Examination of Witnesses (Questions 560-579)
RT HON
DAVID MILIBAND,
MP, PAUL BERMAN,
SHAN MORGAN
AND MARTIN
SHEARMAN
12 DECEMBER 2007
Q560 Sir John Stanley: That is your
assertion—others take a different view. Finally, are you
saying to the Committee that under no circumstances under the
terms of the treaty will the roles of President of the Commission
and the President of the Council ever be held by the same person?
David Miliband: That is prohibited
by article 213. What could be clearer? It is prohibited because
"Members of the Commission may not engage in any other occupation".
If you are suspicious about the word "occupation", may
I point out that the article says: "Members of the Commission
shall neither seek nor take instructions from any Government or
any other body"? That could not be clearer.
Q561 Mr Moss: Foreign Secretary,
several witnesses who have appeared before the Committee have
expressed misgivings about the role of the new High Representative,
including its practical "do-ability", given the huge
range of responsibilities. How best do you think that the post
can be made to work, given the remit of responsibilities and its
double-hatted nature?
David Miliband: That is really
important and completely fair, because two reasonably substantial
jobs are coming together. The most important thing will be discipline
on the part of the commissioning body—the Council of Foreign
Ministers—about what it wants the High Representative to
do, so that it is clear that he or she is there to enact agreed
foreign policy. We must be disciplined in the priorities we have
and the way in which we move forward.
Q562 Mr Moss: Do you see any problems
with this person being the Chair of the Foreign Policy Council,
as well as the person who brings proposals to it? If you think
of a company, the chairman and the chief executive coming up with
the ideas; in this particular case, it is one and the same person.
David Miliband: That is a good
point. It is certainly an innovation. From watching the way in
which the current High Representative has played his role, I can
see that, even though he does not chair the meetings, he is a
pretty pivotal figure. It is a balance between commanding confidence
and consensus, and initiative. The formalisation of his role as
chair of the council enshrines his consensus-building role, given
the unanimity requirements of foreign policy. I can see circumstances
in which that will bring people together in a good way, although
I totally accept your point that it is novel.
Q563 Mr Moss: How do you envisage
the appointment of the new High Representative, which we presume
will take place on 1 January 2009, given the role of the European
Parliament?
David Miliband: It is fair to
say that the way in which those jobs are given out it is not exactly
Northcote-Trevelyan. I envisage a lot of chatter, a lot of discussion,
and a lot of feeling-out of positions. Whether there will be a
job advert in The Economist, I am not sure.
Q564 Mr Moss: The European Parliament
has a role, as you are aware, in looking over the appointments
of Commissioners. The new Commission will not be in place until
10 months after the European Parliament makes its decision.
David Miliband: It was late at
night in the Lisbon summit when this was finally agreed. Just
on a small point—I think you knew what you were saying but
I could not remember—the European Parliament has a right
to be consulted before the appointment, not afterwards.
Q565 Mr Moss: There seems to be some
discrepancy with what the Prime Minister has said. He said that
the European Parliament will not be consulted, and yet declaration
39 in fact says that "appropriate contacts will be made with
the European Parliament." Will you clarify the situation?
David Miliband: Yes, that was
what was agreed late at night at the Lisbon summit, and it precisely
refers to "appropriate contacts."
Q566 Mr Moss: What does that mean?
David Miliband: I think that that
will be in the eye of the beholder. It means that those contacts
will not be inappropriate. There will be contacts and discussions.
Q567 Chairman: Mr Solana is a remarkable
man with enormous abilities and experience. He has come to this
role, having been Secretary-General of NATO, and is widely respected
in many quarters. How will we find someone who has a similar pedigree,
wants the job and has the confidence of all these different players?
David Miliband: The first point
is that we do not know whether Mr Solana wants to carry on or
not.
Chairman: He is not immortal.
David Miliband: No. Secondly,
although he is a fine man in many ways, there are many people
with experience. On the defence side, there are former defence
Ministers, former NATO members and former Prime Ministers, but
we should not go there. So yes, he has talents, but he is not
unique.
