Examination of Witnesses (Questions 420-439)
MR GRAHAM
AVERY, PROFESSOR
CHRISTOPHER HILL
AND RICHARD
G WHITMAN
21 NOVEMBER 2007
Q420 Mr Keetch: Gentlemen, you have
all described how treaties and agreements have emerged over years.
Mr Avery, you described yourself as one of the architects of the
foreign policy element of the now defunct constitution. My $64,000
question is whether there is anything in foreign policy terms,
either in outcomes or in structures, that is essentially different
between the proposed constitution and this treaty. If the answer
is no, simply say no. If the answer is yes, perhaps you will explain
what it is.
Mr Avery: For reasons of modesty,
I must say that I was not an architect of the treaty. But I have
described it as architecture because that seems to be a useful
metaphor.
The reply to your question in my analysis is
that there are two differences between the reform treaty and the
constitutional treaty. First, the Minister for Foreign Affairs
is no longer called a Minister. I personally think that that is
a good change. It was an error to call that person a Minister.
The new title is less euphonious, and it is difficult to remember
what it is, as it is so long, but the use of the title "Minister"
implied that the European Union is modelling itself and its institutions
on a state. It is not a state. It is something sui generis and
different.
The second difference is a number of declarations,
with which I guess you are familiar, that define the scope of
national sovereignty and the roles of the European institutions.
Those declarations did not exist in the constitutional treaty,
but they do now.
Professor Whitman: Those are the
changes from the text of the constitutional treaty in terms of
the additions of the declarations and the name change. The reform
treaty is also much more difficult to read. Obviously, because
it is a set of amendments to the existing treaties—particularly,
in the case of CFSP, the treaty on European Union—trying
to get a handle on whether things have changed does require very
close and careful reading and the referencing of one text across
to the other. But beyond the odd full stop and comma, there are
no other changes from those to which reference has just been made.
Professor Hill: What my colleagues
say is obviously true. In political terms, I am sure that the
Committee does not need reminding that the reason why such concessions
have been made to the UK and others, as well as on foreign policy,
has presumably been because calculations have been made in other
capitals that it gives the best chance of getting the UK's adherence
to the reform treaty, perhaps without a referendum. I agree that
it would have been much more effective to have a clear document.
The whole language of the constitution was daft coming from the
Convention. One would not have started from here.
Q421 Mr Keetch: So let us be clear:
apart from a name change and not calling someone a Minister, but
calling them something else which we cannot remember, and a few
declarations, there is effectively no difference. The outcome
of the common European security foreign policy elements of the
treaty and how it affects the UK will be no different than the
outcome of the constitution would have been.
Professor Whitman: The texts are
similar, but whether the outcomes are different is a slightly
different question. Having the declarations in the treaty is obviously
intended to result in a different outcome, certainly in terms
of a political debate about whether this is a different document
from the one that preceded it. However, in terms of the text of
the treaty itself, there is no substantive difference in terms
of addition of new provisions.
Q422 Chairman: When you refer to
declarations, are you referring specifically to the declaration
put in by the British Government relating to the membership of
the UN Security Council?
Professor Whitman: No, I am thinking
particularly about the declarations that are currently numbered
30 and 31.
Q423 Chairman: Which are?
Professor Whitman: The first one
is helpfully entitled the "Declaration concerning the common
foreign and security policy" and the second one is called
the "Declaration concerning the common foreign and security
policy". Essentially, they are both intended to point out
that nothing within the reform treaty is supposed to undermine
national and foreign policy.
Q424 Chairman: You all agree that
that is the only difference between the constitution and this
treaty?
Mr Avery indicated assent.
Professor Hill indicated assent.
Professor Whitman indicated
assent.
Chairman: Thank you. Gisela Stuart will
continue on the same area, followed by John Stanley and David
Heathcoat-Amory.
Q425 Ms Stuart: I want to pick up
on something that Mr Avery said. I think that we have all agreed
that, in order to carry out foreign policy, you require three
things: institutional framework, political will, and capability.
The EU has an unhealthy tendency to increase its institutional
structures; it actually does its best to undermine their capabilities
to act.
As I understand it, Mr Avery was suggesting
that we will strengthen, for example, our relationship with Russia.
However, the practical experience is that, when national interests
conflict with those of the EU, the national ones are alive and
kicking. I have not come across a single country so far which
has stepped back from its national interests for the greater good.
Examples of that include Poland or Germany signing its gas deal.
That brings me on to the fact that, historically,
the United Kingdom has always seen its role in the EU as such
that it has not liked to be governed or dominated by large countries.
It used to be the case that the Germans and the French would agree
on something and Britain would not object. However, we have recently
seen the national interests of large countries happening to coincide—France,
Germany and Britain happily agree on Iran—but I would not
suggest that that is the development of a European foreign policy.
It is fairly old-fashioned domination by large powers.
