Examination of Witnesses (Questions 540-559)
RT HON
DAVID MILIBAND,
MP, PAUL BERMAN,
SHAN MORGAN
AND MARTIN
SHEARMAN
12 DECEMBER 2007
Q540 Chairman: Let us probe that
a bit further. You have obligations to the EU under the solidarity
clause, but you also have both your independent foreign policy
and your national policies, and they may not be identical. How
is that resolved in terms of the solidarity clause?
David Miliband: I think that it
would be helpful if I just read out the content of the so-called
solidarity clause, because I think that it makes clear the circumstances
that we are talking about. It is title 7 article 188R of the treaty
on the Future of the European Union. It says: "The Union
and its Member States shall act jointly in a spirit of solidarity"—which
is presumably why it is called the solidarity clause—"if
a Member State is the object of a terrorist attack or the victim
of a natural or man-made disaster. The Union shall mobilise all
the instruments at its disposal, including the military resources
made available by the Member States". That circumscribes
pretty clearly the circumstances in which this comes to pass.
It is not a bit of foreign policy that emerges after negotiation
and debate. This is about terrorist attacks and man-made disasters.
Q541 Chairman: And that is new? It
was not in the constitutional treaty?
David Miliband: Correct.
Q542 Chairman: Part of the solidarity
clause was in the constitutional treaty and what you have just
quoted is new. Is that right?
David Miliband: Sorry, it is new
in the sense that it does not exist in the current treaties. It
was in the constitutional treaty.
Chairman: Okay. Gisela?
David Miliband: That is right,
is it not?
Q543 Ms Stuart: Yes.
Would 9/11, which triggered article 5 of NATO,
have triggered the solidarity clause?
David Miliband: If it had happened
within Europe?
Ms Stuart: Yes.
David Miliband: It certainly meets
my definition of a terrorist attack.
Q544 Mr Purchase: Madrid?
David Miliband: Madrid, yes, and
I suppose London 7/7.
Q545 Ms Stuart: So what is the argument
that the solidarity clause undermines NATO?
David Miliband: Why does it undermine
NATO?
Q546 Ms Stuart: This is not one of
my frolics. Countries such as Finland were very concerned about
this clause. They said that if you want a solidarity clause we
can always join NATO. They asked why we were doing this within
the EU. Also there is a slight difficulty in that it is not a
true solidarity clause in the sense that countries like Ireland
or Denmark have quite different positions. We need to be quite
clear how we interpret the solidarity clause. The declaration
makes the solidarity clause much weaker than it appears because
it states that none of its provisions "is intended to affect
the right of another Member State to choose the most appropriate
means to comply with its own solidarity obligations towards that
Member State". In other words, a country has clear obligations
but then it interprets them itself. Some people, although not
in the UK, have been quite genuinely concerned that it undermines
NATO.
David Miliband: I met the Finnish
Foreign Minister and he certainly did not raise this as a threatening
clause. Obviously it is open to member states to join NATO, but
some of them are not members for historic reasons, which it is
not worth going into. I do not see the argument—I do not
say that you are making it—why a clause like this for the
European Union undermines a similar clause that exists in the
NATO treaty. I would have thought they were complementary and
reflective of the values of the two institutions.
Ms Stuart: So our view is that there
is no conflict. Okay.
Mr Hamilton: May I briefly return to
something—
David Miliband: I am terribly
sorry Fabian, but it has been helpfully pointed out to me that
there is a mutual defence clause which may be a source of confusion.
Would it help if I read it out as it relates directly to this
NATO order? Section 2, paragraph 7 states: "If a Member
State is the victim of armed aggression on its territory the other
Member State shall have towards it an obligation of aid and assistance
by all the means in their power, in accordance with Art.51 of
the UN Charter. This shall not prejudice the specific character
of the security and defence policy of certain Member States. Commitments
and cooperation in this area shall be consistent with commitments
under the North Atlantic Treaty Organisation, which, for those
States which are members of it, remains the foundation of their
collective defence and the forum for its implementation".
Maybe that reflects the discussions that happened.
Q547 Ms Stuart: That is section 2
of what?
David Miliband: It is section
2 of article 28 A, paragraph 7. Sorry, Fabian?
Q548 Mr Hamilton: May I come back
to something that Andrew Mackinlay asked earlier? You quite rightly
replied that it is for Parliament to make decisions about treaties.
We always have done. On previous treaties such as Maastricht and
Nice, those far-reaching decisions were made by Parliament rather
than through referendums. The problem is that the previous Prime
Minister committed this Government to a referendum and put that
to the people in the manifesto.
David Miliband: On the constitution.
Q549 Mr Hamilton: On the constitution.
As you rightly say, the problem is that much of the Lisbon treaty
is very different from the constitution that was proposed for
which we guaranteed a referendum in the manifesto, but, as Andrew
Mackinlay said, that is not the public perception. The difficulty
that we have—and that we all have in our constituencies,
whatever our party—is that it is perceived that the Labour
party at the last general election made a commitment to a referendum
on a constitution and that we are simply being disingenuous in
saying that the Lisbon treaty is so different that we do not need
the referendum.
I happen to agree with your point, but we are
not getting that across. I wonder what you and the Government
will do to make it clear to the electorate that this is different
from the constitution on which we guaranteed the referendum.
David Miliband: Let us note first
that we must deal with reality rather than perception.
Andrew Mackinlay: The reality is the
perception.
David Miliband: No, the reality
is not the perception—at least, as understood by Fabian
and me. The reality is that this is not the constitution. It is
very different—to use your phase. That was point one. It
must be the reality.
