House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Third Report

5 New foreign policy posts

High Representative for Foreign Affairs and Security Policy

134. The Lisbon Treaty would create a new position of High Representative of the Union for Foreign Affairs and Security Policy.[302] Professor Whitman told us that the changes associated with the new position were "the most significant set of changes to decision-making" made by the Treaty in the foreign policy area.[303] The new High Representative would be appointed by the European Council, by qualified majority vote, with the agreement of the President of the European Commission.[304] The key feature of the new position is that the High Representative would have responsibilities for, and an institutional home in, both the "Community" areas of EU external action and the CFSP. For this reason, the new High Representative is often referred to as being "double-hatted". According to Professor Whitman, "the High Representative will be a personification, and the animus, of the new gathering together of all aspects of External Action".[305]

135. The creation of the new High Representative post has arisen not only from the wish to achieve greater coherence between "Community" and intergovernmental policy areas,[306] but also as a consequence of the abolition of the six-monthly rotating Presidency.[307] Professor Whitman suggested that, by taking over some functions from the Presidency, the new post might eliminate "the uncertainties that come with the old system of rotation".[308]

136. The provisions of the Lisbon Treaty regarding the new High Representative post are identical to those in the Constitutional Treaty regarding the post there designated as "Union Minister for Foreign Affairs".[309]

137. In the CFSP, the EU has had a High Representative since the 1997 Treaty of Amsterdam came into force in 1999. Since the current CFSP High Representative post was created, it has been held by Dr Javier Solana, former Spanish Foreign Minister and Secretary-General of NATO. The current TEU provides that the CFSP High Representative "shall assist the Council in matters coming within the scope of the common foreign and security policy".[310] Under the Lisbon Treaty, the new High Representative would gain an expanded set of CFSP responsibilities. In particular, he would gain:

from the Commission, the right to make CFSP proposals to the Council, a right which Member States would also continue to enjoy;[311]
from the rotating Presidency, responsibilities for ensuring the implementation of CFSP decisions, a responsibility which would now be shared only with the Council or with Member States in general;[312]
from the rotating Presidency, the responsibility for representing the EU externally for CFSP matters;[313]
from the rotating Presidency, the responsibility regularly to consult the European Parliament on CFSP matters;[314]
from the Council, the right to propose the appointment of EU Special Representatives and to manage them once appointed.[315]

Overall, Professor Whitman told us that the new High Representative would "replace the Presidency as the key animating force of the CFSP".[316]

138. Under the Treaty, the new High Representative would—in addition to his CFSP responsibilities—be a member of the European Commission and have responsibilities for "Community" areas of external action. He would take over the job of the Commissioner for External Relations and European Neighbourhood Policy, which would cease to exist as a separate post.[317] He would also ex officio be Vice-President of the European Commission. Finally, he would be responsible for "co-ordinating" all the Commission's activities in the external action field—i.e. those covering, most prominently, trade, development assistance and enlargement.[318]

139. For advocates of the new post, its "double-hatted" nature offers the key means of achieving the greater co-ordination between "Community" and CFSP elements of EU external action which has been the central declared aim of the current Treaty reform process in this field. Under the Treaty, it would be a responsibility of the High Representative to "ensure the consistency of the Union's external action", a responsibility which currently accrues only—and problematically—to the Council and Commission.[319] Mr Avery suggested that the current system, under which the Council receives proposals from both the Commission and the CFSP High Representative, is "rather incoherent".[320] In his view, "when the Council sees this better preparation of policies and strategies, it will say, 'Why didn't we do this sooner?'"[321] Mr Avery highlighted enlargement and neighbourhood policy as examples of policy areas—which are important to the UK—in which currently both the Commission and the Council are involved. He argued that "the two teams get along well in general, but there is a certain rivalry, competition and overlap, and it would be far more effective to combine the energy and talents in what I would call a joined-up approach to foreign policy."[322] Similarly, Mr Donnelly told us that the changes involved in the creation of the new High Representative post "are likely to help make more coherent and effective the external actions of the European Union."[323]

140. The Foreign Secretary told us that "the double-hatting, or the merger of the two posts into a single post, is a worthwhile reform".[324] He went on: "two people doing one job is not a very sensible way of proceeding. [The new post is] therefore […] a sensible rationalisation."[325]

