to you-were appointed back in January. No British Government trying to stand up for national interests should have accepted that we should not see a text at all-any text, that is what we were told last week-until 48 hours before it was all to be agreed. I find that a frightening abdication of national responsibilities and I am very surprised that you should seek to defend that. David Miliband: Can I come back on that? You have used the word "meek" and the word "abdication", which are both quite strong. I do not think that anyone would have described the performance of Tony Blair and Margaret Beckett as meek in the run-up to, and in the discussions at, the June Council. I think that you would agree with me, because you have studied these things-I do not mean just in your role as a member of the convention, but also before from other European treaties, intergovernmental conferences and councils-that the mandate that was agreed at the June Council was uniquely detailed. I think that everyone agrees about that. Far from airbrushing any difficult issues, the preparation and engagement up to 21 June, actually 23 June, did get into those texts in a very detailed and serious way. I assure you that there was neither meekness nor abdication, and I think that the benefit of having a detailed mandate will be seen as we roll forward, because we will see that the detailed mandate gets translated into detailed text and that it was worth engaging very substantively. Q319 Mr. Heathcoat-Amory: We will leave behind what I regard as a major dereliction of duty in June. We are now faced with an even more unsatisfactory situation. The European Scrutiny Committee describes in detail deficiencies in the red line and, despite your selective quote just now, it addresses the question as follows, "Even with the 'opt-in' provisions on police and judicial cooperation" and so on, "we are not convinced that the same conclusion"-that is to say, its being substantially equivalent-"does not apply to the position of the UK under the Reform Treaty." The text of the report actually says that these red lines are inadequate. We now look now to strengthen them. I have just asked you how they are strengthened in the recent text and you have not given me an answer. You referred to some elaborations of the opt-in on justice and home affairs, but on reading those, as I have just done, they seems to make the British position worse, because after five years those things are going to become judiciable under the European Court of Justice. So rather than moving our way, there seem to be substantial problems with the existing red lines; they are certainly not being strengthened. Do not forget that you have just given me chapter and verse about how the improvements have taken place. David Miliband: I am sorry, but I did not quote selectively. In fact, I quoted very accurately from paragraph 72 of the report. In respect of the transitional measures that you mentioned, you say that there is a transitional period of five years-there is-but you have not mentioned the fact that, at the end of the five-year period if some measures have not gone through the transition-in other words, those on which we have had the ability to decide whether to opt in or not-we have the chance for a block opt-out. So our red lines are protected. I am very keen that we get into the detail, but I hope that you will agree that to say that, after five years, it is done and dusted is only a partial rendering of what is actually agreed. After five years, for any measures that have not been through the transition-in other words, those which have not given us the case-by-case choice about whether to opt-in or not-we have the chance and are able to have a block opt-out. I think that that is an important strengthening of the red lines. Q320 Mr. Heathcoat-Amory: I am sorry, but at the minute the ECJ does not have jurisdiction. That is a settled position. To say that there is an improvement, as you are suggesting and that after five years it will not be done, is not an improvement. At best, we will maintain the status quo. It is certainly not an improvement. I want you to tell us in what way the red lines have become less ambiguous and have improved, to avoid the strictures that are laid down in the European Scrutiny Committee's report of last week. You have not given me an example. David Miliband: I am sorry, but I have just given you an example. It is a perfectly reasonable question to ask, but you have to engage with the answer. The answer is that when the Committee was examining Jim Murphy or others, none of the detail of these transitional measures was there-how they would be addressed, how the opt-in worked, what happened after five years-and now it is, in a way that makes it absolutely clear that, for each and every item, there will be a process that either has transition case by case, in which case we get to exercise our opt-in on each individual measure, or at the end of five years, if they have not all been through that process, we have a block opt-in or opt-out. That is, I think, clear evidence of the way in which the political agreement in the mandate for an opt-in for the United Kingdom across all JHA measures has now been followed through on to the details of the JHA. Just imagine if I had come here and said, "I don't know what's going to happen about the transition", which is all I could have said if I was appearing here before Friday. You would have had my guts for garters and would have said, "This is a gaping hole or a black hole in the red lines on defence." I do not know whether red lines can have black holes, but anyway you know what I mean. You would have said that the red lines were being breached. Actually, I can come here today and say, "Let's look in detail at this transition period." Chairman: A number of colleagues want to speak. Andrew Mackinlay first. Q321 Andrew Mackinlay: It is 14.55. I do not want to labour this point, but you say that this was available from Friday and you know I dispute that. But we are talking about a considerable volume of documentation, which has just become available-if you could find it. Listening to your exchange with Mr. Heathcoat-Amory, it seems that we are in difficulty in terms of scrutiny. You say that the red lines have been met and you have given examples, to be fair. We cannot hold this session indefinitely because of the time factor, but it is not unreasonable of us to ask you to undertake to write a letter overnight, which can be made available to press and public so that there can be some adjudication on this, of precisely where the red lines have been met in the documentation that is now available. If we do not have that, we will be talking in general global terms. Also, it is not unreasonable of us to pin you down. I ask you to give an undertaking that Parliament people, as it were, will have overnight a piece of paper saying, "We said this was a red line. This is met by article so and so, or protocol this or declaration that." Is that fair and reasonable? David Miliband: Completely. I am very happy to go through each of the four so-called red lines. Q322 Andrew Mackinlay: At least there will be clarity. We can also focus on any disagreement. David Miliband: Tomorrow, we will send to the Chairman a letter going through this. As I say, I will be appearing before the Scrutiny Committee next Wednesday. From my point of view, and I am sure that this is true for all sides in the European argument, the more people you can get to understand your point of view, the more they will agree with you. That is life in politics. There is nothing to be gained from not having the ventilation of the issues that you want. Q323 Andrew Mackinlay: May I just ask you this? Declaration 49, which I am sure you lie awake at night thinking about, is one that has been put in by the Kingdom of Belgium to cover its two chambers of Parliament and its three other constituent assemblies. If it is good for Belgium to put that in, surely there should be an appropriate declaration to cover the Scottish Parliament, Northern Ireland Parliament and Welsh Assembly. To use the words in the declaration, which you have acquiesced in-perfectly properly as well-the competencies exercised are not now, whether we like it or not, exclusively with Westminster. Why is there not a comparable declaration? Or should there not be a comparable declaration from the British constitution's point of view with the devolved Assemblies and Executives? David Miliband: The Chairman is shaking his head, but I hope that he will let me address this, because there is an important point here. First, I am sorry to disappoint you but I do not lie awake at night dreaming of Belgium and declaration 49. Mr. Keetch: I am very glad to hear it. David Miliband: My father was born in Belgium, but my Belgian allegiance knows some limits. In respect of the relevant constitutional arrangements, I think that you would agree that the Belgian situation is not the same as ours. We have a unique constitutional settlement with devolution in the UK. An important part of that is that the UK Government negotiate on behalf of the UK at European level. That is very important. Q324 Andrew Mackinlay: This is about Parliaments, and Parliaments enact. The Scottish and Northern Ireland Parliaments also enact European legislation. In any event, you Ministers go holding hands with Scottish and Irish Ministers when you go to- David Miliband: May I make a point now? The UK Government negotiate in Europe on behalf of all the citizens of the UK. The UK Parliament passes or does not pass the treaties. Given the constitutional set-up in the UK, the devolution settlement in the UK requires-that makes it sound more legal than it is-or has the benefits of providing mechanisms for the devolved Administrations to have their input in the discussions that take place before Ministers go to the European Council or elsewhere. There is the Joint Ministerial Committee on Europe, which I chaired last week with representatives of the three devolved assemblies. That Committee focuses more on day-to-day policy business, but it also looks at issues including the reform treaty. I will look at the Belgian declaration, but I want to ensure that we have our own system that reflects our own circumstances. Q325 Mr. Keetch: May I come back to the politics of this? You said today that the Prime Minister has said consistently that he wants Parliament to make the decision on the ratification of this particular treaty. You said that the treaty was designed to increase the role of national parliaments and how they decide they should be party to that. When the Europe Minister came before us on 12 September, Mr. Mackinlay, Mr. Pope and I asked him whether the Bill that would be presented to Parliament would allow Parliament to say that it required a referendum. Mr. Murphy was reasonably helpful at that meeting, but he has since written to us, on 2 October, saying, "I do not anticipate any provision relating to a referendum being included in the Bill." He then goes on to say, of course, that any Bill coming in to Parliament could be amended. There are people around the table who have had greater experience of Parliament and the Commons than you or I, but you know as well as I do that if it is not actually part of the Bill, the chance of an amendment being taken-even if it is from an opposition party or a group of senior Back-Bench MPs-is dependent upon a process which is difficult, to say the least. Would it not be easier for the Government to include in the Bill a straightforward vote in the House of Commons, so that the national Parliament could have its say on whether it wanted to allow the people to have their say? David Miliband: Take it from me, you will have the chance to vote on this matter as an individual MP; I and all of us will have the chance to have our vote. I have never seen a suggestion anywhere that the Government are trying to pretend that the debate about a referendum is settled by refusing to allow an amendment to the Bill-you mentioned politics, I cannot think of worse politics. The