Examination of Witnesses (Questions 20-39)
Mr Jim Murphy MP, Mr Mike Thomas and Ms Shan Morgan
12 JULY 2007
Q20 Lord Freeman: Minister, some
elements of the British press reported President Sarkozy's comments
after the recent Council as to the effect that the removal of
the reference to free and undistorted competition from the main
body of the Reform Treaty represented a victory for those who
believe in what is called a social market economy. The same press
reported the British Prime Minister as saying that really there
has been no change because of the incorporation of references
to competition in a protocol. What actually is the position?
Mr Murphy: The actual position is that the reference
to free and undistorted competition will be contained in the Protocol
which will be published and, as I alluded to in an earlier response,
that Protocol has firm, absolute legal standing based on Article
311 of the existing EC Treaty, and that states that the annexed
protocols have legal and binding status. I cannot, and you would
not wish me to, speculate as to Sarcozy's motivation or the press
coverage that went with it. All I can say is that the Government
is absolutely content that the issue of competition and the UK's
approach to competition are protected, and this does not reflect
a change in the EU's approach to competition. It may be helpful
for your Lordships to be aware that all other references to competition
in the existing treaties will remain. For example, for the record,
it may be helpful just to refer to which of those there are: Articles
4, 27, 34, 81 to 89, 96, 98, 105, and 157 from the EC Treaty.
I do not think it would be wise for me to speculate on public
pronouncements of other senior elected politicians across any
of the other 26 Member States but we are clear as to where we
are in terms of a legal position.
Chairman: Thank
you very much indeed.
Lord Roper: The
Minister will, I think, confirm that what was "taken out"
was not of course in any of the existing treaties. It was merely
something that was in the Constitution treaty.
Q21 Chairman: It was in the coffin
already.
Mr Murphy: That is a very helpful point that
I should perhaps make! That was not the tone of my evidence session
at the Commons Committee. I should add however that President
Sarkozy in his public comment on this did—and I think this
is important, both because of what it is but who says it—in
removing symbolically free and distorted competition from the
object of the EU which was not there to remove, say that "the
treaty does not change EU law." That is from President Sarkozy
himself.
Chairman: I think
we are clear on this point. It will be interesting to see whether
or not the ECJ has fully taken this on board or whether they will
see this as an invitation to be a little too relaxed in their
interpretations, but we hope that they will not take that line.
Q22 Lord Roper: Minister, I have
two questions. The first you may think is a slightly trivial and
pompous one. If you look at page 26 of the Presidency conclusions,
you will see that the mandate does provide a new Article 7 on
the role of national parliaments, in Title II, Provisions on
Democratic Principles, and it begins with a rather strong
phrase saying "National parliaments shall contribute actively
to the good functioning of the Union." Do you think it is
constitutionally appropriate for the Treaty to tell national parliaments
what they "shall" do?
Mr Murphy: Lord Roper, I do not think that is
a trivial point at all; I think it is an important one. It is
an issue that was raised at the Commons Scrutiny Committee as
well. Looking through this, it is certainly my observation that
I think this language is probably inappropriate. I think it is
more down to drafting than intent, and this is something that
we would intend to return to as part of the process. I think there
is a welcome improvement in the role of national parliaments but
I do not think this phrase fits that category.
Chairman: I am
sorry we cannot substitute the word "do" contribute
actively, but that is a little closer to the truth, I think! Let
us move on.
Q23 Lord Roper: On a more substantive
question, paragraph 11 sets out a provision that if a simple majority
of national parliaments object to a proposal on subsidiarity grounds,
the Commission will have to re-examine the text. This is sometimes
called an "orange card", perhaps because of the associations
with the Netherlands, but is that where it came from? What consultation
had there been with national parliaments before there was a change
from the provision of the so-called "yellow card" in
the Constitution Treaty?
Mr Murphy: The noble Lord Lord Roper speculates
as to why it is called an orange card in terms of the Dutch, and
that is absolutely right. This has often been most associated
with the Dutch and the Czech governments in terms of this approach.