141. There are sceptics about the principle of "double-hatting". Lord Owen acknowledged that the simultaneous existence of both the External Relations Commissioner and the CFSP High Representative meant that "there are problems".[326] However, he argued that "sometimes you have to have differences of opinion, and the idea that simply merging everything will resolve the problems seems crazy to me".[327] He suggested it would be the case that, for the new High Representative, "divided loyalties to the Commission and the Council remain".[328]

142. Professor Whitman suggested that—precisely because the EU's distinct "Community" and intergovernmental elements would remain in place—the new High Representative would be presented with a job that is "extremely difficult to execute".[329] He added that "it is unclear whether one individual will be able to cope with the responsibilities of operating on both the CFSP and the Commission side".[330]

143. In political terms, and in the context of the historically and legally crucial distinction between "Community" and "intergovernmental" elements of the EU, the "double-hatting" principle is controversial. Some supporters of the Commission and the "Community method" see the arrival of the new High Representative in the Commission as likely to extend the influence of intergovernmentalism.[331] Mr Avery told us that he thought such fears were "not very well founded".[332] Those, on the other hand, who wish to preserve intact the EU's intergovernmental elements tend to see the new High Representative post as an intrusion there of the Commission, and as part of an effort to establish stronger centralised EU powers and institutions. Lord Owen told us in this context that "people […] are continually positioning authority in the build up of the Commission. More and more they are pulling these things away from intergovernmentalism."[333] Open Europe similarly told us that the "double-hatting" of the High Representative "blurs the distinction between the EU's intergovernmental and 'supranational' bodies".[334]

144. The UK Government appears to have a strongly intergovernmentalist view of the new High Representative's role. The Foreign Secretary told us that "the Commission role of the High Representative is quite limited. His or her primary function is to carry out the wishes of the Council of Ministers."[335] The Government drew our attention to the Lisbon Treaty provision that the High Representative will be bound by Commission procedures only "to the extent that this is consistent" with his other responsibilities.[336]

145. Mr Donnelly thought that the Government's conception of the High Representative post was the one most likely to come into being: "the holder of this new post will be essentially a representative and advocate of policies established by others, namely national Foreign Ministers".[337]

146. Mr Avery expressed concerns that, given his CFSP role, the new High Representative would be unable adequately also to fulfil his responsibilities in the Commission. In Mr Avery's view, co-ordination of the Commission's external activities was "very badly needed".[338] In the previous (1999-2004) Commission, this coordinating role was taken informally by the then External Relations Commissioner, Chris Patten. In the current Commission, the role has been undertaken by the Commission President, José Manuel Barroso. However, Mr Avery told us that, given his other responsibilities, Mr Barroso "does not have enough time to handle foreign affairs".[339]

147. There are some concerns about the new High Representative's privileged position with regard to the other Commissioners, and the possible impact that this might have on the Commission as a collegiate body. Under the Lisbon Treaty, the High Representative would be the only Commission Vice-President to hold that position ex officio. Other Vice-Presidents are chosen by the Commission President, from among the newly-appointed Commissioners.[340] The High Representative would also be the only Commissioner whom the Commission President, acting alone, could not oblige to resign.[341] Given that—in his capacity as chair of the Foreign Affairs Council[342]—the new High Representative would have a form of authority over Member State Foreign Ministers, and that he would be appointed in the same way as the Commission President, by Member State leaders in the European Council, there is potential for the High Representative's role in the Commission as a subordinate to the President to require sensitive management.[343]

148. In addition to his CFSP and Commission roles, the new High Representative would also have a "third hat". Under the Lisbon Treaty, he would act as permanent chair of the Foreign Affairs Council [of Ministers].[344] As such, he would take over the Presidency's current right to convene the Foreign Affairs Council in extraordinary session, at either his own initiative or that of a Member State. The Commission, as a body, would lose its right to initiate such an extraordinary Council meeting.[345]