reason that we are cautious is simple. First, Bills are drafted for what the Government want them to do, not with respect to amendments. Secondly, it is ultimately for the Speaker to decide whether an amendment should be accepted. It is important that I and others do not step on to his rightful terrain. The Maastricht treaty did not have a referendum built into it. David Heathcoat-Amory will remember well whipping many of his colleagues against the referendum on that treaty. He did an excellent job as Deputy Chief Whip and ensured that the proposed referendum was defeated handsomely in 1992. The treaty did not have a referendum written into it, but, nevertheless, it was written in a way that was amendable. I cannot conceive circumstances under which I would come before the Committee trying to explain why a vote had not been allowed to happen. Q326 Mr. Keetch: So let me be clear on that. If I table an amendment to the Bill with other colleagues, allowing the House of Commons to vote as to whether there should be a referendum, you will not get the present-day Labour Chief Whip and Deputy Chief Whip to do the same job to try to defeat that initiative? David Miliband: David Heathcoat-Amory did the job of defeating the amendment, not stopping it being tabled, so I would not want to- Q327 Mr. Keetch: But you will allow a vote to come before the Chamber of the House of Commons as to whether there should be- David Miliband: It is not up to me and I have to keep saying that, as this is a parliamentary Committee and I cannot start saying that I am making the decisions. I do not think that I could be more plain: I expect to participate in a debate and a vote on a motion to have a referendum on the passage of the reform treaty. I do not think that anyone should expect otherwise, but I will not say today that I have decided that it is your amendment rather than someone else's amendment, and I am certainly not going to say that I have decided, in the place of the Speaker, what should happen and when it should happen. I have no doubt that your strong support for the treaty will find a chance for full ventilation at the appropriate time. Mr. Heathcoat-Amory: As I keep being mentioned- Chairman: I will allow you to come back- Q328 Mr. Heathcoat-Amory: May I make one simple point? The most important provision of the Maastricht treaty was that on the euro, the single currency. The Conservative party and, indeed, the Labour party are committed to a referendum on that aspect of the treaty. That is why we did not have a vote at the time as a referendum. We are still committed to the referendum on the euro. David Miliband: So are we. Q329 Mr. Heathcoat-Amory: It is baffling to some of us that on the constitutional treaty, which is the political equivalent to that, you are denying a referendum. David Miliband: This is good stuff for the Floor of the House and I apologise for tempting you back on to the topic. Chairman: Can we move back to the draft treaty rather than Maastricht treaty? Q330 Mr. Hamilton: I received a letter from a constituent a couple of days ago on this matter; I am sure many MPs in this room have received such letters. He said that he felt betrayed as 18,500 people voted for me at the last general election on the basis of a manifesto commitment that we would have a referendum on the European constitution that was proposed. Now, we have a treaty that is tantamount to the same thing as the original constitution. He backed that up by sending me an article that was written by one of our parliamentary colleagues-who shall remain nameless-saying that the treaty is actually the same thing, and therefore it was a gross betrayal of every one of those 18,500 people that voted for me at the last general election, and of those who voted for any other Labour MP. I dare say that his sympathies were not particularly towards our party, but I want to understand why it is that the British public-many, many of the British public, either deliberately or perhaps not deliberately-believe that this treaty is identical in every respect to the constitution, with one difference-it is called a treaty and not a constitution. What are we doing, and what are you doing, to make sure that the public understand that this treaty is not the same-it is substantially different-and that, given that we had no referendum on the Maastricht or the Nice treaties, we do not need to have a referendum on this? David Miliband: I have always believed that for the last 10 years the Government have been better at substance than at presentation. What you are saying is that we need to do a better job at presentation-I never understood why Alastair Campbell was paid more than I was- Andrew Mackinlay: I cannot understand why he was paid more than me either. David Miliband: Is that a matter of presentation or of substance? Andrew Mackinlay: And value David Miliband: On value, I am sure you are right. Andrew Mackinlay: Twice the amount. David Miliband: Twice what? Ms Stuart: Girth. David Miliband: Oh girth, right. Let's leave the girth out of it. I think that we are in truth at the beginning of a process in which the public are being introduced to the detail of this treaty. After all, there was no legal text until Friday. As I said in an earlier exchange, to anything that I said about how we were protecting this, that or the other, or how we were advancing this, that or the other, someone would say, "Yes, but there is no legal text." I believe that the more discussion, the more debate in Committees like this, but also eventually on the Floor of the House, that we have, the more we will demystify and debunk the myths that are associated with it. That will also bring to light something that came up in Foreign Office questions yesterday: our voting weight in European Councils, as a result of this treaty, goes up, not down. It goes up by 50% plus, so there is a stronger British voice. I also believe that it is relevant that there will be fewer Commissioners-many people have complained for a long time about Brussels bureaucracy. There are nine fewer Commissioners, nine fewer offices, nine fewer sets of cars and all the rest of it. Those facts would be a mystery to your constituent and to mine. I think that the facts are the only answer, and that is what we have got to try to get across-hopefully in a way that respects the questions that people are asking. It is perfectly respectable for people on this Committee to ask hard questions about the treaty, and we have got to answer them. Q331 Mr. Hamilton: Do you not accept that the problem we have is that, the more we read things in the press by commentators and, obviously, by the Opposition-who are doing quite a good job of telling the public that the treaty is exactly the same as the constitution-the perception in the public mind will be, "You promised a referendum on a constitution, this is the same thing"? David Miliband: Yes, but it is not, as you yourself said. Q332 Mr. Hamilton: But we are failing in telling the public that. David Miliband: Well, I am sure that you do not want me to come back and say that we have doubled the size of the Foreign Office press office in order to get our message across. I do not think that that is the conclusion that I would draw. I think that if you are saying that we have to do a better job of explaining it-fair do's. I am not sure how much of this is being run by the Opposition and how much is not being run by them, but we will leave them out of it. They are more jumping on the bandwagon than driving the bandwagon, but we will leave that to one side. There are, of course, members of the Opposition who are not taking the same sort of cataclysmic view of the consequences for the UK as a result of this treaty. We must ensure that your constituent gets an answer. As a matter of interest, how many letters have you had about the European treaty? Mr. Hamilton: Not many. Mr. Keetch: There is a postal strike on. David Miliband: That is why there are not enough signatures on those petitions; the postal strike is stopping them. Q333 Sir John Stanley: You began on a very welcome note by saying that you wish to treat the Committee seriously and I am sure that you will respond to this question seriously and spare us the knockabout stuff as to who whipped in which way for the Maastricht treaty. Is not the key issue whether this particular treaty is of a different order of constitutional magnitude compared with any other since we entered the European Union? There are a number of points on which one could argue that that is the case but I would like to highlight one that I thought was extremely well expressed by the European Scrutiny Committee in its unanimous conclusion, in paragraph 76: "We wish to emphasise that the proposals in the Reform Treaty raise a serious difficulty of a constitutional order"-I stress the phrase "of a constitutional order"-"in as much as they appear to impose, whether by accident or design, a legal duty on national parliaments 'to contribute actively to the good functioning of the Union' by taking part in various described activities. National parliaments, unlike the European Parliament, are not creations of the Treaties and their rights are not dependent on them. In our view, the imposition of such a legal duty on the Parliament of this country is objectionable as a matter of principle and must be resisted." Is not that an absolutely central constitutional point? Although in previous treaties we have accepted competencies going to the EU that, when translated into directives give primacy to EU law over the law passed by our sovereign Parliament, is it not the case that never before has our sovereign Parliament, by treaty from the EU, been placed under a permanent, open-ended obligation to fulfil certain obligations towards the EU? If that is not constitutionally important and worthy of a referendum, I must ask what is? David Miliband: I agree with you completely that the issue is about constitutional magnitude-I think that that was the phrase that you used. You are absolutely right that the test of whether there should be a referendum concerns the fundamental constitutional balance of power. The constitutional magnitude that you describe is a good way of putting it. I wholeheartedly agree with the sentence: "National parliaments, unlike the European Parliament, are not creations of the Treaties and their rights are not dependent on them." That is absolutely correct. As I said earlier, it is for Parliament to decide how it contributes to the functioning of the EU. What I tried to say and perhaps did not say well enough earlier is that the allegation that the treaty tells Parliament what to do and imposes duties arises from the phrase stating that Parliament shall contribute to the effective functioning of the Union. My understanding and the understanding of my colleagues is that that means that Parliament shall be able to choose how to make an effective contribution. You and I would welcome, Sir John, the fact that, although we might argue about whether the role for national Parliaments should be larger, for the first time the constitutional balance of power in Europe gives a role to national Parliaments, which has not existed in this way before. It is for Parliament to choose how it exercises the so-called yellow card, orange card system. It is absolutely right that we should make clear our understanding-an understanding that you and I share-that the choice about how Parliament shall play this role is made in Parliament. I hope that you feel, not just by my answer, but by the fact that I specifically raised this issue at the beginning of my remarks, that I take it as seriously as you do and we are going to follow through to ensure that that understanding is recognised. Q334 Sir John Stanley: Can you give us one single precedent under EU treaty legislation where such a legal obligation-open-ended and divorced of any specific subsequent directive-has been placed on our national Parliament with regard to its sovereignty? David Miliband: I am saying that the treaty does not do that. I am sorry to get into this, but