In terms of the specific consultation with national parliaments
across Member States, up until now I have not been involved in
the detail of consultations. In terms of the consultation that
took place in that very short time period between the publication
of this proposal and it being agreed, I am not certain there was
effective consultation with national parliaments across the EU.
Certainly that is my sense on this but, as I say, I think it emerged—Shan
may wish to correct me—rather late; welcome, but late in
the process, and therefore it just would not have been possible
to have the effective consultation that would otherwise be the
case.
Q24 Lord Roper: But in principle,
Minister, you would agree that if there were proposals in drawing
up a mandate which did affect national parliaments, it would be
the view of HM Government that Parliament would be consulted?
Mr Murphy: Yes, absolutely.
Q25 Chairman: Following on from that,
and the whole question of consultation with parliaments, you recall,
Minister, that at the June 2006 Council, the Commission was called
upon to respond to any concerns that national parliaments might
wish to raise with the Commission which were not necessarily dealing
with subsidiarity or proportionality; it might be simply the merits
of a particular legislative proposal or something appearing in
the Annual Policy Strategy or anything. This was greatly welcomed
by the national parliaments although it did give some concern
to the European Parliament, who thought we were getting a little
uppity. We were slightly distressed to see that this is not reflected
in the mandate and the fear that was expressed in the last COSAC
and again at the Chairmen's meeting which I have just come back
from in Lisbon was that, by focusing on subsidiarity and proportionality,
you are narrowing the area of activity for the national parliaments,
you are limiting it to subsidiarity and proportionality, whereas
it was perfectly clear from what Barroso told us at the joint
meeting that they were responding to—and we know they are
responding to because they responded to us—on broader matters.
We would like to see that somewhere in the mandate and in the
Reform Treaty because, if it is not there, people will assume
that somehow that right has disappeared.
Mr Murphy: My Lord Chairman, we are absolutely
committed to that right being protected on the basis that it seems
to have—and I am willing to be corrected, of course, but
from all that I can understand from my two weeks in this role,
there seems to be an acknowledgement that this system has in a
practical sense worked, and I think some of these proposals were
encapsulated in the June 2006 European Council conclusions. I
hope your Lordships will not mind me referring back to an earlier
answer I gave to Lord Sewell that it would not be our intention
to re-open important detail of the negotiation, and I think, unfortunately,
from the perspective of the Committee, that would fall into that
category. However, I would welcome your Lordships' assistance
in making sure this remains the case. We remain absolutely vigilant
to ensure the type of protection and involvement of Parliament
and Parliament's committees in this process.
Chairman: In that
instance, of course, we would have to rely on the goodwill of
the Commission to respect the injunction laid upon them by the
Council of June of last year.
Q26 Lord Burnett: In the circumstances
of the question and if there is a re-examination of the text,
does that mean, in the Minister's view, that it has to change
or can it be re-examined and reproduced in exactly the same form,
and therefore is it really a fairly empty gesture?
Mr Murphy: I apologise but I am not certain
that I followed the detail of the noble Lord's question.
Q27 Lord Burnett: Paragraph 11 sets
out a provision that, if a simple majority of national parliaments
object to a proposal on subsidiarity grounds, the Commission will
have to re-examine the text.
Mr Murphy: I thank the noble Lord for drawing
my attention to the specific paragraph. My understanding—and
if I am incorrect, of course, I shall follow this up but I am
certain this is the case. It is not just an issue of re-examining.
There are three or four stages involved in this process but if
the draft legislation is contested on the grounds that the noble
Lord Chairman alluded to, the Commission cannot choose to maintain
it regardless. That is step one. Secondly, the second stage, it
is a question that they must come to a view as to whether to retain,
amend or withdraw the draft Act. Thirdly, if it decides to retain
the draft Act, it must justify to the Council and to the European
Parliament why it considers the draft complies with the principle
of subsidiarity. Fourthly and finally, if the Council, i.e. 55
per cent of Member States or the European Parliament, by a simple
majority disagree with the Commission, taking account of objections
of national parliaments, then the proposal is killed off. So I
think that four-stage process is more than a "The contents
of your objection are noted." I think there is a pretty substantial
series of protections there.
