Examination of Witnesses (Questions 240-259)
MR JIM
MURPHY MP, MS
SHAN MORGAN
AND MS
SHELAGH BROOKS
12 SEPTEMBER 2007
Q240 Ms Stuart: No, it is quite important.
Do your legal advisers have that understanding? The document that
started as a constitution and was then simply called a constitutional
treaty was still the constitutional approach. Is that so?
Mr Murphy: On that specific point,
you are clearly closer to this—
Q241 Ms Stuart: No, Minister, I want
to stress to you why it is so important, because so far I have
singularly failed to pin down what abandoning the constitutional
process means. In order to do so, I should like to pinpoint the
last moment when we still thought that we were in the constitutional
process.
Mr Murphy: Ms Stuart, I do not
think that I need to take up your invitation to receive advice
from my legal advisers. I suspect—well, I know—that
the last time there was a commitment to a constitution and a constitutional
process was prior to the referendums in France. That was pretty
clear. As we trailed through the process and the two referendums
in the Netherlands and France were held, it was pretty clear that
the constitutional approach—the overarching consolidation
of all treaties into one—had been given a pretty severe
rejection by the electorate of those two states.
Ms Stuart: I know. Never mind about that.
Mr Murphy: At that point, it was
clear that the constitutional approach would no longer be one—
Q242 Ms Stuart: Minister, please.
We are talking about some very precise legal points that I want
to pin down. It does not matter what the French and the Dutch
have said about it. Would you say that the document that the French
and Dutch voted on was one by which we still adhered to the constitutional
process?
Mr Murphy: It was a referendum
on a treaty for a constitution for Europe, yes.
Q243 Ms Stuart: So it was—fine.
In a letter to me, the Foreign Secretary said, "The agreed
basis for the new Reform Treaty states that `the constitutional
concept, which consisted in repealing all existing Treaties and
replacing them by a single text called "Constitution",
is abandoned.' The Reform Treaty will be clearly based upon existing
EU Treaties, and will be a traditional `amending Treaty'".
Lawyers, take note; please listen to this very
carefully. Even the document handed to the French and the Dutch
for a vote did not bring together in a single document all the
previous treaties. It itself was an amending treaty because the
Euratom treaties were never renegotiated. Those treaties, which
were part of the treaty of Rome, were amended in the protocol.
In other words, even the thing that you insist was the constitutional
approach by your own legal definition was already an amending
treaty. Now you say that you have abandoned it, but I suggest
that you never had it in the first place. They were all amending
treaties, and what we were told to have a referendum on in 2005
was an amending treaty.
Mr Murphy: Ms Stuart, given your
involvement in these issues, you have had a deep knowledge of
them over a prolonged period. However, the fact is that all 27
member states, based on strong and clear legal advice and the
formulation of the policy, have said absolutely that what we had
before was a proposal to have a treaty based on the constitutional
concept.
Q244 Ms Stuart: Never mind, Minister.
The other 26 are irrelevant. I would like you and your legal advisers
to explain to me whether, in the light of what I have just said,
your saying that you have abandoned the constitutional approach
has any meaning. If the Euratom treaties were already an amendment
to the original ones, they were all reforming treaties.
Mr Murphy: What was previously
on offer was a constitution for Europe. That is clear. Every member
state was clear that it was signing up on that proposal to a constitution
for Europe. Now, because of the referendums, we have moved away
from that approach and we have made that pretty clear.
I hope that the conversation in the next few
months will be about where we go now and how we deliver and make
Europe more effective through its reform. You were right, as well,
in saying at the outset that you were not sure that everyone in
the country was following the detail of our conversation. We would
all have to do a huge amount of work if, despite the previous
established procedures for ratifying treaties in the United Kingdom,
we were ever to have a referendum; it would be important for such
issues to play an important part in that. However, we have moved
away from the constitutional approach and we will not come back
to it.
Q245 Ms Stuart: Will you define what
"moving away from the constitutional approach" means
if it is not in respect of replacing it with just one document—which,
as I have just told you, does not wash?
Mr Murphy: Moving away from the
constitutional approach—
Q246 Ms Stuart: Which is what?
Mr Murphy: Moving away from the
constitutional approach is the declaration by all member states
of their clear determination not to have a constitution for Europe.
That is what it is.
Ms Stuart: No—
Mr Murphy: That is what it is,
Ms Stuart.
Q247 Ms Stuart: That is like sitting
in front of a piece of cream cake and saying, "You will not
make me fat—I declare that you contain no calories."
The cake would still have them. What can I tell anybody down in
the pub about what "we have moved away from the constitutional
approach" means if you do not accept my legal definition.
It does not wash.
Mr Murphy: I am not sure that
either of us should regularly have such conversations in pubs.