the word "shall", it turns out, has different meanings in different languages, and the other languages in which the treaty is written make it clear that "shall" does not therefore mean, "We are telling you what to do." It makes it clear that it is for the Parliaments to decide how to do that. Our clear view, which is shared by colleagues, is that it is for this Parliament to decide how it does its business. Q335 Sir John Stanley: May I say, Foreign Secretary, that you are really saying that we agree on this and-this is an absolutely crucial and noble point-that this all hangs, apparently, on a view of interpretation and there are different interpretations? David Miliband: No, I have not heard anyone express or determine an alternative explanation. The explanation is that we shall determine our own procedures as MPs and as Parliament. Andrew Mackinlay: I think- Chairman: Just a minute. David Miliband: For better or worse I am not a lawyer. Perhaps Mr. Thomas would like to add a legal point. Mr. Thomas: The point to make is that the text is not yet final. Q336 Sir John Stanley: Precisely. That has blown it out of the water. You are out of the water, Foreign Secretary. David Miliband: No, quite the opposite actually. The negative interpretation that has been put on the word "shall" is quite erroneous because it is for Parliament to decide what it shall do. Q337 Ms Stuart: For a lawyer, the meaning of the word "shall" is absolutely clear, and there is no question of a negative interpretation or otherwise. I want to make it clear that the English text will say "will" and the Government, if they come back in December and the text reads "will", should not herald that as a great triumph of Britain having secured another victory. They will simply have put on the face of the treaty what should have been there all along. David Miliband: We will make it clear that it is for Parliament to decide how it shall do its business, and we all agree on that. Whatever view we take on the reform treaty, it is for Parliament to decide what it shall do. Q338 Mr. Moss: The question here is on the interpretation of the French word "contribue" from the French text, and there are those who will say that it has the same meaning in English as "shall contribute." The people working on this have declined to be definitive because they have no political authority at this moment. Those legal people and the translators are unlikely to address that issue until after the intergovernmental conference, so where does that leave them with regard to political authority? David Miliband: All of the member states are clear that we are in favour of Parliament being clear about its own responsibilities and fulfilling them. You quoted from the French text and I am not going to start competing with regard to my French, never mind my legal knowledge. However, the clear view both of our lawyers and others whom we have talked to is that we can make it absolutely clear that it is for Parliament to decide how it shall exercise its functions. Q339 Mr. Purchase: I am somewhat fed up with this "Britain against the world" type of attitude, which we are again hearing today. It seems to me that history tells us that alliances and co-operation are the way to prosperity and peace. I do not want to get into a wrangle with anyone about the precise meaning of a disaggregated sentence. I think it is important, Foreign Secretary, that earlier you said that you would have been prepared to campaign for a constitutional treaty, had there been one. I shall make one point on which I feel strongly; that we are opting out of the charter of fundamental rights. Regrettably, I continue to be a subject of a monarchy in this country. I want my fundamental human rights. Will this legislation, when it comes before the House, give the opportunity to opt into matters such as our fundamental human rights, or will we continue to be second-class citizens in Europe? David Miliband: There is no question of any citizen of Britain being a second-class citizen. Every single one of the rights in the charter of rights exists already. It is a record of existing rights, not a vehicle to create new rights, so there is no question of anyone being a second or third-class citizen. You have your rights and they are protected. What the protocol for the charter says is that the charter does not extend the remit of the European Court of Justice. That is an important point because the rights that you have here in a whole range of areas are established by national and international law, but they are not established via the charter. Q340 Mr. Purchase: Workers' rights are substantially less than they would be under the charter. David Miliband: But Ken, that is a matter for the UK Parliament. It goes back to our earlier discussion. If we want more rights for UK workers-you and I would agree that we have extended that significantly over the last 10 years-that is a matter for this Parliament to decide. The Prime Minister was talking two weeks ago about extending maternity leave, which is something that this Parliament should extend; you and I agree about that. The protocol to the charter reinforces that. Q341 Sandra Osborne: May I follow up that question? Is it not the case that far from being regarded as meek within the EU, some of the major countries regard us as nothing short of troublemakers because of our lack of enthusiasm for further integration? That is something the Committee heard when we were recently in Portugal. If there were a referendum, is it not quite likely that people would be voting more with regard to what our position in Europe should be rather than the actual treaty itself? Indeed, some people, including our former Prime Minister at one stage, felt that it was high time we settled this matter once and for all. What is your view of that? David Miliband: I think I am right in saying that in the French referendum quite a lot of people voted on what they thought of President Chirac rather what they thought of the French constitutional treaty. Your political instinct is as good as mine as to what people would vote on in a referendum. My own view is that quite a lot of the people who are antipathetic to the activities of the European Union would remain antipathetic to them; they have remained so post-1975. In respect of the question how we are regarded in the rest of Europe, I think it is fair to say that the agenda has been set in this country in respect of issues like climate change, welfare to work and economic reform. Those are issues that are being taken up at European level. I would not sign up to the description of us as "troublemakers", but we are seen as extremely vigilant in advancing our national interest. Ten or 15 years ago perhaps-but maybe not, actually. It has always been other countries that have had a reputation for being very clear about their national interests. This Government is clear about that; the fact that we have a positive agenda is very significant. Many people in Europe would say that British ideas are playing an important role in the European Union at the moment, although it is probably better that we do not boast about it because that carries with it its own problems. Q342 Ms Stuart: Just for record, Foreign Secretary, can I clarify one or two things? You mentioned that one of the points of a referendum is the constitutional significance of the document. But am I right that in 2005 the Prime Minister's reasons for giving a referendum made no mention of the constitutional significance? It was because this was the right thing to do with an important document. David Miliband: Just for the sake of accuracy, he did make mention of the constitutional, or otherwise, nature of the document but said it was not that that induced him to support a referendum. I think he used the phrase "clear the air". Q343 Ms Stuart: So it is a Labour Government who accept the fact of a referendum on something, not just because of the constitution. Secondly, just for the record, when we succeeded in having a referendum outcome that we wanted to see in Wales and Scotland, am I right in not recalling a single Government Minister who suggested that the people did not know what they voted on or that they had voted on something else? In other words, the British public have a recent history of a mature democracy that knows what a referendum is all about. David Miliband: I referred only to the French public. Q344 Ms Stuart: Indeed. We regard ourselves as a mature democracy that knows how to deal with referendums. David Miliband: Completely. Q345 Ms Stuart: Fine. I now want to move on to something that has bedevilled this whole debate. Whenever we try to explore a subject we are moved on to the merits of the document itself. You demonstrated that in your answer to Mr. Hamilton. He wanted to know why we are not having a referendum and was quickly moved on to the virtues of the document. David Miliband: With respect, Gisela, he actually asked me why my view was not more popular. Q346 Ms Stuart: In that case let us just look at two words which we keep hearing. One concerned the constitutional approach which has been abandoned. I am really grateful that today, for the first time in my recollection, you have given a definition. You say that it is structurally different. The content is different and the consequences are different. Structurally, may I respectfully suggest, even the Commission in 1957 agreed that Euratom was one of the two founding documents. The only reason why the constitutional convention did not try to incorporate Euratom is because we knew that France and Germany would never agree, so we annexed it as a protocol. The argument that this is as much a reform treaty as the original constitutional treaty was is still correct. David Miliband: I do not think that that holds. I do not agree with you about that. In my earlier answer I inclined, in parenthesis, towards the Euratom argument which you advanced earlier. I think that you would accept that Euratom is very specific. You described it just now as a protocol. I think that you would accept that the proposed constitution-the now dead, defunct and dead as a parrot constitution-proposed to take all the treaties that governed life and work outside the Euratom context and collapse them into a single new document. It was, in that sense, a re-founding of the European Union. Q347 Ms Stuart: But it left one out. So it amended the ones before. David Miliband: Yes, but hang on. Everything that the European Union did, other than the Euratom business, which you yourself said is a particular sort of protocol- Q348 Ms Stuart: No. I said it was a negative approach. What I am saying is that the constitutional treaty was a big reforming treaty whereas now we are doing it slightly differently. David Miliband: I think that you will agree with me that the proposed constitutional treaty was legally unprecedented in that it rolled up all previous treaties, other than Euratom, into a new document. The new treaty is not legally unprecedented. It is precedented in the sense that it reforms existing institutions. So in structural terms we are on legal ground that we have been on before-in other words, existing institutional practices revised. You have then got the point that was raised by Sir John Stanley. I think that this is trueญญ-in terms of the content of the treaty, in legal terms, we have done what the reform treaty proposes to do before. We have amended the workings of the European Union. The second point is whether in the content there is some fundamental constitutional shift in the balance of power-the magnitude which Sir John referred to-that requires us to have a referendum. The question of joining the euro is a matter of content. That is a substantive policy item. The Prime Minister said again today that if any Government were to propose to join the euro the content of that decision would trigger a referendum. Our case is that the content of this proposed treaty has nothing in it that reaches that constitutional bar. There is then the question of consequences. Q349 Ms Stuart: Let us agree