First, have we seen so far, or are we seeing,
any real evidence of the emergence of a definition of what European
Union interests might be in the wider world? Secondly, as we become
institutionally confident, but unconfident or incapable in our
capabilities, are we in danger of threatening NATO, because all
European powers are completely useless without the hard power
of the big brother who delivers the stick when the carrot does
not work? The third question is this: do you not find it deeply
upsetting that following a process that was started to bring the
European Union closer to its people, we are heralding one of its
great successes, five years later, as having changed the language
back so that no one can understand it or read the thing?
Chairman: There were a lot of questions
there; hopefully the answers will be relatively brief.
Mr Purchase: A note would be okay.
Mr Keetch: I asked if he could get us
a note.
Professor Hill: It is difficult
for academics anyway; I do not know about Commission staff.
The argument about interest is familiar. It
is clear that the whole point of a nation state is to have a national
interest. It is simply a tautology; while you have a nation state
and a Government, you must have some notion of a national interest.
The question is how you define that. Plenty of people would argue
that the very existence of the EU, which must have an external
face, whatever the organisation is for that, gradually starts
to redefine the national interest. As I said earlier, there might
be smaller differences between those than there might have been
in another world, without that institutional structure and that
historical experience. You are absolutely right that when push
comes to shove on big policies, as we saw on Iraq, things scatter.
I was in Moscow six weeks or so ago, and the
Russians were enjoying the idea that they could easily play on
the differences among the EU member states. Surely the natural
response to that is that we should learn to be more "solidaristic".
We should take a longer view on this if we want to have any influence
on Russia. Of course, that then raises your second question about
the threat to NATO: is solidarity not best expressed in a more
western and a wider international framework? However, we then
come up against the argument that plenty of people in Europe think
that American foreign policy has been something with which they
would not wish to associate themselves in recent years, but they
do not want to be naked in the conference chamber either. They
would like some form of shelter, which the EU provides—maybe
the Commonwealth and other institutions do as well. It is good
to have the choice.
Personally, I do not think that NATO has been
seriously threatened at all. Plenty of people thought that it
would—and should—disappear after 1991, but it has
not. It has proved to be remarkably strong. In many ways, the
battle over combined joint task forces and so on was won by NATO.
The argument involving Turkey is an example. The EU has some access
to NATO assets, but those are pretty limited and controlled ultimately
by the Americans. I do not think that that is a serious issue.
I am sorry if this is too long an answer, but
an EU foreign policy has a rationale only if you think that American
leadership should sometimes not be followed. If you were willing
to follow American leadership 100% of the time, you would not
need an EU foreign policy. I do not think that American leadership
has to be followed automatically, ipso facto.
On the democratic deficit, I will say only that
unfortunately even this Committee has not managed to assert its
power very effectively over national foreign policy in recent
history. In every nation state and every international organisation
there is a serious democratic deficit.
Chairman: I think that that debate is
for another day.
Mr Avery: I would like to pick
up two points that Gisela Stuart mentioned. First, she referred
to the traditional situation in Europe and the great power syndrome.
My analysis of the present situation is slightly different. One
of the characteristics of the EU system is that there is no hegemony.
Who is in charge in European foreign policy is a very complicated
question to which there is no simple answer. The magical and important
thing about the EU system is that it keeps the big member states
together and, at the same time, reassures the smaller member states
that their interests will not be run over.
On the question of interest, one of the most
difficult things in European foreign policy is defining what the
common European interest is. It is not different from national
interests, but is a synthesis of them. You are perfectly correct
to say that when it is not possible to synthesise them, that does
not exist. One of the things that becomes quite evident in the
conduct of foreign policy is that a precondition to having an
effective influence on an interlocutor is that the Europeans speak
together with one voice, for example in the case of Iran and Kosovo.
Some of our interlocutors much prefer us to speak in divided ways.
Finally, the challenge of the EU foreign policy
system—and of the new system that this treaty would bring—for
the British, both collectively and individually, is to persuade
others what is the European interest in the way in which the French
have. They have defined European interests in a way that is accommodating
to France. That is something that the British, with their extraordinarily
successful tradition of foreign policy and diplomacy, are very
well equipped to do.
Professor Whitman: I agree entirely
with that last point. There is a problem with looking just at
this document. It is impossible for a reasonably intelligent individual
to sit down and read it, whereas they could read the constitutional
treaty. A reasonably intelligent individual probably would not
want to sit down and read the constitutional treaty, but they
could do so.
To bring together the points about decision
making and implementation, the problem with the EU foreign policy
making system is that in the way it is constructed, it operates
in a similar way to Lego. It is made up of little building blocks
that are added together. There are little building blocks of areas
in which there is no major contestation between the member states,
areas where they have easy fights, and areas where they have no
problem. If you ever watch kids playing with Lego, they tend not
to build the thing that is on the box—the aeroplane, train
or whatever—but lump all the bricks together and create
some horrible amorphous mess. That is exactly what we have with
the CFSP. All the little bricks are added together, but they are
not structured in a way that bears much weight in terms of having
a clear set of principles that organise foreign policy. That does
not allow third parties, in particular, to get a good handle on
what we stand for collectively. The security strategy has changed
that a little bit, but it is not enough, and I think that that
is our problem.