The fact is that we have moved away. I do not think that you and
I will have a meeting of minds on the issue at any point between
now and the process through Parliament. Nevertheless, the fact
is that all the member states have made pretty clear what they
intend to do. It is very clear. We are no longer going to have
the approach of that single consolidated text replacing previous
treaties. We are not refounding the basis of the European Union,
and it is important that we should not do so.
Q248 Chairman: May I take this a
bit further? Some people argue that abandoning the constitutional
treaty and going back to a basis of having parallel reform treaties
involves a loss of clarity and transparency and therefore makes
all this about how the European Union functions less comprehensible
to the public—and also, not least, to those of us who try
to follow it; clearly, most members of the public do not try to
comprehend it. What would you say to that? Is it regrettable?
Mr Murphy: There is an enormous
challenge for the European Union and also for member states about
our level of understanding and informed conversation and debate
on the European Union and the issues surrounding it. I would rather
that we had a degree of understanding and a greater informed conversation
about the nature of Europe and the big challenges that it faces.
That is a challenge for members states and the European Union
but, as part of that, it is important as we have this conversation
to consider the previous constitutional treaty.
I am picking up on your point, Mr Gapes, and
that made by Ms Stuart. I cannot add to that which the European
Union and member states have declared in their mandate. I know
that the Committee will have it, but I wish to quote from the
draft IGC mandate. It states, "The constitutional concept
which consisted in repealing all existing treaties and replacing
them by a single text code of constitution is abandoned."
That is very clear. Mr Gapes, you are right that it is a challenge
for all of us to talk about what Europe can do as a collection
of sovereign states working together and what we should not be
doing. That is an important conversation.
Q249 Chairman: The origins of the
whole process of the convention and everything else go back to
2001 at Laeken when the EU said that it would make itself closer
to its citizens. Clearly, we now have—six or seven years
later—a very difficult reform treaty process, and it is
hard to see that it has made, is making or will make, the EU closer
to its citizens.
Mr Murphy: I do not want to be
implicitly critical of any individual but, as I said in answer
to Sandra Osborne, I do not think that public affection for Europe
or what Europe is seeking to achieve will be met or achieved through
structural change. Of course, structural change is a means to
an end to reform Europe, make it more effective and deliver the
things that really matter to people, but let us put aside for
a moment the conversation about whether the reform treaty should
be through Parliament or a referendum. At the end of the process,
having a treaty in place will not in itself—as we know—lead
to a reconnection between the public, Europe, its agenda and challenges.
Affection for Europe will be driven by Europe's capacity to deliver
on things that matter to Europeans, not by a treaty and certainly
not by the previous approach of a constitution.
Q250 Chairman: Let us assume that,
by one means or another, the reform treaty is ratified in the
27 member states. Is that the end of the process or will we have
another spate of institutional reform and measures coming forward
or the attempt to take things further in other countries?
Mr Murphy: That is an important
point. The United Kingdom Government's very strong view is that
there are now challenges on delivery. With the reform treaty in
place, Europe has the tools to do the job on the issues that matter—certainly
for many of our constituents—and, for the foreseeable future,
there will be no need for a return to reform treaties or otherwise,
with the possible exception of further expansion.
Q251 Chairman: That is the UK view.
Is that the view of the Italians, the French or the Dutch? Is
that the view in other parts of the European Union?
Mr Murphy: I am not a spokesman
for the Governments of other member states, but my conversations
with other Ministers show that there is a determination to put
the conversation about structures behind us when we conclude the
reform treaty and deliver on the things that are more important.
None of us comes into politics—I hope—just to introduce
treaties of reform, important as they are. That is the same in
other member states. I have meetings with Ministers in other Governments
who share that ambition and determination, but the one caveat
that I should offer is that, in our continued ambition for EU
membership for other states, it would need a process to be ratified.
That is an important caveat.
Q252 Andrew Mackinlay: The treaty
itself facilitates subsequent amendments of the treaties. Those
procedures allow for changes from unanimity to qualified majority
voting. To follow up the Chairman's point, if the treaty is approved
and it is all structured, there will be facilities under it for
it to be altered subsequently, but not for having an IGC. I refer
particularly to page 14 of your document, which does not use plain
English. Under the heading "Simplified Treaty Revision",
the document says, "The Reform Treaty will extend these procedures
including to allow for changes from unanimity to qualified majority
voting, or from other legislative procedures to co-decision ...
without a formal IGC." It then goes on—ambiguously—to
say that "any ... changes must be agreed unanimously."
I read that and read it again, and it seems that you have conflated
what might be our aspiration—that unanimity will prevail—with
the view that the treaty, in your words, facilitates and eases
further treaty alterations and amendments by unanimity. Can you
just explain that to me? This paragraph simply did not make sense,
and now is your opportunity to tell us whether I am correct in
thinking that you will not need an IGC in all cases to amend the
treaty in future if these provisions go through.