that we disagree on the structure. In terms of the structure you quite interestingly said that it settles the debate that this is a coalition of nation states. At the same time in the introduction, much to my surprise, you said that national security is now a matter of the nation state and you thought that this was a very important statement. I always thought that it was quite clear that whatever is not in is not EU competent. Are you now saying that we need to state what is a matter for the nation state? David Miliband: No, I am not saying that. I am saying that it is good that it is clear and established. People say all sorts of things about the ECJ and other institutions. We know where we stand. Q350 Ms Stuart: Mr. Mackinlay asked for a list of the red lines and their vulnerability. Could I ask you to add something to that? With the open derogations, I know what Schengen is all about, I can tell whether we are in or out, I know what the euro is all about, I can tell if I am in or out, but the problem with a lot of the opt-ins and opt-outs and derogations is that they are extremely vulnerable to the European Court of Justice and the rulings thereof. We know that we are also very vulnerable to political negotiations. The European Court of Justice has, as part of its mandate, that it should interpret rulings to further deeper political integration. I would therefore be extremely grateful if, when you list the red lines, you will also list your assessment of their vulnerability and where those red lines could be changed. David Miliband: Perhaps, reflecting on the slightly different points of view that we take on this, I might list the strengths of the protocols, opt-ins and other measures that we have achieved. One person's strengths are another person's weaknesses. What Andrew Mackinlay set us was tough. He gave us 24 hours to write to you. We will give it our best shot. We will go through each of the red lines and explain our understanding of why they are protected. Q351 Ms Stuart: And in what sense they are new might be helpful as well. David Miliband: We will do our best. You can always ask us for more. Chairman: We now move on to some questions about the ratification process. Q352 Mr. Keetch: We now know that we are not going to have a general election for the foreseeable future, so can you tell us, Foreign Secretary, what is your timetable? Assuming that the treaty is signed in December, what is the timetable for its coming before the House as a Bill and, assuming that there is not a referendum, when do you hope that the whole thing will be signed? David Miliband: The truth is that there is not a timetable yet. I think that I said in my first oral questions in July that we would proceed promptly. That remains the case. Let us get to December and ensure that the business managers and others get into this, but I stand by that. Q353 Mr. Keetch: Do you have any idea about the other nation states? David Miliband: The Foreign Ministers discussed this matter in our formal sessions and in the informal Gymnich that we held in Portugal in September. I think that most, if not all, of them would sign up to the notion of proceeding promptly. I have not seen anyone who is seeking a delay. I think that there are different political issues in different countries, not least in respect of elections that they might need to have. However, we have this 18-month window to get it done and I think that that is what all countries are committed to doing. Q354 Chairman: To be clear, at the moment there is only one out of the 27 EU countries, the Republic of Ireland, which is obliged to hold a referendum. David Miliband: But the Republic is obliged to have a referendum by virtue of its constitution. Every country with a choice is putting the question to its Parliament. Q355 Chairman: And the intention is that, by the middle or the end of 2008, in good time for the European Parliament elections in 2009, the ratification will have taken place in all 27 states. David Miliband: Are you asking me or saying that that has been said? Chairman: I am asking you. David Miliband: Has that been said somewhere? I cannot remember. Ms Morgan: The aim is that all member states will try to ratify the new treaty in time for the new Parliament in June 2009. Chairman: Thank you. We have spent some time on the role of national Parliaments, but there is one more question from Mr. Malcolm Moss. Q356 Mr. Moss: Returning to the role of national Parliaments, the draft reform treaty seeks, as did the constitutional treaty before it, to strengthen the role of national Parliaments in policing the subsidiarity principle. Controls were introduced under the constitutional treaty that became known as the yellow card mechanisms and similar checks and balances are in the reform treaty, which have become known as the orange card mechanisms. Do the Government have a view as to which of those mechanisms they prefer? Will they work in parallel or separately and when will negotiations on a definitive decision take place? David Miliband: I shall be glad if we have time to address that-even if it is only a short time, because I agree that it is significant issue and a significant step forward in the role of national Parliaments. To be absolutely clear, we do not have to choose between orange and yellow cards. As Parliament, we have both at our collective disposal. It is not a matter of choosing which we prefer; we like both, because they both give a say to national Parliaments. Chairman: Thank you. Gisela Stuart has some questions on the common foreign and security policy. Q357 Ms Stuart: Before that, what provision is there for the possibility of the treaty not being ratified in one EU country? Mr. Keetch: What happens if somebody says no? Does the whole world fall apart? David Miliband: If the reform treaty is not passed? Mr. Keetch: Yes. David Miliband: The reform treaty requires unanimous passage and ratification in every European country, as does every other treaty. We would be back to square one. Ms Stuart: The dead parrot. David Miliband: No, we would not go back to the dead parrot, we would go back to the pre-existing, current treaties. Chairman: Back to Nice. David Miliband: Pre-Nice, I think. No you are right, to Nice. Q358 Mr. Hamilton: Foreign Secretary, may I move on to the declaration on foreign and defence policy that is attached to the treaty? When your colleague, Jim Murphy, gave evidence to the Committee last month, he said that the declaration had absolutely no legal force. What is the point of it? David Miliband: The political declarations can be seen only in the context of the legal framework within which they operate. It would benefit the Committee, and people watching, I hope, to know what the amendment to article 11 actually says, because I think that it debunks some of the allegations that are being made. It says, "The common foreign and security policy is subject to specific rules and procedures." The significance of that is that it is in a separate treaty from all the rest of EU business. It is ring-fenced, which I think is important, not just as Foreign Secretary but as a Member of Parliament. It then says, "It should be defined and implemented by the European Council and the Council acting unanimously". We may talk about sanctions and the patrolling of the boundaries, which are referred to, but I think that that statement is important too. There is a second important point, not least in light of the discussion that I just had with Gisela about the ECJ. Article 240a says, "The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions." Those are certainly two matters to which we shall draw attention in the letter which Andrew Mackinlay has requested, because they provide the legal context. Foreign and security policy is therefore an issue of national veto and unanimous agreement. In other words, the CFSP discussions take place in a political framework-or rather, within a legal framework for political decision making. The declarations are worth while, even if they do not have legal force-Jim was right that they do not have such force. They are worth having because they set out the views of heads of state about the way in which CFSP should work. Q359 Mr. Hamilton: Jim Murphy went on to say that, although the ECJ will not be empowered to adjudicate on foreign policy decisions under the treaty, it would be able to adjudicate on the boundary between the CFSP and other EU policies. Can you give us any examples of how that power has been used in practice in the past? David Miliband: Obviously, there is no CFSP example yet, because the treaty has not been passed. Mr. Hamilton: I mean the power to adjudicate. David Miliband: Yes, I understand. It might be instructive if I were to read something out, although I shall not do so as a lawyer. There is a case in relation to a small arms and light weapons decommissioning project. You can see why that raises boundary issues. The Commission claims that that area falls within its competence because of its development aspect and because of its connection with conflict prevention. Actually, the advocate-general of the much mentioned ECJ has recently published his opinion, stating that the case would be thrown out, as the planned decommissioning project clearly serves the purposes of preserving peace and strengthening international security-the preserve of member states and the Council, not the Commission. I think that that is an interesting example. It is almost doubly interesting, because it comes from the ECJ, which is alleged always to be pushing the other way. This is an example where, to absolutely clear, the ECJ has to issue its final opinion in November, but the advocate-general has issued this opinion. It addresses directly the suspicion-that does not exist in your minds, but might exist in some minds-about what policing the boundary actually means. What we have here is the only case that I know of where the court is quite clearly in the direction of saying that is a matter of international security. To finish the point-I had the chance earlier to refer to this obliquely, and it is important-the ring-fencing of common, foreign and security policy in its own treaty, is not just important because it is ring-fenced; it is also important because the two treaties of the European Union will have equal status. The treaty establishing CFSP-what will now be the treaty on the European Union-will not somehow be an inferior sibling to the treaty on the function of the Union. It will sit proudly next to it. It is ring-fenced, but it also has significant integrity as the intergovernmental pillar of the Union. Mr. Stuart: Just like Euratom was. David Miliband: I knew that Euratom would come back to haunt us. Q360 Sir John Stanley: Foreign Secretary, in your reply to Gisela Stuart, you ended critically short of some very important wording, when you referred to article 11. You read out to Gisela Stuart that "the Court of Justice and the European Union shall not have jurisdiction with respect to these provisions", and then you stopped. The remainder of the sentence reads, "with the exception of its jurisdiction to monitor the compliance with article 35 of this treaty, and to review the legality of certain decisions provided for by the second paragraph of article of 240A of the treaty of the European Union". I am well aware that- David Miliband: Just for the record, you are absolutely right that I stopped reading at the word "unanimously", but I went on to say that there were issues of boundaries and sanctions- Q361 Sir John Stanley: I acknowledge that, Foreign Secretary, but in the quotation, you stopped short, before we got to "with the exception of"-which I want to come to, and to which Mr. Hamilton rightly drew attention. Without getting into the significance of those two exceptions and their width, would you not agree that one of the huge difficulties in this area, where you have acknowledged exceptions stated in the treaty, is that if the European Court of Justice decides that it is within its vires to accept that a particular case put to it of non-compliance