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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 761

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

EUROPEAN SCRUTINY COMMITTEE

 

 

EU ACCESSION: CROATIA

AND THE LISBON TREATY: "LEGAL GUARANTEES" FOR IRELAND

 

 

Thursday 2 July 2009

RT HON DAVID MILIBAND MP, MR TIM HITCHENS and MR MATTHEW RYCROFT

Evidence heard in Public Questions 1 - 51

 

 

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Oral Evidence

Taken before the European Scrutiny Committee

on Thursday 2 July 2009

Members present

Michael Connarty, in the Chair

Mr Adrian Bailey

Mr David S Borrow

Mr William Cash

Mr James Clappison

Jim Dobbin

Keith Hill

Mr Bob Laxton

Mr Anthony Steen

________________

Witnesses: Rt Hon David Miliband MP, Secretary of State for Foreign and Commonwealth Affairs, Mr Tim Hitchens, Director, EU Political Affairs and Mr Matthew Rycroft, CBE, Director, EU, Department for Foreign and Commonwealth Affairs, gave evidence.

Q1 Chairman: Good morning, Foreign Secretary. It is very good of you to give up your time to come before the Committee. These are very important matters. We are here today to look at two different sections of business, both of which I think have been indicated to you: enlargement in the Western Balkans and questions about the conditions for that, and the Lisbon Treaty and the Irish guarantees. You might want to introduce your team for the record.

David Miliband: Thank you very much for the invitation. These are two very important issues and I welcome the Committee's continuing interest in both of them. Matthew Rycroft is the Director of European Union Political Affairs in the Foreign Office and Tim Hitchens is the Director of European Policy.

Q2 Chairman: Welcome, gentlemen. I will start off, if you do not mind, Secretary of State. Just to recall, you gave evidence to the Foreign Affairs Committee on 23 June and some of the questions concerned Bulgaria, Romania and Croatia. We as a Committee do not wish to go over the same ground today but we have some very specific questions to ask about both past and future accessions. We are conscious that we do not want to get into a history lesson about things but look at it in a present-day context. The European Commission's most recent reports on Bulgaria and Romania said that both countries needed to demonstrate three things which they singled out. One is that they have "an autonomously functioning, stable judiciary, which is able to detect and sanction conflicts of interests, corruption and organised crime and preserve the rule of law." The second one was "concrete cases of indictments, trials and convictions regarding high-level corruption and organised crime." The third one is demonstrating that "the legal system is capable of implementing the laws in an independent and efficient way." They do seem to be three very significant and continuing problems with those countries. Do you agree with this Committee that Croatia needs to meet all of these requirements before it is allowed to accede to the European Union?

David Miliband: I believe that Croatia needs to meet the requirements that are set for it by the European Union. As you know, those have been changed since the Romanian and Bulgarian accession in some important regards, which we might go through, but it is a requirement on all member states or aspirant member states to be able to meet the acquis, to live with the acquis, but also to be able to demonstrate a range of other desiderata. I think that is the way I would put it. There is an important principle here, which is that there is a balance between European Union responsibility and national responsibility and one of the most delicate parts of accession negotiations is that it is for the European Union to be clear about countries' need to live with the acquis - that is, the 35 chapters that are negotiated - while having cognisance of the domestic implementation issues that are raised in some of the areas that you mention. However, of course, those are not areas of Community competence; they are areas where the Community has an interest, and there is a delicate balance between the demands of the acquis and the ability or the way in which countries run their own domestic affairs; it is something that has to be handled sensitively. It is certainly the case that action on corruption, which I think you mentioned, is very important for any aspirant member state. There are continuing issues in respect of the Romanian and Bulgarian entry and reform programmes in those countries and there will certainly be an important focus on that in the Croatian case.

Q3 Chairman: In your letter to us of 21 June you said - and these are the exact words - that it would not necessarily be appropriate for Croatia to have to implement exactly the same reforms as Romania and Bulgaria. You seem to be putting the same argument this morning but do you not think that, if Croatia is not required to meet those three basic benchmarks that I have just read into the record, we have a risk of being with Croatia where we are now with Romania and Bulgaria? We know they are not exactly the same but are they not so fundamental that every citizen of this country and every citizen of the EU would not wish to see another country come into accession without those three benchmarks at least being met?

David Miliband: I think you have answered your own question by saying that they are not exactly the same and, because they are not exactly the same, they have to be treated in a different way, or they have to be treated not in exactly the same way, to follow your formulation. All countries have to meet the same standards, which is to live with the acquis, whatever the acquis is at the time of their accession. There are then specific demands placed on different countries. The three areas that you have highlighted in your quotation are all very important. They will all be very important in the Croatian case as well as in other cases but the precise form in which judgement is made, in which benchmarks are set, in which standards are set, obviously needs to be appropriate to the Croatian case because, as you recognised in your question, it is not exactly the same situation in Croatia as it was or is in Romania and Bulgaria. While all three issues are important and are issues that no-one would deny that every citizen of the UK has an interest in any member state of the European Union being able to act properly in those areas, the precise way in which that is done for Croatia needs to be appropriate for Croatia. That is why we have the 35 different chapters. I think it might be helpful for the Committee to remind itself that there has been a significant strengthening of the accession process since Romania and Bulgaria came in. For example - and this speaks directly to your point - chapter 23 is a new chapter addressing directly judicial reform, fundamental rights and anti-corruption. That is a new chapter in the acquis, so that has to be negotiated successfully before Croatia can come in. There is, secondly, recognition that judicial and public administration reform, corruption and organised crime must be tackled early and vigorously in preparation for accession. That speaks partially to your concerns. Thirdly, there are now rigorous benchmarks for each and every chapter, some of which I think you wrote to us about and we have sent back to you those benchmarks. Just to be clear, they require candidates for European Union membership to meet minimum standards before the negotiations are opened and then also before they are closed. Fourthly, there is now a requirement that we see implementation in some important areas, not just the passing of laws. Obviously, some of you were in Croatia last week or the week before, and you will have teased out the difference between passing a law and actually implementing it. I think the new process that exists does recognise the need for implementation as well as the passage of laws. Fifthly and finally, there has been a change in the approach as regards target dates, which is that aspirant countries can have target dates but we, as the European Union, do not have a legally binding date by which an accession will happen. I think those are a recognition that the issues you are raising are profound and appropriate and right to be raised. They are an attempt to address those issues and, obviously, the accession process needs to be fair to all countries but also needs to respect the fact that the countries are different because, to quote you, they are not exactly the same.

