Examination of Witnesses (Questions 260-279)
MR JIM
MURPHY MP, MS
SHAN MORGAN
AND MS
SHELAGH BROOKS
12 SEPTEMBER 2007
Q260 Mr Heathcoat-Amory: The point
that I made to you is that those reasons were not given by Mr
Blair in 2004. Indeed, he went almost entirely on resolving this
relationship, which you have not referred to. There is no other
way of describing it; there is a difference here.
I would like to tie you down a bit about the
supposed difference between a constitution and a treaty, and remind
you that when the German presidency wrote to member states in
April, Mrs. Merkel suggested using different terminology without
changing the legal substance. In other words, if we look at the
substance rather than the label, she is saying that it should
be the same. The fact that that is how it has turned out is endorsed
rather powerfully by the man who drew up the first text, Valery
Giscard d'Estaing, who has said that "In terms of content,
the proposals remain largely unchanged. They are simply presented
in a different way." If we cut away the question of what
it is called, and look at what it does, such as on majority voting
and the other areas we have touched on, it is the equivalent of,
if not much the same as, the previous treaty, so, why are you
abandoning the promise of a referendum?
Mr Murphy: You and I have had
the opportunity to rehearse some of these arguments in the media,
and it is right that we now have the opportunity to do so in the
Committee. German politicians, such as Mrs. Merkel or others,
are quite clearly referring in a domestic context to the version
of the treaty that they are signing up to. They reflect the fact
that they do not have the protocol on the charter or the opt-in
process in justice and home affairs, and that more QMVs apply
to Germany than to the United Kingdom, for example.
Each of the member states and prominent politicians
in those countries, quite rightly and entirely properly, make
observations about how the treaty will apply in their country
and for their electorate. Equally, it is right and proper that
we do the same, which is why I have said on a number of occasions
that not only have we moved away from the constitutional concept,
which has been abandoned, but the UK has a unique deal. Among
all the 27 member states, the UK's version of the treaty that
we seek to implement is the furthest from the old constitution.
The President of the European Parliament, Hans-Gert Pöttering,
referred to this when he said: "Since making the charter
legally binding and extending the Community competence to JHA
were two of the most important features of the original constitution,
the deal struck by Tony Blair in June means that, for better or
for worse,"—I suspect that he may think for worse—"much
of its substance will simply not apply in Britain."
Mr Pöttering is not a political ally of
mine; he is, of course, a very prominent conservative politician,
and that is his observation. And observations about the UK position
have been made by other prominent European politicians. Comments
by the Taoiseach, a great individual who provides strong leadership
in Ireland, about the position of Ireland are being played back
into the UK debate. That is simply the terms of the debate. The
Taoiseach refers to the deal that Ireland has got, the UK Government
will refer to the deal that the UK has got. That is why we are
confident in terms of our deadlines; the substance of this treaty
is substantially different to that of the constitutional treaty.
Q261 Mr Heathcoat-Amory: Actually,
the Taoiseach in Ireland has said that over 90% of the new treaty
is the same as the conventional treaty.
Mr Murphy: I think he said 95%.
Q262 Mr Heathcoat-Amory: Let me finish.
Other leaders in Europe, including Prime Ministers and Foreign
Ministers have said it is up to 98%. I will compromise and say
that it is 95%.
Mr Murphy: I think that the Taoiseach
said 95%.
Q263 Mr Heathcoat-Amory: Well over
90%, anyway. They are all saying it is over 90%, and yet you are
saying that it is so different as to render the previous promise
on a referendum null and void.
Let me refer you to one other document: the
mandate governing the forthcoming intergovernmental conference.
You said that it says the constitutional approach is to be abandoned,
which is, of course, about the title rather than the substance.
That mandate, which is published, also explicitly says that the
reform treaty, "will introduce into the existing Treaties
... the innovations resulting from the 2004 IGC". That was,
of course, the one that drew up the constitutional treaty. Even
the mandate says that the innovations will all be rolled over
into the new document, so how can you engage in a trustworthy
way with electors—in the way that the new Prime Minister
says that he wants to do—when you pretend that this is a
completely different document and that therefore previous promises
to hold a referendum, including manifestos promises, are inoperative?
