Examination of Witnesses (Questions 520-539)
RT HON
DAVID MILIBAND,
MP, PAUL BERMAN,
SHAN MORGAN
AND MARTIN
SHEARMAN
12 DECEMBER 2007
Q520 Mr Heathcoat-Amory: The structure
of the new treaty is different only in the sense that it retains
the two existing treaties and amends them, rather than having
a single, consolidated text. But in legal effect and in substance,
the new treaty is pretty well identical to the constitutional
treaty, as shown by the European Scrutiny Committee's comparative
table. I would like to ask you about one matter of substance,
which is identical but has simply been rolled over fully intact
from the constitutional treaty, and that is the article that governs
majority voting.
The Government claim that foreign and security
policy will be inter-governmental, and we will have a veto over
important matters. But the new treaty includes the important innovation
that when the High Representative makes a proposal, that proposal
is voted on by majority voting—so long as the European Council,
at one of its four annual meetings, has agreed unanimously to
accede to his request to make a proposal. Do you agree with that
analysis of majority voting?
David Miliband: No, I do not,
and I will return to that. But first, it is very significant that
David Heathcoat-Amory, who has looked at this issue for some time,
should say, I think for the first time, that the structure of
the reform treaty is different from the structure of the constitutional
treaty. That is what he said today, and we should recognise the
importance of that. What he said was that the "legal effect"
was, in his words, almost identical, but it was very welcome to
hear him say that the structure of the constitutional treaty was
different from that of the reform treaty. It is part of the purpose
of these meetings to try to establish areas of fact, so I am glad
that he picked up that point. So in terms of structure, we are
amending existing treaties, not—to use your words—creating
a consolidated text. It is not a new re-founding of the European
Union. That is important.
Secondly, I do not accept that in legal effect,
the reform treaty and the constitutional treaty are the same.
You mentioned the ESC report, which is important and it does have
a table of derivation at the back. Since you referred to it, I
would like to refer to it. You say that it shows that the two
treaties are the same. To show you why it does not show that,
it relegates to one footnote the whole of the new arrangements
on justice and home affairs, which are a significant part of the
new treaty but were not in the constitutional treaty. I am just
trying to find the footnote number so that you can follow it up.
I think that that shows that your assertion about the listing
at the back does not add up. You can take it from me—you
can trust me, I am a politician—that they have relegated
the justice and home affairs points to a footnote in the table
at the back. I do not think that that gives due credit to the
changes that have been achieved.
In respect of the Common Foreign and Security
Policy, the Council of Foreign Ministers acting in unanimity agrees
a policy and asks the High Representative to come forward with
the implementing policy. It remains the case that implementation
of an agreed policy can be done by qualified majority voting,
but the policy is set by unanimity.
Q521 Mr Heathcoat-Amory: First, you
would have heard me say that the structure is different in the
debate yesterday if you had not spoken and then left almost immediately.
I repeat, and I think by implication that you agree, that in legal
effect and substance—which is what people care about—the
two treaties are almost identical. In the words of the European
Scrutiny Committee, they are "substantially equivalent".
David Miliband: I do not accept
that.
Q522 Mr Heathcoat-Amory: Excuse me,
I am asking a question. Your quarrel is not with me over this
issue, but with a Labour-dominated European Scrutiny Committee.
I want to return to the point about qualified
majority voting. I am referring to article 17 of the text itself.
It is quite clear that when the High Representative asks to make
a proposal to the European Council, this country, if it does not
agree, will have to veto the request at that point. Otherwise,
if it accedes to the request by the High Representative, from
then on, majority voting will apply. There is no other way of
interpreting article 17(b)(i). Therefore, that is a new and substantial
erosion of the unanimity principle. In practice, it means that
the UK would have to veto very early on, even a request to present
a proposal by the High Representative. That is a very high bar
indeed, and unless the Government vetoed it at that point, once
the request has been made to the High Representative and once
he has brought forward his proposal, according to that article,
qualified majority voting applies.
David Miliband: Let me go through
those two points. First, I do not accept that the reform treaty
and the constitutional treaty are the same. Selective quotation
from the ESC report is becoming a parliamentary sport. To be absolutely
clear on what it says about the allegation of substantial equivalence,
it says: "We consider that, for those countries which have
not requested derogations or opt outs from the full range of agreements
in the Treaty, it does"—and it refers readers to the
table. Even the ESC says that for the UK, it is not substantially
equivalent. Let us be clear about what the ESC says. I know that
you are a distinguished member of that Committee.
Secondly, the unanimity basis for agreement
on foreign affairs is for the policy. It has been the case since
1992—or possibly 1986—that the implementation of policy
is a matter for qualified majority voting.
Paul Berman: Since Amsterdam.
David Miliband: Since Amsterdam,
sorry. The distinction is between agreeing the policy and implementing
it. That is unchanged by this.