Q568 Mr Heathcoat-Amory: The text
that we now have is identical to that in the constitutional treaty—we
can at least agree that that is the case for these clauses—and
when it was negotiated in the Convention on the Future of Europe,
the British representative, Peter Hain, tabled amendments to try
to remove the double-hatting. He did not want the High Representative
or Foreign Minister, as he was then called, to be a member of
the Commission and a member of the Council, or to preside over
the Council, so why did the Government accept the proposal?
David Miliband: I was not in this
part of the Government at the time. I do not have an answer to
that question, although I am happy to write to you with an answer.
Chairman: Perhaps one of your colleagues
knows the answer.
Mr Heathcoat-Amory: You have got very
short memories; I can remember it very well.
David Miliband: You can give us
the answer.
Q569 Mr Heathcoat-Amory: I am asking
you. The Government did not want the proposal, but they accepted
it, and they are now saying that it is a good idea. However, by
definition, the present Government do not want it, because it
is exactly the same text; it has not been changed. We have got
a text that the Government did not want. Why are we accepting
it? You had another opportunity to amend what is now called the
reform treaty—why did you not take it?
David Miliband: I will have to
go back and find out what Peter Hain said and why he said it.
Chairman: Perhaps we can have a letter,
which will help us when it comes to our reports.
Q570 Mr Heathcoat-Amory: May I ask
another question? The High Representative will obviously try to
secure the agreement of all member states for actions internationally.
Where that is not possible—in the real world, countries
disagree—what do you make of the additional clauses? They
are not additional to the constitutional treaty—as I said,
it is the same text—but they are additional to the present
treaties which oblige member states to come together on foreign
policy. I particularly ask you about the obligation in article
11, which says that there shall be "an ever-increasing degree
of convergence of Member States' actions." That has echoes
of the "ever-closer union" provision in the present
treaties.
Another article obliges member states to "ensure,
through the convergence of their actions, that the Union is able
to assert its interests and values on the international scene.
Member States shall show mutual solidarity." There are therefore
two articles that will apply when there is no agreement, but there
will still be an obligation on member states to converge their
actions. Will that not bind us, even when we have exercised our
veto?
David Miliband: I do not think
so, no. We touched on this when we talked last time about the
mutual support clauses. We are bound by what we agree and once
we have agreed something by unanimity we are going to pursue it
in various spirits of co-operation. They are two sides of the
same coin, really; one side is the unanimity side and the other
side is the mutual support side.
Q571 Mr Heathcoat-Amory: I am sorry,
can you answer my question? I am postulating a situation whereby
there has been disagreement in the European Council or we have
exercised our veto over a proposal so there is no common action
and no agreeing. However, there are these additional clauses—I
emphasise that they are additional to what is in the present treaties—which
mandate an ever-increasing degree of convergence in member states'
actions. I read out another one that has the same effect of ensuring,
through the convergence of our actions, that the Union is able
to assert its interests and values. There is an obligation. Unless
the treaty is completely meaningless, the words lay down an obligation
for us to agree to converge our actions with other member states
whom, I have just said, we disagree with; we have exercised our
veto. Is there not a contradiction?
David Miliband: I do not think
so, because the previous sentence to one of those you read out
is about member states consulting with others, which seems to
me perfectly sensible. As we discussed with Ken Purchase at the
beginning of this sitting, precisely because other people's actions
affect us, it makes sense to consult them and to understand where
they are coming from and what they are trying to do in order to
maximise our influence.
Q572 Mr Heathcoat-Amory: I have got
the consultation obligation, but I am asking about another obligation.
It is no good referring me to another—
David Miliband: Sorry, you said
it was new and in fact it is existing—article 16 is existing.
If I have got the right sentence here, it says: "Member States
shall inform and consult one another within the Council on any
matter of foreign and security policy of general interest in order
to ensure that the Union's influence is exerted as effectively
as possible by means of concerted and convergent action. "
I think that that was the phrase you used.
Chairman: If there is a confusion, perhaps
we could have something in writing to clarify. I have to move
on to some other areas.
Q573 Mr Heathcoat-Amory: We have
three very highly paid officials plus the Foreign Secretary and
they cannot answer a very simple question about a text that will
be signed tomorrow by the Prime Minister. I think it is rather
serious.
Paul Berman: To comment on the
Foreign Secretary's point, the notion of convergent action is
not new, it is there in article 16 of the current treaty. In relation
to the new wording which also refers to convergent action—this
is in article 11—that has to be applied within the framework
of decision making of the Common Foreign and Security Policy.