149. A number of witnesses expressed concerns about this "third hat". Lord Owen said that "when there is an issue of contention between Member States and what the High Representative's office proposes, I think that it is absolutely deplorable that he or she should be in the chair".[346] Mr Avery argued that making proposals to a body over which one was simultaneously presiding was "psychologically and practically quite a tough proposition".[347] In his view, "the problem with the third hat has been underestimated".[348] The Foreign Secretary acknowledged that the High Representative's role in the Council was "certainly an innovation", although he suggested that his role as chair would encourage the High Representative to pursue consensus, rather than strike out with personal initiatives.[349] For his part, Dr Solana said that in his experience, "not only is it possible [to both chair and present proposals to the same body] but it helps sometimes".[350] Dr Solana referred to his experience as Secretary-General of NATO, saying that in that post, he both chaired and presented proposals to meetings at all levels. Dr Solana concluded that he did not "think that there will be a problem if things are done properly and if a person who chairs a meeting understands his role."[351] Dr Solana added that he was "sure that the Member States will not allow him to misunderstand his role."[352]

150. Given the range of the new High Representative's CFSP, Commission and Council responsibilities, a key concern of several of our witnesses was the feasibility of the role in practical and human terms.[353] Professor Whitman thought that the creation of the post would "result in a breach of the working time directive".[354] While Mr Avery told us that the High Representative role was "a hell of a big job but […] not […] impossible",[355] Lord Owen—when asked whether he thought the job was "doable" by a single individual—answered that he did not.[356] For his part, Professor Hill suggested that overload on the High Representative could make EU foreign policy "less effective over the long run".[357] A particular concern is whether, with his or her new additional responsibilities, the High Representative would again be able to devote intense periods to crises or negotiations away from Brussels, as Dr Solana has done in the cases of the Former Yugoslav Republic of Macedonia, Ukraine and Iran, for example.

151. Dr Solana argued that, effectively, the new post would, in terms of workload and difficulty, be less than the sum of the two existing positions. Dr Solana told us that:

It is true that the job is not easy today, but one of the reasons for that is the internal organisation and the division of hats. Simplifying political decision-making and putting all the resources into the objective that has been defined politically will make it easier. Today it is a little more difficult, because the autonomy of the two decisions, if I can call it that, sometimes creates problems and even contradictions. With the new treaty, the relationship will be simpler. The Council will take a decision and somebody will be there to apply it, and it will be easier to use the resources properly […] A tremendous amount of time is spent solving these internal problems.[358]

Dr Solana also implied that the new High Representative would make use of deputies or other more junior officials, in order to cover the ground involved in his new position.[359] Overall, Dr Solana judged that the new High Representative position "is not an impossible job if you organise it properly."[360]

152. The Foreign Secretary suggested that the most important factor in avoiding an overload problem and making the new post work would be "discipline on the part of the commissioning body—the Council of Foreign Ministers—about what it wants the High Representative to do, so that it is clear that he or she is there to enact agreed foreign policy. We must be disciplined in the priorities we have and the way in which we move forward."[361]

153. Precisely because of the new High Representative's role in carrying out policy agreed by the Council, Mr Donnelly reminded us that Member States would retain the overall responsibility for the nature of the EU's international presence. He stated that:

[The] capacity [of the High Representative] to be a forceful representative of the European Union on the world stage depends very largely on the willingness of national foreign ministers to agree on worthwhile external policies for the European Union. The presence or absence of political commitment to the CFSP from national capitals over the next decade will be at least as important in this connection as the personal qualities and institutional competences of the High Representative.[362]

154. We conclude that the new post of High Representative of the Union for Foreign Affairs and Security Policy has the potential to give the EU a more streamlined international presence and to contribute to the more coherent development and implementation of external policy. We further conclude that it is clear that the High Representative is there to enact agreed foreign policy.

155. We conclude that there are grounds for concern that the holder of the new post of High Representative of the Union for Foreign Affairs and Security Policy could face work overload. We recommend that the Government engages with the other Member States and—when known—the nominee for the post to ensure that the potential benefits of the new post are not jeopardised by a plethora of duties and excessive workload.

