Examination of Witnesses (Questions 1-19)
Mr Jim Murphy MP, Mr Mike Thomas and Ms Shan Morgan
12 JULY 2007
Q1Chairman: Minister,
a very warm welcome to you. This is the first time you have been
before this Select Committee and we are very grateful that you
were able to find time in a very busy schedule and at rather short
notice—inevitably—but it was very important that we
should be able to meet with you before the 23rd of the month,
because of the IGC. We welcome Shan Morgan and Mike Thomas to
the table. Please feel free to invite either or both of them to
intervene. We have around the table Members of the Select Committee
but we also have four Peers who are not, but who, because of the
high interest in the subject matter and your presence before this
Committee, we welcome to the table. While I will be giving priority,
as I have to, to members of the Select Committee in the questioning,
they will come in at various points with their own particular
questions or comments. We are being televised. We do understand,
Minister, that you are on a running whip and that you might have
to leave us at some point—we are hoping not too often—and
we will of course be sending you the transcript of our session
so that you can check it. Would you like to begin by making an
opening statement?
Mr Murphy: Thank you for that very kind introduction,
Lord Grenfell. I also thought it was very important to take this
opportunity for us to have this session in advance of, as you
say, 23 July, both in terms of the process within the Portuguese
Presidency but also in terms of having the session well before
our respective recesses. I have already given evidence to the
Scrutiny Committee in the House of Commons. I am told the two
Committees are different in important ways and I look forward
by the end of the proceedings to discovering what important ways
those are. Thank you very much for your kind words of introduction.
Q2 Chairman: We will go straight
to the heart of the matter, if we may, and get on to the Reform
Treaty. Maybe you could just remind us of the procedure from now
onwards about when the Treaty is expected to be published and
what the Government's plans are for indicating what the changes
from the provisions in the EU and EC treaties are. I should say
we have been in contact with you about this and I also understand
that you are probably not going to produce a paper comparing the
Constitution to the Reform Treaty. I have some sympathy with that
because I can see that those who are really interested can look
at the mandate and look at the Constitution Treaty and work out
fairly quickly where the major changes are, but anyway, that being
said, maybe you could just tell us what process you are going
to follow once you have the document in your hands.
Mr Murphy: Obviously, this is one of the most
significant issues over the next six months or so, just how we
continue to inform Parliament, how we continue to have a conversation
with Parliament in such an important area. What I will say, by
way of introduction to the proposed timetable, is that it is certainly
our understanding that the Portuguese Presidency when it opens
the IGC will publish in the margins of the General Affairs and
External Relations Council on 23 July a draft which will then
be the subject of much technical analysis, understandably, by
lawyers and by what we have now come to call focal points—and
Shan of course has been one of our two focal points in that prior
process. What we would intend to do—and your Lordships may
find this helpful as well—is that we would intend at or
around that period to produce two White Papers, one, as traditional,
looking ahead to the Presidency and expectations of the Presidency,
and secondly, also a White Paper on the Reform Treaty, at similar
times. We are still looking through the exact detail in terms
of Parliamentary timing but around 23 July would be the timeframe,
either both on the same day or possibly on consecutive days, but
we are still looking into the detail of achieving that. What the
Portuguese Presidency has said is that it is looking to conclude
deliberations—as your Lordships may already be aware—by
18 October, with signature at the December European Council. In
terms of the specific point on publishing a comparative text,
the Committee has more experience of this than I have, of course,
but my understanding was that the rationale for publishing a comparative
text on what was the Constitutional Treaty was that, by the nature
and the purpose of the Treaty, it was important to carry out that
comparative piece of work. On a standard reforming treaty that
has not been the process in the past in the sense that we have
moved back towards a standard reforming treaty within the tradition
of Maastricht, Nice and Amsterdam. We would not propose that to
be our approach now, as we progress through the Portuguese Presidency.
Chairman: Thank
you for that explanation.