Chairman: Yes,
I think that is a very important point you have made, Minister.
It gives another explanation of why it is called the orange card,
because it is neither yellow nor red but if you mix the two together
you get orange. Generally speaking, we are happy that there is
not a red card for national parliaments but there is one for the
Council if in extremis they feel that the Commission has
not respected the rules. Let us move on.
Q28 Lord Roper: One question on the
orange card, and that is, in the legislation that was introduced
in the Commons for implementing the Constitutional Treaty, it
was suggested that only the House of Commons would be able to
play the yellow card. What do you see as the situation as far
as the orange card is concerned and will there be an opportunity
for this chamber to play it?
Mr Murphy: I hope your Lordships do not mind
that this is the one area where I am willing to speculate on something.
There is a direct response which I will give you in a second or
two but I think it is one of the areas which will cause some excitement—or
a great deal of tension is maybe a better way of putting it—in
the Palace in which we all work, for understandable reasons, but
the straight answer is that each Member State will have two votes
through the orange card proposals. Where there is a unicameral
approach, of course, that chamber has both votes but in the constitutional
system that we have, your noble Lordships may be interested to
have it confirmed that there will be one vote each, and on that
basis I think that will be one of the issues that we will return
to in terms of the conversation but that is what it means and
that is their intention. That is how it will work.
Q29 Chairman: That is certainly the
basis on which we proceeded with our pilot runs on the subsidiarity
and proportionality check. Thank you very much indeed. Let us
get on with some of the other issues.
Lord Wright of Richmond:
Paragraph 15 of the Presidency conclusion talks about strengthening
Europe's internal security. The Government has told the House
of Commons that the outcome of discussions on national security
was very satisfactory. Is there a significance in the changing
of this wording and can you tell us anything about the process
that led to the change?
Mr Murphy: With your Lordships' permission,
I will make two points, one of which I made yesterday in an Adjournment
Debate in the House of Commons on national security. I said directly
that this Treaty makes it clear that for the first time Member
States have sole responsibility for safeguarding their national
security, and that is an important point on the basis of the following.
The phrase "internal security", which previously was
in common use, in our view was open to misunderstanding. "Internal
security" had become a phrase in common use to describe two
different but not mutually exclusive things. Internal security
was the internal security within Member States but also internal
security within the European Union and we wished to move away
from the possibility of misunderstanding, which is why we have
now moved towards the description of national security, and the
fact that it is for the first time explicit in terms of this Treaty.
Q30 Chairman: Thank you very much.
Could we come on to the rather difficult question of the primacy
of EC law? With the collapsing of the three Pillars, it would
seem prime facie that the primacy of EC law would then
be extended to encompass all the EU legislation. Is that, in your
view, the case and would the Court of Justice be expected to assume
that?
Mr Murphy: We are moving away, of course, from
the three-Pillar approach and there will now through the Treaty
be the equivalent of two distinct Pillars. I think it is important
to put on the record that the common foreign and security policy
will remain a separate treaty. As this conversation evolves over
the months to come, it is important for the Government to ensure
that there is a very clear understanding of that fact. That ensures
that the UK's foreign policy will of course be fully protected
and the UK's interests will of course be fully protected. As the
noble Lords know, the separate Pillar on justice and home affairs
will be abolished. My understanding is that will go into the Community
method but I think it is also important to point out—less
technical than the previous response—that our existing Title
IV opt-in protocol on police and criminal justice co-operation
has been secured. That is an important protection and we will
retain that opt-in where we think it is in our national interest.
In respect of the final point which my noble Lord made, the Reform
Treaty will not alter the principle of primacy established by
the well set up case law of ECJ—it is my understanding that
that dates back to 1964 or so in terms of that—but will
extend its application to include EU legislation in the field
of police and judicial co-operation, but in terms of the UK context,
it is my understanding that jurisdiction will apply where we have
chosen to opt in. It is not a default jurisdiction.