Secondly, the Committee should not become a
Labour party election-planning session in which we are trying
to figure out how to explain our policies. I am happy to work
with you to figure out the best way to explain matters to your
constituents, but we should probably do that in our own bunkers
rather than in quite such a public place.
Q550 Mr Purchase: With great respect,
that is a different point. We are talking about Parliament making
the view clear to the public, and that is being distorted at the
moment by parts of the popular press.
David Miliband: We have a responsibility
to be clear as possible about the reality. Your investigation
is into the reality. I think that Sir John Stanley and I agreed
with each other on the matter during our last discussion. The
bar for a referendum in a parliamentary democracy should be: does
this law affect bringing into being a fundamental constitutional
change? I think that that wording was used, although it can be
checked. A fundamental constitutional change should be subject
to a referendum, and Parliament must play its role. The real question
that we face is whether the treaty constitutes a fundamental constitutional
change, given all that we know about its contents and about the
present? My case to you would be that no objective observer could
look at the changes, however worth while in respect of double-hatting,
and say that it is a fundamental constitutional change in our
constitutional system. Given that, it is a slippery slope then
to say that we should have a referendum anyway.
Mr Hamilton: We need to get the message
across.
Q551 Ms Stuart: But the previous
Prime Minister did not give a reason for granting a referendum
that had anything to do with the constitution. I want to know
just for the record.
David Miliband: That is true.
I think that I said that in this Committee. He said that it would
clear the air.
Chairman: I am conscious that many of
us have views about what the former Prime Minister said at that
time, but let us not get into that.
Q552 Mr Hamilton: Let me get back
to the reality. One of the proposals in the treaty is for the
establishment of a new European Council President. We took evidence
last week from the former Foreign Secretary, Lord Owen. His view—shared
by many, I think—is that a figure such as the European Council
President might develop too great a degree of independence, thus
undermining the prospect that he or she would be a creature of
the member states as envisaged by the Government. How will we
ensure that the European Council President does not become too
independent of member states?
David Miliband: I read Lord Owen's
evidence. It was very interesting, but I do not think that his
view is widely shared. At least, I have not heard anyone else
saying it. The President is appointed by 27 Heads of Government
to chair meetings and have a role in setting the agenda. All of
us here are politicians. We stay close to our electorates. Any
Chairman of the European Council who gets too big for their boots
and loses touch with the people who appointed them will end up
in trouble. A pretty strong lasso is holding back any pretensions
that that person may have. They have an important role. They are
appointed for two and a half years and they are accountable pretty
quickly to their 27-member appointing body.
Q553 Mr Hamilton: Can we be sure
that that 30-month term of office, which is pretty brief, will
not be dominated by the quest to renew the contract or to find
the right person in the first place? There is a danger that there
is such a long lead-in time to the appointments that someone could
be permanently on an appointments commission. You may or may not
want to answer that.
Article 213 of the EU reform treaty states that
the President of the European Council cannot also be the President
of the European Commission. That is ruled out. Are you confident
that that article holds water, and that we will not eventually
find the same person doing both those jobs?
David Miliband: Yes.
Q554 Sir John Stanley: Why?
David Miliband: Because the article
states clearly: "Members of the Commission may not, during
their term of office, engage in any other occupation." That
is plain and simple—they cannot have two jobs.
Q555 Sir John Stanley: Foreign Secretary,
do you think that the occupations of the Secretary of State for
Defence and that of the Secretary of State for Scotland are the
same?
David Miliband: No, the occupations
are not the same.
Q556 Sir John Stanley: They are not?
David Miliband: They are two separate
jobs.
Q557 Sir John Stanley: That is different
from an occupation. They are the identical occupations; they are
Cabinet posts.
David Miliband: This is a sort
of canard, and I have had an amusing exchange with William Hague
about the matter. He wrote to me asking why I had not ruled out
the possibility that the two posts could be held by one person.
I wrote back saying, "Members of the Commission may not,
during their term of office, engage in any other occupation."
That seems plain and simple. Yesterday, he found the word "occupation",
and thought there was a devilish plot to allow that possibility.
He had not even read the whole article. Everyone has given me
the article—I have got the point, I promise—so I shall
read it out. Beyond saying that there is no holding of more than
one occupation, the article says that members of the Commission
shall "neither seek nor take instruction from any Government
or any other body". In other words, not only is there a double
occupational ban, there is a ban on any Commissioner taking instructions
from any other body. The Chairman of the Council is there to take
instructions from the 27 Heads of Government. That provision is
lock, stock, barrel and bolted. All you have to do is read the
whole article.
Q558 Sir John Stanley: Foreign Secretary,
you said that you had studied Lord Owen's evidence to the Committee
last week. He reported that the Dutch Parliament has received
legal advice that is totally contrary to the interpretation that
you have just given. Have you seen that advice?
David Miliband: No, I have not.
Q559 Sir John Stanley: He said: "Whatever
the Dutch are or are not, their country is famed for its knowledge
of international law. When they advise their Parliament that it
still allows double-hatting and there are no substantive changes
in the draft"—
David Miliband: Let us finish
the earlier point. You seemed surprised that I said no. The Dutch
evidence that you are quoting is apparently from seven years ago,
and deals with the previous constitutional treaty.
Sir John Stanley: Well, from Lord Owen's
evidence it was three years ago—
Paul Berman: It was from the time
of the constitutional treaty, so it was three or four years ago.
David Miliband: It related to
the constitutional treaty
Sir John Stanley: Yes, I know.
David Miliband: We do not have
a constitutional treaty.
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