Is this not a breach of trust with the electors?
Mr Murphy: Not at all, because,
as I have said, all member states have agreed that we are not
going to have a constitution. I do not think that there will be
a constitution for Europe in my lifetime. We have abandoned the
constitutional approach and the constitutional concept. The reform
treaty is different in content and approach from the old constitutional
treaty; the trappings of the constitution are gone, and gone for
good, I hope. There are new UK-specific safeguards, which are
of crucial importance: a protocol on the charter of fundamental
rights; the guarantees about the existing powers of member states
to formulate and conduct their own foreign policy; the extension
of the justice and home affairs opt-in; the strengthened emergency
brake on social security; and the fact that it is made specific
for the first time that national security is the preserve of member
states. These are all important parts of a UK-specific version
of the treaty that we intend to take through Parliament and have
ratified by Parliament.
The Italian Interior Minister, Mr Amato, reflected
on 6 September that, "In the debate about the European constitutional
treaty, we were talking about a treaty which would repeal all
the existing main treaties. That would have been a new constitution,
a new start, however what was agreed in Brussels at the European
Council was not that. It was a cluster of amendments to the existing
treaty. That is a crucial difference." What we now have is
a treaty similar in approach to the previous reform treaties—Maastricht
and others. We had a debate in Parliament, before my arrival,
of course, and others had an opportunity to vote on the demand
for a consultative referendum. I did not have the opportunity
to vote on that, but others did. They made their public position
clear about parliamentary scrutiny and the need for a referendum.
That is a matter of public record.
Chairman: I think that we will want
to discuss a number of those issues in detail. We are running
quite short of time and I do not want to spend too long on this
point. I call John Stanley on this wider issue and then we will
go on to some specifics.
Q264 Sir John Stanley: We are perhaps
agreed that the central issue here is whether the substance of
the proposed reform treaty is such as to warrant going through
a proper, direct democratic process through a referendum. What
is immaterial is how the new treaty gestated and how previous
treaties were treated by previous Governments. What I simply do
not understand from your answers to Mr Heathcoat-Amory is how
you can sustain the argument that this treaty is not, in essence,
as far as the UK is concerned, of the same substance and content
as the previous one, upon which your own Government and your own
party made a commitment to have a referendum. Even if you accept
the quite dubious premise that all the opt-outs are legally watertight—there
is huge doubt as to how watertight and valuable they will be;
no doubt we shall come to that a little later—when one compares
the two texts it seems that this treaty simply rearranges the
parsley around the chicken. The chicken is just the same as the
one that was previously rejected.
Mr Murphy: As a vegetarian, I
do not know how to match the metaphor about chickens and parsley,
but I shall try to do so. I do not accept, Sir John, the assertion
that underpins your entire comment—that what happened before
is immaterial. What happened before reflects the type of democracy
that we have in the United Kingdom. We all celebrate the fact
that we have parliamentary sovereignty, and we all seek to defend
it. To suggest that it is immaterial that previous treaties were
ratified in the established UK tradition is quite wrong. It is
of absolute material significance, because it is the correct approach.
It is our intention to take a similar approach—
Q265 Sir John Stanley: Why did your
Government make a commitment to hold a referendum on the previous
treaty?
Mr Murphy: Because it was a constitutional
treaty, and we said clearly that it was a constitutional treaty.
This is a standard reforming treaty in the spirit of the previous
reforming treaties, and therefore it is not in any way immaterial.
I referred earlier to the commitment by all member states that
the constitutional concept should be abandoned. We have a specific
deal unique to the United Kingdom. That is why it is different—very
different indeed.
Chairman: Can we now move on? I call
Fabian Hamilton.
Q266 Mr Hamilton: Minister, if the
constitutional treaty was acceptable in 2004—albeit subject
to a subsequent referendum that we had to abandon due to the decisions
of the French and Dutch people—why have we now requested
and negotiated the four areas of amendment in the red lines? Why
have they come in now when they were not there before?
