The Government's approach to
foreign policy in the 2007 IGC: the foreign policy "red line"
49. The former Prime Minister Tony Blair set out
the Government's detailed negotiating aims for the new EU Treaty
in an appearance before the Liaison Committee on 18 June 2007,
three days before the meeting of the European Council which was
due to negotiate the IGC mandate. The Government's negotiating
aims took the form of four "red lines". One of these
concerned foreign policy. Mr Blair told the Committee that the
Government "will not agree to something which displaces the
role of British foreign policy and our foreign minister".[97]
In its White Paper on the 2007 IGC, the Government reformulated
its foreign policy "red line" as requiring "maintenance
of the UK's independent foreign and defence policy" as a
condition for signing any new Treaty.[98]
50. On the basis of its public statements, it appears
that the Government understands its foreign policy "red line"
as meaning that the CFSP should "remain an intergovernmental
process".[99] In
turn, according to evidence provided by the FCO, the Government
appears to understand this as meaning, more specifically, that:
unanimity in decision-making will remain the rule
(i.e. the UK will hold a veto), legislative activity is excluded,
and the ECJ will not have jurisdiction over CFSP except […]
on consequential questions of boundaries and sanctions.[100]
It is possible to question whether the maintenance
of an "intergovernmental" CFSP is sufficient to maintain
an "independent foreign and defence policy". For example,
the large number of EU "common positions" which now
exist on a wide range of foreign policy issues arguably represent
a considerable constraint on UK foreign policy.
51. The Government claims that the Lisbon Treaty
does not cross its "red line" in foreign policy (nor
in the other three "red line" areas). Addressing the
House on his return from the informal European Council meeting
in October which agreed the new Treaty, Prime Minister Gordon
Brown said that he believed it was "absolutely clear that
the basis of foreign and security policy will remain intergovernmental—a
matter for Governments to decide."[101]
In the Queen's Speech debate in November, Foreign Secretary David
Miliband told the House that "in each and every area where
we promised to secure our red lines, they have been secured."[102]
52. In his letter to the Chairman of 11 October,
the Foreign Secretary identified four Treaty provisions on which
the Government rests its claim that the Lisbon Treaty does not
cross its foreign policy "red line".[103]
In the relevant Annex to the Foreign Secretary's subsequent letter
of 18 October, the FCO also provided "commentaries"
to the four pieces of text, explaining how the FCO considered
that they secured the Government's foreign policy "red line".[104]
The four pieces of Treaty text are:
- Article 1 27) of the Lisbon
Treaty, amending Article 11 of the Treaty on European Union. This
inserts a new paragraph stating that the "the common foreign
and security policy is subject to specific rules and procedures",
before setting out what these are.[105]
- Article 2 223) of the Lisbon Treaty, inserting
Articles 240a and 240b of the Treaty on the Functioning of the
European Union. The new Article 240a states that "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", before setting out two specific exceptions,
providing for ECJ jurisdiction over the boundary between the CFSP
and "Community" areas, and over the imposition of sanctions.[106]
- Declaration 13 concerning the common foreign
and security policy, which states that the provisions of the Treaty
on European Union concerning the common foreign and security policy
"do not affect the responsibilities of the Member States
[…] for the formulation and conduct of their foreign policy
nor of their national representation in third countries and international
organisations."[107]
- Declaration 14 concerning the common foreign
and security policy, which states that the provisions of the Treaty
on European Union concerning the common foreign and security policy
"will not affect the existing legal basis, responsibilities,
and powers of each Member State in relation to the formulation
and conduct of its foreign policy", and notes that "the
provisions covering the Common Foreign and Security Policy do
not give new powers to the Commission to initiate decisions nor
do they increase the role of the European Parliament."[108]
While the first two of the provisions on which the
Government relies form part of the legally-binding body of the
Lisbon Treaty, the two Declarations on the common foreign and
security policy—in common with other Declarations to EU
Treaties—are not legally binding.[109]
53. In the relevant Annex to the Foreign Secretary's
letter of 18 October, the FCO also referred to "the improved
provisions of Article 25" as a further means by which "the
distinct character of CFSP is reinforced against encroachment
by non-CFSP matters".[110]
What in the end became Article 25b of the amended Treaty on European
Union (TEU) disbars interference in the CFSP provisions of the
TEU as a result of the implementation of policies governed by
the Treaty on the Functioning of the European Union (the TFEU),
as well as vice versa. In the existing TEU, the relevant
Article provides only that implementation of the provisions of
the TEU shall not affect the TEC.[111]
According to the FCO, the new version means that "the Court
[of Justice] must […] protect the distinct character of CFSP
against encroachment from non-CFSP provisions."[112]
54. The Lisbon Treaty provisions which the Government
claims meet its foreign policy "red line" apply to all
the Member States. In this respect, they contrast with the provisions
which the Government secured in order to meet its red lines on
labour and social legislation, and on the legal system and police
and judicial processes, where the Government pursued country-specific
Protocols and opt-ins.[113]
55. Of the four Lisbon Treaty provisions which the
Government claims secure its foreign policy "red line",
the new paragraph in Article 11 and the two Declarations are wholly
new, compared both to the existing Treaties and to the Constitutional
Treaty. The paragraph ruling out ECJ jurisdiction over the CFSP
(except in the two specified cases) is found in the Constitutional
Treaty,[114] as is
the language now in Article 25b disbarring mutual interference
between the CFSP and "Community" areas of policy.[115]
56. The Government's foreign policy "red line"
raises the central issue of the current reform process in the
external action field, namely the relationship between "Community"
and intergovernmental elements.[116]
We assess the Lisbon Treaty's provisions on external action in
the next chapter. Here we raise a number of points in connection
with the Government's "red line" negotiating approach.
