Examination of Witnesses (Questions 1-19)
MR KIM
DARROCH, MS
ALISON BLACKBURNE,
MRS SALLY
LANGRISH, MR
VIJAY RANGARAJAN,
MR EDWARD
SMITH AND
MS ANN
SWAMPILLAI
19 SEPTEMBER 2007
Q1 Chairman:We
are on the record; it is as if it were a public meeting. I want
to begin by thanking you very much indeed, Ambassador, and your
colleagues, for agreeing to meet with us so that we can discuss
some of the issues relating to the Reform Treaty that are of particular
interest to our Committee. As you know, we have done an analysis
of the Treaty as we had it in the English version. Now I am very
happy that you have been able to provide us with the French version
and we would be particularly interested to see what they say about
whether or not the national parliaments contribuent is
going to be formulated in some other very elegant Gallic manner.
We do thank you very much indeed for being with us. We will, of
course, send you the transcript of this so that you can check
and see that your remarks, and those of your colleagues, have
been properly recorded. You are an old hand at appearing before
this Committee anyway, but please feel free to call upon any of
your colleagues at any point where you wish to do so. I think
I will start by asking you whether you would like to make a brief
opening statement on the issue or go straight into questions,
it is entirely your choice.
Mr Darroch: My Lord, only a very brief one.
Thank you for your presence here; it is an honour for us to have
you here. Just to say of my team, we have Vijay Rangarajan at
the end, who you met over lunch, who is our JHA Counsellor; Sally
Langrish is our Legal Counsellor; Alison Blackburne is our Political
Counsellor; Ann Swampillai, First Secretary Institutions, and
you will see from this huge pile of files here that she is our
all-round guru and expert on the Treaty. In the background, Ed
Smith is the Press Spokesman in UKREP. We are at your service.
Let us go straight to questions.
Q2 Chairman: Good. Thank you very
much indeed. I think we will start with a rather general question
and we can get into some of the more detailed issues as we go
along. Maybe you could just update us on one thing which I need
to know, which is whether you have spotted any real changes in
the French text from the English. We all know that any change
to the IGC Mandate would be viewed with great alarm by the Lisbon
Presidency, and no doubt many other people. I am not assuming
that there would be any changes in the French text other than
maybe some tidying up of language. Before we go any further, so
that we know what basis we are talking on, has anything been spotted
in there that suggests there have been any changes?
Mr Darroch: I do not think so. Just on where
the process is: the Mandate came out of the June Council and over
the summer the Council Legal Service turned that into a draft
Treaty text. There was a first reading of that text the week before
last amongst 27 legal experts from around the EU. We are now in
the course of the second reading. These are not, as it were, negotiations
of substance, the negotiations were settled at the June European
Council, this is a process of going through the text to check
if they are technically correct. A number of technical issues
have emerged and translation issues and so on. That is no surprise
because the Council Legal Service had to work extremely quickly
through the summer to turn this text into a draft Treaty. Emerging
from the first reading there were some 50 technical points left
outstanding for second reading and those are being worked through
now. I could, if you like, give you some examples of them. One
of the things we have secured, for example, is to pin down the
language about lack of European Court of Justice involvement in
Common Foreign and Security Policy where it affects it in two
very small areas: it patrols, if you like, the frontier between
the first and second pillar, and there is an issue about sanctions
against national or legal persons. It is pinned down in the text
now and otherwise CFSP is outside the jurisdiction of the ECJ.
There are some other technical mistakes that we have spotted.
We have pinned down that there is both a yellow card and an orange
card procedure for national parliaments. Those are the sorts of
things that are in there. Since you mentioned translation problems,
you may come on to this issue about whether national parliaments
"shall" contribute or not, but let me just say that
in the French text there is no mandatory sense in the French,
so "shall", we think, is not the right English translation
but I do not think we have yet discovered what the right one is.
Q3 Chairman: So it is purely declaratory.
Mr Darroch: The intention of this was never
that it should be some sort of compulsion on national parliaments
to contribute. That is one of those translation points that is
being worked through. I will just turn and see if there are any
other points I should mention in this context or whether it is
purely translation issues.
Ms Swampillai: No, I do not think so. It is
basically as the Ambassador said, that there are a number of technical
points, a number of translation issues, and there are some technical
points that both we and other Member States raised. Those were
resolved to a certain extent during first reading and now we are
going back over the points which remain open. We saw the CFSP
point as something that we were very keen to pin down, and we
have.
Q4 Chairman: So the legal experts
did, in fact, meet their deadline of 13 September? They are not
going back to this, are they, they have done their job?