Q4 Chairman: That is a very comprehensive and useful answer. Let us see if we can find common firm ground to stand on with the Committee. The Committee has never suggested at any time that there should be precisely the same tests to be passed but surely Croatia should pass the same test in general, and that is encapsulated in these three very important sections of the Commission's report that would be applicable as a test, rather than precisely?

David Miliband: To pick up your words, it must pass the same test in general: in general, it must meet the acquis; in general, it must be able, to pick the areas that you are addressing, to address issues of judicial reform, fundamental rights and anti-corruption; it must be able to show implementation. With that caveat... I did not start from the presupposition that there was not common ground. I think we are all interested in member states who come into the European Union being able to live and contribute to the European Union in a full and wholesome way.

Chairman: Thank you very much. We will come back to what happens if they do not later.

Q5 Mr Steen: First of all, you are very welcome here and we would like to share with you during this hour some of our concerns. I have a particular concern which I want to talk about, and that is the fact that the United Nations have now said that human trafficking has jumped from third place, after arms dealing, to second place in terms of financial reward, and that the £30 billion business worldwide in human trafficking is only second to drug trafficking. Human trafficking in Europe has been pushed under the table in many ways. People pay lip service to it. There is the European Convention against human trafficking, which has been passed in this country, has now been implemented since 1 April, and many other European countries have taken a similar position. Laws have been passed. The European Commission has been active in persuading EU countries to pass more and more laws on human trafficking. There is a yawning gap though between the passing of laws and implementation. When we visited Romania and Bulgaria as a Committee, what was clear was that there were very good intentions in both countries to stamp out serious organised crime, which is on a massive scale, a totally different scale than we know in the western part of Europe. Human trafficking is a devastating and evil trade which I have seen first-hand both in Romania and in Bulgaria. As a result of Romania and Bulgaria joining the EU when they did, the numbers of EU nationals now coming from Romania and Bulgaria and living in Britain and in Spain particularly, and in Italy and in Northern Ireland, has increased dramatically. We now have a huge wave of serious organised crime into Britain which we did not have before. The question is, whilst one has the greatest respect for Romanians and Bulgarians who are caught in this terrible trade and one wants to do everything to help them, it was probably the wrong time for Romania and Bulgaria to join the EU, before something had been done to try and regulate this appalling trade, and in fact to deal with serious organised crime. When we went to Croatia, there is a not dissimilar position: although there is not a big human trafficking problem, there is a serious organised crime problem. Our Committee feels that we do not want to not learn from the Romanian and Bulgarian experience and we do not think Croatia should come into the EU until in fact it has proved not that it has passed the laws but that the actual clean-up of the position with regard to serious organised crime has been greatly improved. We feel you, as the Foreign Secretary, could play a leading part in dealing with the human trafficking and serious organised crime before Croatia is allowed in.

David Miliband: First of all, let me pay tribute to the work that you personally have done on the human trafficking issue. I know you have a longstanding interest in it and you have pushed it up the political agenda, not just in Britain but in Europe, and for that I think real credit is due, because you are right; it is a devastating and disgusting trade and it is one that is too often easy for people not to think about and not to focus on. I think it is obviously related to but not the same as the broad organised crime question. Let me start from what I hope is a point of shared perspective, that whether one is enthusiastic about enlargement of the European Union, which I am, or not, it is neither in a country's interest to come into the European Union, nor in the European Union's interest to welcome them in, if they cannot live within the European Union. The purpose of enlargement is to help the country that is coming in and help the European Union. It has to be a win-win. There can be a perfectly good-natured debate about the balance sheet of Romanian and Bulgarian accession. I would not deny that there are negative items on the balance sheet but I would argue that the positive side of the balance sheet outweighs the negative side - and we can talk about that. I think what is interesting about the accession process is that it creates a reforming dynamic of its own, which is significant. Secondly, the obvious danger is that there is a great huffing and puffing to get in and then a great relapse after entry. I think that has been addressed to some extent by the extra and in some ways extraordinary mechanisms that have been put in to help continue the drive for reform in Romania and Bulgaria post entry.

Q6 Mr Steen: Yes, that is true.

David Miliband: I think it is important - I hope I have not taken up too much time saying that but that perspective is important now. In respect of trafficking re Croatia, I thought it was interesting in the European Commission report that the Chairman rightly cited that they said good progress had been made in this area.

Q7 Mr Steen: Yes, it has.

David Miliband: I think 13 victims were discovered in the last year that was recorded; the different social services and policing agencies are working together, not just passing laws but actually trying to work together, multi-sectoral this and that; the state prosecutor has become involved - I cannot remember whether you met him on your visit but I saw the e-gram from the Ambassador about the range of people that you met on your visit there. My own view is that, within the purview of the European Union, we are better able to get a grip on this than if they are just outside; organised crime does not go away because countries stay out of the European Union. That is obviously a judgement to be made. What I can assure you is that we will live by the spirit and the letter of the 35 chapters but also of common sense. Remember, it was common sense which dictated that Romania and Bulgaria should move on to a slower track than the A10 - they were put back - and I think common sense would apply in the Croatian case as well. I think it is important to say - and I have not had the chance to take it and maybe you will reflect on this later, and the Croatian Ambassador is here today - Croatia is a country that potentially has a huge amount to offer to the European Union. It is a country that is one of the wealthier countries of the Balkans. Our vision of the future of the Western Balkans is that they should all be members of the European Union; I think that is the best way to achieve stability. I think there is one other very important point: there is a danger in the enlargement process, and we felt this in the 1970s, remember, that those who are inside the club just say, "Let's see how high you can jump. Jump higher, jump higher, until we let you in." What is happening now is not simply say to the Croatians of this world, "Let's see how high you can jump." Britain, the European Commission and other countries are working actively to help build the sort of capacity in Croatia that will allow it to be the most productive possible member of the European Union, and that sense of helping countries on the accession path, not just talking about accession, is an important part of the very real drive that we need to tackle the problems that Mr Steen has raised.