57. Under
its "red line" approach, the Government secured language
in the Lisbon Treaty which was absent from the Constitutional
Treaty, as noted above. However, going into the 2003-04 IGC which
negotiated the Constitutional Treaty, the then Prime Minister
Tony Blair set out the same "red line" for the UK as
he did in 2007. The Foreign Secretary told us that the Government
had been "clear all along that the most important red line
[…] is that foreign policy should retain an area of unanimity
and that each country should be able to exercise a veto."[117]
In 2003, the then Prime Minister wrote that the UK "could
only accept a final text that made it clear that issues like […]
defence and foreign policy remain the province of the nation state.".[118]
Once the Constitutional Treaty had been agreed, the Government
stated that the text met its requirements on this front. The then
Prime Minister wrote that the Constitutional Treaty did "not
force us to […] have our foreign policy dictated from Brussels".[119]
Given that the Government had declared that the Constitutional
Treaty met its foreign policy "red line", the question
arises as to why the Government later felt that further changes
to the Constitutional Treaty provisions were necessary. On 19
June, immediately before publication of the German Presidency's
draft IGC mandate, the then Foreign Secretary told us that "what
is now in the proposals for the common foreign and security policy
is something that we want to look at."[120]
According to press reports, the Government sought changes to the
foreign policy provisions which had been contained in the Constitutional
Treaty beyond those which it in the end secured. In what the Financial
Times called an "11th-hour attempt to water down plans
for a stronger EU foreign policy", the former Foreign Secretary
Margaret Beckett reportedly "questioned the role and status
of the proposed EU foreign minister and diplomatic service".[121]
58. We asked Minister for Europe Jim Murphy why the
Government had felt it necessary to secure further changes to
a Treaty that it had agreed in 2004. He said:
in that period […] there was a view that the
solution to the disconnect—the lack of connection and affection
for Europe—was simply about getting structures right and
having a relatively maximalist approach to European structures.
The referendums in the Netherlands and France put paid to that.
They forced a rethink among politicians and the political class
across Europe."[122]
59. Several of our witnesses said that the Government's
"red line" approach to the negotiation of foreign policy
aspects of the new Treaty had been overly negative, and damaging
to the UK. Mr Avery said that the language of "red lines"
"comes from the vocabulary of confrontation and demarcation,
rather than co-operation, and […] it has [not] improved the
image of the United Kingdom as a partner in the European Union
as a result."[123]
Professor Whitman told us that the way in which the Government
had presented its foreign policy positions to its EU partners
caused "some disquiet",[124]
while the former British diplomat Sir Peter Marshall told us that
"drawing 'red lines' is an inadequate and atypical UK contribution
to the Reform Treaty".[125]
Sir Peter went on to argue that the Government's "role in
the preparation of the Treaty was effectively reduced to a damage-limitation
exercise of drawing red lines around what were judged to be key
UK interests […] [This] is a strategy which just leaves the
field to others to get their way at your expense."[126]
60. The Foreign Secretary rejected the charge of
negativity. He told us:
the Government have been clear and firm in setting
out what we understand to be the national interest. I think that
clarity is valued in the European Union, and people know where
we stand on the treaty. That does not mean that people agree with
us, but they understand our position: the fact that we have stuck
to it is respected.[127]
61. The Foreign Secretary referred to three sets
of ideas to explain the Government's approach in the 2007 IGC.
