House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Third Report

2 The 2007 IGC process

15. The Lisbon Treaty is the product of an EU institutional reform process which stretches back to 2001. In that year, the European Council at Laeken declared that the recently concluded Amsterdam (1997) and Nice (2001) Treaties still left the EU with an inadequate institutional framework, particularly in the face of the EU's—probably large—forthcoming enlargement. The "Laeken Declaration" said, as regards internal matters, that "the European institutions must be brought closer to its citizens", while, as regards external matters, that the EU "needs to shoulder its responsibilities in the governance of globalisation."[18] At Laeken, the European Council initiated a Convention on the Future of Europe—comprising representatives of the EU institutions, Member State governments and national Parliamentarians—which was to draw up a draft of a new EU Treaty.[19]

16. The Convention placed its "Draft Treaty establishing a Constitution for Europe" in front of Member State leaders in July 2003. The Convention's draft formed the basis for negotiations on a new EU Treaty among the Member States at a traditional Intergovernmental Conference (IGC) in 2003-04. The Member States reached agreement on the text of the Constitutional Treaty in June 2004 and signed the document that October. It was planned that the Constitutional Treaty would come into force, following its ratification by the Member States, on 1 November 2006.

17. On 20 April 2004, before the final Constitutional Treaty text had been agreed, the then Prime Minister Tony Blair announced to the House that the UK would hold a referendum on the new Treaty.[20] It was envisaged that the referendum would be held after Parliament had passed the necessary legislation allowing the new Treaty to take effect in the UK. The Government Bill providing for the Constitutional Treaty to pass into UK law, subject to the outcome of the referendum for which the Bill provided, was given a second reading in February 2005 by 345 votes to 130. In their 2005 general election manifestos, all three major political parties promised to hold a referendum on the Constitutional Treaty.[21] The Government immediately reintroduced the Bill following its re-election in May 2005.

18. On 29 May and 1 June 2005 respectively, the French and Dutch electorates rejected the Constitutional Treaty in referendums, by 55% and 62% respectively. As EU Treaties can take effect only when ratified by all EU Member States, the French and Dutch "no" votes prevented the Constitutional Treaty from ever coming into force. With most of the Member States which had not yet ratified the Constitutional Treaty putting their ratification processes on hold in the wake of the French and Dutch votes, in the end the Constitutional Treaty was ratified by 18 of the 27 Member States. The UK was one of the Member States which put its ratification process on hold.[22]

19. In the wake of the French and Dutch referendums, in June 2005 the EU declared a "period of reflection" to consider the future of the institutional reform process.[23] In June 2006, the European Council extended the "period of reflection" for another year, but it requested Germany, which would hold the rotating EU Presidency in the first half of 2007, to present a report which would "serve as the basis for further decisions on how to continue the reform process".[24] The same European Council emphasised the need for public involvement. Its conclusions stated, in a paragraph headed "Europe Listens", that "reinforced dialogue with the citizens requires adequate means and commitment".[25]

Renewed Treaty reform: the 2007 Intergovernmental Conference

20. The German Presidency made clear from the start of 2007 its hope of resolving the EU's institutional impasse. The first concrete sign that the German Presidency's ambitious timetable might be becoming a serious prospect came in the "Berlin Declaration" of 25 March 2007, which announced the aim of "placing the European Union on a renewed common basis before the European Parliament elections in 2009."[26] However, the Berlin Declaration was signed only in the name of the Presidents of the three EU institutions—European Council, European Commission and European Parliament—as there was no agreement among the Member States themselves.[27] At this time, the Member States were split between those which wished to revive the Constitutional Treaty and those, including the UK, which preferred a very different and less ambitious approach to Treaty reform.

21. The German Presidency prepared its report to the June 2007 European Council on the future of the institutional reform process by taking soundings from Member State representatives—known as "focal points" or, informally, "sherpas"—rather than by circulating draft texts for comment. The UK's "focal points" were Mr Kim Darroch, then head of the Cabinet Office European Secretariat, and the FCO official Ms Nicola Brewer, who was replaced after she left the FCO in March by Ms Shan Morgan, EU Director there.[28] Most of the German Presidency's contacts with the "focal points" occurred bilaterally; the "focal points" met as a group with the German Presidency on four occasions, on 24 January, 2 May, 15 May and 19 June.[29]

22. The German Presidency presented its report on the institutional reform process to the Member States on 14 June 2007.[30] In its report, the Presidency concluded that the way forward was to "preserve the substance of the innovations agreed upon in the 2004 IGC" while abandoning the structure of a single Constitutional Treaty and "constitutional" language and symbols. The Presidency therefore proposed "a return to the classical method of treaty change"—that is, a return to the practice of amending, rather than replacing, existing Treaties. The Presidency further proposed that an IGC be convened rapidly, with the aim of reaching agreement on a new Treaty by the end of 2007. To that end, the Presidency recommended that the European Council meeting on 21-22 June agree a detailed mandate for the IGC.