Q8 Chairman: Just a small supplement before we move on: do you accept that, as we were told by a number of people in civil society and also people working in the field of criminality, that there is a Former Yugoslavia-wide mafia and organised crime network, which may not be based in Croatia but that in fact Croatia is also ensnared in? That is the evidence we had from the people we met.

David Miliband: I saw a record of the meeting that you had with the civil society representatives and the to-ing and fro-ing, because there were a range of views. I do not want to start saying "mafia" because that---

Q9 Chairman: That was the term used by the USCOC(?) leader, the member of the government team, that there was a Yugoslavia wide-mafia, not civil society; a person who is dealing with it, and he tried to demonstrate how he was trying to deal with it in his own country.

David Miliband: The way I would put it is that there is no question that there are significant networks of criminal influence that exist through the Balkans. They are active across a range of countries and a range of spheres of criminality. For obvious reasons - this is not an occasion for headline-grabbing I do not want to use the "mafia" word - what I would say is that there is serious criminality that threatens all of us in that part of the world as well, and it has some distinctive characteristics there and the countries there need help in tackling it.

Q10 Jim Dobbin: Foreign Secretary, you are aware that the Committee has had concerns about accession, primarily since our visit to Romania and Bulgaria. We were not happy that the conditions were tight enough for accession. That is why I have listened to what you have said already about the accession of Croatia. It is quite clear that there is an understanding that standards have to be much tighter but, as you also said, it is quite clear that it is not just about passing laws; it is about the implementation of those laws. What is the mechanism for measuring the outcomes of the success or otherwise of the way Croatia may be performing before, and you have said the acquis is much, much tighter now. How do you measure it?

David Miliband: One would have to go through it. The measurement is different in different areas. It is different in energy than it is in judicial accountability. There are different metrics. I am happy for either of my colleagues here to give you further detail but the Commission are really quite intrusive in the way they assess each and every chapter. They develop not just benchmarks but metrics for progress in the different areas, so I think one would have to get into rather more detail to say; on energy, it could be about liberalisation and things which are different from the governance and judiciary issues.

Mr Hitchens: As an example, the closing benchmark on energy for Croatia involves the adoption of a new Mining Act, the implementation of Directives on internal market in electricity and natural gas, and the promotion of energy produced from renewable energy sources. That is very different from the opening chapters, which are about action plans for what the government plans to do, and in a number of areas, as the Foreign Secretary has said, there is a need for the government to show a track record of delivery in those specific areas.

Q11 Jim Dobbin: Can I just zone in on the issue of corruption? How would you measure the implementation of moves to try and stifle corruption?

David Miliband: I do not have the Commission's metrics to hand but I am happy to write you with details of the way the Commission assesses that. Just to emphasise, it is done on a Europe-wide basis by the European Commission to inform member state judgements. Our judgement would then be informed in significant part by our people on the ground, not just from the Foreign Office but from a range of government departments, because obviously the Serious Organised Crime Agency, et cetera, would all have an interest in this.

Chairman: Thank you. We will look forward to that correspondence.

Q12 Mr Bailey: You have already mentioned that in effect Croatia has had extra chapters to meet in comparison to Bulgaria and Romania. How do Croatia's benchmarks correspond with what the Commission is still asking Bulgaria and Romania to deliver? It seems to me there is a potentially anomalous situation where you could have Croatia actually meeting benchmarks but remaining outside the EU whilst Bulgaria and Romania have not met those benchmarks but are inside the EU.

David Miliband: There are a number of non-members of the EU which think that they would be better members of the EU than other countries which are already members of the EU, and not just in the countries that you have mentioned. I think, if we are honest, there is a dilemma here because, if you accept the argument that you have to learn lessons from previous enlargements for future ones, you inevitably create a different set of criteria for later entrants. By creating those different criteria, you create the possibility that more demanding standards are met, part of which are met which have not been met by those who are already in. That is a logical consequence of the seemingly obvious point that we should learn lessons. I still think it is right to learn lessons because, if one does not do that, one has one's head stuck in the sand but it creates the logical possibility that you point to.

Q13 Chairman: Mr Rycroft, do you want to supplement that?

David Miliband: What Mr Rycroft was pointing to - and I do not know if it is of interest to the Committee, and we may have written to you about this, but the opening benchmarks in judiciary and fundamental rights which Adrian was raising are about reform of the judiciary - not just intentions but actual passage - in terms of independence, impartiality and professionalism; also in terms of efficiency and the comprehensiveness of the system of legal aid. Those are things where, in answer to Jim Dobbin's question, you can imagine there being quite clear metrics of that. On anti-corruption, there was a specific emphasis on the institutional mechanism of co-ordination for the implementation and monitoring of anti-corruption efforts - that is not the same as having less corruption but it is knowing more about what is going on - and the effectiveness of legislation on the financing of political parties, on which no doubt we can give them very good advice, and election campaigns, and measures to prevent conflicts of interest, again, where no doubt we will want to offer our own experience.

Chairman: I think you may have wandered into the area of interest to Mr Laxton. Is there anything you want to add?

Q14 Mr Laxton: Yes, I am sure we could give them a great deal of benefit of our expertise in that particular area. Foreign Secretary, in terms of how we as a government are assessing Croatian progress, can you give us an overall picture of how we are doing it? You have said quite a deal about the rigorous process the Commission is involved in but how are we as a government assessing overall the speed of progress, the rate of progress, that Croatia is making?