Mr Murphy: What we are talking
about, of course—I think that this may be described in the
document, but I did not have a chance to read the whole paragraph
when it was mentioned—is the passerelle process. What is
intended there, absolutely, is that there would have to be unanimity.
At one level, on areas of modest reform, the idea is not to open
up a whole IGC process in the way that has perhaps happened in
the past. When you open an IGC process, the temptation for other
member states may, of course, be to say, "Well, we've got
a process now. Let's put other things into it." What we are
saying here is that the passerelle is about minor changes that
would not require an entire IGC process. However, the new general
rules on passerelle—this may be in—
Q253 Andrew Mackinlay: But minor
is in the eye of the beholder, is it not? Supposing you have a
majority of states who say, "This is just logical—it's
a minor amendment," but the United Kingdom says, "Hang
on a moment—we don't think it is." How do you reconcile
those positions if you have provided institutionally for qualified
majority voting and the majority says, "This is minor."
I simply do not understand that. It was your words that I read
out. This is not a trick question. I just do not understand how
you can say, "This is minor," because the term "minor"
is subjective.
Mr Murphy: On the specific point,
if there was going to be any proposed change that the United Kingdom
considered substantial, we would insist on an IGC process. I cannot
speak for other member states, but I am working on the assumption
that that would be their approach. In terms of the general passerelle
clauses, which are in the document and referred to in the treaties,
there is a triple lock, which I hope would reassure you, Mr, Mackinlay.
The process would require unanimity in the European Council, the
consent of the majority of MEPs and a veto by any national Parliament.
That is an important set of protections around the process.
Chairman: On the same point, I will call
Gisela Stuart and then Paul Keetch. Then I will move on to David
Heathcoat-Amory.
Q254 Ms Stuart: Minister, may I invite
you to replace "modest" with "incremental"?
One single issue may be large or otherwise—it might relate
to unanimity on the seat of the European Parliament, which currently
goes out to Strasbourg. For the French, I am sure that that would
be quite monumental, but we would regard it as a blessed—you
know. So let us not have a value judgment—the word "modest"
is a value judgment—and let us stick to "incremental".
You are quite right that there is a lock, but, in UK terms, that
would mean that because an IGC is not required, an issue could
be brought to Parliament in the shape of a statutory instrument.
Parliament has a six-month period— [Interruption.]
Would you like me to give you a moment to read?
Mr Murphy: No.
Q255 Ms Stuart: Parliament has only
a six-month period in which it can lodge its opposition. So you
could have a statutory instrument on an incremental change, which
would come in at the end of the summer recess and the beginning
of when we come back. The Government always have an inbuilt majority
on an SI and they would hardly give Parliament enough time to
build up a head of steam to oppose something that they had just
unanimously agreed. Can we at least agree that it is not modest
by definition; it is incremental, because they could have one
of those every time they meet. Also can we agree that the parliamentary
lock has some weaknesses because of its time and because, in the
UK context, it could be in the shape of a statutory instrument?
Mr Murphy: I will not take up
your kind invitation to replace your words with my own. I will
quote from "The Reform Treaty, The British Approach to the
European Union Intergovernmental Conference", which was published
on 23 July. Mr Mackinlay helpfully drew my attention to the correct
paragraph. On page 14, it states: "The UK will insist that
any fundamental change to the treaties will still require an IGC."
That is the Government's position.
As for the timing of SIs, it is not a Government
Minister who is responsible for such timings. It is for the usual
channels—the Government and Opposition Whips—to timetable
SIs. I served on European Standing Committees A, B and C for 18
months and my general view was that that was not an experience
that every Member of Parliament celebrated. [Interruption.]
Mr Younger-Ross, I do not think that you were a member of all
three; I was. My general observation is that we could improve—and
I made that point at the European Scrutiny Committee. We should
look at ways to improve, for example, parliamentary scrutiny of
European legislation through the Standing Committees. I do not
think that we have got it right. It is not for me to decide how
we get it right. That is an issue for Parliament. That is my sense,
having sat there for that period of time—often for a two
or three meetings a week, each of which lasted two-and-a-half
hours. Five was the quorum and there was often a struggle to reach
it.
Q256 Ms Stuart: That has got nothing
to do with the question. The question is the amending of treaties,
changing from unanimity to QMV, could in the UK context be achieved
through statutory instruments, which European Standing Committees
do not deal with. You are telling us that we only have the reassurance
of the Government when the matter is significant, which has no
legal merit and is not legally binding. I remember one of your
predecessors standing in the Commons assuring us that the charter
of fundamental rights had no more force than The Beano.