is within its jurisdiction, that ultimately if the court decides to take it, and produces a decision on it, which is legally binding on all member states, that is it, unless the treaty gets amended. I would like to put it to you-it would be very reassuring for many people, and particularly, perhaps, for this Committee and the House generally-whether you see any prospect in the further negotiations of being able to end that sentence, where you ended your initial quote with respect to these provisions, and delete from "with the exception of"? David Miliband: But the quotation that you read out included the words "article 240A". However, article 240A is precisely the article that says-this is directly relevant to your point--"the Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to common, foreign and security public, nor, with respect to Acts adopted on the basis of those provisions." Precisely the quotation you read refers back, in words of one syllable, as follows, "shall not have jurisdiction"-which has more than one syllable-"in this area". There is a boundary issue and an issue about the way in which sanctions should be done. We cannot pretend that that matter does not exist, because it does. But the lock that you are seeking is precisely in article 240A. Q362 Sir John Stanley: Could you just further clarify that, because that is not how I read the letter that you sent to the Committee on 2 October? The first exception is on the boundary issue and the second exception, as I understood it from your letter, was as follows, "The second limited area of ECJ jurisdiction relates to the right of natural or legal persons to ask the ECJ to review the legality of a CFSP decision which imposes sanctions on them." David Miliband: Sanctions, yes. It is about sanctions. Q363 Sir John Stanley: Exactly. That is the point I am making. It is not about the blanket non-involvement of the European Court of Justice in the CFSP, which is what you said just a moment ago. If you ended with the word "provisions", then it would be absolutely clear. I should just like to ask you whether you will consider ending that sentence at "provisions" and not include the two exceptions. David Miliband: I am very happy to arrive with more legal detail about that, because the sanctions are different from the policy. Q364 Chairman: Perhaps we can have a note on this. David Miliband: Okay. Andrew Mackinlay: On a point of order. Chairman: No. I have a list of people. Andrew Mackinlay: I just want to ask a question and clarify something. Chairman: No. You put yourself on the list. I have four other hon. Members- Andrew Mackinlay: On a point of order, Chairman, I just want to ask- Chairman: It is not a question of order. Andrew Mackinlay: You have not heard me yet, have you? Chairman: No. Four of your colleagues have already indicated- Andrew Mackinlay: Chairman, I could have dealt with it by now. Chairman: No. Q365 Andrew Mackinlay: All I want to ask is, when they refer to articles do they mean articles of the treaty, which exists, or the draft treaty? Could you just clarify that? It is difficult to follow. That is why it is a matter of order. David Miliband: It depends which treaty I am referring to. Chairman: We will get a note that will clarify the answers. Andrew Mackinlay: If he can make it clear, then we can know and look for cross-references. That is not unreasonable. Chairman: The next person to speak is David Heathcoat-Amory. Q366 Mr. Heathcoat-Amory: Secretary of State, we are discussing an absolutely crucial red line, if it is about the freedom of action of British foreign policy. You said that our position is defended by the declaration. David Miliband: No. I said it is defended by the treaties. Q367 Mr. Heathcoat-Amory: Well, the declaration says that the provisions in the treaty set up an enormously complex foreign policy. The declaration says that it does not affect the responsibilities of a member state, as they currently exist, but the formulation and conduct of their foreign policy. David Miliband: I am sorry, but that is not a declaration. What I have said is that the legal protection comes from what is in the treaties. I agreed with Fabian that the political declarations are not legal, they are political. The protection stems from the legal protection. Q368 Mr. Heathcoat-Amory: Since we are talking about the treaty text, can I mention-that independence would be undermined by the solidarity clauses? Article 11 in the existing treaty is replaced by a very much expanded text about how the member states shall give mutual solidarity to each other in this field of foreign policy. In one particular respect, it actually confers an obligation on us. We know that in the existing treaty member states "shall support the Union's external and security policy"-that is in the existing treaty on European Union-but, crucially, the new treaty adds to that, "and shall comply with the Union's action in this area." It is that word "shall" again. We discussed that earlier, on national Parliaments contributing actively to the good functioning of the Union, and you claimed "shall" is only a prediction. We take the common-sense view that that is an instruction. That must clearly be the case in the new text, which says, in respect of the field of foreign policy, "shall comply with the Union's action in this area." That cannot be a prediction. That, quite clearly, is a duty. David Miliband: Just to follow Andrew, where are you quoting from? Mr. Heathcoat-Amory: Article 11. Andrew Mackinlay: A reasonable point, was it? Disgraceful. David Miliband: Article 11 of what? Mr. Heathcoat-Amory: Article 11 of your treaty. That is what we are talking about is it not? David Miliband: Which one? Mr. Heathcoat-Amory: It is both article 11 in the existing treaty- David Miliband: Are you reading the amended treaty? Which version are you reading? Mr. Heathcoat-Amory: It is both. It is article 11 in the existing treaty and it is going to be article 11 in the reform treaty. David Miliband: I know that it remains article 11. I am asking you which version. Q369 Mr. Heathcoat-Amory: I will give you time to look it up. It adds the words "and shall comply with the Union's action in this area"-"this area" being the foreign and security policy. Please do not pretend this time that "shall" means some sort of airy prediction about what may happen in the future. Clearly, it is an instruction to comply. I put it to you that that is in treaty law and conflicts with any supposed safeguard we have not to comply. David Miliband: No. I am very sorry. We have unanimous decision making on the common foreign and security policy. If we decide that we agree with something, we shall obviously support it. If we do not want to support it, we shall not agree with it. So it will not happen. It is simple. We have a unanimous requirement for any common foreign and security policy. We are not going to vote for something if we do not support it. It is just common sense. Q370 Mr. Heathcoat-Amory: No, it is not common sense. Have you ever heard of general elections in this country? Let us suppose that there is a foreign policy and a change of Government. There might have been one this month, and a new Government do not want to comply with the Union's action in this area as laid down and let through by the previous Government. No election would change that under the wording because it says that we-the United Kingdom-shall comply with the Union's action in this area for an unlimited period. That is a clear restriction on the ability of this country to formulate and crucially change its foreign policy, perhaps after a general election and clearly undermines any safeguard that you pretend we have about the autonomous decision making for which you hope. David Miliband: I am sorry. I do not recognise your description, unless you want to make the case that the whole of the European Union involves commitments that, after a general election, could only be got out of by getting out of the European Union. That is a different kettle of fish. CFSP is an area of unanimous, veto-making power. The general election point has nothing to do with the text. It is about the European Union as a whole. Q371 Mr. Heathcoat-Amory: I make a simple point that a new Government might want a new policy. They might want to change our foreign policy. They might want to get troops out of Iraq or put them back in. David Miliband: That might be true. Hang on. Q372 Mr. Heathcoat-Amory: Let me finish this point about Union policy that has been laid down by the previous Government. There will be no way that we can change our policy because-to complete the phrase-we shall comply with the Union's action in this area. How can you pretend that the wording is in any way consistent with a supposed safeguard about the autonomy and freedom of action of British foreign policy? That is a crucial red line that certainly the last Prime Minister said that he wanted to protect. David Miliband: And this Prime Minister says that he wants to protect. Let us be absolutely clear about matters. I am sure that you will want to correct the record. Your mention of Iraq and decisions about the employment of British troops in Iraq has absolutely nothing to do with the European Union. Q373 Mr. Heathcoat-Amory: Of course, it does not. I am giving hypothetical examples for the future. David Miliband: It would not apply to the future either. If British troops are to be deployed or not in Iraq, that is a matter for this Parliament not just for any Government. Let us take the Iraq thing off the table for the purposes of our discussion. There is a big difference between you and I, but it is not actually about this clause in foreign policy. There are all sorts of things that you do not like about the way in which the European Union works. Some of them cannot be changed after a general election, except by withdrawing from the European Union. Some of them we can try to renegotiate. If your party wants to renegotiate the commitment to give everyone four weeks' annual holiday, fair enough. But that is not a point about the specifics of foreign policy, which has a unanimous agreement. You could make a stronger point than that if you wanted to make an anti-EU argument, say, in areas of qualified majority voting and general election changes. However, let us leave that to one side. In respect of foreign policy, we have a requirement that every nation must sign up to anything before it goes ahead. It then seems perfectly reasonable to say that you sign up for it because you want to support it. It would be odd to sign up for it and not support it. Chairman: I think we have to move on, because there are other areas to cover, including the role of the high representative and the external action service. We have spent a lot of time on this matter. John Horam has been extremely patient and I will bring him in now. Q374 Mr. Horam: Coming down from this theological and legal level, Foreign Secretary, presumably the simple intention behind all this is that the Committee's foreign and security policy should have a more effective impact. Presumably, behind the parabola of Euro-jargon, the intention is to have a more effective CFSP. Is that correct? David Miliband: Yes. Q375 Mr. Horam: Do you think that the arrangements, subject to these circumscribing conditions, will be effective? David Miliband: We are going to come on to three issues: Kosovo, Russia and Burma, which are- Mr. Horam: Those might be examples. David Miliband: Yes. The truth is that CFSP is unanimous now and it will remain so in the future. Q376 Mr. Horam: No change on that? David Miliband: There is no change in the unanimity requirement in respect of that. The truth is that there is a big choice for the European Union to make in how it engages with the world beyond its borders. If you take the issue of Kosovo- Q377 Mr. Horam: How will the arrangements enlarge its ability to deal with Kosovo, for example? David Miliband: Not significantly, because of unanimity. What fundamentally decides whether the European Union has a foreign policy on Kosovo is whether you can