David Miliband: What process do we have? We do not have an alternative set of benchmarks or tests to the Commission - we work on a consistent basis with them - because I think that would not be sensible. We use the expertise from across government, not just in London. One of the things that is not well understood generally, but you will have seen it on your visit, is that when you go to an embassy, you are not just meeting people from the Foreign Office. We now use our embassies as the basis for a whole range of government departments to be able to be active in different countries according to the particular aspect of the need, and we draw on the expertise of all those departments and, on the basis of the annual reports from the Commission, or even more regular reports, we would contribute our own expertise to whether to officials or ministers who are discussing them. If I would go to a General Affairs Council which was discussing progress, I would have a report from the range of experts on that.

Q15 Mr Borrow: When you talk about people being in Croatia or any other country from different government departments and giving advice, does that mean the advice feeds from somebody from the Home Office or the Department of Justice direct into the FCO or does it mean that that information goes back through the Home Office or the Department of Justice? The area that I want to get at is whether or not, in terms of making an assessment on the readiness of Croatia to accede to the EU, you will consult directly department to department with other London-based departments rather than simply relying on civil servants based in post direct to the embassy.

David Miliband: We do both. The SOCA people would report up to SOCA but they would also report to the Ambassador, and the Ambassador would do an overarching e-gram to me saying, "This is how we summarise the situation; this is what is happening in these different areas." Matthew has been an Ambassador. He may look very young but he has been an Ambassador to Bosnia and he will know that you have people who are working for you but they are also reporting into London.

Mr Rycroft: Exactly that. An effective embassy is going to be joined up with the different bits feeding into the Ambassador and in parallel with that directly reporting into their host ministries in London, and then at this end there is a complex web of interaction between different ministries that pulls together co-ordinated advice to the Foreign Secretary.

David Miliband: Would you like us to tell you about the complex web?

Q16 Chairman: Mr Hitchens, do you wish to demonstrate the complex web to us?

Mr Hitchens: A practical example is that we have just been closing the taxation chapter for Turkey, and that looks specifically at the level of duty paid on spirits. A big British interest in that is the Scotch Whisky Association, so our instructions to the person in Brussels representing the UK come from us in the Foreign Office and we derive them from the Department of Business, who are in constant contact with the Scotch Whisky Association as well as the Embassy in Ankara. So I think it does work quite efficiently to make sure that their interests are reflected in the position taken in Brussels.

Chairman: That is actually very useful. I think those people watching and reading this will get a better understanding of how the task is carried out.

Q17 Keith Hill: Foreign Secretary, I think you have demonstrated that the European Union seems to be in agreement about the need for Croatia to meet, for example, via the new chapter 3 requirements, a new and more demanding set of requirements pre accession relating to judicial reform, fundamental rights and anti-corruption. Is it your expectation that that requirement will apply to other ex-Yugoslavian states aspiring to European Union membership?

David Miliband: Yes, basically. Do not take from that that it is static. We cannot just learn from Romania and Bulgaria. We have to learn as we go along. We have said that the accession of the former states of Yugoslavia, the Western Balkans, are not going to come in together as a bloc; we cannot have those who are able to make faster progress held back by those who are making slow progress, so we will have a multi-speed entry, and that means learning lessons as we go along but I think we will want to make sure that we can show what we believe, which is that enlargement leads to a strengthening of the European Union, not a weakening, but it can only do so if those who are able to come into it live with it. Mr Cash shakes his head and I am happy to go through it with him but the old argument was that a bigger European Union, a more enlarged European Union, would be a weaker European Union. That was an argument made not often in this country but it was made by those who believe in a more federal Europe, and enlargement was often seen as a mechanism for weakening or diluting the European Union. I think what has become clear, especially since the entry of the A10, is that the European Union has become rebalanced in its relations, for example, with Russia, which are absolutely key on energy issues; the European Union is far more hard-headed now about its energy relationship with Russia thanks to the entry of the A10, given their previous experience in the Warsaw Pact. Secondly, the European Union's market is now the largest single market in the world; it is able to set global regulatory standards in a way that it simply could not when it was a market of 150 or 200 million citizens. I think that is very significant. Thirdly, the web of international connections that the European Union now has has been enormously increased by the enlargement, first of all to include us, then to include Spain and former dictatorships, then to include the Eastern European countries. Fourthly and finally, the ability of the European Union to punch its weight internationally I think has been significantly increased. I see those as very strong arguments but they all depend on countries being able to contribute to the European Union when they are in, and I think that is something where it is not a single balance sheet with everything positive and nothing negative but I think, on balance, it has strengthened the EU.

Q18 Keith Hill: Bad practices of course can have the effect of contaminating the rest of the Union, which is why we have to be very careful. Are you confident that other European Union member states feel as strongly and clearly about the need for this new and tougher set of requirements? Is this not a rather high threshold for, for example, Serbia, and do you think there is any danger that conditionality will fall victim to political classifications?

David Miliband: I think you could make the opposite argument actually. You could argue that other countries are much tougher than we are. You could also argue that that toughness is a cloak for the fact that they do not actually support enlargement, which is a rather different argument. Equally, I would not present this as Britain being in favour of high standards and everyone else just wanting to wave people in with no test. It really is not one against 26. I think it would be quite wrong to see it in that way. I think in respect of Serbia - I saw the Serbian Foreign Minister on Tuesday when he was in London - it is potentially an economic locomotive for the whole of the Western Balkans. There is a very particular issue about ICTY conditionality and co-operation, which we can talk about if you are interested in it, particularly the position in respect of Mladic, but I think it is significant that ICTY Prosecutor Brammertz should have said in Brussels last month that there has not been a single operational request that the ICTY prosecutor has made which has been turned down by the Serbian authorities. What he still finds is political rhetoric that attacks the ICTY but he has found operational co-operation of a high level.

Mr Cash: Only because you mentioned the fact that I was shaking my head, Foreign Secretary, could I simply say that I have been in favour of enlargement of a European Community that would actually work. The problem is that, for a variety of reasons - and I do not have time to go into them today - and as I have argued in Standing Committees and on the floor of the House for decades, I just do not believe that the model that is currently on offer is going to work, and I think there is plenty of evidence of that. My concern is that we should have an association of nation states co-operating in trade and also politically but not European government. We may differ about what that word means but I would simply like to put on record the fact that there is nothing negative about my view. I do not think it is anti-European to be pro democracy, and I do think it is extremely unwise to bring in countries which, I am afraid to say, however much we may want to respect them, have a record of a lack of democracy and, as my hon friend here was saying in terms of human trafficking, cocaine trade, et cetera, will weaken any political co-operation in Europe rather than the other way round. That is the problem. You are bringing upon the United Kingdom, in my opinion, a system which is liable to and will implode.