He set out an argument on grounds of principle against further
"Communitarisation", including as regards foreign policy,
stating that:
the site of legitimacy for citizens is the nation
[…] It is […] to the nation state that people owe and
commit a significant part of their sense of identity. I think
that any attempt to produce foreign policy that negates that sense
of identity would be quite dangerous because it would corrode
the sense of legitimacy.[128]
The Foreign Secretary added that "keeping a
national foreign policy is important in getting the right blend
of legitimacy and efficiency".[129]
62. The Foreign Secretary was in any case—and
secondly—sceptical about the ability of institutional change
alone to produce greater "efficiency". He told us that
he would be "wary of believing that there are administrative
[…] mechanical reforms that got us out of the fact that different
countries and different people disagree about foreign policy ends
and goals."[130]
The Foreign Secretary noted: "What fundamentally decides
whether the European Union has a foreign policy on Kosovo is whether
you can reach agreement among the 27 Members."[131]
63. The limitations of institutional change alone
was a theme picked up by several of our witnesses. Professor Hill
told us that:
institutional change has too often been a substitute
for change at the level of policy and a willingness to grasp the
nettle of difficult decisions on high politics and international
relations. Whenever there is a problem in European Union foreign
policy, the instinct is to say, 'Let's invent some new procedure'.[132]
Professor Whitman agreed that "historically
a lot of effort has gone into the procedure rather than the policy",[133]
and Lord Owen reported that, in his experience, the EU spent too
much time on "institutional development and press relations",
whereas the best way to strengthen EU foreign policy was "practical
success on the ground".[134]
64. The Foreign Secretary's scepticism about the
value of institutional change alone extended beyond the foreign
policy sphere to the EU in general. Both he and his predecessor
cited to us the agreements on climate change targets reached by
the European Council in March 2007[135]
as examples of the way in which the EU could function well even
with its existing institutional structures, without further Treaty
reform.[136] Mr Miliband
told us that the EU's actions on this front "have done more
to show the relevance of the European Union than any amount of
institutional tinkering."[137]
In June, Mrs Beckett referred to what she called "comments
from various quarters that if the European Union cannot get an
agreement [on Treaty reform], there will be a huge crisis and
[…] the EU will no longer be able to function". The
former Foreign Secretary told us that in fact "the last few
months have shown that that is not actually so. The EU is functioning
and has, indeed, reached some quite far-reaching decisions".[138]
Professor Whitman provided support for this view, telling us that
he thought "the CFSP could carry on working quite happily
without the changes that are in [the Lisbon] Treaty."[139]
65. In their evidence to us, and in their public
statements in other forums, the Foreign Secretary and other Ministers
have often appeared to place little emphasis on the significance
of the institutional changes made by the Lisbon Treaty, preferring
to argue instead—and thirdly—that the value of the
new Treaty lies primarily in the fact that it brings to a close
the EU's institutional reform process and, in the Government's
view, allows the EU to "move on". What the Government
wants to see the EU "move on" to is the "delivery
agenda" of policy issues which it outlined during the UK
EU Presidency in 2005,[140]
and which it has continued to take forward with the publication
of the paper "Global Europe" by the Prime Minister and
the Foreign Secretary in October 2007,[141]
and the initiation of the "Declaration on Globalisation"
which the European Council made in December 2007.[142]
The Foreign Secretary told us that "the critical point about
the Reform Treaty is that it brings to an end six or seven years
of institutional obsession and allows us to get on and tackle
issues".[143]
While the Foreign Secretary was quick to add that "it is
a twofold thing. There are good things in the Treaty, and it says
'enough is enough, let's get on with the real business'",[144]
the latter consideration has come over more strongly in Ministers'
evidence to us as regards foreign policy aspects of the Treaty.
66. The Foreign Secretary did not mention the specific
new foreign policy institutions created by the Lisbon Treaty—namely,
the new High Representative for Foreign Affairs and Security Policy,
and the European External Action Service—in either his major
speech on the EU in Bruges on 15 November 2007,[145]
or his contribution to the debate on the Queen's speech the same
month.[146] Although
the Prime Minister referred to these new institutions in his statement
to the House following the October European Council, he drew attention
to the way in which the new Declaration 14 to the Lisbon Treaty
said that they would not affect national foreign policies in any
way,[147] while in
their joint "Global Europe" paper the closest that the
Prime Minister and Foreign Secretary came to mentioning the Lisbon
Treaty's foreign policy provisions was to note that "recent
efforts to improve the effectiveness of Europe's Foreign and Security
Policy should continue".[148]
Giving evidence in December, the Foreign Secretary told us that
"We have a responsibility to be as clear as possible about
the reality."[149]
67. We conclude
that the Government is correct to argue that political positions
and political will among the Member States are more important
than institutional changes in determining the quality of EU foreign
policy. We are also sympathetic to the Government's wish to see
the end, for at least some years to come, of further EU institutional
reform. However, we are concerned that the Government risks underestimating,
and certainly is downplaying in public, the importance and potential
of the new foreign policy institutions established by the Lisbon
Treaty, namely the new High Representative and the European External
Action Service. We recommend that the Government should publicly
acknowledge the significance of the foreign policy aspects of
the Lisbon Treaty.
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