Q523 Mr Heathcoat-Amory: No, you
are being utterly obtuse.
We know that, in the existing treaty, implementing
measures are passed by qualified majority voting. I am asking
you a different question, on a new article, which concerns the
role of the High Representative. When the High Representative
asks the Council to present a proposal for action, the European
Council can reject that request by unanimity. In other words,
we have a veto.
David Miliband: Correct.
Q524 Mr Heathcoat-Amory: But, if
the European Council agrees that the High Representative can present
his proposal for action, from then on consideration of that proposal
would be by majority voting. There is no other explanation. Please
ask your advisers to confirm that.
My point is that the much-trumpeted veto of
the United Kingdom must be asserted very early on, when the High
Representative makes his request. He will make it in very reasonable
terms. He will say, "I wish to present a proposal for action."
For the British Government at that point to say, "No, we
are not going to do that, because we are afraid of what you may
bring forward," is a very demanding set of conditions. If
we do not veto at that point, and he does bring forward his proposals
to the European Council, from then on majority voting applies.
I am asking you to agree what is in the text. It is clear, but
the consequences of it are very serious.
David Miliband: In setting out
the policy, there is unanimity. In implementing the policy, there
is QMV. That applies in terms of both what we inherit from Amsterdam
and of what you have described. Policy setting is a matter of
unanimity. You and I agree about that.
Mr Heathcoat-Amory: No.
David Miliband: You are saying
that we have to decide it "early". I am saying that
we have a veto. If you do not like it, you do not have to vote
for it. Both in terms of the post-Amsterdam conditions and what
you have quoted, QMV is triggered only once there has been unanimous
agreement to do something. We are both saying that. You are saying
that there is a veto, but you think that there has to be a high
bar for it. I am not disagreeing with you. I am saying that in
setting the policy there has to be unanimity, then when it comes
to implementing it, there is QMV.
Q525 Mr Heathcoat-Amory: I find it
truly alarming that you are not familiar with article 17. It is
not "implementing". It is "when adopting a decision
defining a common action or position on a proposal from a High
Representative". The word "implementation" does
not occur in that phrase, so do not bring it into the text. Maybe
it should have been there, but it is all too late, because it
will be signed tomorrow.
David Miliband: No, I am sorry,
as I have made clear, in both the inheritance from Amsterdam and
the new pieces that you have described, whether the proposal comes
from the Council or the High Representative, the initial decision
is for a policy. We are agreed on that. There is a subsequent
decision to put that policy into practice. Do not use the word
"implementation" if you do not want to. That is a matter
that will then be decided by QMV.
Q526 Andrew Mackinlay: Even if you
are correct about the fact that the treaty is not the constitution,
there is a political problem, because the perception of a substantial
number of the electorate is that it is the same. That is a dilemma
for legislators here, particularly but not exclusively Labour
Members, who signed up to a manifesto saying that there would
be a referendum. I believe it to be a majority, but even if it
is not, a substantial proportion of the electorate believe that
they are one and the same thing. That cannot be dismissed. It
is a reality and a matter of honour. I was not the architect of
the manifesto—I do not know if you were—but we signed
up to this, and the perception is that it is one and the same
thing. We cannot ignore that, can we?
David Miliband: You are right
that nothing should be "dismissed". Some people may
perceive that they are the same, but I am not sure. I think that
Sandra was saying earlier that a lot of people do not have a strong
view about it. Some people think it is similar, some people think
it is different. In the end, all of us, whether Labour, Tory or
Lib Dem, will have to take a view, firstly on the content of the
treaty and whether it should trigger a referendum because of that
content, and secondly on whether you feel the treaty is sufficiently
different from the constitution that you stood on. Regarding the
first issue, I think that we agree that something with far-reaching
constitutional consequences should be subject to a referendum,
joining the euro for example.
Q527 Andrew Mackinlay: There is one
option, is there not, that would satisfy some legislators—not
just Labour, but some Labour Members—which is a commitment
to have a referendum between now and, say, 2012, reaffirming our
membership of the European Union. Do you totally dismiss that?
David Miliband: I do not agree
with it, but "dismiss" suggests tossing it aside. That
is the Lib Dem—
Q528 Andrew Mackinlay: Some people
were saying it in your own party before the Lib Dems, so it is
a continuing church, albeit underground and persecuted from time
to time. Some have been saying it. It does not matter who it came
from; it is a sensible idea, is it not?
David Miliband: It is a position
that has now been adopted by the Lib Dems.
We made our choice in 1974. If we were to have
a significant constitutional change there would be a case for
a referendum, but one of the things that we would all agree on,
and which I have heard you talk about, is the importance of restoring
respect for Parliament. Let us make Parliament the place where
we decide things. That is what we are elected for. Let us then
face the consequences of whether the electorate agree or disagree
with us. I think it was Mrs. Thatcher who quoted Clement Attlee
as saying that referendums are the refuge of those who are either
demagogues or feel that they have lost the argument. We should
take responsibility for the decisions we take in Parliament and
then let the electorate decide.