THE HIGH REPRESENTATIVE AT THE UN

156. The Lisbon Treaty would provide that:

When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the High Representative be invited to present the Union's position.[363]

This would be a new provision compared to the current Treaties, taken over from the Constitutional Treaty.[364]

157. The Foreign Secretary pointed out that "The European Union has the right to speak [in the Security Council] at the moment […] It can speak, but it obviously cannot vote, because votes are reserved for members of the Security Council."[365] Professor Hill backed up this view, pointing out that, even in the absence currently of a relevant Treaty provision, "Mr Solana already speaks at the Security Council by invitation, and of course the Presidency does as well."[366] Dr Solana confirmed that he has spoken at the Security Council in his current capacity, always following an invitation to do so by EU Security Council members.[367] We conclude that the Lisbon Treaty provision for the new High Representative to speak at the UN Security Council will make little difference to current practice. It will not undermine the position of the UK in the United Nations system nor the UK's representation and role as a Permanent Member of the Security Council.

European Council President

158. The Lisbon Treaty would refashion the position of President of the European Council, the body of EU heads of state or government. At present, the President is the member of the European Council—that is, the head of state or government—from the Member State holding the rotating Presidency of the EU. The President therefore holds the office for only six months at a time, and does so while simultaneously heading a national administration. Under the Lisbon Treaty, the Presidency would become a longer-term and, apparently, full-time job. The European Council would elect its President, by qualified majority, for a term of two and a half years, renewable once. The Treaty further provides that the new President "shall not hold a national office".[368]

159. According to its White Paper on the 2007 IGC, the Government "supports this reform [of the European Council Presidency]". It argues that "[the change] will bring much greater coherence and consistency to the EU's actions. Moreover, it will give the Member States, through the European Council, much greater capacity to give direction and momentum to the EU's agenda."[369]

160. Lord Owen was sceptical of the idea of a European Council President who is not a serving head of state or government. He believed it likely that "the experiment of introducing someone from outside [would] not work well",[370] and said that the new position "was never thought through".[371] He would have preferred to retain a President who is also a national head of state or government, but to extend his or her term of office to 18 months or two years, by building on the already-developing system of "team Presidencies" among groups of three or four Member States holding the current six-monthly Presidency for successive terms.[372]

161. Lord Owen also suggested that there was a possibility that the President of the European Commission might be appointed as the new European Council President. In his view, for its advocates such a step would be driven by the same "double-hatting" logic as has driven the creation of the new High Representative post. However, he contended that "if that one single decision were to be taken, the EU would, in effect, come very close to unifying itself into a nation state".[373] Lord Owen based his view that such a step would be possible on the fact that the Lisbon Treaty would specifically bar the new President of the European Council only from holding national office. In support of his position, he cited a legal opinion of the Netherlands Government provided to its parliament in 2004.[374]

162. The Foreign Secretary told us that it would simply not be possible for the President of the European Commission to be appointed as European Council President.[375] He rested his position on the continuing Treaty provision, first, that "Members of the Commission may not, during their term of office, engage in any other occupation".[376] Second, he pointed out that, under the Treaty, Commissioners "shall neither seek nor take instructions from any government or other institution, body, office or entity".[377] On this view, "double-hatting" a single President would require Treaty change, just as had the creation of the "double-hatted" High Representative.[378] In the context of the Government's position, we note that the former European Commissioner from the UK, Lord Cockfield, was able to hold that office in 1985-89 while remaining a Member of the House of Lords. We conclude that it is regrettable that the Lisbon Treaty does not state explicitly that the new European Council President may not simultaneously hold any other office.

163. In the external action field, the Lisbon Treaty would put the new European Council President in a position to have an impact inasmuch as the European Council is called on to determine "the strategic interests and objectives of the Union" for all its external action,[379] and "the objectives of and […] general guidelines for" the CFSP;[380] and given that the President is to "provide the impetus" for the work of the European Council, "ensure the preparation and continuity" of its work and "endeavour to facilitate cohesion and consensus" within the body.[381] Furthermore, under the CFSP provisions of the Treaty, the new European Council President would gain the right to convene an extraordinary meeting of the European Council in order to define EU strategy in the face of new international developments.[382]

164. In addition, under the Lisbon Treaty, the new President would gain a specific external relations function. This is that he or she would:

at his or her level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.[383]