Q19 Chairman: I think that is one of these "Do you agree with me?" questions but I would ask you to limit your answer.

David Miliband: Can I say seriously that I actually respect Bill Cash for the way that he has prosecuted his view over the last decades, as he says, on this issue. To be fair to him, he has been very consistent about that. I think, decades on from when the argument started, there are some facts that we can bring to bear about this. We can point to former dictatorships which are actually now thriving democracies and the strength of their democracy I think is in part explained by the way they have engaged in the European Union. So it is a good argument, it is one where Mr Cash has a very consistent position, but I do think, the point of what I said before, that I am in a stronger position to make my case now because of some enlargement that has happened. Mr Cash thinks he is in a stronger position because he thinks he can point to the negative aspects and that is politics in a way but we do have a different view of that. I think when he looks at the record he may want to think whether or not he does want to refer to former dictatorships in the way that he did because, the Spains, the Portugals, the Greeces of this world are easy to dismiss in that sort of formulation, and those were countries which were until very recently dictatorships and now they are very strong democracies. In Eastern Europe - I was in Poland last week - people still talk in civil society and in politics about Poland as a recently captive nation. That is the phrase that is used, and it can bring you up short in a way because, in a 24-hour media world, one is taught to believe that anything more than five years ago is ancient history but actually 1989 is not that long ago; 1991 and the crushing of Solidarity by General Jaruzelski is not that long ago and those are former dictatorships, in the phrase you have used.

Mr Cash: But now we have the rise of the far right, as I predicted 15 years ago. That is part of the problem. Perhaps we have to leave it at that.

Q20 Chairman: I think we do not want to get into that but can I say that in my office I have an excellent calendar sent to me by the Polish Government to celebrate the 20th anniversary of Solidarnosc, and every page you turn is a reminder of just how things were and the struggle these people went through. They never shared that aspiration. Can I ask you one last question on this section? The reality is that Romania and Bulgaria got in against the recommendations of this Committee under the previous Chair. We were very concerned. The reality is that the co-operation and verification mechanism is a very poor system, a very weak system, for trying to bring those countries now up to the standards they should have been in before. Given all we have learned, and I take everything you say as a mark of the enthusiasm of the Government and the EU to not make the same mistakes in Croatia, is it not true that if a country does get in, not meeting the benchmarks, it is very difficult within the systems that exist to bring them up to standard? Two years after accession, major failures still on the part of Romania and Bulgaria - is it not time to look at some other system of bringing sanctions against countries which are, I think, infecting the body politic of Europe because they got in without meeting the standards?

David Miliband: I think there are two things to say about that. One of course is that the counter-case is: where would they be if they were not in?

Q21 Chairman: Outside.

David Miliband: They would be outside but that does not necessarily mean it is not our problem because, as we know from our post-war history, countries that are outside the European Union can be a big problem for us. In the 1990s we saw that very strongly. So the first point is that the counterfactual that has to be addressed is: where would they have been? Secondly, you are right to draw attention to the very serious issues that continue to remain in Romania and Bulgaria in terms of their ability to live by the commitments that they made, and I think the transparency that you are bringing to this and the rigour that you are bringing to this is a rigour and transparency that we bring to this as well. When I was in Romania, there is no brooking of diplomatic niceties when it comes to talking about the responsibilities that exist. I did not talk about infections because that would not be the way I would have put it but we have a very strong interest in the proper implementation of the commitments that were made, and were made in good faith, and that is something I genuinely welcome the Committee's interest in and continuing engagement on.

Q22 Chairman: You have not specifically answered the question about something better than the co-operation and verification mechanism.

David Miliband: The co-operation and verification mechanism is a new mechanism. It is not perfect. I think that is certainly the case. I think that there are some measures that can be taken but I would not claim that they are the strongest - you used the word "sanction"; I do not think they are the strongest sanction in the world. What we are trying to do though is to be credible promoters of reform, both through incentives and through pressure, and that is a very delicate business. There is a Bulgarian general election coming up in a few days' time; there is a Romanian election due in the course of the next year, I think. These are countries which have newly thriving politics but, if we are honest, they have quite fragmented party systems and the link between the political system and the governing system in some ways can be quite tenuous, and that is what those countries are struggling with and that is what we are struggling with as well.

Q23 Chairman: Can I thank you on this section of our inquiry, and can I also put on record our thanks as a Committee, those who managed to get to Croatia, to the Ambassador. Everyone who went was more than impressed with his organisation and also with the facilitation of so many meetings, including a meeting with the President of Croatia, who was quite impressive character. The last President of Yugoslavia is now the President of Croatia and someone who obviously has a strong force in his country. The Ambassador did an excellent job, and when we do go on these pre-accession inquiry visits, it is often the quality and commitment of the Ambassador that makes it worthwhile for the Committee, so please do pass on our thanks to him as well as putting it on the record. Can we turn to the second part of our inquiry today, which is into the Lisbon Treaty and Irish guarantees. We have had some dialogue in the past about Maastricht to do with the Lisbon Treaty and, obviously, as a Committee, we have followed the question of failed referenda and we have a very warm feeling towards our Irish colleagues.

David Miliband: Can I just say why I am smiling?

Chairman: You may if you wish.

Q24 Mr Cash: Is it the Irish eyes?

David Miliband: Let me tell you why I am smiling: my office came to see me last week and they said, "You are going to do the ESC and it is a big session: a couple of hours on Croatia and on Romania and Bulgaria. They just want to ask a couple of questions at the end about the Lisbon Treaty and I'm sure it won't be very much. It is just a couple of questions." I said, "Oh, yes, I can believe that." I look at the clock and it is 20 past 11 and, unless you are planning to curb this session, I now realise that a couple of questions tacked on the end was a bit of diplomatic nicety. I have to say that I am very disappointed that I am not able to go through in a lot more detail what I have here on Bulgarian, Romanian, Croatian, Serbian and Montenegrin accession aspirations.