Mr Murphy: With the benefit of
hindsight that no one enjoyed in that period, my sense, to pick
up again on the question that Ms Osborne asked, is that 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.
Q267 Mr Hamilton: So have we a lot
to thank the French and Dutch peoples for?
Mr Murphy: Of course, that depends
on your perspective. It put a brake on the direction of travel
that the European member states collectively had embarked on.
Throughout the continent—particularly in France and the
Netherlands—it forced a serious rethink about their relationship
with the European Union. It had an impact across the whole European
Union. It is probably that more than anything else that led to
a rethink, a reformulation and a much more modest reforming treaty
being born.
Q268 Mr Hamilton: We have now negotiated
the four red line areas that we previously endorsed and have negotiated,
as you emphasised, an almost separate form of the treaty for ourselves.
Do you think that that has damaged us with our EU partners and
set us apart?
Mr Murphy: It is clear that some
other member states and prominent politicians in other European
Union Governments would rather that we signed up to their version
of the treaty and that there was a universal approach, but we
made it clear as part of the deliberations over the reform treaty
that that was not our intention. Given a choice between doing
what is in the UK's national interest or, for its own sake, pleasing
politicians in other member states, we chose to do the right thing,
which was to negotiate a specific UK version of the treaty to
implement here. Other member states will offer their own comments
on our deal.
Q269 Mr Hamilton: Do you think that
it is a damaging precedent? Surely, if Poland is unhappy with
certain aspects, it can then negotiate its own version, or other
EU countries can negotiate their own special versions of the treaty.
Have we not just created a precedent that others will follow?
Mr Murphy: It is not a precedent
in that sense. The UK has not participated in important European
projects in the past—it was a mistake, I think in retrospect,
but we did not that anticipate that—right at the commencement
of the European Community. Even more recently, we have chosen—rightly,
unless economic circumstances are different—not to participate
in the euro or in the protocol and the charter of fundamental
rights. There is some discussion that the Poles possibly, and
the Irish—I understand that there is a conversation in Ireland—about
whether they would have a protocol. I think that they probably
will not end up having one, but it was a conversation for a while
in Ireland. It is not a precedent or a principle specific only
to the United Kingdom.
Q270 Mr Hamilton: Tony Blair said
frequently that he wanted to put Britain at the heart of Europe,
but do not the red line areas that we have negotiated and the
precedent that we have set simply confirm to our European partners
that we are not in the heart of Europe, that we do not buy into
the European project and that we do not want to be part of what
they want to achieve?
Mr Murphy: I think those red lines
set out a demarcation in terms of where the Government feel it
appropriate for the EU to have competency and a role, and what
the Government think is the right balance between European co-operation
and specific national interest.
We can only take the words of other prominent
European politicians as to where the UK stands and its role in
Europe. There is a continuing great affection and respect for
the UK across Europe and beyond, and there is a real enthusiasm
for many of the agenda that we are placing at the heart of the
conversation such as environmental protection, economic dynamism
and national security issues. I should also, Mr Hamilton, have
referred to the fact that, for example, in the Schengen agreement
we take a different approach. I do not think that that has harmed
our reputation in the way that others thought it would. We remain
determined to play an active part in a European delivery of the
things that are important to us.
Q271 Chairman: Can we now move on
to one of the red line areas that you mentioned: the charter of
fundamental rights? I will bring in Mr Heathcoat-Amory in a minute,
but before I do, I would like to ask whether you agree that the
Government would have far less trouble with the TUC if we did
not have a red line on the charter of fundamental rights, and
had three red lines rather than four?
Mr Murphy: The TUC will make its
own position clear for its own purposes. We think that four red
lines are the right balance for the UK. It is a stronger deal
because we have those four red lines. They are the four red lines
that we said we would deliver on, and so we did. Some people will
remain perturbed or unhappy about that, but that is the deal we
negotiated.
Q272 Chairman: But, on balance would
you accept that the arguments that are coming from the trade union
movement on the treaty are rather different to those that are
coming, for example, from The Daily Telegraph?
Mr Murphy: They are different
arguments but we have done the right thing in the interests of
the UK economy and the deal that we struck in June.