Several of our witnesses argued that this provision left considerable potential for confusion or conflict between the European Council President and the High Representative as regards the EU's external representation. Lord Owen believed that the Lisbon Treaty's description of the European Council President's external role was "completely inadequate",[384] while Mr Donnelly told us that the Lisbon Treaty left the allocation of external representative responsibilities between the European Council President and the High Representative "unhelpfully unresolved".[385] "The Lisbon Treaty does not answer entirely the question 'Who speaks for Europe?'", he said.[386]

165. Dr Solana felt that the Lisbon Treaty provision for the external representation of the EU by the new European Council President would make for "no fundamental change in reality."[387] Dr Solana pointed out that, at present, the holder of the rotating Presidency of the European Council attends EU summits, along with Dr Solana and the President of the European Commission.[388]

166. Professor Hill stated that the potential for confusion or conflict in external representation might be compounded because the European Commission President might also see himself as having a role in this area. Professor Hill said: "we are going to have three [Mr Europes]—the President of the Commission, the new […] President and the High Representative. In a way, it is a recipe for classic turf battles. That is what has not been thought through so far."[389]

167. For some of our witnesses, concerns about the relationship between the new European Council President and the High Representative were heightened because they saw the provisions of the Lisbon Treaty which deal with the former post as being in general too vague. Professor Whitman judged that "there is virtually nothing" in the new Treaty on the role of the new European Council President.[390] "Will they have enough to do, or will they have enough time to make mischief in the foreign policy area?", he wondered.[391] Uncertainty surrounding the European Council President is compounded because the Lisbon Treaty says nothing about the location and size of his or her support staff, particularly in relation to the new European External Action Service (EEAS).[392] However, Dr Solana thought that the new European Council President was likely "to be much more inclined, on a day-to-day basis, to dealing with the internal work of the EU—to mobilising the Council."[393]

168. Lord Owen outlined two possible scenarios as regards the new European Council President. On the one hand, he suggested, the EU might

appoint somebody who is so intent on their own agenda that they push it to the exclusion of all else and gets airs and graces that are way above them, and […] the Heads of Government start to resent this character stomping around the world, claiming to be the person who talks to the President of the United States.[394]

On the other hand, the EU might appoint

somebody who was very considerate of Member States, who went round genuinely trying to rally a consensus and saw themselves as purely the spokesman of the European Union where there was already unanimity and was not pushing themselves forward, was not combative in their relationship with the High Representative.[395]

169. The Government presented a picture of the new European Council President which appeared to be closer to the more modest version of the role. The Foreign Secretary told us that the President of the European Council "is appointed by 27 Heads of Government to chair meetings and have a role in setting the agenda";[396] that "the Chairman of the Council is there to take instructions from the 27 Heads of Government";[397] and that "any Chairman of the European Council who gets too big for their boots and loses touch with the people who appointed them will end up in trouble."[398]

170. We conclude that the reshaped role of the President of the European Council could help to generate consensus among EU leaders and lead to greater continuity in the chairing of the European Council. However, we are concerned by the current degree of uncertainty which surrounds the role and by the potential for conflict with the High Representative in representing the EU externally. This could undermine one of the main aims of the current Treaty reform process in the external field. We recommend that in its response to this Report, the Government sets out more clearly its conception of the role of the new European Council President, and its assessment of the likelihood that this will be realised. We further recommend that the Government initiates, in the course of discussions with its counterparts on the appointments to the new posts, the drawing-up of a memorandum of understanding on the respective roles which the European Council President and the High Representative are to play in the external representation of the Union.

Appointment issues

171. All our witnesses agreed that the personalities of those appointed as the first holders of the new European Council President and High Representative posts would be crucial to the initial operation and longer-term development of the Lisbon Treaty's new institutional arrangements.[399] This is particularly the case given also the potentially delicate relationships between these two figures and the President of the European Commission.