Chairman: Does
that answer your question, Lord Wright?
Lord Wright of Richmond:
I think it does, yes.
Chairman: Thank
you very much indeed. Let us move ahead.
Lord Howell of Guildford: Can I first
of all apologise for coming late because of duties in the chamber
but secondly, I would like to pursue the issue of the role of
the Court of Justice because that relates to what you were just
discussing. What puzzles many of us is that when people in Brussels
say there cannot be a two-tier system of European rights, therefore
every citizen has the right to go to the European Court of Justice
and make claims for anything enshrined in the Charter of Fundamental
Rights, which you have discussed earlier before I arrived, how
is that going to be avoided by any of these opt-outs? The plain
fact is that the law of Europe is the law of Europe in these matters
and citizens will be able to go to the Court of Justice and plead
their case. Can the Minister explain how one is going to get round
that basic fact with the way the system works?
Q31 Chairman: Could you do it quite
briefly because we did cover this ground fairly well.
Mr Murphy: I shall attempt to do so briefly
under your guidance, my Lord Chairman. The Charter of Fundamental
Rights does not extend any additional powers or protections.
Q32 Lord Howell of Guildford: I meant
more broadly than just the Charter which you have discussed, my
Lord Chairman. I meant that the whole range of European EU legislation
and law is open to the individual citizen to take to the European
Court of Justice. How can we stop that?
Mr Murphy: I may invite, with your permission,
Lord Grenfell, Mike Thomas to speak on some of the legal background
of this but certainly it is my clear understanding that the jurisdiction
comes into effect at the point at which the UK would choose to
opt into any of the justice and home affairs issues, for example.
There is no default jurisdiction across the board.
Mr Thomas: The European Communities and now
the European Union of course have had a court of their own since
their inception and so in that respect citizens have had the right
to go to the European Court since the word "go". The
Reform Treaty will not make any difference to that. There are
a couple of other points perhaps worth mentioning. As now, the
European Court of Justice would have no jurisdiction over common
foreign and security policy matters, apart from in a couple of
exceptional areas. Basically, the position about jurisdiction
is the same except in respect of the old third Pillar, which will
disappear, which in principle will become subject to ECJ jurisdiction
in the way in which the first Pillar currently is but, as the
Minister said, in respect of all justice and home affairs matters,
the United Kingdom will have its opt-in arrangements under the
Protocol. So to the extent we were not opted in, the court would
not in effect have jurisdiction so far as the UK is concerned
to entertain applications to deal with stuff that we have not
opted into.
Q33 Chairman: Thank you very much
indeed. Perhaps you could now, Minister, enlighten us a bit on
the architecture of the presidency or what would appear to be
dual presidencies, because you have the so-called permanent president
of the Council and you have the presidency of the Council, given
that the six-monthly Council of Ministers presidencies will remain.
I think a lot of people were hoping it would disappear altogether
but we are stuck with it, so how do we handle it?
Mr Murphy: The distinction here, as noble Lords
will be aware, is that the President of the European Council will
chair, of course, the European Council for a period, I think I
am right in saying, of two and a half years. In terms of the presidency
of the Council of Ministers, it will continue as now, against
the noble Lord Chairman's expectations and perhaps wishes, but
there is an important change, which is under what has been termed—I
am not sure I enjoy the term—a "team presidency"
system. I recall our own presidency, when my role in government
then was as a minister at the Cabinet Office, where our priority
was better regulation, for example, crucially important but unfashionable,
but nevertheless we have made progress on it. We have had a process
of co-operation with the immediate past presidency and immediate
future presidency to enable some consistency across a longer period
of that 18 months. What will happen now is that we are going to
extend, with a greater degree of formality, that joint working
approach so that there will not be unanimity. I think we are a
long way off, and we should be a long way off, quite rightly,
from a unanimity of what we expect from the presidency of the
Council of Ministers period, but there will be a greater sense
of consistency over that 18 months and continuity by virtue of
the personnel and the Member States' involvement over that longer
period of time.