It does not undermine the unanimity checks elsewhere. It is an
overarching provision which describes how it will work in the
preceding paragraph. It makes it clear that unanimity is the default
option for the Common Foreign and Security Policy. So this is
an overarching provision but then you have to look at the specific
provisions that follow on how it is to be applied.
Q574 Mr Heathcoat-Amory: But the
overarching provision is precisely my concern. If we put on one
side our ability to veto, there is nevertheless this overarching
obligation to converge our policy and our actions. Incidentally,
the clause I have just read out is not in the existing treaty
and I have just checked that myself.
David Miliband: We have just read
out a clause that is.
Paul Berman: What I said was that
the concept of convergent action is in the existing treaty in
article 16. That notion is retained in article 11, which sets
out the general overarching provisions. To make it clear, article
11 is an overall description of the Common Foreign and Security
Policy but in order to implement it you have to look at the detailed
provisions that follow thereafter.
Q575 Mr Heathcoat-Amory: I am awfully
sorry but, since we have a lawyer here, the clause in the existing
treaty is different. It says that member states, "shall refrain
from any action which is contrary to the interests of the Union".
That is a negative requirement. This is a positive requirement,
to converge our actions. That is a new obligation and I think
it undermines the separate provisions, which allow us to veto
in certain eventualities. It is, in your phrase, this "overarching
obligation" that is precisely my concern.
Paul Berman: It does not override
the detailed provisions. It is very standard practice in EU treaties.
You have the introduction to a chapter and a general set of statements
about how that policy is going to work. To see how it works in
practice you have to look at the specific provisions. In article
11 you have a general description of how the Common Foreign and
Security Policy is going to work. That includes a new paragraph
that has been inserted in this treaty, spelling out the specific
intergovernmental nature of the treaty, including the fact that
unanimity is the default position. It then follows on to the language
you identify, which talks about convergence.
What I am saying is that the concept of convergence
is not new because that exists in article 16. This wording is
new but it is part of the overall description of how the CFSP
is going to work. In order to establish how it works in practice
you must then look at the subsequent articles, which in particular
include the provisions on conduct of decision making by unanimity,
except in the exceptions that have already been discussed.
Q576 Mr Heathcoat-Amory: Finally,
can I get you to confirm that the phrase, "the achievement
of an ever-increasing degree of convergence for Member States'
actions" is entirely new. Would you agree to that? Yes or
no?
Paul Berman: I cannot agree that
it is entirely new because, as I have said already, the concept
of convergence is already in article 16.
Q577 Mr Heathcoat-Amory: Where is
it in this treaty?
Paul Berman: Article 16 talks
about ensuring the Union's influence is asserted as effectively
as possible by means of concerted and convergent action. What
I am saying is that the notion of convergent action is not new.
What I do agree is that this paragraph is new, as is the preceding
paragraph, which underpins the intergovernmental nature of CFSP.
In order to understand how these overarching provisions are to
be applied, they cannot be taken as free-standing obligations,
read in isolation. They must be read with regard to the more specific
provisions that follow, including the provisions on voting by
unanimity.
Q578 Mr Heathcoat-Amory: Thank you
for confirming that it is new. You are right. I have just checked
article 16 and that phrase does not apply.
Secondly, is it not really very worrying—
David Miliband: Sorry, but it
does apply.
Q579 Mr Heathcoat-Amory: Well, I
am sorry, but I have article 16 here and there is nothing about
an ever-increasing degree of convergence.
David Miliband: No.
Chairman: We could be another hour on
this.
Mr Purchase: No, I do not think we could.
I think it will take another minute, because it is there on the
bottom line.
Mr Heathcoat-Amory: I must insist on
reading out the article.
Mr Illsley: Just read out article 16;
it is there.
Chairman: We need to move on. I am conscious
that, if we carry on talking about this section, we will not have
time to ask questions about several other areas.
Mr Heathcoat-Amory: I am sorry, but I
must just read out the phrase: "in order to ensure that the
Union's influence is exerted as effectively as possible by means
of concerted and convergent actions". That is different from
an obligation to the achievement of an ever-increasing degree
of convergence. That is so obviously the point that I wanted to
put it on the record.
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