Mr Darroch: They have not finished yet. The
second reading is still proceeding. I am not sure whether they
are meeting this afternoon or not. The second reading had set
a deadline of 13 September and it has overrun that. It does not
mean that it is coming apart but it has not proceeded to quite
the timetable that they had hoped. I think they still intend to
finish this week.
Q5 Chairman: Because presumably the
next deadline is 15-16 October General Affairs Council?
Mr Darroch: My Lord, that is right. The intention
is that the legal experts should finish their work and that should
be it. The text is then produced in as many language versions
as they can manage before the European Council in October and
that European Council should reach political agreement on it.
Thereafter, it goes back to Jurists Linguists to check that all
the different translations are correct and to have another look
just to see that all the language is precisely right, and then
it gets signed at the December European Council. There is, of
course, a potential if there are outstanding issues of policy
still, or problems after the lawyers have finished their work,
for either a focal points meeting, which was the senior officials
group that met before the June Council, on which I represented
us until June and on which Jon Cunliffe, my successor in Number
10, will represent us now, or, of course, there is always the
option of meetings at ministerial level if that should be needed,
but we hope none of that will be necessary.
Q6 Chairman: Before handing over
to my colleagues and coming on to some of the Government red lines,
maybe you could say a few words, if you would, Ambassador, about
the Viana do Castelo meeting that was held on 6-7 September, because
one understands that this is where the Polish Foreign Minister
was raising in particular the issues of the Charter, the idea
that they might be associated with the Protocol that we have asked
for, and also the inclusion of the Ioannina principle. Could you
tell us how that meeting went?
Mr Darroch: It was not an extensive discussion.
It certainly did not get into the detail of Treaty language or
any of the work that the lawyers are doing. The point that emerged
from it, that the Presidency made in its report afterwards, was
that they believed that they were still on course to agree a text
for the Reform Treaty for the European Council in October. You
are right that the Poles have floated two possibilities, both
there and in other contexts. They mentioned it, for example, here
in Brussels, although the group is not about that. I do not want
to go too far in interpreting what the Poles have asked for but,
as I understand it, they have raised the possibility, which was
in the Mandate, that they would join the Charter Protocol, although
they do say that it would not be exactly the Charter Protocol
that we have, that they would want some changes to the language.
This raises the question, of course, of whether they are actually
joining our Protocol or having a new Protocol which is their own,
which you could argue would be outside the Mandate. So that is
the issue there. It is also the case, I think, that as of now,
although we will see if this is a formal position when it comes
to the European Council, there is a question in their minds over
whether what is in the draft Treaty about how this Ioannina-style
mechanism operates is what they understood was agreed at the June
European Council. Whether, in the event, they raise that at the
European Council, and quite where they finish on the Charter Protocol,
it is impossible for me to say; to be honest, I do not know.
Q7 Chairman: But is the impression
amongst you and colleagues from the other Member States that the
IGC Mandate is, so to speak, inviolate, that the Presidency is
not going to accept changes? For example, if Poland wanted an
entirely different Protocol, this being outside the Mandate, they
are firm in their own minds, and others support them, that it
is just not on the cards?
Mr Darroch: I think so. It has certainly been
our position that the Mandate, for us, settles all our issues
and provided that it is accurately transposed into the Treaty
that is it, and that is certainly the view you get from other
Member States when they speak on this, so everyone is sticking
very closely to this. It is a matter not absolutely set in stone
whether if the Poles were to ask for an amended version of the
British Mandate that would be regarded by the rest of the EU as
effectively a new Protocol and, therefore, outside or not. Frankly,
I think they will cross that bridge when they come to it. I guess
it in part depends on how big a change our Polish friends would
want. What is clear is they established for themselves in the
Mandate the right to join our Protocol, so if that is what they
do they will be able to do it. As for the Ioannina stuff, I think
that is more difficult because trying to change that mechanism
would be outside the Mandate and it is very unlikely that they
would get support. Of course, in the end if you agree at the European
Council by unanimity to do anything; you can do it. So if everyone
decided that in order to get a deal X change or Y change should
happen there is nothing to stop that, but people would be very
reluctant to do it.
Q8 Chairman: So you will be as tough
on the Member States as you are likely to be on the proposals
from the European Parliament?
Mr Darroch: Yes, yes. For any change that is
not clearly signalled in the Mandate—there are one or two
areas on JHA to be settled, for example, in the Mandate which
will be settled—you could only get that agreed by unanimity.
Chairman: Thank you very much indeed.
Could I open up to my colleagues?
Q9 Lord Roper: Just on the general
process of this particular IGC, would you agree that given the
tightness of the Mandate this is really an unprecedented IGC because
the scope for negotiation within the IGC is significantly less
than in most previous IGCs?