Chairman: No doubt we will come back
to this later.
Q273 Mr Heathcoat-Amory: If there
is a dispute in future about the validity or effectiveness of
the opt-outs, who is going to decide it? For instance, suppose
the Commission or another member state does not like the way that
the charter of fundamental rights does not apply over employment
law in some way, because it supposedly gives us an advantage,
and it decides to challenge our opt-outs. Or, in the field of
foreign policy, suppose that there is a claim that we ought to
be bound by EU solidarity, and therefore there is a dispute. Which
body or court will decide it?
Mr Murphy: First, I am sure that
it was inadvertent but you called it an opt-out. It is not an
opt-out, it is a protocol, and those are different things of course.
What is clear about the protocol is that if the treaty is adopted
and the protocol is adopted, it becomes part of EU law. In that
sense, the European Court of Justice oversees these matters. The
fact is that it will be an established part of European law, and
in that sense watertight because of its placement there.
Q274 Mr Heathcoat-Amory: So it is
the European Court of Justice. That is in line with the existing
treaty provisions. It is the guardian of the treaty, it interprets
the text and it decides disputes between member states or the
Commission and other institutions. So the matter is going to be
decided not by the British Government, by Parliament, or by the
House of Lords or any supreme court here. It is going to be decided
by a European Union institution.
Can I draw your attention to article 9 of the
draft text of the new treaty, which, as usual, carries forward
from the constitution. It states that "The institutions shall
practise mutual sincere co-operation." It lists the institutions,
one of which is, of course, the ECJ. Others are the Commission
and the European Parliament. Therefore, the decider in any dispute
would be an EU institution that is required by treaty law to practise
mutual sincere co-operation with the institution that would be
bringing the case against the British Government. Do you think
that that is a fair way of deciding something as important as
that, and are not we again exporting an important element of self-government?
Mr Murphy: Not at all, Mr Heathcoat-Amory.
It is peculiar to be accused on the same day of doing two things
that represent polar opposites on this issue. My friends in Brighton
are going to have an observation about the protocol in the charter,
which is critical from a perspective that is diametrically opposed
to your own. It is important to be clear that the charter itself
brings about no change in UK law and preserves the current position
in UK law. It does not introduce new rights for any court in Europe
or a domestic court to strike down any UK law. It is important
to be absolutely clear about that. Both the charter and the protocol
are part of European law. As I have said, the charter does not
change the current position. Rather, it puts a series of existing
rights that are found all over in different treaties and places
and helps it to be transparent, but it does not change UK law
at all.
The ECJ ultimately looks at European law, but
on the basis that the protocol is legally binding and accepted
to be legally binding by all 27 member states. The truth is that
not all of the other 26 member states are content that we have
the protocol and there is a degree of frustration about that,
but we negotiated a deal that was specific to the UK for clear
purposes.
Mr Heathcoat-Amory: You are making assertions
about our opt-outs. I am sure that they are sincerely held and
you believe that they are watertight. However, we know that a
number of other member states resent our opt-outs, and indeed
there are people in this country who do not like the way that
the charter will not apply.
On questions of criminal justice, immigration
and foreign policy, there will be plenty of disputes in the future
that cannot be envisaged. Therefore, your version may not hold.
I am interested in who will decide that, and I put it to you that
there is a new provision in the new text that requires the deciding
body—the ECJ—to practise "mutual sincere co-operation"
with the very organisations that may bring a case against us.
I do not think that that is a fair way of deciding British policy,
and I am surprised that you have not picked that up and referred
to it in your answer to me.
Mr Murphy: Much of this language
about mutual sincere co-operation is in the context of previous
treaties such as Maastricht and others. With regard to the specific
point that you made, I am not making an assertion. I believe that
it is not an assertion and many people know that it is not. Articles
1 and 2 of the UK-specific charter are not assertions, but statements
of what will become European law if the treaty is ratified. They
are not a Jim Murphy assertion, but European law, and there is
an important distinction between the two.