Q25 Chairman: You may write to us if you wish, but we want to go on to the Lisbon Treaty.

David Miliband: I think the message has gone out from the Committee: beware committees bearing the offer of a couple of questions tacked on at the end.

Q26 Chairman: Knowing you as I do, Secretary of State, I am sure you will have prepared meticulously for both sections of the business and will not be surprised by anything we do ask you. Clearly, as I said when you interrupted me with your glowing smile, we do have very warm feelings towards our Irish colleagues and do understand the context in which people hold referenda which are not always asked about the questions of relevance to the country. There are often other things that are put forward but clearly, in the case of Ireland, there have been some deeply embedded concerns with the Lisbon Treaty as it stands, and they have sought to get some reassurance that, if they go to a further referendum, the concerns will be placated, because we as a Committee have some concerns that what is being touted around as "the Irish guarantees" are not guarantees, and that they are not something that can be done by the Council without calling for a second look at the Lisbon Treaty itself, in this country and in other countries. So the question I have to start this off is, if the decisions amount to an international agreement, which you have said, between EU member states that is legally binding, which I think is the word that was used, why not give it national effect by subjecting it to ratification processes in EU member states now? Would that not give a more immediate assurance to Ireland? We did it in this country for the Lisbon Treaty. We see this as in fact going to be guarantees that are legally binding. Surely, the only way they can be legally binding is if they are in fact ratified as an addition to the Lisbon Treaty at this time?

David Miliband: You asked two things there, Chairman: one, would it give more succour or assurance to Ireland? That is surely a matter for Ireland to decide, not for me to decide, and at no stage did Ireland propose that this should be done immediately. They proposed that there should be a decision of the European Council and subsequently, as was finally agreed, at the time of the next accession an agreement appended as a protocol. The second question you asked was: can this be legally binding? I think the best way of starting out what I am confident is going to be an extremely tortuous discussion on this legal question is to quote---

Q27 Chairman: I hope it is also illuminating. Tortuous often loses the audience. Let us keep it illuminating.

David Miliband: I wait in the eager anticipation to see if our legal friends who are gathered here make it illuminating or not. This is what John Major said in December 1992.

Q28 Mr Cash: Edinburgh.

David Miliband: Post Edinburgh actually, after the European Council, and he said it in the House of Commons. He was referring to the previous decision that is the best preparatory example for what has happened. If you will allow me, Chairman, I will read it out. He said, "We agreed a solution to the issues raised by the Danish Government following their referendum. The solution is binding in international law. It does not in any way change the Maastricht Treaty or require a new round of ratification in member states. It provides an interpretation of the Treaty which Prime Minister Schlueter believes will enable him to hold a second referendum in Denmark in the Spring. It has been welcomed by all seven parties that drafted the original Danish document." I think that binding international law, legally binding, as I described it to the FAC in the meeting we had there, is right because this is an agreement between the states, it will be lodged at the UN in the way that international treaties are, and that is the sense in which it is legally binding. It does not change the Lisbon Treaty as it affects the UK. It does not require ratification to have legal effect, and that is the reason that I think the Irish proposed that we proceed in this way, first of all to a decision and then to an appending of it to the protocol. I think that is the legal explanation. I am confident however that is not the last word on the matter because I know that there are others on this Committee who have a lot of interest in this.

Q29 Chairman: There will, Foreign Secretary, be others but can I just say to you that the statement of the Council's conclusions was that the decision gave legal guarantees that meet the Irish concerns and, quote, "is legally binding from the date the Lisbon Treaty enters into force" and I believe you have repeated that. My understanding is that under section 1 subsection 2 of the European Communities Act 1972 it cannot have legal effect until it is incorporated by national legislation. My understanding and my recall is that the Danish protocol became a protocol, and in fact, I quote Baroness Kinnock of Holyhead---

David Miliband: A renowned legal authority.

Q30 Chairman: ---of 1 July 2009 saying that it becomes binding in international law when the guarantees are translated into a protocol at the time of the next accession, not when the Lisbon Treaty is ratified. So we have a contradiction here.

David Miliband: No, no, I am sorry, Chairman, there is not a contradiction. It is legally binding because of the decision that was taken. A decision is legally binding in international law. It is an agreement between states. There is no argument about that. It is deposited at the UN. It can be adduced by international courts as they try to seek interpretation of the Lisbon Treaty. The decision does not change the Lisbon Treaty; it provides clarification, which we had already provided to our own satisfaction in this Parliament but which the Irish wanted further clarification about. The Danish example: the decision remained legally binding as a decision for seven years before it was appended to the 1999 Treaty. The quotation from the European Communities Act does not obviate or negate the fact that a decision of the European Council is legally binding in international law.

Q31 Mr Clappison: I think that is in accord with the advice which we have been given. It is in accord with international law but, of course, international law is not the same as EU law and it leaves open the question of the justiciability of the decision. I think you agree, do you not, Secretary of State, that this decision is justiciable in the EU under EU law and by the European Court of Justice?

David Miliband: I think there is a discussion about the European Court of Justice. There is also the International Court in The Hague, which may eventually have---

Q32 Mr Clappison: No, let us just stick with the European Court of Justice.

David Miliband: I want to give you a full answer because it would be wrong to mislead. In respect of the European Court of Justice, if there were a case concerning, for example, abortion in front of the European Court of Justice and the European Court of Justice was in any doubt at all about whether or not the Lisbon Treaty interfered with Irish rules and law on abortion, they could happily turn to this decision for further legally binding clarification, and underlining 12 times, that Irish laws on abortion are Irish laws on abortion and are not interfered with by the Lisbon Treaty. That is the extent to which this might be of use to the ECJ.