Mr Darroch: Yes. This is a different process
from those that we have seen before, you are absolutely right.
The way this has worked with an extremely tight and detailed Mandate
being agreed, including chunks of text for Protocols and Declarations
and so on, and then essentially a technical legal process for
the European Council, in my experience, and I have done Maastricht,
Amsterdam and Nice, is unique. Sorry, can I just read this. The
latest version of the text, just to go back to the previous question,
includes Poland in our Charter Protocol but there are no changes
of substance otherwise.
Q10 Lord Roper: On that particular
point, I gather that in the report to the Constitutional Affairs
Committee of the European Parliament the three representatives
of the European Parliament raised the question that while the
UK had been able to argue for its opt-out on the basis that we
operated on a common law basis, this did not apply to Poland which
did not and, therefore, it was inappropriate for Poland to follow
on the same lines. That is clearly not a matter for us but it
is an interesting point that was raised.
Mr Darroch: From our point of view, we have
got our Charter Protocol and the Poles have the option in the
Mandate to join it and that is up to them. Without wishing to
try to limit the role of Members of the European Parliament they
do not actually have a vote around the table when it finally comes
to it, they are not part of the consensus. They would like to
be part of it, but they are not required for consensus. Of course,
their views are valued and listened to but in the end they cannot
actually stop our Polish friends getting the Protocol if the Member
States agree to it.
Q11 Chairman: Do any of my other
colleagues wish to come in on that? It would be good to get on
to some of the red lines now. Does anybody wish to take on one
of these? Well, if not, I am going to get the ball rolling on
that one, which is to ask you whether you feel that our red lines
are secure.
Mr Darroch: You would be astonished if I said
anything other than yes, I do think they are secure.
Q12 Chairman: That is what I wanted
you to say!
Mr Darroch: I can explain why. I was in Number
10 when they were established, as it were, and I was the focal
point negotiator as we took them through. I can go into detail,
but basically on the Charter we got the Protocol which in our
view nails down for the avoidance of any doubt that the Charter
creates no new rights and nor does it extend the ability of courts,
UK or European, to strike down UK law. The Declaration that we
got on foreign policy issues confirms that none of our existing
powers or authority in the foreign policy field while we are in
the United Nations is affected. We have got the opt-in on Justice
and Home Affairs issues which in particular covers areas of criminal
law and police co-operation. I know this because I negotiated
it. What was previously an emergency brake on the social security
clause has been strengthened, for example, by lowering the threshold.
The word "fundamental" in the draft has changed to the
word "important" and it is now explicit that should
an issue be referred up to the European Council and no deal be
made which satisfies the country that referred it, the proposal
then falls. In addition to those red lines we also got what we
think was a very important breakthrough, which was confirmation
that national security is the sole responsibility of Member States,
which was something that we had been pursuing through various
IGC negotiations for about 15 years.
Q13 Chairman: One of the issues that
was raised in our Committee, and also in at least one of our sub-committees,
if not two, was the question of what happens when there are foreign
workers working in the United Kingdom under UK jurisdiction who
may wish to claim rights that they have under the Charter. Where
do they stand? I do not think we have yet got to the bottom of
this.
Mr Darroch: I will give you a quick answer and
then I will turn to Sally to see if I have got the law of this
right. Our point on this is that the Charter does not create new
rights or privileges for individuals whether British or foreign,
so there is nothing that a foreign worker working in the UK could
claim under the Charter which should be able to change anything
in our domestic legislation. I think our argument would be, and
Sally will confirm, of course we have to obey all the EU legislation
which we are signed up to but there is nothing in this Charter
which would allow people to take issues to courts, European or
domestic, and change anything in our domestic law.
Mrs Langrish: I think what Mr Darroch has said
is right. If you are asking about the applicability of the Charter
to foreign workers, if a foreign worker was before our courts
then the Charter would be applied with our Protocol applicable
by our courts but, as Mr Darroch has said, that should not change
the substantive nature of the rights or principles which are being
applied.
Q14 Chairman: No, they do not change
the substantial rights or principles. The thing I am struggling
with a bit is whether there is anything in the Charter which would
appear to create a right for a worker working in our country that
would be in conflict with what our domestic law is and, therefore,
to whom would he appeal. Such as the right to strike in a small
or medium-sized enterprise or something like that, whatever it
may be.
Mrs Langrish: I think one has to draw a distinction
between civil and political rights as set out in the Charter and
principles which are to be observed by the EU legislators when
framing EU law. That is a distinction which is clearly set out
in the explanations which accompanied the Charter and which will
be promulgated along with the Charter when it is republished this
autumn. To the extent that the right to strike is a principle,
it should not create binding rights for UK workers enforceable
in the UK courts, nor for foreign workers falling within the purview
of UK law as applied in our courts.