Chairman: Perhaps we could go on to a
discussion about Transformers as well.
Q426 Sir John Stanley: May I follow
Paul Keetch's question? Just to complete your answer, can you
confirm for the record that the declarations to which you referred
are not legally binding?
Mr Avery: I am not a lawyer, but
from my acquaintance with such treaties, the legal dispositions
are in the text of the treaty, and the declarations are interpretative.
Q427 Sir John Stanley: They may possibly
bear on interpretations, but my question is a direct one: will
you confirm—if you do not think you can, we need to get
a lawyer if necessary; but I do not think there is much doubt
about this—that the declarations are not legally binding?
Mr Avery: They are not legal instruments.
Sir John Stanley: Thank you.
Q428 Mr Heathcoat-Amory: During the
Convention on the Future of Europe, the invasion of Iraq occurred.
The point was made that all the institution building in the world
could not have prevented the difference of opinion that arose
among member states. Can we return to the point that what Europe
lacks is political agreement on big issues and small? A recent
example is our failure to convince other member states to isolate
President Mugabe, who will attend the EU-Africa summit despite
our objections. No institution building will prevent that, so
why are we committing ourselves to a legal structure that will
bind us—possibly—in ways that we will find disagreeable,
when we should be finding allies and making alliances with those
who think like us, as we always have done?
Professor Hill: I do not think
we are committing ourselves to any different form of structure
than we have been doing since at least the Maastricht treaty and
possibly before. That provided a framework within which co-ordination
should be encouraged and could take place. The fact that it does
not happen shows in some ways the weakness of the power of the
institutions and legal commitments in the text, because member
states, which do not need the extra declarations to give them
legal force—they are, as it were, the default position—can
always operate their independent foreign policy.
However, we should consider the issue of learning
in foreign policy. We all make mistakes individually and collectively.
Another example, before Iraq, of chaos in European foreign policy
occurred at the time of Maastricht—at the beginning of the
wars in the Balkans—with the Germans saying they wanted
collective recognition of Croatia and Slovenia, and then going
ahead on their own, then with the Europeans trying to keep Yugoslavia
together and not managing to do it, and then switching policy.
But gradually, over the 90s, admittedly with dreadful traumas,
the Europeans began to get their act together, and effectively
they now pursue what most people would think was a pretty cohesive
and practically useful set of policies in the Balkans.
We have created protectorates, which nobody
could ever have imagined 20 years ago. Now, that is not insubstantial.
Most of us would think that is probably quite a good thing, given
the circumstances in which we find ourselves, and think that if
we did not have the European Union, it would probably be rather
more difficult to do the things that we are doing in the Balkans.
One other example of learning is an institutional
one. The previous arrangements under the treaty of Maastricht
had what I always regarded as a ludicrously elaborate system—an
attempt to create a clean, architectural solution—of things
called common positions, joint actions and then common strategies.
It was a nonsense. Mr Solana finally blew the thing out of the
water by saying common strategies were a waste of time and he
was not going to go along with them. The new treaty has a cleaner
system just with `decisions'—as far as I understand what
is going to happen. I am sure that people will still talk about
common positions, but with small rather than capital letters,
and that is sensible.
Q429 Mr Heathcoat-Amory: May I just
pick you up on one thing that you said—that it will not
be binding in any sense—and refer you to the actual text?
You are right that common actions are replaced by decisions defining
actions. To me, that is just playing with words, but the new treaty
also says that member states "shall comply with the Union's
actions in this area." So, there is a legal treaty requirement
to comply with an action. I agree that that is probably taken
by unanimity, but let us suppose that we have a change of Government
and the new Government do not wish to continue down a certain
path, but wish to go with the United States, perhaps. Do you not
think that we will be bound by treaty law to something that might
become disagreeable?
Professor Hill: It depends whether
you think the law is self-enforcing. There is no effective enforcement
mechanism in the system as outlined under this treaty or any previous
treaty for any divergence from a common foreign policy line. There
is an attempt to exhort, to use the language of law, but as you
say, only once a decision has been taken by unanimity.
To some extent there is a double lock: there
is unanimity in the first place and then there is the inability
to enforce any action against delinquent behaviour. We all know
that there has been plenty of delinquent behaviour—what
in the trade is called defections from a common position. We saw
differences over the recognition of Macedonia; it had not got
to the point of a common position but the Greeks simply refused
to go along with it and then there was a political argument. This
is politics; foreign policy is still very much politics.
I am not a lawyer and it is not for me to pontificate
about it, but law, in this sense, is rather different from what
happens in the domestic realm and it is pretty different from
what goes on in pillar 1 and the common commercial policy where
we have signed up to a single competence. At the moment we have
multiple competences. The things that Graham Avery has been discussing
were an attempt not to restrict the number of competences but
simply to reduce the cacophony of separate voices in diplomacy.