Q33 Mr Clappison: There are a number of things jumbled up there, if I may say, Secretary of State. You spoke of interpretation of it being legally binding. It is the decision of the European Court of Justice which is legally binding. The decision is not legally binding on the European Court of Justice, is it? It may look at it for interpretation but it is not legally binding upon it. That is the reason why you are going to have a protocol later on, at some uncertain time.

David Miliband: I do not accept the second half of what you said because the job of the ECJ is to interpret the treaties. That is the point. It is not the question that the ECJ is somehow legally binding. The ECJ is there to interpret the law, and European law is set in ways that you know extremely well. In our view, the Treaty of Lisbon is absolutely clear on matters of tax and defence and abortion/right to life. The decision gives further legal force in that respect without changing the Lisbon Treaty one jot that came through the British Parliament, and I think you would agree this is a decision of the European Council - a decision as opposed to simply a conclusion - and a decision of the European Council is an agreement between states and is therefore legally binding.

Q34 Mr Cash: Foreign Secretary, just to clarify one point, you quite rightly of course pointed out that this was the European Council statement. It is odd that your Minister for Europe refers to it as a meeting of the Council of Ministers but I have the references here. That is a bit odd but let us just pass over that for the moment. Far more important, however, is the fact that, in the light of an exchange I had, as it happens, with the Prime Minister on 23 June on the European Council statement, the fact is that this decision, which was taken at Edinburgh, was a matter which at that time, in 1992 - and I do remember it really quite well as I was leading the rebellion at that time. I think you will find this very important - at least, I hope you will. At that time the House of Commons was in a position to deal with the question which arose during the passage of the Maastricht Bill - in other words, a completely different situation, because this is emphatically not the case now. So how on earth could you not agree that the European Council decision of 18 June must now be re-ratified and then implemented in Parliament with a new Bill? They are completely different circumstances from what you described.

David Miliband: For a very simple reason: paragraph 5 of the presidency conclusion says as follows. "...the Heads of State or Government have declared that: (i) this Decision gives legal guarantee that certain matters of concern to the Irish people will be unaffected by the entry into force of the Treaty of Lisbon; (ii) its content is fully compatible with the Treaty of Lisbon and will not necessitate any re-ratification of that Treaty; (iii) the Decision is legally binding and will take effect on the date of entry into force of the Treaty of Lisbon; (iv) they will, at the time of the conclusion of the next accession Treaty, set out the provisions of the annexed Decision in a Protocol to be attached, in accordance with their respective constitutional requirements... (v) the Protocol will in no way alter the relationship between the EU and its member states. The sole purpose of the protocol---

Q35 Mr Cash: That is their assertion.

David Miliband: Hang on. Let me finish before we get on to your assertion. "The sole purpose of the Protocol will be to give full treaty status to the clarification set out in the decision to meet the concerns of the Irish people. Its status will be no different to the similar clarifications in protocols obtained by other member states. The Protocol will clarify but not change either the content or the application of the treaty." Then when you turn to the text of the decision itself, which of course takes a different place in the conclusions; it is not included in the main conclusions, precisely to draw attention to the fact that a decision is different from a conclusion; it is in annex one---

Q36 Chairman: Before Mr Cash comes back, can I ask you a question that most people looking at this process will be asking. If in fact this is a legally binding decision without the need for ratification, because you have said it does not need ratifying, why do you want to incorporate it into a protocol? Why would you want to do that at some unknown date in the future? To people looking at it, this sounds like a stitch-up to get round the fact that if we do not give Ireland something that is not in the Lisbon Treaty at this moment, which we ratified - it was not there when this Parliament discussed and ratified it, and I supported that ratification and spoke a number of times on that basis - if it is not in that treaty, why do we have to have a protocol? Is it because this is basically a political stitch-up---

David Miliband: No, I reject that.

Q37 Chairman: ---to get round the Irish people's concerns that those things are not in the Lisbon Treaty that we were asked to ratify as a Parliament? Can you not see why people are suspicious?

David Miliband: No, I cannot. They can only be suspicious if they do not have the facts about what has happened, because the allegation one from you - not necessarily that you believe but that you are putting on behalf of those who might believe it - is that this is to get round the Irish decision, but the Irish are going to have a referendum. There is no getting round the Irish decision. The Irish Government have decided to put to the Irish people a further question on the Lisbon Treaty. So no-one can get round the Irish people, and it is important to say that because when I came back to the House after the Irish referendum vote last year, people said, "Aha! You are going to find a way to ratify the Lisbon Treaty without the Irish people agreeing to it." There is no obfuscation and no going through the back door - nothing like that. The Irish people will have to do it. That is point one. Point two: the Irish Government asked for this to be in a protocol and, as we described in the pre-Council discussions we had, there were two ways of giving legal force to the legal guarantees that had been asked for in the December European Council, and they asked for it and we did not object to it once the text of the protocol decision had become clear. Then, thirdly, and critically, this decision and this protocol in no way in terms change one jot of the Lisbon Treaty as it affects Britain and as was passed by this Parliament. There are quotes in all of the areas from Ministers as this went through the House explaining why tax was not affected, why defence was not affected either and the rights of neutral and other countries would be respected, and non-NATO countries; I remember those debates and therefore it is very important to have on the record that the Lisbon Treaty that was passed by this Parliament as it affects the UK in the range of ways that we have discussed is unaffected by this decision. What is more, the heads of state of 27 European countries have said the same, and they are absolutely clear that no re-ratification is necessitated.

Q38 Mr Borrow: We know about the decision but there can be no guarantee that a protocol would be ratified.

David Miliband: Good point.

Q39 Mr Borrow: We do not know whether there is going to be an accession treaty, we do not know whether the member states' parliaments will vote for it, and therefore, from an Irish perspective, they have got a decision; that is what they have in their hand and that is what they can say to their people in a referendum, but they cannot take the protocol and the ratification of the protocol and say we are definitely going to get that.

David Miliband: Right.

Mr Borrow: So from an Irish perspective, what does having that protocol actually give them extra that they do not have already with the decision, because there is no guarantee that they will get the ratification of the protocol?

Q40 Chairman: It seems a fair point. It requires it requires unanimity of all countries for a protocol.