23. The German Presidency's report was discussed by Member State Foreign Ministers meeting informally on 17 June. On 19 June, the German Presidency published a draft IGC mandate.[31] This was the first time that Member States saw proposed Treaty terms, only two days before the opening of the European Council. This left no opportunity for Parliamentary scrutiny, and also appears unlikely to have allowed scope for extensive consultation within Government.[32] A final mandate for the 2007 IGC was agreed four days after publication of the Presidency draft, in the early hours of 23 June, following intensive negotiations at the European Council.[33] The IGC mandate was to provide the "exclusive basis" for the new Treaty.[34] Given the detailed nature of the IGC mandate, the substantive negotiating work of a normal IGC was as a result almost wholly concluded before the IGC opened. Once the European Commission and European Parliament had issued their opinions as required,[35] the 2007 IGC was launched on 23 July 2007, under the EU's new Portuguese Presidency. On the same day, the Portuguese Presidency published the first draft text of the new EU Treaty, on the basis of the IGC mandate agreed in a few days under the German Presidency.[36] For its part, the Government published on 23 July a White Paper setting out its approach to the 2007 IGC.[37]

24. The 2007 IGC moved through several phases. First, the draft Treaty text of 23 July was checked by legal experts to ensure that it reflected exactly the IGC mandate agreed by the European Council in June. There was an opportunity for political-level discussion among Member State Foreign Ministers at their informal meeting on 7-8 September. On the basis of the work completed by that point, a further draft Treaty text was published, dated 5 October.[38] This text went before the informal European Council meeting in Lisbon of 18-19 October, where EU leaders reached final political agreement on the new Treaty. A further draft Treaty text, incorporating the changes agreed at Lisbon, was published with a date of 30 October.[39] Following checking by lawyers and linguists, the text of the Lisbon Treaty was published on 3 December, ahead of the Treaty's signature by the Member States on 13 December.[40] The Government published the Treaty as a command paper on 17 December,[41] together with the Bill to give effect to the Treaty in UK law.[42] Summing up the 2007 IGC process on his return from the informal European Council meeting which agreed the new Treaty in October, Prime Minister Gordon Brown told the House that

not just for this Parliament but also for the next, it is the position of the Government to oppose any further institutional change in the relationship between the EU and its member states. In our view, there is also a growing consensus across Europe that there should be no more institutional change for many years.[43]

Some have argued that the prospect of a period of institutional stability in the EU is undermined by the possibilities which the Lisbon Treaty provides for further Treaty change without the convening of a further Intergovernmental Conference.[44]

Treaty transparency

25. The 2007 IGC process has given rise to concerns regarding the transparency of the new Treaty which has resulted from it. The 2001 Laeken Declaration had identified a need for the EU to become "more transparent", and suggested that "if we are to have greater transparency, simplification [of the Treaties] is essential."[45] Some supporters of the Constitutional Treaty argued that this document answered the perceived need for transparency by giving the EU a single main Treaty, bringing together provisions which had previously been found in repeatedly amended versions of several Treaties. In its White Paper on the Constitutional Treaty in 2004, the Government said that the new Constitutional Treaty "would make the EU simpler to understand, with the Union's main Treaties reorganised into one, more coherent Treaty".[46]

26. The format which was agreed at the June 2007 European Council is different. The Lisbon Treaty is an "amending treaty". This means that the EU will continue to operate on the basis of two main Treaties:

The Treaty on the Functioning of the European Union (TFEU). This will be the new version of the Treaty establishing the European Community (TEC), as amended and renamed by the Treaty of Lisbon. The TEC was itself the renamed and frequently amended version of the original Treaty of Rome.
The Treaty on European Union (TEU), as amended by the Treaty of Lisbon. The TEU was originally the Maastricht Treaty, which again has been amended by subsequent Treaties up to and including Lisbon.

