Examination of Witnesses (Questions 20-32)
MR KIM
DARROCH, MS
ALISON BLACKBURNE,
MRS SALLY
LANGRISH, MR
VIJAY RANGARAJAN,
MR EDWARD
SMITH AND
MS ANN
SWAMPILLAI
19 SEPTEMBER 2007
Q20 Lord Bowness: It was really a
general question arising out of the point about the Declarations
having any legal force. There are a number of things which it
could be said by the Government are positions safeguarded by Declarations.
Mr Darroch: Yes.
Q21 Lord Bowness: How does one answer
critics who say a Declaration has no legal force, that it is always
going to be subject to challenge? Why are these things which are
so important in red line terms not in either the Treaty or the
Protocol?
Mr Darroch: Let me give you my own layman's
explanation of this. Let me use the example of the Declaration
on foreign policy issues which asserts that none of our foreign
policy powers or positions are going to be eroded by this Treaty.
If you look at the Declaration, this is a series of things that
are not going to happen: it is not going to affect our UN seat;
it is not going to affect the role of our Foreign Minister, and
so on. When you draft a Treaty what you put into it is stuff that
is going to happen. It is legally binding commitments to certain
forms of action or structures or whatever. I am told by lawyers
that it is simply not appropriate for a Treaty to put a load of
stuff in about what is not going to happen because it is not what
a Treaty is, it is not what Treaty language is. The fact that
the Declaration is, therefore, political and not a legally binding
part of the Treaty is I am told authoritatively, and I believe
this, because it is a political judgment reflecting the views
of all 27 Member States and institutions, that still makes it
as effective as it needs to be because if ever things are going
in a direction different from that Declaration we can go to everyone
and say, "Look, we all signed up to this in 2007, this is
the way it is and it is going to go no further". This is
helped in the area of foreign policy by the fact that this is
done by unanimity anyway. That is my answer.
Q22 Lord Bowness: My Lord Chairman,
if I could just go back. Lord Wright has already mentioned the
fact that people are concerned that the European Court might get
into it, and that is a question of interpretation, not the Member
States. Governments can change and, in a sense, on the argument
about not having a negative in the Treaty, we are having a negative
effectively in the Treaty because the Protocol and the Charter
is a negative, is it not, because they are saying, "This
will not apply, that will not apply to the United Kingdom"?
I am not trying to make a cheap political point, it is just that
these are the questions that we are subjected to on a daily basis
in the press.
Mr Darroch: The Protocol is intended to nail
down for the avoidance of doubt exactly what the Charter is and
why it does not extend or allow things to be challenged in the
courts. It is not quite the same as the Declaration which says
that nothing for the UK in terms of its foreign policy powers
will change. As for governments changing and views changing, and
of course governments do change and there may be governments in
the future which would rather that Declaration had not existed,
nevertheless everyone would have signed up to it and we would
hold people to it. We regard it as sufficient and as politically
binding on our partners even if it is not a legal text.
Q23 Chairman: Thank you. We have
got about 12 minutes left and I do want to draw out the Ambassador
on the orange card procedure. You have already explained to me
that both the orange and the yellow one do exist. We would like
to know a little bit more about the practicality of the new procedure.
Maybe you could include in your response answers to two questions.
The first question is, are we in fact giving formal power to the
European Parliament to act on behalf of national parliaments?
This seems to be quite a constitutional innovation if that is
the case. The second question I would be very grateful if you
would answer is why is all this restricted just to Commission
initiatives and not available for the purposes of other institutions
of the Union?
Mr Darroch: On your first question, as a starting
point we thought this was a good innovation in this Treaty and
we thought it was an advance to give national parliaments the
right to challenge Commission proposals on subsidiarity grounds.
We think that better recognition of the implementation of the
principle of subsidiarity will be of benefit to the EU. We do
not think that the text empowers either the EP or the Council
to act on behalf of national parliaments. What will happen is
that the legislative institutions will consider national parliament
views before deciding whether to agree or reject proposed legislation.
We think that is a step forward but it does not, as it were, empower
the EP to act on behalf on national parliaments. Why is it restricted
to Commission initiatives? It is about legislation and the vast
bulk of legislative proposals that come forward come from the
Commission, so that is what it is designed to do.
Chairman: Okay. I think that is clear
enough.
Q24 Lord Roper: But in CFSP the documents
come out of Council working parties and, therefore, they do not
come from the Commission and there is no opportunity for a parliament
to challenge a decision or a proposal for a joint action on the
grounds of proportionality or subsidiarity.
Mr Darroch: We have always kept, and are keen
to keep and succeed in keeping, the EP out of CFSP.