reach agreement among the 27 members. But I think that the experience in the 1990s in respect of Kosovo is a stark warning. Q378 Mr. Horam: How will the arrangements add to the effectiveness of a common foreign and security policy? David Miliband: In respect of the unanimity requirement, there is no change. However, at the moment, we have two or, you could argue, three commissioners who work in that area. There is the External Relations Commissioner, Javier Solana and there is Mrs. Ferrero-Waldner. To have one representative of the nation states' foreign policy or of the decisions of the nation states in executing European foreign policy, as opposed to their own is a useful change. To have one person rather than two, is- Q379 Mr. Horam: So it is the practical arrangements that will change and make it more effective? David Miliband: Yes. Q380 Mr. Horam: The problem with these practical arrangements is that they are double-hatted, in the sense that they partly straddle the Commission and partly the Council. David Miliband: I know what you are getting at, but I would not want to say that they straddle. The Council is in the driving seat when it comes to foreign policy, in that the high representative will be able to do only what the Council of Foreign Ministers asks him or her to do. Q381 Mr. Horam: So you think that the external action committee or whatever it is- David Miliband: Service. Mr. Horam: That will be partly under the Commission and partly under the Council, and that will not pose practical problems? David Miliband: It is executing the will of the nation states in deciding what they want the high representative to do. It is servicing that ambition. Q382 Mr. Horam: You are confident that the practical arrangements will produce an effective foreign and security policy? David Miliband: That is a big claim. You know well that Kosovo and dealings with Russia are very tricky issues. Q383 Mr. Horam: So you are rather sceptical there? David Miliband: No, I simply do not want to be Panglossian about how easy it will be to make things work. I think that they can make a practical contribution. Q384 Chairman: The external action service is going to take people from national Governments and FCO officials- David Miliband: That has not been decided yet, Mr. Chairman. Q385 Chairman: If it is going to be effective, presumably it cannot be based only on the current Commission? [Interruption.] We will adjourn for 15 minutes and if there is one vote we will start again at 4.15 and continue hopefully on to Russia, Kosovo and the other issues that were mentioned. 3.59 pm Sitting suspended for a Division in the House. 4.15 pm On resuming:- Chairman: I was midway through asking a question about the external action service and the relationship to FCO staff. Assuming that there will be some FCO officials who are seconded to work for the external action service, what will be the lines of reporting and responsibility? Will they still be subject to your own authority or will they come under Mr. Solana or his successor? David Miliband: To repeat, decisions have not been made on this. It is a perfectly fair starting point that there will be officials of national civil services as well as European officials. In the same way as for any other secondment, a secondee will operate in their management line. For example if they are working for Shell or the European Commission, they are not working for me. Therefore, it would be a secondment. Q386 Chairman: Are there any additional resource implications of this new arrangement and have they been factored into the comprehensive spending review? David Miliband: It is important to say-and I should have said this before-that CFSP is subject to unanimity as is the external action service. If anything, it would save rather than cost us money because we would be shipping people rather than bringing them on. Do not tempt me. I do not think that there are any dangerous financial implications. Q387 Chairman: If ratification goes ahead, and the new arrangements of the high representative comes into effect in 2009, would you expect Mr. Solana to be that person or would there be a process to appoint a new person? If so, how would that work? David Miliband: There would have to be a process, and it would have to work. Quite how, I am not yet sure. I think that it would be premature to say how. You know from the treaty that there are arrangements about how these appointments are done, including the majority that is required for an appointment. I do not know whether Mr. Solana wants to do the job. It is probably better not to speculate on individual names. Q388 Chairman: Okay. Can we now move to some of the specific CFSP issues and begin with Russia? As you know, we are doing an inquiry on Russia and we will be producing a report in a month or so. David Miliband: Have you been yet? Q389 Chairman: We were in Russia in June. We have also taken evidence. Jim Murphy gave evidence to us on Russia a few months ago. How would you assess the current state of relations between the UK and Russia? David Miliband: I think that there is a paradox at the heart of Anglo-Russian relations at the moment. On the one hand, economic integration between the UK and Russia has never been greater. Economic links have never been greater. You could even make the case that quite a lot of cultural interchange is strong at the moment. However, we are not on the same page on some very serious diplomatic issues. We are in a very different position. I am sure that I do not have to tell the Committee that the murder of Mr. Litvinenko on London's streets was an extremely serious event. The determination of our prosecuting authorities to seek the co-operation of the Russian authorities was also done in a very serious way. The fact that that has not been forthcoming led to the diplomatic exchanges that you will have seen in July. There are big issues that we need to work with Russia on, such as Iran and Kosovo, which we will probably talk about separately, but I think it is significant that European Foreign Ministers devoted three hours of our informal meeting to a discussion of an EU relationship with Russia. Every single Foreign Minister said that while we have bilateral relations, and they have an integrity of their own, it is also important to recognise that we are stronger in a number of areas where we engage with Russia on a multilateral, Europe-wide basis. We have things that Russia wants-European markets, most obviously-and it is important that we stand together in trying to leverage the best possible outcome and the best possible protections. The UK played an important part in those discussions. There is a paradox in that we want Russia to be an ally and a proud and respected member of the international community and we want Russia's status and weight to be reflected in international discussions, but we need Russia to engage with us in a positive way, and in a number of areas that has not happened. Q390 Chairman: There is an EU-Russia summit coming up in a couple of weeks. Do you think there is any prospect of any progress being made on the new partnership arrangements between the European Union and Russia? The current one expires very soon. David Miliband: The so-called PCA, the partnership and co-operation agreement, remains blocked on the vexed issue of Polish meat imports to Russia-exports from Poland. We would like to get on with the PCA, but it is blocked at the moment. We would like to get on with it with the clear view that there are responsibilities as well as rights associated with it for Russia. It contains things that Russia wants, and we want it to behave in a responsible way to get them. Q391 Chairman: It has been suggested by some people that we do not need a new PCA with Russia and that we could just operate on the existing relationship and recognise that the hopes we had about Russia becoming a more European country and about having more co-operation with Russia have been dashed. Certainly, when we were in Moscow in June, I was struck by the language-what I would describe as pre-Gorbachev language-that many of the people to whom we spoke to were using. What is your reaction to that? David Miliband: I think your report on this is going to be very important. I have not been to Russia yet, since I have been in this post. I have been on two previous occasions. I would not want to get into a sort of pre-Gorbachev labelling, although it is your prerogative to do so, but I think Russia faces a choice in the same way that every other country faces a choice: does it want to engage internationally in support of a rules-based, institution-based system, or not? That is a choice for us-we are debating the European treaty, and that is part of the dilemma or choice that we face-but Russia faces that choice as well. I had a bilateral meeting with the Russian Foreign Minister two weeks ago in New York and made it clear to him that I thought it very much in Russia's interests as a big power to develop a rules-based system of international institutions that actually works. That message needs to go not just from Governments and Parliaments-if you can send that message it is important-but also from business, because the positive side of the balance sheet that I talked about depends on a Russian rule of law and Russian business conditions that are of international standard. Q392 Sir John Stanley: Foreign Secretary, Russia is the last place one would wish to support any curtailment of legitimate freedom of expression, but can you assure the Committee that the British Government will not tolerate intimidatory, thuggish behaviour towards the British ambassador or any other members of the British embassy staff in Russia? David Miliband: We certainly do not tolerate it, and if ever it occurs we protest about it. It is good that you have raised that point, because there is not only intimidation-that is probably a good word-of British embassy staff, but there are issues in respect of the British Council, which I know is of concern to the Committee. We try to send a message loud and clear about ways of operating. It is fair to say that it is not easy to be a diplomat in Russia-there are locally engaged staff as well-but our diplomats are extremely professional, and they carry this dual message that we want the Russians to observe standards but we believe that the partnership that we can develop with Russia is very important. It is about trying to be clear about what are our red lines, but also about what the offer is for Russia. Q393 Sir John Stanley: There has been more than one incident of the variety I have mentioned, some of which have been reported in the press. I trust that they have been fully reported to you. David Miliband: Absolutely. During the July incidents in respect of the Litvinenko affair, I made a point of talking to the ambassador about our staff and the message that I wanted to go the staff. In a number of places in the world, most recently in Burma, the care and support of our staff are very important matters for the Foreign Office. As it happens, I met the deputy head of mission, our deputy ambassador, yesterday in London. He was passing through, and I made a point of asking him about staff morale and staff support. He has been there for seven weeks and he was grateful for the way in which the management of the Foreign Office, and the politicians there, have expressed concern but also support for staff. I am confident that we do take the matter seriously, but I would not be complacent about it at all. It is an ongoing thing. Chairman: Can we now move on to some questions on Kosovo? Q394 Andrew Mackinlay: Yesterday you met the President, the Prime Minister and the leader of the opposition of Kosovo. I think it is fair to summarise that the United Kingdom is, in principle, favourably disposed to an independent Kosovo. Against that, we do not just have the views of Russia which-I think with some legitimacy-points out that there is also the question of Transnistria, and other places where they could articulate a parallel. Putting aside Russia's case-I just want to