The Lisbon Treaty itself cannot be read unless in conjunction with the two Treaties which it amends. At the time we approved our present Report, no official consolidated text of the two Treaties as amended by the Lisbon Treaty was available.[47] Furthermore, and to a considerable extent as a result of the opt-ins, Protocols and Declarations inserted at the UK's request, the Lisbon Treaty—and the main Treaties as amended by it—are particularly complex. Lord Owen told us that "we have reverted to using the old Treaty, which I personally think is a good idea, but it makes it very difficult to find out exactly what has happened."[48] Professor Whitman, of the University of Bath, said that "because it is a set of amendments to the existing Treaties […] trying to get a handle on whether things have changed does require very close and careful reading and the referencing of one text across to the other."[49] Professor Whitman's conclusion was that "it is impossible for a reasonably intelligent individual to sit down and read [the Lisbon Treaty], where they could read the Constitutional Treaty."[50]

27. When we asked Ministers about what appears to be a loss of transparency as a result of the Lisbon Treaty, they responded by referring to what they saw as the limited value of institutional reform in tackling the EU's so-called "democratic deficit". The current Foreign Secretary, Mr Miliband, told us that he had "never believed that institutional reform is the route to love and respect for the European Union among the peoples of Europe […] I believe that a delivery deficit is the fundamental barrier between the European Union and the peoples of Europe".[51] We conclude that, although we have some sympathy for the Government's stress on the EU's "delivery deficit" rather than its "democratic deficit", and for the Government's desire to bring the EU institutional reform process to a speedy conclusion, we accept that the loss of the Constitutional Treaty undermines the effort to make the EU's Treaty base more comprehensible and transparent.

Parliamentary involvement

28. Serious concerns have been expressed about the lack of Parliamentary involvement in scrutinising the 2007 IGC process and the resulting Treaty. In its first Report on the 2007 IGC, published in early October, the European Scrutiny Committee concluded that the process "could not have been better designed to marginalise"[52] national Parliaments.

29. During Spring 2007, the Government's official position regarding further EU Treaty reform was that set out in a Written Ministerial Statement of 5 December 2006.[53] The Statement set out six principles which would guide the Government in its discussions with the forthcoming German Presidency: "pursuing British interests"; "modernisation and effectiveness"; "consensus"; "subsidiarity"; "use of existing Treaties"; and "openness".

30. Apart from the December 2006 document, the most important statement of Government policy regarding the EU institutional reform process came at a press conference held by the former Prime Minister Tony Blair and his visiting Dutch counterpart on 16 April 2007. At the press conference, Mr Blair announced the Government's wish that any new EU Treaty should be "an amending treaty, but not a treaty with the characteristics of a constitution".[54] The most significant subsequent statement of Government policy regarding further EU Treaty reform came on 18 June, three days before the European Council which was due to reach agreement on the matter. On that occasion, appearing before the Liaison Committee, Mr Blair announced the Government's negotiating positions, in the form of four "red lines".[55]

31. In an attempt to learn about the Government's approach to the revived institutional reform process being pursued by the German Presidency, we sought to take evidence from a Minister during the Spring. Having already agreed to appear before the Committee as normal immediately before the June European Council, the then Foreign Secretary Margaret Beckett declined to make another appearance earlier in the process. Efforts to secure an evidence session with the then Minister for Europe, the Rt Hon Geoff Hoon MP, on a mutually convenient date in May also proved unsuccessful.

32. The Chairman wrote to the Foreign Secretary on the matter, saying that "the Committee regards the refusal of the FCO to provide a Minister to give oral evidence during this crucial phase of the discussions on the future of Europe as a failure of accountability to Parliament". The Chairman expressed the Committee's "deep concern".[56] In her reply, the Foreign Secretary rejected "the suggestion that the Government [had] been unco-operative" and attributed the lack of an evidence session to the difficulties of finding mutually convenient dates.[57] The then Minister for Europe also said that he had been unable to appear entirely as a result of diary commitments.[58]

33. Throughout the Spring, Ministers consistently responded to Parliamentary questions on the EU institutional reform process by stating that there was no consensus among Member States on the way forward.[59] The former Foreign Secretary told us on 19 June that:

there have not been feverish negotiations and discussions in Europe; I wish that there had, but there have not […] I am sure that the Committee imagined, as did we probably, that we would have had a draft document weeks ago, and that there would have been a lot of discussion and argy-bargy and all those kinds of things. You as a Committee did not want to be left out of it. I understand and sympathise. I have not seen the draft document either—nobody has. It has not been produced".[60]

The former Foreign Secretary also told us that:

when we were asked to identify two people [i.e. the "focal points"], we assumed that there would be a sustained process of dialogue and exchange together with potential draft documents and so on, but that has not happened […] The process has not evolved in the way in which I think that most people imagined that it would when we were asked to appoint the two people.[61]