Mr Avery: May I pick up Mr Heathcoat-Amory's
reference to Iraq? Iraq was a terrible failure of foreign policy
individually and collectively on the part of the Europeans because
they split. My impression was that one of the lessons that was
taken by the European member states, including the United Kingdom,
was that next time, whatever next time is, we must try much harder
not to be pulled apart in the way that happened.
Vis-a"-vis Iraq, the fundamental objectives
of the Europeans were the same. Foreign Secretary Straw said as
much: that one of the lessons of the debacle was to try to find
more actively common interests and common strategies. I submit
to you the thesis that in order to do that the creation of the
new European External Action Service should help in defining better
and more effectively what are the common interests that the member
states of the European Union can effectively pursue, particularly
since the service will consist not only of people from the European
institutions but people from national diplomacy who understand
very well what the national interests and national measures are.
Q430 Chairman: We will come in a
moment to some questions about the External Action Service. Professor
Whitman, do you wish to comment?
Professor Whitman: I just want
to pick up on the hypothetical situation of a member state having
a change of Government and perhaps wanting a shift of policy.
The way that what we now call joint actions and common positions
operate is that they have expiry dates so they are in place for
a particular duration. An awful lot of the CFSP business is playing
with the positions that already exist—reviewing them, strengthening
them or seeing them disappear. In that situation, an expiry date
would already be in place for that particular action. For that
reason a Government would not find themselves committed in perpetuity
to a particular foreign policy position. The joint actions and
common positions tend to have fairly limited ambitions, the positions
themselves being largely declaratory in terms of setting out the
collective view about a situation in a third country on a certain
issue.
Professor Hill: The problem with
a change of Government also exists simply at the national level.
If a Government sign up to something and another Government comes
in and wants to withdraw from the European Union, for example,
it is free to do so. That is the theory of sovereignty.
Chairman: Can we move on? Malcolm Moss,
please.
Q431 Mr Moss: Professor Hill mentioned
some of the failures of European foreign policy—I think
that Macedonia was cited—and some successes, such as the
creation of protectorates in the Balkans. Professor Whitman talked
about Lego building blocks being assembled in a fairly chaotic
manner. It is obvious that there are historical problems with
European foreign policy. Will the reform treaty address all those
problems, or will it leave many of them unaddressed? If so, which
ones?
Professor Hill: I think that it
will leave unaddressed the fundamental problem that has been alluded
to—national interest—because it cannot currently be
addressed, unless we wish to have a profound transformation in
the nature of the foreign policy system. If enough member states
were willing to sign up to a system that genuinely communitarised
foreign policy, that could conceivably create the kind of discipline
that would lead to member states falling into line—as they
do, broadly speaking, in the common commercial policy—but
there is no will that I can see to do so.
Some member states would no doubt like to see
a proper federation, and a proper federation could not exist without
a single federal foreign policy, and the converse, but we are
light years from that. We are probably further away from that
possibility than we were at the time of Maastricht, when there
were plenty of hopes. There have been various times when the Belgians,
Italians and so on have thought that there would be a great move
forward, but they are much less optimistic about it now.
There are practical problems of the kind that
we have mostly been discussing. If we have a High Representative—Mr
Solana; most people think that he has done a pretty good job within
the confines of his terms of reference—we must face up to
the question of what resources he should have. At the moment,
he does not have many: he has some special representatives, he
has some help and he obviously has the council secretariat, and
a policy unit, both rather smaller than the Commission's resources.
Is that OK? Do we want to leave it at that, or do we want to leave
him swinging in the wind?
Mr Avery: The new treaty does
not affect the substance or the objectives of foreign policy,
which is why I call it architecture. It is not about the decoration;
it is about the structures. It is a relatively marginal adaptation
and absolutely not a fundamental reform of the structures for
foreign policy.
You mentioned the events that took place in
the Balkans when Yugoslavia broke up. There were some tragic errors
and mistakes. Without being unduly optimistic, it seems to me
that we have put ourselves in a better position to handle the
potential risks and problems in the Balkans than was the case
15 years ago. Certainly, the international community in general
expects Europeans to deal with the problems in our own backyard,
not the Americans or NATO.
Professor Whitman: To answer the
question in terms of decision making and changes within the treaty
and whether they will improve the quality; if you look back on
what we have had in previous treaties—constructive abstention,
forms of enhanced co-operation or limited introduction of the
qualified majority vote—none of those have made any real
difference to the quality of decision making. The quality of aspects
of implementation is another matter, and the question whether
the High Representative can improve the flow rate of decision
making with the enhanced powers is an interesting one that we
could perhaps take up later.
Q432 Mr Hamilton: The role of the
High Representative is fairly clearly set out in the reform treaty,
is it not? Could any or all of you tell the Committee whether
you think that that role can be realistically fulfilled?
Professor Hill: The fact that
there was rowing back on the title of the High Representative
was a political way of taking the dynamite out of the situation.