flag it up as I do not want to get diverted-we want to get agreement among the European Union. Clearly we know that some of our partners also have some hesitations. The United States has indicated very much in favour of Kosovo. What if we have the scenario of a unilateral declaration of independence, followed by a recognition in the United States, but disagreement within the European Union? What happens then? Where do we stand? What is of paramount importance to us? Unity, solidarity in the EU or-? David Miliband: Of paramount importance is stability in the western Balkans. That is the objective of our policy. I do not want to be diverted on to this, in line with your injunction, but it is important to say that whenever we discuss Kosovo, we see it as a sui generis issue. It is the last piece of the Yugoslav jigsaw. It is a unique political process that has been going on since the late 1990s. I want to put on the record that we do not see this as being a basis for other examples elsewhere in the world, and I know that you do not either. In respect of our position and that of the US, I think that it is important that I report to you what I said to the Kosovo unity team yesterday, and also to the Serbian Foreign Minister whom I have also met. That is that there are responsibilities on both sides in the period up to 10 December-the end of the current 120-day negotiation period-notwithstanding the support that they may or may not have for the Ahtisaari plan, which is the independence plan that you describe. Those responsibilities are important because we have launched a final period of negotiations that we take seriously. I have said publicly in terms of that that there is no option for any side to run down the clock waiting for 10 December. The behaviour and engagement of each side with the troika team is critical in this period. There are also responsibilities after 10 December for both sides. I have said publicly that the Ahtisaari plan remains the foundation. I said this in an article with the French Foreign Minister in Le Monde, which speaks to your European point. In respect of the period after 10 December, the clear goal of peace in the western Balkans and the respect for all the minorities in the western Balkans, which is consistent with the foundation of the Ahtisaari plan must be kept in mind. I think that European unity means that it is possible not to hide differences, but to overcome them. In other words, it is not a lowest common denominator position. The US Secretary of State, Condoleezza Rice, has made it very clear that she wants to see responsible behaviour not just from the international community, but from all the actors locally. Our aim is peace and stability there, supported by European unity, with the United States playing a positive role. Q395 Andrew Mackinlay: The concern of some people is that even those who might be sympathetic to Kosovan independence-taking your point about the stability of the region-are concerned about the very fragile Serbian democracy. If there was a recognition of an independent Kosovo, it would destabilise the actual building up in, what is clearly the key player of the former Yugoslavia. David Miliband: That is a very important point. All I would say is that there are consequences of action and there are consequences of inaction. At the United Nations in New York, I chaired a meeting of the contact group on Kosovo involving France, Germany, Italy, Russia and the United States and I invited the Secretary-General of the UN to open that meeting. He opened it by saying that the status quo was not sustainable. So there are risks associated with not taking a decision as well as with taking a decision. I hear what you say about Serbian democracy-the point was put to me very forcefully by the Serbian Foreign Minister-but equally we have got the legitimate aspirations of the people of Kosovo and I suppose the job of diplomacy is to make sure we balance them out in a fair way. Q396 Chairman: Where will we be if, as you mentioned earlier, Security Council resolution 1244 continues in existence but there is a unilateral declaration of independence? Some of us went to Kosovo and Serbia in July and concerns were expressed about the status of KFOR and what might happen in terms of some countries believing that they cannot remain there in a changed circumstance. Nevertheless, the remit that KFOR is under is that Kosovo is part of Serbia pending negotiations, but there might then be a UDI, with a number of countries recognising an independent Kosovo. What will happen to KFOR? David Miliband: We are confident that the legal cover that is provided by resolution 1244 continues, that it does not cease but continues to provide an important legal basis for action. Obviously, there was a search for a further UN Security Council resolution in July, which unfortunately the Russian Government chose to threaten to veto. But their threatened veto does not invalidate the UNSCR that exists and I think that that is very important. Q397 Mr. Purchase: Are you still hoping you can get another UN Security Council resolution after December 10 or is that process coming to an end? David Miliband: The search for a resolution in July came to an end because of the threatened Russian veto. The troika process was then established for the 120 days up to December 10. I think that we are confident about the existing legal base for activity and the continued legal base for activity under 1244, but we do not rule out or rule in any course of action in order to fulfil the maximum possible chances of the stability that we want, and the unity of the international community that we want as well. Chairman: I have no doubt we will come back to this subject. You are due to appear before us again--before the end of the year so we might be discussing it around that time. Q398 Mr. Hamilton: May I move on to Iran? It is obviously something that is vexing the EU- David Miliband: It is a dizzying speed of travel. Q399 Mr. Hamilton: We are whizzing you round the world pretty quickly, but I am sure you are used to that. The French Foreign Minister, Bernard Kouchner said recently-I think it was on 5 October-that we should take a harder line on Iran. He was quoted as saying that the west should "prepare for war" against Iran if they did not toe the line on their nuclear ambitions. Can you tell us whether you think the EU three-that is, ourselves, France and Germany-are still united in their policy towards Iran? David Miliband: Yes, I can answer that very clearly, because the EU three sat together in a meeting the week before last in New York with the other three, if you like, the Russian, Chinese and US delegations. A statement came out of that meeting, which I am sure you have. There is a very clear view that Iran is in breach of three United Nations Security Council resolutions: in respect of uranium enrichment and of the additional protocol related to that and in respect of the outstanding issues from their behaviour in the early 2000s. The international community is absolutely clear that Iran needs to comply with those resolutions and it is pursuing a dual track-a big offer to Iran in June 2006 for economic, social, political and educational co-operation and clear sanctions as well. That was raised by Sir Malcolm Rifkind in Foreign and Commonwealth Office Questions yesterday; the diplomatic track needs to show that it has teeth and I think it does. EU trade with Iran fell by 37 % in the year to May 2007. I would say that the French statements obviously reflect the new French Government but they are also a symptom of international concern and frustration with the issue and I said as much to the Iranian Foreign Minister. Q400 Mr. Hamilton: Both Mohamed el-Baradei of the International Atomic Energy Agency and Javier Solana, the High Representative of the EU, have been asked to prepare reports in November. We are also, as you will be aware, going to Iran ourselves next month. How confident are you that those reports will be positive and that we will have made progress by then? David Miliband: No one can be confident that they will be positive. It depends on whether the Iranians engage. Maybe the Chairman and I should have a word: we might profit from a further discussion before you go. I think that the timing of your visit is important. I will not say more now. The overall point is that it depends on the Iranian regime. It can produce a positive outcome from the el-Baradei talks. A work plan has been agreed to go through the outstanding issues with Mr. el-Baradei. That has deadlines and meetings. The so-called P1 and P2 issues were addressed on 25 September, but they were addressed with more questions being asked about the questions than answers to them. Nonetheless, there is the IAEA board meeting on 22 November to which Mr. el-Baradei reports. Mr. Solana will meet Mr. Larijani. We must all tell the Iranian Government that a positive outcome is possible in both tracts. But it needs to happen in both those tracts to avert further sanctions. Q401 Mr. Hamilton: Thank you. Absolutely crucial to this, as you just mentioned, is Ali Larijani. Do we know whether he has the full authority to negotiate? Often one of the problems is that you have a negotiator, someone who is the front-person for that regime, and then you finally conclude an agreement that the regime does not agree with. Do we have confidence that what he says is authoritative? David Miliband: I think he is a very important person in these discussions. I have seen nothing to suggest that he is not an important and useful interlocutor for Mr. Solana. And he is the nominee of the Iranian Government to meet with Mr. Solana. Chairman: We have a couple of more areas, but, Paul Keetch, you want to come in on this. Q402 Mr. Keetch: Just briefly on Iran, Foreign Secretary. We have heard from your predecessors discussions about Iranian involvement in what is happening in Iraq and also possibly even in what is happening in Afghanistan. We all have constituents who are in Iraq at the moment and we are very concerned about any supply of Iranian weapons. Without going into too many details, is there any indication that the potential support of Iranian factions for the insurgency in Iraq is declining, or is still as active as we believed it was? David Miliband: I think we have a very serious situation in respect of the uranium enrichment that we were talking about. But we also have a very serious situation in respect of the contribution that Iran is making to regional instability. The Iraq situation is well known. The Afghanistan situation also has some coverage. There has also been coverage of the interdiction that has happened of a number of weapons shipments. It is a very serious international situation and it is a very serious charge to make against any country that it should be supplying weapons to terrorist groups that are then used against forces who are in Iraq and Afghanistan under United Nations Security Council cover. Whatever view one might have taken about the decision to go war in Iraq, the unity of this Parliament and the international community in respect of Iranian misbehaviour is very important. I think that the neighbours conference that has been called for 2 and 3 November-the second neighbours conference on Iraq-is an important occasion to reinforce the point that there is a choice between positive engagement and negative engagement. Obviously it is a particular issue for us in the south-east of Iraq and Basra. But the decline in violence which the Prime Minister spoke of on Monday in his statement to the House is obviously welcome. But it is obvious to anyone that there is a big Iranian stake in stability on the Iraqi side of the border. I would have thought that we should all be saying that there is therefore an Iranian opportunity to play a constructive rather than a destructive role. However, I do not think that you should be in any doubt that there are serious efforts to disrupt any attempts to support terrorists or other groups who gain shipments from Iran. Q403 Sandra Osborne: May I take the