Q34 Chairman: I would like, if I
might, to interpose here a question, that is whether or not you
are happy with the decision taken about the reduction in the size
of the Commission and do you not think that there will be a great
amount of pressure coming, particularly from some of the newer
members, to respect what they see as almost a right to have a
representation on the Commission and how is that problem going
to be resolved? It is not just the new members, but I remember,
when Giscard D'Estaing gave us evidence on our earlier inquiry
into enlargement, he expressed in very florid, Gallic terms his
outrage at the suggestion that there might be a period when there
was no Frenchman in the Commission and he found this quite an
abhorrent thought. Do you think that there will be pressures building
up and how is this going to be resolved?
Mr Murphy: I think it is inevitable that there
will be those who do not achieve what they see as their rightful
national place around a table of, as was, 27, so I think it is
inevitable that there will be a degree of frustration and friction
that national parliaments of Member States demand on this, but
what we are trying to do is to frame this debate in the context
of it as smaller, but with a greater degree of efficiency and
effectiveness. We also have to work through the detail of this
to reassure people and to reassure Member States that their voice
can still be heard because, as I think you have noted, my Lord
Chairman, the Commission will be smaller than the number of Member
States and that is our commitment as part of the process of rationalisation
and greater efficiency. I think it is unavoidable, inevitable
that there will be friction and angst, but we have to manage that
in getting the detail right to ensure that Member States still
feel that they have a voice at the top table.
Chairman: Thank
you very much indeed. I am grateful to you for giving us your
views on that. I have lost one of our two Scotsmen around the
table, but, Lord Maclennan, would you care to raise this very
thorny issue over the move to QMV for energy policy.
Q35 Lord Maclennan of Rogart: Yes,
this is, in a sense, an internal domestic issue. How does the
Scottish Executive play into the ongoing discussions and particularly
on this issue of energy?
Mr Murphy: My Lord Chairman, of course you still
have two Scotsmen around the table!
Q36 Chairman: Sorry, I was referring
to those below the salt!
Mr Murphy: I see. I thought that in my two weeks
as Europe Minister I had developed a different dialect! I know
that I have developed a different vocabulary, but I had not realised
I had developed a different dialect! On the specific point, I
think the straightforward answer, my Lord, is that the Scottish
Executive, regardless of the results of elections in the recent
past, still remains very involved in our processes on this. There
is the Joint Ministerial Committee on Europe at which the Scottish
Executive is represented. It is chaired by the Foreign Secretary
and the Scottish Executive, I am advised, was represented at the
5 June meeting of that Committee which discussed the Government's
approach to the European Council and the Treaty reform. It is
important, my Lord Chairman, also to say that it really is of
great significance that we continue not only to involve the Scottish
Executive, but our colleagues in Wales and, where appropriate,
our colleagues in Northern Ireland on issues of significance to
them.
Chairman: Thank you very much indeed.
We have touched on transparency, but we have one more question
on this. Lady Thomas?
Q37 Baroness Thomas of Walliswood: From
the point of view of the citizen, one of the things which gives
the Union a bad name is the secrecy within which the Council seems
to operate. Has there been an improvement in transparency, do
you think, over the last 12 months or so?
Mr Murphy: I think Lady Thomas is correct, my
Lord Chairman, that one of the issues, if not the only issue,
that relates to this reconnection between citizens and the institutions
is transparency and the other really substantial one is the ability
to turn bold statements into real action on the ground as a kind
of backdrop to much of that. In terms of the specific point of
transparency, I think it would be wrong for me to say that this
has been resolved. The detail of the evolution of transparency
is still being worked on, but, if we are looking at what has been
achieved thus far, I think there have been improvements, but we
continue to look for improvements elsewhere. Very briefly, I will
outline what is certainly my understanding of what the June 2006
European Council agreed on this, and there are three specifics.