It is also a recognition of realities, in the sense that there
is no way in which the High Representative disposes of the resources
of even the national Foreign Minister of a member state, and we
must put it in the context that Foreign Ministers of individual
member states have suffered various challenges from other people
getting on to their turf. Almost every Department actually has
external relations these days and we know what happened in this
country, in terms of No. 10 getting involved in foreign policy
making—we are suffering the consequences.
My view is that we should value the expertise
of specialist diplomats, and Mr Solana undoubtedly is a highly
experienced specialist diplomat, somebody who was Secretary-General
of NATO and so on, and very difficult to replace in lots of ways.
However, we also need some kind of mechanism for creating co-ordination
between the inevitably different personae involved in foreign
policy making these days, given that almost all policy is foreign
policy to some degree. A person like Mr Solana can only hope,
I think, to have a gradually increasing profile in parallel with
particularly the major member states.
Over time, one would expect that, because of
limited resources, the smaller member states among the 27 might
be happy to take their lead from not just the big three. As Mrs.
Stuart says, they are concerned about the directoire of the big
boys throwing their weight around, so in many ways a Solana figure
can be a counterweight to that, or some kind of guarantee against
the excessive hegemony of the bigger countries. But also, the
bigger countries are very unlikely to be agreed 100% of the time
and it is Solana's job, or the High Representative's job, to try
to help them come to an agreement if that it is going to be in
the collective interest, which normally one assumes that it will
be. If he has the resources available to him that exist in the
Commission and the delegations and so on, that will make his life
easier to some degree, but it will also give him, as Mr Avery
has pointed out in his written work, some pretty big headaches—management
headaches. I am not sure that I would like to take on that role.
Not that that is ever going to happen.
Q433 Mr Hamilton: So, can the role
be reasonably fulfilled? From what you are saying, you would need
a considerable extra resource to allow him to counter-balance
the larger nation states within the EU.
Professor Hill: He will undoubtedly
need a team, and not just of specialist diplomats in the field
or of working group advisers, desk officers, but of politicos—people
who are like him, who are effectively political but working within
the framework established by the Council of Ministers. That is
the challenge, I think.
Chairman: I think that we will have a
vote in three minutes, so it would be useful to get answers on
this question from the other two before then. If there is a vote
at 4pm we will break for 15 minutes, and we will break for half
an hour if there are two votes. Hopefully there will only be one,
then we will come back and continue.
Mr Avery: Yes, it is a hell of
a big job but I do not think that it is impossible. Objectively,
I do not think that it is more difficult than being President
of the European Commission, which is diabolically complicated.
This new personality will have the so-called two hats: the common
foreign and security policy hat, which is rather well handled
already by Mr Solana and the perhaps more difficult role of being
Vice-President of the Commission and co-ordinating the internal
work of the Commission, a function that in my opinion is very
badly needed. In addition, he has the third hat of being President
of the Council. I have to say that in my analysis, that is one
of the most complicated aspects of this. If the new person is
to submit proposals to the Council, both with his common foreign
and policy security policy hat and his Commission hat, he will
also be presiding over the Council that takes decisions on them.
That is psychologically and practically quite a tough proposition,
so I think that the problem with the third hat has been underestimated.
Professor Whitman: From what we
have heard from the other witnesses, this job will result in a
breach of the working time directive and this individual is going
to have to work pretty hard because they are taking the job of
the presidency, as well as the job of the vice-president of the
Commission. There will also be the political dynamic of how this
individual fits with the new President of the European Council,
and the responsibilities that they have for aspects of representation
of the European Union's foreign policy with third countries and
the President of the Commission, who presumably will not want
to see themselves out of the limelight in the way that this re-vamped
job could be. I think that it is a big ask.
Mr Avery: May I add that he can
only do it if he has an effective service working for him? Perhaps
we can discuss that later.
Chairman: We will come on to that in
the next part of the sitting, after the break. I am conscious
that there will be a Division in about 10 seconds, so I think
that it is sensible to break before I get a new question in. We
will be back in 15 minutes if there is one vote and 30 minutes
if there are two, and I think that the bell is just about to go.
Sitting suspended for a Division in the House.
On resuming—
Q434 Chairman: I would like to pick
up where we left off, on the question from Fabian Hamilton about
the High Representative. We had been referring to Mr Solana and
his role. What is your understanding of the appointment procedure
for this new High Representative, and how do you think that that
procedure is going to work out?
Professor Hill: It is the—
Chairman: Sorry. We will start with Professor
Whitman.
Professor Whitman: In effect,
the High Representative will have to be approved by the Council,
and they will also have to go through the same process as the
College of Commissioners in that they will have to be approved
by the Parliament. I guess that what lies behind the question
is a consideration of what kind of individual one might choose
for the job, rather than simply the formal process of how one
chooses the occupant for the position. That is an absolutely fascinating
question, because clearly the European Union fell on its feet
when it chose Javier Solana as the first occupant of the old High
Representative job. It picked up somebody who has done a good
job, both in picking the fights that he decided to involve himself
in on behalf of the EU, and through being simply a very capable
individual in terms of the experience that he brought to the job.