Foreign Secretary to another very serious situation-the situation in Burma? It is expected that the EU will announce tougher sanctions on 15 October. Are you confident that that will help the pro-democracy movement in Burma, given the attitude of the regime? What pressure is being brought to bear on the Chinese Government to use their influence in a positive manner in this situation? David Miliband: I know that some of you have taken an interest in this issue. After 45 years of military dictatorship, I must be careful about saying that I am confident that there will be a quick change. Equally, I have spoken a number of times to our ambassador in Rangoon and there is no question that the moment we are looking at is different in significant ways from what has happened before and there is a window of opportunity. There are opportunities that have not existed in the same way. I have recently met the Chinese and Indian Foreign Ministers because they have a very important role to play in engaging with the regime. I think that the message of the international community has been heard in Burma and it has been a pretty unanimous message for restraint, but also for a political process of reconciliation involving all the opposition groups. That is what we have to focus on now. That is what Ambassador Gambari, the Secretary General's representative, has been arguing for and I think that that is the right stepping stone. There was an election in 1990. We have got to be saying that the test for the regime is to engage and to create a political process that involves all the opposition and all the ethnic groups. I think that it is premature to talk about confidence, but we are clear that a tightening of the EU sanctions regime in respect of visas, for example, is more than justified. If the regime was to reject the Gambari proposals, that should trigger much tougher action. Chairman: Foreign Secretary, I will take one further question on this and then discuss one more subject. Q404 Sir John Stanley: On Burma, I expect you feel that you have to follow the EU party line. I wonder whether you often ask yourself, as I hope your predecessors under both Governments asked themselves, whether, had this country been free to determine its own policy position on Burma and not been locked in to the EU common position, we would have adopted a policy alongside or very close to the American position rather than the EU position years ago. David Miliband: We have. There is no trade of any significance with Burma. The idea that I am beholden to EU foreign policy in framing our own decisions about our own companies and our own laws in respect of Burma is not a tenable position and I am very sorry that you phrased it in those terms. On Monday, as I am today, I will be articulating a British position and that will be a position born not of following any EU line, but of following our own view of what is the right thing to do. I cannot see any purpose that is served by the allegation that you have made. It is perfectly reasonable to disagree about aspects of the European treaty without pretending to the outside world that is watching that we are in cahoots with supporting the Burmese regime and not taking tough action against it because of some EU foreign policy that has not yet even been put into treaties. Q405 Sir John Stanley: I am sure that you did not want to misinterpret what I put to you, which was about the history and not the immediate present. Surely you would agree and understand that for many, many years American policy towards Burma has been quite different from that followed by this Government and the previous British Government, particularly in relation to sanctions. Is that not the case? David Miliband: We are in a situation where other European Governments have historically tolerated much greater levels of investment in Burma than we have. At the moment, there is not a single major British company that we can find-I had an extensive discussion about this with Mr. Paxman-that is investing in Burma. Zero. People say the same thing with regard to Iran and ask, "Wouldn't it be better if the EU was doing more in Iran?". There has been a 37 % fall in our trade with Iran. With regard to Burma, we cannot find any major British company that is investing in that country. I am surprised that you should have adopted the tone that you have, because we will decide our own policy-that is the whole point of common security policy. Ms Stuart: indicated assent. David Miliband: It is good that Gisela is on my side on that one, so I must be right-I should not say that, because that might have implications for other issues. Q406 Chairman: Foreign Secretary, on Monday I had an exchange with Mr. Barroso, the President of the Commission, about the EU-Africa summit and, when I explained and supported our Prime Minister's position that he will not attend if Robert Mugabe attends, I got the sharp reaction that that the EU-Africa summit is extremely important and has to go ahead. Clearly, it is important, but I welcome the position that the Prime Minister has taken. Can you clarify at what level the UK will be represented if the summit goes ahead, and what is happening with regard to the discussion about the EU travel ban on Mugabe and senior officials of his regime? David Miliband: I am having lunch with Mr. Barroso on Friday, so you have obviously warmed him up for having lunch with me-I do not know if you were the appetiser and I will be the main course or if that will be the other way round. It is important that we get across the point that we want a successful EU-Africa summit. It is important that the EU does not try to repeat what individual countries do with African countries, but recognises that a strategic relationship between the EU and Africa is needed, not least because of the centrality of European markets to the world trade deal. I would add that China has a strategic view of its relationship with Africa, so, my goodness, Europe needs to be thinking in those terms as well. We want it to be a successful summit and we had a Cabinet Committee yesterday discussing ideas about how we could put that into the Portuguese presidency so that there will be a successful summit. But our view is that it cannot be a successful summit if it is turned into a media circus with the United Kingdom and G. Brown sitting next to Zimbabwe and R. Mugabe. That would be a media circus, not a serious summit. We are clear that there will not be senior ministerial representation at the summit, and think that that is the right thing to do. We will take a view much closer to the time about whether there should be representation and, if so, at what level. I am sure that it is a agreed across the Committee and the House that the problems of Zimbabwe are, in a significant part, caused by the Mugabe regime, and the idea that we are going to sit around talking about governance, human rights, economic development and health and pretend that this terrible tragedy is not unfolding in what was once a rich country seems ridiculous. Therefore, we are not going to be party to that sort of media circus. Equally, I believe that the more substantive the agenda the EU can put on the table for the whole of Africa, the better the chance we have of the Zimbabwe issue not poisoning the summit. That is why it is important that the Prime Minister said that, in the circumstances of Robert Mugabe going, neither he nor I would go. Q407 Chairman: What about the EU travel ban? David Miliband: I am sorry. The precedent on that is mixed. The French organised a summit in Cannes which involved African leaders, but Robert Mugabe did not come to that, although the travel ban was not imposed-it was one of those things that happen in diplomacy. If there is an EU-Africa summit, however, it depends on how the invitations are issued and who issues them. It would actually be an EU-African Union summit, and it would be for the AU to invite their representatives, so there are some difficulties about who issues the invitations. I believe that Kate Hoey asked a question yesterday about the decision that we took in respect of the Darrell Hair case and about a witness coming from the Zimbabwe cricket board. We did not see any reason for him to be given a visa, not least because he could give his evidence by videoconferencing. We take very seriously the need to ensure that the travel ban bites. Q408 Sir John Stanley: After the utterly abominable way in which Mr. Mugabe has treated his people, I am absolutely delighted with the position that the British Prime Minister has taken. Is there any other Prime Minister in the EU who is prepared to take the same position? David Miliband: Thank you for that comment. The answer is that I do not know. No other Prime Minister has yet declared their position. It was interesting that, at the informal meeting of EU Foreign Ministers at the beginning of September, there was a much wider spread of condemnation of the Zimbabwe regime, in much the same terms as you have used. There was also quite a lot of interest in the Prime Minister's idea of an EU envoy for Zimbabwe, which is something I shall be discussing next week. There is a lot of hiding going on in the regime on the issue, in that the regime is trying to put it into a bilateral box. I am sorry to mention the CFSP, but the Prime Minister's idea of an EU envoy is an area where a bit of European solidarity and common action could take the issue into a different domain. Although I do not know about other Prime Ministers, it is quite wrong for people in Zimbabwe to say that Zimbabwe is just a British obsession and that the rest of Europe thinks that what they are doing is great. That is completely ridiculous. The fact that the issue has received such cross-party attention in the House can only be helpful, and I am sure that through party and official networks we shall try to get the message out about the terrible reality of what is going on in Zimbabwe and about the readiness of the international community to support the country's reconstruction as soon as Mugabe is gone. Q409 Chairman: Foreign Secretary, I assure you that there is support for our position in Foreign Affairs Committees in some other European countries. I was quite heartened yesterday when several other chairmen of Committees at the COFAC meeting said that they thought their Governments were currently having an internal discussion about whether their leaders will be at the meeting. I know that that is true of some other European Governments too. David Miliband: For the sake of clarity, it is important to say that we are not campaigning to wreck the summit. We have decided on our own participation, and it is for others to choose how and in what circumstances they participate. I know that no one is suggesting it, but it would be very unfortunate if the wrong message went abroad about our engagement. We want a positive agenda, and we shall contribute all our development experience to creating that, including on trade and governance. Given that there was no way that the Prime Minister was going to go in December, it was better that he say so now, rather than to have an alleged nail-biting situation closer to the time. He has made his position clear, which is good. Q410 Ms Stuart: You kindly agreed to write to us about the red lines. Could I ask you also to explain the politics behind the appearance of article 10 in the protocols and of declaration 39? They are the two items that appeared in the 5 October translation that were not present previously. That would be helpful. David Miliband: Could I just say that it is now 4.55 pm? Mr Mackinlay asked for a response overnight. I do not know whether he meant that he wanted it literally by the time he gets to his desk at 6.30 am tomorrow, but we shall happy to address both points, either in two letters, one after the other, or together. Chairman: You have been generous with your time, Foreign Secretary, as have your colleagues Mr. Thomas and Ms Morgan. We look forward to seeing you again in due course. Thank you.
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