David Miliband: It is a good point but that is why it is important that the decision has legal force. That is why the fact that this is a decision, not a conclusion, is important, because the Taoiseach can go to the people of Ireland say, "We have got a decision which is legally binding in international law. It is an agreement between states."

Q41 Mr Cash: You have made some very significant remarks. I may disagree with them but they are significant and they are on the record. I believe, frankly, Foreign Secretary, this whole operation for a long time has, as the Chairman has suggested, had the characteristic of stitch-up and cover-up but I would rather get down to the actual nitty-gritty here because it affects all the member states. What I would simply like to refer you to is what the Minister for Europe in the House of Lords, in the other place, stated yesterday at column 219. I have it here in case you would like me to hand it to you. I have it marked up because I think it is important that you should have a look at this. It has a ring round it and it has a couple of crosses. (Same handed) The Minister said yesterday, and I am quoting exactly what she said, "Everything in the guarantees has been agreed by the Parliament of this country" - she means the Irish guarantees - I repeat, "Everything in the guarantees has been agreed by the Parliament of this country." Does the Foreign Secretary agree with her or will he admit that this simply is not true?

David Miliband: I would like to know why you think it is not true.

Q42 Mr Cash: For the simple reason that we certainly have not agreed in this Parliament to the Irish guarantees.

David Miliband: No, Bill, really. You read out a quote which said, "I am surprised that some Members are not aware that everything in the guarantees has been agreed" and then you said, "Aha! Tell me that we agreed the guarantees." Of course, the point that Glenys Kinnock made, which you dropped from your second quotation, was everything in the guarantees. The guarantees are about tax, defence and abortion.

Q43 Mr Cash: You know perfectly well, Foreign Secretary, that the Irish protocol of 1992 has been, as I said to the Prime Minister---

David Miliband: Danish you mean?

Q44 Mr Cash: No, I am talking about the Irish protocol - has been greatly extended. There is a whole sheet of things that have been added in and that affects all the member states, so we are dealing... It seems to me that perhaps you have not been given a briefing on this point.

David Miliband: No. Let us be absolutely clear. The allegation you made is that somehow---

Q45 Mr Cash: It is a greatly extended Irish protocol which affects all the member states, therefore there is a need for ratification of this treaty, implementation by a new Bill in this House. How can you deny that?

David Miliband: For the very simple reason that every European country agrees that this decision does not change the Lisbon Treaty. Secondly, if you go through the debates that we had in this House on the Lisbon Treaty and look at what was said about tax and about defence and about abortion - I stand to be corrected but I have a feeling that you challenged me at various points to say "Isn't this just a ramp to the end of British sovereignty over our taxation policies?" and I said, "No," and that is what has been reconfirmed by the Irish decision.

Mr Cash: I am sorry to have to say, Foreign Secretary, I think that you are in a very serious muddle over the legal situation here, and I am afraid to say I would have to add - finally, because I think we have to leave it at this point because you cannot answer my questions - that there seems to be no limit - and I am not making personal accusations - to the general deceit which has covered this, and I believe we have to have a referendum as the only means, as 88% of the British people want one.

Chairman: I do not think "deceit" is an appropriate word.

Q46 Mr Cash: I shall withdraw the word "deceit". Shall I call it chicanery?

David Miliband: Can I say, Chairman, that Mr Cash made a series of allegations but ended up repeating his political view, which is sincerely held---

Q47 Mr Cash: My legal and political view.

David Miliband: I listened to you so you should listen to me, with respect. He made an allegation that somehow something had been said in the other place last night that was not true. That is not true.

Q48 Mr Cash: It is true.

David Miliband: No, I am sorry. It is not true. What you first of all alleged related to the substance of the guarantees, and then you tried to corner this into the question of whether or not the guarantees had been previously discussed in the Parliament.

Q49 Mr Cash: Agreed.

David Miliband: Secondly, you then went on to a series of allegations relating to the possibility that this decision, and subsequently the protocol, would be a ramp for all sorts of new powers with some parallel that you drew with 1992. There is absolutely no evidence of that. Then when you had been beaten back on both of those two things, you resorted to personal/governmental abuse that restated your position that the European Union is a deceit on the people of Europe, which is your view but the fact that it is your view does not make it correct.

Mr Cash: The manner in which this has been conducted---

Chairman: Mr Cash, Mr Cash.

Q50 Mr Clappison: Just briefly to follow on from that, you mentioned the defence debate on the Treaty of Lisbon, which I took part in, as you may remember, or attempted to take part in. We had very little time in those debates to debate defence. Defence was hardly reached because of the way in which the Government organised the debate. I put that as a preamble. The question I want to ask you is the same question on this. When is it that we will have the opportunity to have a debate and a vote in this House on the Irish guarantees?

David Miliband: I do not know how many times I have repeated it here, and I do not know how many times it has been read by people, but there is absolutely no doubt about it: at the time of the next accession treaty the protocol will be appended.

Chairman: At the time of the next accession treaty. That is a very precise answer.

Q51 Mr Clappison: That could be, you said, seven years. It is an uncertain time---

David Miliband: No, I said seven years in respect of the Danish experience of the Nineties.

Mr Clappison: Yes, I know, but you gave that as an example, Secretary of State. It could be seven years, some uncertain time in the future, before we will have the opportunity of a debate and vote in this House of Commons.

Chairman: I think we all know in this Committee, since we were in fact discussing Croatia within half an hour of this, that this is something that is pending in the next two or three years at the latest. I think we have actually come to the point where we have explored this in some detail, we have put on the record our concerns and you, Foreign Secretary, have put on the record your explanations. We have put on the record also our understanding of what went on in the other place on the same question, and I think we all understand that eventually this will come down to the choice of the Irish people whether they think these guarantees are correct, and then it will come down some time in the future to whether 27 countries do in fact ratify the protocol to make it what is called, I think the word is, giving it "full treaty status", and we will look forward, obviously, to these things being worked out in the fullness of time. We have not taken as much of your time but I think we have explored it in some detail and I hope we have illuminated the subject for the public who are interested in it. Thank you for coming along, and thank you to your colleagues also.