There will be a succession difficulty, because
obviously whoever replaces Solana must have the qualities that
Solana had, but must also be an individual who must take on this
very different job, particularly when one considers where they
will sit in the institutional architecture, bridging both the
Council and the Commission, and also, in a way, making the Council
in their own image, by taking on the presidency responsibilities
that they will have. So, the job has a formidable job description.
Indeed, there was not much of a job description before Solana
took the job.
At the same time, there will also be a market
for somebody to be President of the European Council, so there
are two plum jobs, plus the President of the Commission and the
other members of the College of Commissioners. So, there needs
to be a collection of very well qualified individuals, preferably
not Spanish individuals for the CFSP job, and preferably not individuals
from a larger member state, in terms of divvying up.
Mr Avery: I would like to pick
up on the tribute that Professor Whitman paid to Javier Solana.
I would also like to say that Mr Solana was quite lucky to have
a counterpart of the quality of Chris Patten on the other side
of the road when he began his functions. That was a very important
beginning, with the existence of good relations with the Commission.
As far as I understand it, the procedure for
the nomination of the new High Representative is not radically
different from the present procedure, but, of course, it becomes
more complicated in so far as he is a Vice-President of the Commission.
The timetable is a little complicated, because if this treaty
comes into force, as is planned, on 1 January 2009, the High Representative/Vice-President
will plunge into a European Commission which still has 10 months
of life left. If it happens to be a prolongation of Mr Solana,
who has a Spanish passport, then the present Spanish Commissioner
will have to leave and his portfolio, which is economic and monetary
affairs, will have to be reallocated.
There could be what might be called a transitional
question for 10 months. I believe that there was an elaborate
and highly negotiated form of words which stated that the new
figure, the High Representative Vice-President, would, on 1 January
2009, be subject to some appropriate procedures of consultation
with the European Parliament. However, when it comes to the new
Commission, which would normally take office on 1 November 2009,
it seems normal that in so far as he wears his Vice-President
hat, he will have to go through the same hearings and procedures
as other members of the Commission.
By the way, it is evident that some time in
2009, there will be a big question of allocating three jobs: President
of the Commission, President of the European Council and that
of Mr Solana, or his successor.
Professor Hill: I would add only
that although there are many people in Europe who have expertise
in the diplomatic "pol-mil" sort of area, there is only
a small group who could be candidates for this kind of job, for
the reasons that my colleagues have outlined. They would have
to have political weight, managerial capability, experience of
at least one side—one hat, as it were—and external
credibility.
Names such as Carl Bildt and Joschka Fischer
are bandied around—it has to be someone of that sort of
level, but there is not a huge number of them. Will you give it
to somebody who has outstanding personal capabilities and comes
from a small member state? Would you risk causing problems by
giving the job to one of the big three? Those are the political
considerations.
The last important element, which undoubtedly
came into play with the appointment of Mr Solana, is that he or
she must be somebody who the Americans are willing to take seriously.
That does not mean that they have a seat at the table, but we
all know that in European foreign policy making, the United States
has a certain privileged position as an important ally. If it
chooses not to take this person seriously, it will make his or
her job much more difficult.
Mr Avery: There is also the gender
question. Certainly men should not occupy all three of these positions.
Finally, I think that it would be well received if one of these
big posts went to somebody from a new member state—one of
the twelve states that joined the European Union more recently.
Those are other political considerations that will come into the
grand game.
Q435 Mr Horam: The Government have
portrayed the new role of the High Representative as a creature
of the member states. I notice, Mr Avery, that in your interesting
paper you say, "There is a suspicion within the Commission
that the arrival of the new Vice-President will enhance the influence
of the Council and member states, promoting the intergovernmental
method in foreign affairs to the detriment of the Community method."
Do you think that the Government's description is right, and do
you think that your opinion is valid—that this will shift
the balance towards the intergovernmental, member-state approach
to foreign policy?
Mr Avery: The fears within the
European Commission, which I mentioned in my article, are fears
that I personally think were not very well founded. As I said
earlier, nothing changes in the decision-making procedures. What
changes is the formation and execution of policy. As to what the
result will be—whether it pulls in the intergovernmental
direction, or the Community direction—I find that extremely
difficult to forecast. It remains to see who the characters are
and how they play the part.
Q436 Ms Stuart: May I first take
you back to why there is perceived to be a problem? Why have we
created this new position? The problem was that the High Representative
was doing the foreign policy, but the Community itself has tools
and aid, and all those things require co-ordination.
You are absolutely right that Solana was not
only extremely capable, but, to my mind, one of the very few people
who forgot his nationality. You did not think that he was a Spanish
representative, but someone who represented the Union. Mr Avery
was right to point out the third hat that people have forgotten
about. Do you think that we have ended up creating a creature
that, by compromise after compromise, will be not only unable
to address the original problem of co-ordination, but will end
up having one foot in every place?
