Examination of Witnesses (Questions 207-219)
MR JIM
MURPHY MP, MS
SHAN MORGAN
AND MS
SHELAGH BROOKS
12 SEPTEMBER 2007
Q207 Chairman: Before we begin, I
ask all members of the public to switch off their mobile phones.
Good afternoon, Mr Murphy and colleagues. We
are very pleased that you have accepted our invitation to come
here this afternoon. We are meeting in the recess, and as far
as I am aware, we are the only Select Committee so to do—as
we did last year. The reason why we are meeting is that we clearly
believe it is important that proper parliamentary consideration
is given to what is going on with the European negotiations and
the reform treaty. This is the first opportunity for parliamentary
scrutiny since the draft reform treaty was published, so we are
very grateful to you and your colleagues for being here this afternoon.
Will you introduce them to us and then we shall begin?
Mr Murphy: I will allow them to
introduce themselves.
Ms Morgan: I am Shan Morgan, EU
Director at the FCO.
Ms Brooks: I am Shelagh Brooks,
Legal Adviser at the FCO.
Q208 Chairman: Thank you. Let us
begin with the process and how it is unfolding. The Foreign Ministers
met on 7 and 8 September. I should be grateful if you would give
us your take on where things are following that meeting and say
how the remainder of the intergovernmental conference process
is likely to develop. I was at a conference in Poland last week,
and the Polish political crisis means that an election will be
called on 21 October. Do you envisage that that in any way will
affect the timetable for the IGC, and what might happen in the
rest of this year?
Mr Murphy: First, thank you for
your warm welcome, Mr Gapes. When I first appeared before the
Committee prior to recess, I said that I would be happy to give
evidence during recess. Without wishing to get off on a discordant
note, it is my understanding that I have accepted one other invitation,
to appear before the European Scrutiny Committee during the recess.
I do not wish to steal the Foreign Affairs Committee's thunder,
but I am appearing before both.
Chairman: It is after us.
Mr Murphy: You are right—you
are the first in the recess.
You were right about Poland. It is a matter
of public record that there will be an election on 21 October.
In a political sense, the two main parties have signed up to the
broad thrust of the mandate. Some of the issues that were outstanding
for the Poles were resolved in the discussions in June. It is
certainly my understanding that the Polish are represented in
these forums through the President, and the presidential elections
are not due until 2010, although these things are not always 100%
predictable. There is a political continuity of a bipartisan approach
to the major issues. Then there is also the fact that the President
has represented Poland, and the fact that Poland signed up to
the mandate in June.
In terms of the further timetable, a General
Affairs Council will meet on 15 October, which will be attended
by the Foreign Secretary. On 18 October, there will be an informal
meeting of the European Council, and it is at that point that
there will be agreement in the heads of the text. Then the jurists-linguists
will become deeply involved to ensure that the texts of the treaty
reflect in exact detail the processes that have taken place up
until now. With the proposal from the Portuguese presidency for
a December agreement at the EU summit, the proposal is for the
Prime Minister to attend that. That is the timetable between now
and then. I assume that there will be an opportunity for this
Committee and others to keep abreast of the issue and continue
to probe and investigate, not least because the Foreign Secretary
is appearing before you on 10 October.
Chairman: That is right.
Mr Murphy: And I have accepted
other invitations to other Select Committees, so when we receive
invitations we will continue to find ways to remain connected
to the UK parliamentary process.
Chairman: Thank you for that. May I bring
in Mr Mackinlay?
Q209 Andrew Mackinlay: Our impression
was buttressed by an article in The Times today, which
says that, even as we speak, legal experts are involved in checking
the draft treaty, and that the Prime Minister himself has asked
to be reassured—or there is some doubt—that there
could not be European Court of Justice oversight of our foreign
and security policy.
I put that to you for a variety of reasons.
It would seem that we are still putting the rivets in the ship
as it goes down the slipway. Can you amplify the particular example
that I gave, because it seems to me that it is pretty fundamental.
It would suggest that the late Prime Minister and/or officials
were asleep when they should have been clarifying the point, which
we are now told is having to be clarified.
Finally, although you have said that you of
course will be available through the parliamentary process, and
the Foreign Secretary is meeting us, there needs to be a stage
in which we have a definitive final document and a time to digest
and scrutinise it. At this stage, we are doing it while the thing
is still being constructed. What do you say to that?
Mr Murphy: Thank you, Mr Mackinlay,
for raising that issue. It is an opportunity to deal with one
of the issues that have appeared in today's media—the issue
of ECJ jurisdiction on the common foreign and security policy.