Q3 Lord Burnett: Have I understood
it correctly, Minister, that you are not proposing to produce
a comparative text between what was the Constitution and what
is now the Treaty?
Mr Murphy: That is right.
Q4 Lord Burnett: You are not going
to do that?
Mr Murphy: That is right, yes.
Q5 Lord Burnett: The reason for that
is?
Mr Murphy: Obviously, the position as was was
a comparison between the Constitutional Treaty and the ambition
that that had and what went before. In terms of how the Government
makes its case—and I appreciate absolutely that we have
to make our case about substantial change away from the Constitutional
Treaty towards the Reform Treaty—we will be publishing,
and we have sought to do so already, to draw attention to an understanding
of the substantial difference between the previous Constitutional
Treaty and this reforming treaty but at the moment it is not our
intention to produce a formal paper.
Q6 Lord Burnett: What are you going
to produce?
Mr Murphy: What we intend to do is the White
Paper on or round about 23 July which sets out in that White Paper
our approach to the reforming treaty as is now. This of course
is not just a technical question; it is clearly a very hot political
question as well, and I appreciate that what we do have to do
is, both in a technical way but also in a political way, particularly
in the House of Commons, to be able to make the case based on
the fact that this is indeed a substantial series of changes away
from the previous Constitutional Treaty. Our case will be made
in that White Paper towards the end of July.
Q7 Lord Burnett: So in that White
Paper you will be drawing the distinction between what was the
Constitution and what is now the Treaty. The substantial differences
will be adumbrated in the White Paper.
Mr Murphy: My Lord Chairman, that would be the
closest you will get to a comparative text. That White Paper will
basically summarise our position and it will set out the differences
but it will not be formally a comparative text in the way that
the previous approach had been in terms of the Constitutional
Treaty.
Q8 Lord Maclennan of Rogart: From
the point of view of informing the public about the significance
of the Reform Treaty, is it not more important to make comparisons
with the law as it exists rather than the Constitutional Treaty,
which does not?
Mr Murphy: Yes. Again, the dividing line between
technical and important detail and the cross-over in terms of
the political temperature in this context is often ill-defined,
in my view. I think that is an important point on the basis that
there is a significant degree of misunderstanding—I could
conjecture as to why that is but there is a significant degree
of misunderstanding about the scope of the Reform Treaty and what
it sets out to achieve. That is an important piece of work we
will have to undertake over the next few months.
Q9 Chairman: Thank you very much
indeed, Minister. A question on transparency. Everything we have
said up to now has an element of concern about transparency in
it but the European Parliament has been calling for the publishing
of all IGC papers submitted for discussion. Has the Government
taken a view on this?
Mr Murphy: We have, and it is obviously connected
to the first question that you posed. We would like to take a
similar approach to that which we took in the IGC process in 2004,
where we publish all the documentation that is not provided in
confidence or on a confidential basis and perhaps to place it
in the library of both Houses is the best way and perhaps, if
it is appropriate, to send it directly to yourself.
Q10 Chairman: That will be very helpful.
Mr Murphy: To this Committee and others. I think
perhaps we can go a little further than that, if we can, which
is that, if it is not certain as to the status of the documentation,
as to whether it is confidential or for open publication—and
I have spoken to officials about this—that we go back and
check the status and come to a presumption that we can provide
this documentation for information. I think that may help your
Lordships in deliberation as the process evolves.
Q11 Chairman: In other words, your
default position is that it could be made available unless there
is a clear indication within the IGC that this is not for circulation?
Mr Murphy: That is exactly right.
Chairman: Thank
you very much indeed.
Q12 Lord Marlesford: I think you
said that there will be a draft supplied to the IGC right at the
beginning and this will be examined by the focal points, of which
you mentioned Ms Morgan as being one. That will be a pretty crucial
document. Will that be published?
Mr Murphy: Yes. Again, through your Lordships,
through Lord Grenfell, that may be an appropriate way of doing
that.