What particularly worries me is that he will
be Vice-President of the Commission and the only Commissioner
who cannot be sacked by the Commission President. The European
Parliament suddenly has a foot in the whole row, which originally
it was not supposed to have. This is extremely ill-defined. Have
we created a role that is even more dysfunctional—whoever
has it—than what we tried to address by creating the position?
Mr Avery: I do not much like the
expression, "creature of the member states", but I understand
it in the sense that the new High Representative, with both his
hats, will report to the Council. The decisions will continue
to be taken in the Council of Ministers. It is an interesting
reflection that if you take the role of the Commission at the
present time, it does not have any power in foreign affairs. It
manages policies and conducts negotiations according to mandates
given by the Council, and it takes initiatives to develop policy,
but those are initiatives for decision by the Council.
The role of the High Representative at the present
time is rather similar to that, except that his field of action
is common foreign and security policy and the decision-making
mode is different. One of the practical problems when you work
in the system, as I did, is to distinguish between the field of
common foreign and security policy and the field of Community
instruments. With development aid that is relatively simple, but
on the questions of enlargement and neighbourhood policy that
I mentioned earlier, it is much more complex.
It might be difficult, but it is not impossible,
for one individual to present and develop strategies in these
areas, provided he has an effective service helping him. The present
situation is sub-optimal because there are two separate agencies
on two sides of the Rue de la Loi that both come up with initiatives
which are sometimes overlapping. I must choose my words carefully
here. There is a degree of competition—even rivalry—which
is normal in organisations. I do not reproach the individuals,
but highly talented people spend a certain amount of their time
worrying about how things will fly, or play, on the other side
of the pillar.
Professor Whitman: What the job
has done is to solve one problem and create another. The problem
that is solved is that associated with the rotating presidency,
by having an individual who takes on that role. The uncertainties
that come with the old system of rotation are intended to disappear.
However, that creates the problem of a job that is extremely difficult
to execute because we have retained the old pillar structure.
Pillar 1 and pillar 2 are still there. We may now call these things
external action, but the only thing that brings them together
is a bit of shuffling around in the treaties and a new bit that
has been tucked into what was title V, which sets out what the
ambitions are for external action in general, and the promise
that there will be more resources to assist the new High Representative
in the job that is asked of them.
The member states have quite a responsibility
to make a success of the position. It is not just a question of
whether the individual concerned is the best individual for the
job. There will have to be a bit of shoulder to the wheel, not
just in terms of selecting an individual who is capable, but also
in making sure that the job works. It will obviously have an impact
on the foreign policy making system itself if there is an individual
who cannot attend to the Council or CFSP bit of the job because
the external relations side is taking so much time, energy and
effort.
Professor Hill: We almost have
no choice; it is the law of large numbers. The more you enlarge
the Community the greater are the pressures for rationalisation.
How are we going to cope with this? It will not run itself. There
is a tendency to try to counterbalance enlargement with some sort
of centralisation and streamlining. It is also the law of unintended
consequences. I am sure you remember that the Convention was really
supposed to deal with the consequences of enlargement but it ended
up concentrating on foreign policy. Most of the provisions which
have been talked about as innovations relate to foreign policy.
That in itself speaks not just about the perceived need to streamline,
but about the fact that the Union still has quite considerable
substantive ambitions to make a difference in world politics.
It thinks, "That is what we have really got to address. The
outside world wants us to speak with one voice and if we want
to influence everything, we have got to do that."
We are almost forced into the more unified approach
to highly complex decision making. In this case, once we said
that the system is too big to have the rotating presidency, a
lot followed from the understanding that the rotating presidency
was no longer viable in a union of 25 or 27 states. Of course,
there are powerful arguments for taking that view. It will still
survive in some form but not in its foreign policy forms.
Q437 Mr Heathcoat-Amory: It is well
known that the British Government did not like the double-hatting
of the new High Representative and tried to amend it during the
Convention. Also, they did not like some of the language describing
the role of the High Representative including, I believe, the
description that he or she "shall conduct" the Union's
common foreign and security policy. Do you believe that the fact
that this individual will be a Vice-President of the Commission
and therefore presumably bound at least by the culture of the
Commission that it shall not take instruction from nation states
and so on, will undermine the proclaimed intergovernmental nature
of foreign policy in practice?
Professor Whitman: I think it
is really a case of waiting and seeing. Existing members of the
College of Commissioners, although they swear their oath, are
effective conduits of national ideas, even though they are servants
of the Union. That situation will obviously continue into the
future.
On the institutional side it obviously muddies
the waters in terms of having one institution straddling this
chasm—no, chasm is not a proper representation, so let us
say one institution standing on two pillars and trying to straddle
the two. We simply do not know whether the Commission side of
the job can be combined with the foreign policy side. The foreign
policy side of the job is what the High Representative is doing
now, plus the stuff that the presidency was doing in the past.
The Commission side of the job is obviously what already exists
in terms of the commissioners doing the work that they do on external
relations. A lot will depend on the support infrastructure that
is there for the individual concerned rather than the question
of precisely where they sit in the institutional order.