Q275 Mr Heathcoat-Amory: But law
has to be interpreted. There are disputes in our domestic courts,
and lawyers make their living out of different interpretations
of the law. I put it to you that when there is a dispute, it will
not be Mr Murphy deciding the matter—I wish it was, as I
am sure that you would decide extremely effectively in our favour.
Instead, it will be a court that not only is a European institution,
and therefore bound by concepts of ever-closer union, European
integration and so on, but is required under a new article of
treaty law—it is not in the existing treaty—to co-operate
with the Commission. I do not think that that is impartial arbitration
or judgment at all, and you have not answered that point.
Mr Murphy: You make your point,
Mr Heathcoat-Amory. All that I can do is simply refer you to what
is proposed to be a legally binding protocol in European law.
The position is very clear in terms and is stated in the proposed
protocol. It is also clear that if someone tries to use the charter
alone to create new rights, the UK's position will be protected
by the protocol. The ECJ has the role that we all know that it
has, but—it is important to be clear about this because
of conversations that are happening elsewhere today—the
charter does not create new rights or introduce new powers for
a domestic or European court to strike down a UK law. The protocol
is an additional guarantee for clarity and the avoidance of any
potential doubt. It will have the status of EU law.
Q276 Sir John Stanley: Minister,
in its paper on the reform treaty and the British approach to
the European Union intergovernmental conference of July, your
Department chose, from time to time, to put into bold sentences
that it thought were of much importance. One of those sentences
on page 8 says, "The IGC Mandate contains a declaration confirming
that the provisions on CFSP will not affect the responsibilities
of the Member States, as they currently exist, for the formation
and conduct of their foreign policy, or of their national representations
in third countries and international organisations." Can
you confirm to the Committee that there can be no certainty that
declarations appended to treaties will necessarily be legally
binding?
Mr Murphy: Sir John, I am looking
at page 8—
Chairman: We are talking about the British
declaration on common foreign and security policy.
Sir John Stanley: It is the last sentence
of the penultimate paragraph, Minister.
Mr Murphy: What is clear, Sir
John—of course, you will come back on this—is that
CFSP will remain a matter for unanimity and will remain intergovernmental.
Q277 Sir John Stanley: Can I just
have the answer to my very specific question, Minister? Would
you like me to repeat it? I asked whether you can confirm to the
Committee that there can be no certainty that declarations appended
to treaties will be regarded as legally binding.
Mr Murphy: Sir John, I think that
you are aware that declarations are political commitments on behalf
of the member states of the European Union, and these issues will
remain matters for unanimity. In that respect, there is an agreement
and a declaration by all 27 member states—a very clear political
commitment by all 27 member states.
Q278 Sir John Stanley: Thank you.
You have confirmed what I expected you to say, which is that this
is a political agreement, but the declaration does not necessarily
have any legal force. Thank you, Minister.
Mr Murphy: Sir John, the point
is that we have agreed to this as one of the 27 member states.
Every one of us has agreed that the substantial issues of CFSP
remain a matter for unanimity. The whole CFSP proposals were,
of course, part of the Maastricht deal in 1993, so this is not
new at all. However, it is important to have the declaration and
for the UK to have worked with others to achieve it.
Sir John Stanley: Minister, I merely
wanted your confirmation that the declaration does not have legal
force. Thank you.
Q279 Chairman: Can I take up further
issues related to this? Under the proposals, the high representative
functions merges the Externals Affairs Commissioner with the Council's
high representative for foreign policy, Mr Solana. As a result,
the Commission's staff and budget will now be under a high representative
who is accountable to the Council of Ministers and, therefore,
to the member states. His budget and those working for him were
previously with the Commission. He will form what is called an
external action service. In our report last year, our Committee
explicitly said that there should not be a "foreign ministry"
of the European Union, nor any ambassadors or foreign service.
Can you assure us that that will be the language that continues
to be used after the agreement—if there is one—on
a new, reformed treaty?
Mr Murphy: I give you the assurance
absolutely that we shall not be having a European Foreign Minister.
We shall have a high representative, as you mentioned. Terminology
is important, of course, and that is the tone of terminology that
should be reflected throughout—both in the debate and in
agreements.
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