34. When asked to confirm that agreement both on the IGC process and on the IGC's mandate was reached in less than a week, between 19 and 23 June, the Minister for Europe, Mr Murphy, did so unequivocally.[62] Mrs Beckett said that the compressed timetable was "challenging",[63] while her successor told us that "distinctive" would be "a diplomatic way" of describing the German Presidency's approach.[64]

35. In evidence to us on 19 June, responding to queries about the occurrence of "specific discussions about Treaty content", Mrs Beckett told us that: "there had not been in the way that I consider to form part of a negotiating preparation and a discussion leading up to that."[65] She went on to say: "you could probably say that there still have not been […] discussions in Council, around the Council table, about the approach on the Treaty or its content. No such discussions have taken place."[66] However, this appears to have been contradicted by the former Prime Minister Tony Blair when he told the House on his return from the June European Council that "We have been talking about this for two years."[67]

36. Mrs Beckett also told us in June that "our main negotiating goal in this particular process […] has been to get acceptance that the treaty that is put forward should be an amending treaty and should have the characteristics and the likely content of an amending treaty."[68] This was the Government position announced in mid-April. The former Foreign Secretary also said on 19 June that "we have been keeping our negotiating powder dry and so has everybody else".[69]

37. Since the IGC was launched on 23 July, FCO Ministers have appeared before us on two occasions in addition to the Foreign Secretary's normal pre-European Council appearance in December 2007. The Minister for Europe and the Foreign Secretary both provided written follow-up information after their respective appearances in September and October 2007.[70] During the IGC, the FCO also forwarded to the House public Presidency papers, such as draft Treaty texts, although these were also available on the EU Council website.

38. We recognise that the compressed timetable during which the most important decisions on the EU's new Treaty were taken, over a few days in June, was driven by the EU's Presidency-in-office. The Government could and should have provided more information to Parliament during Spring 2007 about its approach to the renewed EU Treaty reform process. It should also have pressed for a less compressed timetable in June. Parliament was entitled to expect adequate time to be consulted and to be able to make an input into the contents of the Treaty, through the Government. After the Treaty was finalised, Parliament was also entitled to have adequate time to make a thorough examination of the Treaty's detailed impact on the EU and the United Kingdom constitution. Parliament has been denied these opportunities, on both counts. We conclude that the procedure followed meant that the 2007 Intergovernmental Conference mandate was agreed with little scope for UK public or Parliamentary debate and engagement. This sets an unfortunate precedent which is in our view damaging to the credibility of the institutional reform process itself.

18 "Laeken Declaration on the Future of the European Union", Annex 1 to Laeken European Council, Presidency Conclusions, 14-15 December 2001, via www.consilium.europa.eu Back

19 Two Members of our Committee, the Rt Hon David Heathcoat-Amory MP and Ms Gisela Stuart MP, served as the House of Commons representatives to the Convention. Back

20 HC Deb, 20 April 2004, col 155 Back

21 "Britain forward not back", the Labour Party manifesto 2005, pp 83-84; "Are you thinking what we're thinking?", Conservative election manifesto 2005, p 26; "Liberal Democrats: The Real Alternative", 2005 English general election manifesto, p 14 Back

22 See the statement of the then Foreign Secretary, the Rt Hon Jack Straw MP, at HC Deb, 6 June 2005, col 991-2 Back

23 "Declaration by the Heads of State or Government of the Member States of the European Union on the ratification of the Treaty establishing a Constitution for Europe", Brussels European Council, 18 June 2005, via www.consilium.europa.eu Back

24 Brussels European Council, Presidency Conclusions, 15-16 June 2006, via www.consilium.europa.eu, paragraph 48 Back

25 Ibid., paragraph 3 Back

26 Text via www.eu2007.de; on the Berlin Declaration, see also Qq 122-23 [Mrs Beckett], Ev 41 [Mr Murphy] and Ev 140 [Mr Hoon] Back

27 Q 123 [Mrs Beckett] Back

28 HC Deb, 15 January 2007, col 786W, 788W; HC Deb, 27 March 2007, col 1493W Back

29 Ev 41 [Mr Murphy]; Qq 113 [Mrs Beckett], 310 [Mr Murphy]; see also European Scrutiny Committee, First Special Report of Session 2007-08, European Union Intergovernmental Conference: Government Responses to the Committee's Thirty-fifth Report of Session 2006-07 and the Committee's Third Report of Session 2007-08, HC 179, pp 2-3 Back