172. If the ratification of the Lisbon Treaty proceeds as planned, all the "big three" jobs will be filled in 2009. It is planned that the Treaty will come into force on 1 January 2009. It appears to be assumed that the new President of the European Council will take office on the day that the Treaty comes into force, although this is not explicit.[400] A Declaration attached to the Treaty specifies explicitly that the new High Representative will take up his office on the day that the Treaty enters into force.[401] As long as the Treaty ratification process proceeds as planned, therefore, the European Council can be expected to name its appointee to that post, at least, in the course of 2008. However, the term of office of the Commission to which the new High Representative would be appointed comes to an end in October 2009. The same Declaration confirms that the first High Representative will be appointed only until the end of the current Commission's term of office.[402] Although Commission President Barroso has indicated that he would like another term in post,[403] the President of the next Commission can only formally be named in light of the results of the European Parliament elections due to be held in June 2009.[404] For those who hold that the three "big jobs" can only be allocated simultaneously as a "package deal", the possibility is therefore of such a package becoming available only in mid-2009. One scenario that has been floated is that the current High Representative for the CFSP, Dr Solana, be appointed as the new High Representative for the initial ten-month period from January 2009, whether or not he might then wish to take up the longer-term appointment to the new post.[405] This kind of scenario, in which the new European Council President and long-term High Representative are not appointed until into 2009, appears to be supported by recent indications that the Czech Republic, which is next in line, will have an EU Presidency in the first half of 2009 under the existing system.[406]

173. A Declaration attached to the Lisbon Treaty states that, in allocating the "big three" jobs, "due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States".[407] Mr Avery told us that this was likely to be interpreted to mean that at least one of the posts should go to a woman, and that "it would be well received if one of these big posts went to somebody from a new Member State".[408]

174. The European Parliament has to give its approval to a new Commission.[409] However, if the Lisbon Treaty comes into force as planned, the new High Representative would be most likely to be appointed to the existing Commission. The European Parliament sought guarantees during the 2007 IGC that it would be involved in the initial appointment of the High Representative.[410] On his return from the 18-19 October informal European Council in Lisbon, the Prime Minister told the House that a Declaration agreed there "made it clear that the European Parliament would have no new role in the appointment to the new post of High Representative, which will be made by the European Council."[411] However, the relevant Declaration in fact states that "appropriate contacts will be made with the European Parliament".[412] The Foreign Secretary confirmed to us that "there will be contacts and discussions" with the European Parliament during the initial appointment of the High Representative, although he would not be drawn on how exactly he envisaged the process.[413]

175. As to the individual who might be appointed as the new High Representative, Professor Hill told us that "there is only a small group who could be candidates for this kind of job [...] They would have to have political weight, managerial capability, experience of at least one side—one hat, as it were—and external credibility." Professor Hill further suggested that the appointee "must be somebody who the Americans are willing to take seriously."[414] The Foreign Secretary was more upbeat about the prospects of finding a suitable figure to fill the role, suggesting that "there are many people with experience."[415]

176. Dr Solana told us that the appointees to the EU's new posts must not

have a sense of [their] position. The objective is to construct consensus […] If you do not have the sentiment that it is your job to create consensus, you may run into difficulties, so perhaps the most important qualities needed by the individuals concerned are intelligence and the desire to do the job. It would not be a good post for someone wanting to retire.[416]

177. We conclude that the personal characteristics of the individuals who are appointed to the key posts of European Council President, High Representative for Foreign Affairs and Security Policy, and President of the Commission—in particular, their capacity for teamwork and hard work—will play a critical part in determining whether the new EU foreign policy arrangements work effectively. We recommend that the Government should place a high priority on working constructively with its European partners to ensure that the right individuals are selected for these posts.

302 Article 1 19) of the Lisbon Treaty, inserting Article 9E TEU; Article 1 30) of the Lisbon Treaty, inserting Article 13a TEU Back

303 Ev 84 Back

304 Article 1 19) of the Lisbon Treaty, inserting Article 9E TEU Back

305 Ev 84 Back

306 As discussed in Chapter 3 above. Back

307 Q 436 [Professor Hill] Back

308 Q 436 Back

309 Article I-28 Back

310 Article 26 TEU Back

311 Article 1 33) of the Lisbon Treaty, amending Article 22 TEU to become Article 15a TEU Back

312 Article 1 19) of the Lisbon Treaty, inserting Article 9e TEU; Article 1 27) of the Lisbon Treaty, amending Article 11 TEU; Article 1 29) of the Lisbon Treaty, amending Article 13 TEU; Article 1 30) of the Lisbon Treaty, inserting Article 13a TEU; compare the current Article 18 TEU Back

313 Article 1 30) of the Lisbon Treaty, inserting Article 13a TEU; compare the current Article 18 TEU Back