Chairman: That
is fine. I will certainly share it with the Committee. I will
not be taking it home and burying it under my pillow! Let us move
on to some policy issues.
Q13 Lord Sewel: Can we turn to the
mandate that came out of the IGC? It is pretty explicit and tightly
worded, more so than on many previous occasions, but I think it
is worth exploring the extent to which you see the possibility
of wriggle room existing within the mandate and where there may
be attempts to vary it during the course of negotiation. We have
already heard the Polish President and Prime Minister saying various
things about re-opening discussions on voting in Council. Is that
an area, for example, where you expect there to be an attempt
to disturb what seems to be a settled position?
Mr Murphy: Our approach, certainly my approach,
but the Government's approach is that we wish to make progress
on what has already been agreed so that we can pretty quickly
move beyond the conversation about structures, which are of course
crucially important, but then move on to the debate about what
these structures enable us to do in terms of delivery for our
citizens. So our approach is to resist any moves to re-open what
has been agreed. That will not stop others offering a comment,
an observation, aspiring to do something, and that getting coverage
in the media domestically and internationally, but it is our intention
to resist such moves. The only minor caveat—and it is very
minor—is that our legal teams and others will examine the
text very carefully to make sure that what we have committed to
in our negotiations is reflected absolutely in the text in great
detail. So in terms of policy, we resist; in terms of the detail,
we are absolutely determined to continue to ensure that the deal
we achieved is reflected in the text.
Q14 Lord Sewel: Do you think you
will be able to hold that position?
Mr Murphy: In conversation with the Portuguese
presidency—and I have spoken to the Portuguese Ambassador
earlier this week and I will be seeing him again shortly—the
Portuguese Presidency wishes to conclude this in October, and
it is difficult to see how you can achieve that timescale, which
I think there is a real appetite to drive towards, while allowing
the re-opening of anything of any substance. So yes, I believe
so.
Q15 Lord Maclennan of Rogart: Minister,
the Government's report on the outcome of the negotiations on
the Charter of Fundamental Rights indicated that it would not
be cited in British courts. Are you satisfied that the mandate
to the IGC provides for that and, in particular—and this
is rather a detailed question which you may choose to answer subsequently
in writing perhaps—do you consider that the protocol relating
to Article 6(1) of the Charter might be bypassed by Article 6(3),
which could allow for the references to be made in court to the
fundamental rights and general principles of European law? This
is really a question about the status of the Charter as you see
it in court. A final particular question: if a worker from a Member
State is taking action in the British courts and he comes from
a country where there is a statutory right on collective bargaining
within the union, would he be able to cite that in this country?
Mr Murphy: There is an awful lot in that question.
The short answer to the last part of your question is no, such
a worker in that circumstance would not be able to cite the Charter
to enable that enhanced power or protection. In my sense, Lord
Chairman, Lord Maclennan's question here I think relates to the
noble Lord's earlier question about a misunderstanding because
this is one of the great areas where there is a degree of misunderstanding
of really what has been expected and achieved as part of the negotiations.
The Protocol puts it beyond doubt that a binding charter will
have no new impact on UK domestic law and will create no new powers
for the EU to legislate and, in particular, will not extend the
ECJ's or national courts' power to challenge or reinterpret UK
employment and social legislation. That is beyond doubt. In the
two weeks I have been in the job I have been round some of these
arguments on three or four occasions already and clearly one of
the questions that was asked is "It is a protocol; what does
that mean?" So I undertook to look at this in more detail,
Lord Maclennan, and certainly the fact is that Article 311 of
the EC Treaty makes it absolutely clear the legal status of this
and other protocols, so it should put it beyond doubt. There is
a very technical response which, if the Committee would wish me
to share it, I am happy to do so but, of course, we can enter
into correspondence as well if noble Lords would wish to do so.