I think they are each in turn important individually, but as to
whether collectively they achieve the shared ambition of the reconnection
between the citizen and the European Union, I think the jury would
still be out of course. In terms of the specifics, firstly, there
is an agreement to open to the public the presentation of the
final deliberation of legislative acts to be adopted by co-decision;
secondly, the opening to the public of the first deliberations
of important new legislative proposals other than those to be
adopted by co-decision; and, thirdly, holding regular public debates
on important issues. Now, I think those are each in turn specifically
important, but there is also the decision, and I am not sure it
is widely taken up, but the decision for Council deliberations,
debates and other events, such as press conferences, to be broadcast
live through video-streaming on the website of the Council, and
from September 2006 all public debates and deliberations have
been transmitted in all languages. These are important structural
changes, but I think it would be wrong for us to say, and I do
not have the figures, how many new visitors there are to this
website as a consequence of these changes, but I think what these
changes to me reflect is an acknowledgement of the nature of the
problem and a willingness to move, and I am sure that it should
be continued, the move in that direction, but we have of course
to guarantee the right to transparency and frank, honest conversation
and, your Lordships and Lady Thomas will be aware, with the kind
of play-off in that conversation.
Chairman: I think
there has been some improvement. A cynical friend of mine suggested
that nothing was more likely to turn off the British public than
watching on television the Council at work! Anyway, in the interests
of transparency, we welcome the improvements, but it seems to
me that there is still quite a long way to go.
Q38 Lord Maclennan of Rogart: Just
on the proposals for the legislative activities, they seem rather
unclear as you spelled them out. Is it meant to permit the public
actually to audit the discussion in formal session as with the
Security Council, for example? Obviously there will be discussions
in the margins, but the alternative to that is that the versions
that come out afterwards are not always the same from different
participants and the public just see it as a wrangle. Is that
form of words that you have read out intended to allow the public
to participate fully, and the press for that matter, in the dialogue
on the legislative role?
Mr Murphy: This is not an effective enough way
to allow a two-way conversation of the process. It is certainly
my understanding thus far, and your Lordships will have your own
experiences of it, but this is an exercise in opening up the observational
processes rather than developing a two-way conversation about
the processes. Now, there are other ways in which perhaps we could
look at as to how you develop a proper conversation which leads
to a specific and approved outcome. I think ultimately, if I could
just reiterate the point in terms of observation, it is an observation
based on an ability to simply access a website and, ultimately,
for those who are interested or those who may be tempted to become
interested, notwithstanding my Lord Chairman's experience of cynical
friends, the world of increasingly available broadband technology
at home nowadays of course, I think that is a really important
or potentially important change in the way in which the debates
are carried to the public who may be interested in the debates.
I think Lord Maclennan has put his finger on a really important
point which is that this is not an effective enough way of inputting
into the process and, if your Lordships would allow me, I think
on the basis of that question I need to go away and do some more
thinking about how we could have a better and proper conversation
about Europe in a reasonable way based on facts.
Q39 Chairman: That would be welcome.
Minister, could you give us briefly your views on funding options
for Galileo and maybe in particular whether you think it would
be a good idea—I think we probably think it would—to
make sure that the Finance Ministers are involved in this discussion
as well.
Mr Murphy: My Lord Chairman, very briefly, our
view on Galileo is that, in principle, there is not always the
potential, but in terms of funding, which is now of course the
crucial point at this juncture, the UK Government is attracted
to a private-public partnership approach to funding and competitive
procurement, but it is right that this conversation is now within
the realms of the EU Finance Ministers who, it is my understanding,
discussed the project earlier this week and have agreed that they
should continue to do so as and when necessary through the process.
I think the final point is just to repeat what I said to my hon
friend in the debate in the House of Commons last week when my
hon friend said very clearly, "We are clear that the project
cannot be carried out at any price. It has to be affordable and
it has to be value for money". I apologise to your Lordships
that I do not have the Hansard reference, but of course
I can provide that, and that was my hon friend for Doncaster.
Chairman: Understood,
okay. Are there any other points that members would like to raise?
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