Q438 Mr Heathcoat-Amory: Is it not
rather alarming that we are about to sign a treaty but we do not
know what will happen?
Professor Whitman: It happens
with plenty of treaties, does it not?
Q439 Mr Heathcoat-Amory: It would
not happen with any treaty that I signed. I want things nailed
down because this is for ever: there is no way of amending it.
Ms Stuart: You did sign Maastricht.
Mr Heathcoat-Amory: I didn't, actually.
I must correct the hon. Lady. I am clean on that one. I had a
number of opposite numbers who did sign it, but I did not. Surely,
treaties are to give precision, clarity and certainty to the public
about who is going to take the decisions in their name. You seem
to be saying that there is large degree of ambiguity about exactly
how this is going to pan out.
Professor Whitman: No, I think
that it is clear in terms of what the High Representative's responsibilities
are in the area of the common foreign security policy. I think
that it is unclear whether one individual will be able to cope
with the responsibilities of operating on both the CFSP side and
the Commission side. I do not think that any treaty article could
provide a clear indication of whether that job will be possible
once it has been road tested. There are plenty of other positions
in the Union that both good and bad people have done, and we have
given jobs that are manageable and not particularly manageable.
One of the striking things about the treaty, particularly when
it comes to the presidency, is how little there really is in it
about the responsibilities of the presidency, yet we see how much
presidencies have done over time.
Mr Avery: Mr Heathcoat-Amory mentioned
the Commission and its culture. I should like to come back on
that. To me, there is a very important job that needs to be done
in the European Commission: to co-ordinate and manage better its
efforts and activities in foreign affairs. At present, there are
four Commissioners dealing with foreign affairs in one way or
another: trade, development, enlargement and European neighbourhood
policy and the rest. In the last Commission, it was accepted that
despite the fact that Chris Patten was not a Vice-President, he
was a co-ordinator. In the present Commission, the co-ordinator
is the President, but with all respect to the talents of José
Manuel Barroso, he has so many things to do that he does not have
enough time to handle foreign affairs. All that I am saying is
that there is a necessary task: to get the Commission's act together
better in the field of foreign affairs.
Secondly, you are perfectly correct to say that
Commissioners and Vice-Presidents take an oath in the Court of
Justice in Luxembourg that they will not take instructions. I
am not quite sure what the deontological position of High Representative
Solana is, but it seems to me that he, too, would undermine his
role if he took explicit instructions from an individual member
state, particularly the one from which he comes.
My last point is simply that the activity of
both the Commission and the Council secretariat apparatus consists
of making proposals to the Council. The Council remains the decision-making
body under the new treaty. The execution and management of those
policies will be delegated under guidelines that are, again, decided
by the Council. I do not see a big potential conflict. What I
see is an improvement.
Let me put my point this way. A Foreign Minister
in the Council gets foreign affairs proposals from the Commission
on this and from Mr Solana on the other—sometimes joint
proposals and sometimes separate proposals. It is rather incoherent.
The purpose of the changes in architecture in the treaty is to
ensure that the proposals introduced are better joined up and
more coherent. In my opinion, when the Council sees this better
preparation of policies and strategies, it will say, "Why
didn't we do this sooner?"
Professor Hill: I disagree with
Mr Avery and Mr Heathcoat-Amory in terms of seeing a difference
between the formal description and the policy-making practice.
Most political scientists would say that you have to start with
the formal description but then probe beneath it to see what actually
happens. Clearly, it is an intergovernmental process—the
CFSP—and, even in many other aspects, the Council finally
disposes. But it is also true that because foreign policy extends
well beyond the CFSP, as I said earlier, the Commission has had
an important day-to-day role—quite rightly, and in many
subtle ways—in shaping policy. That is quite appropriate.
We all know that national civil servants in member states do the
same. It is a discretionary role. The Commission is extremely
important in enlargement policy, for example—in taking Agenda
2000 forward. The British Government happened to think that that
was all right, so they went along with it and did not make a big
fuss. In my view, there should have been a bigger debate about
it, but there was not. That was the way of things.
Equally, although I would agree that there are
things in the reform treaty that I would describe as potential
grenades—they could go off if there is the will to push
them forward in future, as with the External Action Service, for
example—all that the law does is create possibilities and
choices. Clearly there is still an absolute intergovernmental
control of the main lines of foreign and external policy, so there
is no danger of member states being subordinate to some kind of
communitarisation, either through the changing role of the High
Representative and Vice-President or through his role in chairing
the Council.
As a political scientist, you might say, "Well,
the question is how this will be interpreted in practice over
a period of time." That is because there is uncertainty.
When we started the European security and defence policy after
the St. Malo agreement, a lot of people said that it was the end
of NATO and so on. That has not turned out to be the case, but
it could be—perhaps 50 years down the road we will have
a European army and all the rest of it and NATO will fade away.
However, there are a lot of political and legal choices to be
made on that road.
Chairman: I think that we need to move
on. We have touched on the European Council presidency. We will
take questions on that and then come on to the External Action
Service.
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