Q15 Lord Wright of Richmond: My Lord
Chairman, can I ask a supplementary on red lines. Have we reached
a satisfactory position on the role of the European Court of Justice
vis-a"-vis foreign defence policy?
Mr Darroch: Yes. Essentially foreign defence
policy is a separate part of the Treaty, second pillar, intergovernmental,
without ECJ jurisdiction across any of it except two very carefully
defined areas, one of which was in the existing Treaty and the
other of which is new but reflecting a real need. The two areas
where there is a bit of ECJ action, as it were, is just on the
frontier between the first and second pillar business and where
individuals are named, for example, as part of sanctions or measures,
travel bans or whatever, to give those individuals some potential
recourse to a court somewhere. Apart from those two areas there
is no ECJ involvement. To the satisfaction of our lawyers the
position is protected. Is that correct?
Mrs Langrish: Correct.
Q16 Lord Wright of Richmond: My other
question, relates to opt-in and Schengen building measures. I
just wonder whether you can tell us how much discussion and controversy
there has been in the IGC on this question.
Mr Darroch: It is one of the subjects, as you
know, my Lord, that was left open in the Mandate. It is one of
the subjects that will be settled, we hope, as part of the legal
work and if it is not settled there then in whatever forum the
Presidency choose to use for it. Our expectation and intention
is that the opt-in should apply in the Schengen area as it does
in other areas of JHA, so we would have the right to opt-in to
measures case-by-case.
Q17 Lord Wright of Richmond: That
is not being seriously contested?
Mr Darroch: Without being in the room when the
lawyers sit round I cannot promise you that there is no-one around
the table who thinks we are not getting a bit too much there,
and it would be a surprise if there was not someone who thought
we were getting a bit too much, but we confidently expect this
to be part of the Treaty we sign.
Q18 Lord Roper: On the Charter I
have two questions. First of all, how is it going to appear? Is
it going to appear within the Treaty? Is it going to be a Protocol
which will therefore have legal status equivalent to the Treaty
or will it be a Declaration which will only have political interventions?
Mr Darroch: Not finally decided is the answer.
But what is clear is that it will not be, as it were, part of
the Reform Treaty. That is a change from the position of the 2004
constitutional text because it was part of that. The Mandate is
explicit that it will not be part of this Treaty. It needs, however,
to be published somewhere so that everyone can see in one place
the rights and principles which the EU is bound to respect when
legislating, so it has got to be put somewhere. It is one of the
issues which the legal group will look at. I do not know whether
they have yet reached it. One option is that it will be published
in the EC Official Journal. It is not the only option but
that is one of the options.
Q19 Lord Roper: The second question
is one which has been raised by one of our colleagues who is a
Member of the European Parliament, Baroness Ludford, who is on
the appropriate committee of the European Parliament. She is rather
worried that there will be some sort of West Lothian question
as far as future JHA material is concerned, that British MEPs,
if there is a risk that the UK is going to opt-out of what is
finally decided, will not be able to play any part within the
European Parliament in the preparation of such texts. I wonder
whether there is any precedent in terms of previous occasions
when we already have opt-outs how far MEPs from countries which
have opted-out are able to take part in deliberations either in
committee or in plenary on those matters? This may be a question
which you may need to write to us about.
Mr Darroch: It is funny you should say that!
It is a very good question and completely new to me. Just off
the cuff, the Danes are opted-out of JHA and unless it is self-denying
I do not think there is any formal mechanism which excludes them
from anything that happens in the European Parliament on JHA stuff.
Mr Rangarajan has got a better answer than I have, I think.
Mr Rangarajan: It is a question that has been
raised at times in exactly the same kind of way as the West Lothian
question. There is no mechanism for exclusion and to some extent
it works slightly opposite. In cases when we have not opted-in
at the beginning of a measure we have to work quite hard sometimes
during the course of negotiation. And you find MEPs who are very
interested in it, sometimes for their own constituents' reasons,
sometimes for the business interests that they represent as well,
and they are often extremely active. In quite a lot of the JHA
area, some of the very active MEPs are UK MEPs, even in areas
where they may happen to disagree with the Government's line,
they may come from opposition parties, and also they may just
hold very different views. Across the board, (the Danes with us
in JHA) and in other areas, such as the Schengen area and the
euro and so on, there is still significant involvement by our
MEPs across all of those issues.
Chairman: Lord Bowness, did you have
a question and then I want to move on to the orange card?
|