Now we are discussing what is legally binding in reforming treaties.
Unless Parliament has a much tighter definition of what is significant,
I would suggest that the safeguard, while sounding impressive,
is not effective as a triple lock.
Mr Murphy: On that again, Ms Stuart,
we have to disagree. The triple lock we have signed up to is very
strong. It is based on what I have said: domestic parliaments,
a majority of MEPs and unanimity in the European Council. That
is a strong and watertight triple lock.
Chairman: A brief question from Paul
Keetch on this, and then David Heathcoat-Amory.
Q257 Mr Keetch: You mentioned MEPs.
We are told that there was a meeting yesterday of the European
Parliament's Constitutional Affairs Committee. Apparently, the
President of the European Parliament invited members of national
parliaments to attend. I do not know whether you were invited
to attend, Mr Gapes. I certainly was not.
Chairman: No.
Andrew Mackinlay: The Dail Eireann was
represented.
Mr Keetch: Yes, members from Portugal,
Lithuania and Malta were there, but possibly none from Britain.
I would be interested to know why British Members of Parliament
were not invited. On a very specific point, you say that MEPs
will play some part in this process. In a paper that was passed
to us just before this Committee started, we were told that the
matter was raised at that meeting. There is something of the West
Lothian question coming up in the European Parliament. If the
UK has an opt-out on Justice and Home Affairs Council issues,
should British MEPs be stopped from voting on such matters in
the European Parliament? Have you heard about that? Regardless
of your point of view on the West Lothian question as a Scottish
MP, I take it that you would assert the right of all MEPs, whether
they are British, Lithuanian or Irish, to participate in all discussions
of the European Parliament.
Mr Murphy: I have a general view
that there should not be different classes of parliamentarian.
I believe in the United Kingdom and in the United Kingdom Parliament.
We should have one class of MP in this Parliament, and we should
have a similar approach in the European Parliament.
Mr Keetch: I am grateful.
Chairman: Mr David Heathcoat-Amory. Thank
you for your patience.
Q258 Mr Heathcoat-Amory: The new
treaty brings majority voting into more than 40 new areas and
removes the national veto accordingly. As we have just heard,
it also brings in a fast-track way of introducing majority voting
to new areas without an intergovernmental conference. You are
arguing that that is of no real consequence and that there should
therefore be no referendum. Is it not interesting that when the
former Prime Minister announced a change of heart on the referendum
in 2004, he did not rely on textual analysis or even the substance?
Instead, he said that the question was one of resolving "once
and for all whether this country ... wants to be at the centre
and at the heart" of Europe. He famously added, "let
the battle be joined."—[ Official Report, 20
April 2004; Vol. 420, c. 157.] In other words, he did not get
into the terribly confusing debate about what is and is not significant.
He said that the question was about our relationship with Europe
and about giving people a vote on it. I have his statement of
20 April before me. Do you agree that those were valid reasons
for granting a referendum?
Mr Murphy: In my view, referendums
should be reserved for areas of substantial constitutional change.
That is why we had a referendum on Scottish devolution, which
was an important constitutional change for Scotland. There is
a continuing conversation about whether there should have been
a UK referendum on Scottish devolution. I do not agree that there
should have been. You asked my opinion, and I have stated what
I believe to be the benchmark. The exception, of course, was the
1975 referendum.
My argument against having a referendum is not
based on a careful contextual analysis of the previous Prime Minister's
comments and assertions. As you say, the reason why I am arguing
against the referendum is not because of disagreements over QMV
or anything of that sort; it is because we now have a treaty that
is similar in its reforming approach to previous treaties. We
did not have referendums on them; Parliament quite rightly at
great length discussed and then ratified each of them in turn.
That was the right thing to do in a system of parliamentary democracy
and that is our intention this time, too.
Q259 Mr Heathcoat-Amory: So we have
a clear difference. In 2004, Mr Blair did not refer to the content—indeed,
he could not, because the constitutional treaty had not then been
agreed. Instead, he referred to resolving our relationship with
the European Union. You are saying that that is not a valid reason
for having a referendum, which is interesting because it is a
clear difference between you and the position of your party's
Prime Minister a few years ago. I just want to establish that.
It follows logically from what you have just said, but I just
want you to confirm it.
Mr Murphy: Mr Heathcoat-Amory,
that is not what I said. If you analyse the record of our proceedings,
you will see that, and it would be helpful if you did not claim
that I said something that I did not say. You invited me to share
my opinion with you, and I have done that. The treaty that is
now under consideration and which will be put before Parliament
is similar in nature and takes a similar approach to previous
treaties. On that basis—in our long-established system of
parliamentary democracy—it is right that we deal with it
through the House of Commons and the House of Lords in the same
way as we have previous treaties.
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