In terms of the specific point, the technical answer is the Protocol
sets out what the UK considers will be the effect of the Charter
when it is given legal effect. It relates to the Charter and Article
6(1) and does not affect the continued application of Article
6(3), which in substance reproduces Article 6(2) of the Treaty
on European Union. I appreciate that is not an answer that everyone
in the United Kingdom will follow and interpret in great detail
and it may be helpful for your Lordships if I follow that technical
answer with a more substantive answer which is slightly less Euro
legalese than that response.
Q16 Chairman: I think this is a case
where time will tell. We are going to have to wait and see what
happens to a certain extent because there could be instances possibly
where, although the Charter does not apply, the subject matter
of interest to an individual may come under the European Convention
of Human Rights in that case, which takes precedence, and I do
not know what the answer to that is. But there could be a conflict
if we say the Charter does not apply but we know that the European
Convention does. I am not quite clear how that will be resolved.
Mr Murphy: Perhaps, with Lord Maclennan's encouragement,
I will return to the Committee on that and some other points.
Q17 Lord Leach of Fairford: Minister,
three ECJ judges have said the opt-outs will not be effective,
and so has the former Justice Minister, Antonio Vittorino, so
have the Commission and various legal experts. And legal advice
to the Commons Scrutiny Committee warned that the Charter would
affect English law. Obviously, politically, you have said what
you hoped would be the case but we have been there before, have
we not, like over the Working Time Directive, where there were
other ways, because of the generality of the law, to surmount
it. I was wondering what legal advice that was publishable you
could produce of comparable weight to support your position.
Mr Murphy: As I say, the legal architecture
of the status of protocols is contained in Article 311 of the
EC Treaty. In terms of the legal advice, we have very strong UK
legal advice that our rights, as I have articulated, are absolutely
protected. In a sense, in terms of the additional point your Lordship
made, it is about the advice given to the Commons EU Scrutiny
Committee. I read some of the media coverage and spoke of course
in my evidence session with that Committee. It is certainly my
understanding that the observations—and your Lordships may
wish to return to this, of course, but certainly my understanding
is that the advice given to the Commons Scrutiny Committee was
on the previous text of the Constitutional Treaty[1]
and was offered in advance of the new draft text being tabled
at the meeting involving all the heads of government. As a consequence
of the changes achieved as part of the negotiations on the UK's
red lines, I think that observation provided to the House of Commons
EU Scrutiny Committee really was an accurate assessment in many
ways of the old Constitutional Treaty[2]
but was not an accurate assessment of the Reform Treaty we now
have before us. In terms of the legal advice that is publishable,
of course, it is a standard process in all of these procedures
not to publish the legal advice, and that has been the case through
these processes, I understand, in all the IGC processes.
Q18Lord Leach of Fairford: We will have published
advice that they are not effective and unpublished advice that
they are. That is where we are likely to end up. Would that be
a fair statement?
Mr Murphy: I do not believe it would be a fair
statement but, of course, it is not for me to judge whether it
is a fair statement. The published advice, as I understand it,
is on the old Constitutional Treaty and an assessment of that
text, which did not reflect the changes that took place as part
of the negotiations on the UK's red lines but, as to what is fair,
I am not certain the noble Lord and myself will be the objective
arbiters of what is fair and what is unfair.
Q19 Lord Bowness: May I ask the Minister
to confirm that when the draft which you are expecting in July
is published it will include a complete draft of the protocols
which are referred to in the footnotes of the mandate?
Mr Murphy: The answer to that question is yes.
Chairman Chairman:
I would like to move on now, if we may. Let us take a look at
President Sarkozy's initiative on competition.
1 Note by the witness: The Minister, upon reading the
text, realised that the words "Constitutional Treaty"
should be replaced with "IGC Mandate". Back
2
Note by the witness: The Minister, upon reading the text, realised
that the words "Constitutional Treaty" should be replaced
with "IGC Mandate". Back
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