The treaty is pretty clear. I have looked at it, and it says that
the Court of Justice of the EU shall not have jurisdiction with
respect to CFSP. That is pretty clear.
Q210 Andrew Mackinlay: So what's
the beef? Why is it being pursued this afternoon? Somebody somewhere
must have some doubts.
Mr Murphy: I cannot speculate
on why the issue has ended up in today's edition of The Times,
but the position is clear. We have said throughout the process
that we negotiated a mandate with which we are content, and we
do not wish to reopen that mandate. That is what I have said in
all the deliberations throughout the process. To extend ECJ competence
into CFSP would reopen the mandate. We are confident that the
text will reflect the position that the UK negotiated and that
was agreed by all 27 member states.
Q211 Andrew Mackinlay: When the process
is complete, how much time will we as parliamentarians here at
Westminster have to digest the text and scrutinise yourselves
about the final version, before it is confirmed or ratified at
a European Council? Such things have a habit of falling in parliamentary
recesses. That is demonstrably not a problem for us—we are
here—but most of our good friends the press are very absent.
Other people go to sleep and stay away, but some of us want to
be on the ball. We want to have no difficulty in getting at you.
Once everyone is lined up and all the skittles are in place, what
time will we have to examine the text and probe it?
Mr Murphy: In the 10 years in
which I have been in Parliament, I have never considered you to
have any difficulty in getting at me or anyone else. The timeline
for that opportunity would be between the October informal Council
and the December summit—that would be the time of most opportune
investigation and reflection on a text. Quite likely, however,
that would not be the end of it. The Government intend thereafter
to seek parliamentary approval—in both the Commons and the
Lords. Every parliamentarian, and the relevant Select Committees,
will play an active part.
Q212 Andrew Mackinlay: Don't pull
that one on me. You know that that legislation is to enact a treaty;
it is not an opportunity to scrutinise. I welcome legislation,
but legislation is after the event. I am surprised that you look
bewildered; all the legislation on Maastricht and all those other
things has been to enact and to give force in British law to the
treaty fixed. So don't pull that one.
Mr Murphy: A formal negotiation
process is not going on; the UK negotiated its deal in June. What
I was alluding to was that, when a text is available in October
to December, the Committee will have an opportunity to be involved
in that conversation. As you know, Mr Mackinlay, I would never
try to pull anything over or at you. I spent some of the summer
reading some of the Hansard reports of some of the treaty
debates. Parliament quite rightly does not just debate the relatively
short Bill before it but debates the issues in the treaty as well
as issues that quite often are nowhere near the treaty. It is
Parliament's right to do so, of course.
Q213 Sir John Stanley: Minister,
the answer that you gave to Mr Mackinlay's first question does
not seem to me, as I heard it, to be consistent with the memorandum
that you submitted to the Committee on 5 September. The memorandum
is EU34 in our numbering. In it, you said, "The Treaty's
provisions on the CFSP will not be subject to the jurisdiction
of the European Court of Justice (ECJ), except in certain very
limited circumstances." In your own memorandum, therefore,
you acknowledged that in some undefined, very limited circumstances,
the provisions on CFSP will be subject to the jurisdiction of
the ECJ. Will you tell us what are those certain very limited
circumstances that have been referred to?
Mr Murphy: It is certainly my
understanding, Sir John, that there are currently two circumstances
where ECJ jurisdiction applies—I look for guidance, of course,
from one of my colleagues, but my understanding is certainly that
the treaty, in and of itself, does not extend the list of competences
in terms of CFSP. One relates to the issue of sanctions, and my
understanding is that it already exists, although I cannot recall
which treaty it emanates from—I think that it is in the
treaty establishing the Union. The second area of CFSP competence
for the ECJ— [Interruption.] So one is in respect
of sanctions, and the other one, it says here, in the relevant
articles, relates to "the application of the procedures and
the extent of the powers of the institutions laid down by the
Treaties for the exercise of the Union competences". So the
existing competence is about the areas of Union competences and
also about sanctions against individuals on CFSP.
The example that I have used in conversations
I have had with colleagues on this issue, Sir John, is of a sanction
on an individual—say, for example, Mugabe. The collective
of the European Union may wish, as a matter of foreign policy,
to exercise a sanction on such an individual, and that power already
exists, so the treaty in itself does not extend it, and the mandate
is clear about that.