Q529 Richard Younger-Ross: It would
be very well and good for the politicians here to make that decision
if they had any say in the treaty or any of its clauses. It was
like getting hens' teeth from your predecessor to get her to admit
that there had been any pre-discussions at all on the treaty,
let alone what was in those pre-discussions and what the Sherpas
were doing at the different meetings.
You asserted that the structures are different.
My background is in architecture, and I can build you a nice new
house out of bricks or I can go to your existing house and adapt
it and build bits out of timber. The structures will be different
but they are both still houses, and I assert that this is still
a constitution, even though it has a different name and different
structure.
David Miliband: But bungalows
are different from tower blocks, are they not?
Richard Younger-Ross: I did not say anything
about bungalows or tower blocks.
David Miliband: No, but they are
both houses.
Richard Younger-Ross: Not by definition.
David Miliband: Maybe you are
a theologian or a philosopher, not just an architect. To continue
your metaphor, there is a big difference between doing up the
paintwork and knocking the whole thing down and rebuilding it.
Q530 Richard Younger-Ross: Coming
back to the point about the High Representative, the High Representative
now has a Commission hat and can instigate policy. Is that not
significant?
David Miliband: It is noteworthy.
Obviously the Commission role of the High Representative is quite
limited. His or her primary function is to carry out the wishes
of the Council of Ministers, but where he or she is performing
Commission duties then fair enough. There is a continuation of
the right of initiative but you could say that the boot is on
the other foot—formally, in this treaty, the Council is
the policy originator.
Q531 Richard Younger-Ross: Do not
Commissioners normally just wear Ministers down over a number
of Council meetings?
David Miliband: I think that Minsters
have shown themselves to outlive Commissioners more than Commissioners
have outlived Ministers.
Q532 Richard Younger-Ross: With regard
to whether this is the same as the constitution or whether it
is a reform treaty, I seem to recall that during the early talks
the Prime Minister was asked a question in the House about whether
they were different, and he said that of course they were different
because of the red lines. And he used the red lines as the mark
of what the difference was. The red lines are all actually in
the original constitution, so if you take the red lines away they
are still the same thing.
David Miliband: I do not have
the Prime Minister's quote in front of me, but obviously the red
lines are a significant addition. As I said: structure; content;
consequence. In terms of content, the red lines are a significant
change from the constitution; they are not the same. The material
on JHA, which we discussed at our last meeting, is a significant
part of that.
Q533 Chairman: May I just take you
to this point about parliamentary scrutiny? You made a point that
there should be proper parliamentary scrutiny and presumably there
ought to be better parliamentary involvement in future on European
matters than there is currently. Are the Government considering
giving a right of prior vote on any extension of QMV under the
passerelle procedure for the Common Foreign and Security Policy?
David Miliband: Yes. The Prime
Minister has said that we are.
Q534 Chairman: And when are we likely
to know what that will involve?
David Miliband: When we publish
the Bill, I think; when our preliminary conclusions are complete.
Q535 Chairman: You are not sure when
you are going to publish the Bill yet?
David Miliband: You will not have
to wait too long. Let us get the signature, or signatures, out
of the way first, then let us move on to publication and then
proper scrutiny. To anticipate a point that you might want to
make, obviously these matters get discussed in the usual way,
but I know that the Government know that you have a timetable
for publishing your report and we want to make sure that there
is proper time for that. We will not have the Second Reading of
the Bill before we get your report.
Q536 Chairman: That is helpful. No
doubt we will find out some more later on today, or tomorrow.
May I ask you about the implications of the
new proposals for enhanced co-operation and what, if any, effect
they will have on our policies and on how the Common Foreign and
Security Policy works?
David Miliband: There is continuity
and change in this.
Q537 Chairman: I am interested in
the change.
David Miliband: The change is
in respect of what we now all call permanent structured co-operation.
Is that what you are talking about?
Q538 Chairman: Yes. There is that,
but there is also a solidarity clause. I am interested in the
co-operation.
David Miliband: Enhanced co-operation
was brought in under previous treaties, for nations to come together
to conduct foreign policy work together. Permanent structured
co-operation is more on the defence side, on the European Security
and Defence Policy side, and it is about capability improvement
among EU member states. That is what the reference to permanent
structured co-operation is.
Q539 Chairman: In practice, does
that have implications for what we do, or is it just a drafting
change?
David Miliband: No, I think that
it is about the capabilities; that is one of the issues for European
defence. This is about enhancing capabilities for European defence;
EU-led operations in respect of security in the European neighbourhood.
That is different from the solidarity clause, which is about terrorist
incidents and whether or not we are committed to helping each
other in the event of terrorist incidents. That seems perfectly
helpful to us.
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