Q214 Sir John Stanley: Yes, but your
very next sentence, Minister, reads as follows: "The interpretation
and application of these provisions, in the light of the Declaration,
will therefore be determined in the course of decision-making
on the CFSP". As I read that, it suggests that how far these
very limited circumstances go will be dependent on the further
negotiations on the terms of the treaty, which are still to be
concluded. That would suggest to me, and possibly many others,
that there is still a quite wide and as yet undefined area of
foreign policy that might fall within the jurisdiction of the
European Court of Justice.
Mr Murphy: With respect, Sir John,
that is not the case. There is not a process of negotiation ongoing.
There is a mandate, there is an arrangement and there is an agreement
with all 27 member states. We expect that mandate to be respected.
There is not a process of negotiation ongoing about ECJ competence
and CFSP—there is no such process ongoing today and there
will not be as part of this process. We are very clear: we have
an arrangement, we are content with it and we will not be shifting
from the arrangement that we agreed to as part of the process,
and the treaty does not change that.
Q215 Sir John Stanley: Well, I only
refer you to your wording and I take it very seriously. You say
that "The interpretation and application of these provisions
... will therefore be determined in the course of decision-making
on the CFSP", which to me suggests that there is still a
wide potential area of jurisdiction for the ECJ, which could include
scrutiny of European foreign and security policy. Anything that
is interpretive is, by definition almost, likely to create an
unknown degree of competence of jurisdiction as far as the ECJ
is concerned.
Mr Murphy: The CFSP has been kept
in a separate treaty. It remains intergovernmental, and unanimity
is the rule, with those two exceptions—the exception of
the sanctions and the second one about adding more detail. They
are about an existing power to monitor the boundary between CFSP
and other EU policies, plus new jurisdiction to review, judicially,
sanctions measures affecting people. Those are the two exceptions
at the moment, and it is certainly my understanding that they
already apply. The Government will not be signing up to a treaty
that extends things beyond those two.
Q216 Sir John Stanley: I should just
like to add that this is an absolutely crucial area for this Committee,
so, Minister, if, when you have looked at the transcript of this
exchange, there is anything further that you wish to add to your
evidence, I am sure that the Committee would appreciate it.
Q217 Ms Stuart: Minister, I wondered
whether you wished to correct yourself when you said that CFSP
will remain a separate treaty. Surely you meant to say "separate
article"—we do not need a separate treaty for this.
Mr Murphy: By the end of this,
we will have two treaties as part of this process, as you know.
The treaty on the European Union will amend existing provisions
on European security and defence policy, CFSP and EU institutions.
In that sense, it is intergovernmental, and unanimity—that
is the point I am making, of course. The first treaty is on the
function of the union.
Q218 Ms Stuart: Can I come back to
the question of where negotiations are taking place? The previous
Foreign Secretary told us that no negotiations were taking place.
There was an exchange of letters, which they replied to, but there
were no negotiations. There is then the intergovernmental conference
mandate, which appeared from platform 12¾ in "Harry
Potter", by the sound of it, because there were no negotiations.
You now tell us that the negotiations have come to a conclusion
because you are happy with the mandate. Again, no negotiations
are taking place. When, within the last nine months and in the
six months ahead, are negotiations taking place? They must be
somewhere.
Mr Murphy: You accept, Ms Stuart,
the point I made earlier about two separate treaties and amending
two treaties? But on this specific point about negotiations: those
took place around us at the meeting in June under the German presidency.
That was when the process was brought to a head, in terms of the
content of the mandate and a deal that all 27 member states could
sign up to. We are now involved in the well-established process
of legal experts from all the member states coming together to
create legal detail around the specific content of the political
commitment and the mandate. There is not a process of detailed
negotiation going on at the moment. The UK intends to make sure
that the precise wording reflects the mandate that we signed up
to, and that is what is ongoing.
Q219 Ms Stuart: If, as you say, the
only time that negotiations take place is, as it was then, at
the IGC meeting, do you need to take some parliamentarians with
you to the next Council meeting, so that there will be parliamentary
representation in negotiations, if that is the only way Parliament
can have any input in any of them?
Mr Murphy: No, I do not think
that that is necessary. As I said, the point at which negotiations
took place was in June. I read, of course, the transcript of previous
hearings on this matter with the previous Foreign Secretary, and
I was asked about these issues in negotiation at the European
Scrutiny Committee, as has been asked about.
The negotiations were in June, we got a deal
that we are comfortable with, and it is now about us ensuring
that the detail is reflected. The relevant parliamentary Select
Committees will want to make sure that we have achieved the detail
of our mandate, and that is entirely right and proper, but there
are now no negotiations.
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