Q25Lord Roper: I understand.
Mr Darroch: But there are surely national parliamentary
procedures for you to cross-examine or summon ministers or to
scrutinise things we are doing in foreign policy as part of CFSP
mechanisms. I am not a great expert on parliamentary procedure
but surely that is the case.
Lord Roper: There are, in fact, greater
opportunities. If, for example, the UK Government is considering
using military force within a joint action then that, of course,
can be scrutinised and opinion can be given by either House of
Parliament in a way which is not already de jure the fact
as far as national action.
Chairman: Anybody else on the orange
card?
Q26 Baroness Thomas of Walliswood:
Did I gather from you that this idea that the European Parliament
could act on behalf of national parliaments is not, in fact, a
correct description of what the Treaty actually says because that
does seem to me to be a very peculiar idea? We are used to acting
on our own behalf, not having somebody else acting on our behalf.
Mr Darroch: You take a view on a proposal and
the legislating bodies, which are initially the Council and then
the European Parliament in the normal sequence of events, have
to take account of your view. We would not say that was then acting
on your behalf, that is them responding to what you as a national
parliament collectively think.
Q27 Baroness Thomas of Walliswood:
There is no additional role for the European Parliament presenting,
as it were, the views which individual parliaments have put down?
That is the point I am getting at.
Mr Darroch: It is not an additional role for
them, it is an additional source of influence, and a very powerful
source of influence, which they should take account of in reaching
their view. There are lots of sources, what the Council thinks,
the original Commission proposal, what the various stakeholders
think, but now there is the national parliament collective view
as well.
Q28 Chairman: We have got about five
minutes left. There are just two or three other issues we would
like to raise with you, if we may. One is the question that Member
States are pressing for a reduction in the role of the European
external relations services fearing that the Council might dominate
the Commission services.
Mr Darroch: It would be a very good thing if
they did! I am sorry, I must not be flippant about this.
Q29 Chairman: No, that is a fair
view.
Mr Darroch: As was explained elsewhere earlier,
there has not been any collective formal discussion of the External
Action Service and, consequently, it is not clear to us where
Member States are coming from on this. I suspect that most of
them really have not put together a view on it. All the details
of how the EAS is formed and how the two bits of Council Secretariat
and the Commission external services fit together are all for
discussion and decision once we get past this Treaty. Our view
is that the advantage of a High Representative representing both
the Council and the Commission and this External Action Service
is that it does increase the Council's role. It gives us more
influence over how the Commission spends its external affairs
budget, it gives us the opportunity to put diplomats from Member
States into these joint missions overseas and it enhances the
role of the Council overall, so we see this as a good thing without
wanting to caricature it as a Council takeover.
Chairman: Thank you very much. I am sure
that Elmar Brok will read this evidence with interest! We do want
to raise the issue of the passerelles, if we may.
Q30 Lord Roper: One of the things
that is in the Treaty, and there was initially a certain amount
of confusion about it, is that for the first time as well as the
passerelle, any movement to Community methods of decision-making
having to be taken by unanimity by Member States, certainly there
is some evidence of an opportunity for national parliaments also
to intervene at some stage. The slightly obscure point on which
there has been a certain amount of lack of clarity is as to whether
this merely applies to certain issues of family law, for which
it is made explicit about the change, or whether this is a general
power of national parliaments also to have an opportunity retrospectively
to raise issues if there is a problem about the use of the passerelle.
Mr Darroch: I have to be honest and say I do
not know the answer to that question. I know that there have been
some governments that either intend or have promised that when
the Treaty comes into force as governments they will not sanction
the use of the passerelle without consulting Parliament. I believe
if you look back to the 2004 Constitutional Treaty parliamentary
process, that also occurred in the British parliamentary debate.
I do not know about anything in the Treaty but I look to Sally.
Q31 Lord Roper: Just on that point,
the last time round it was only open to one chamber of the British
Parliament and obviously that is a matter which does concern us.
Mr Darroch: Yes. Can I ask Sally just to add
to that.
Mrs Langrish: Just to confirm, the provisions
that we would have in this Treaty on the passerelles are identical
to those which were in the Constitutional Treaty. You will notice
that the two passerelles provide for slightly different involvement
of national parliaments in that one allows for the national parliaments
to communicate a negative view within six months, while the other
subjects the decision to national constitutional requirements,
which in our case normally means a positive approval by Parliament.
The modalities of that and how it works will obviously have to
be worked out in the way that we implement this Treaty once it
is signed. You are right, in the context of the Constitutional
Treaty that in the Bill that was put forward there were different
arrangements for the way that the two would have been implemented
in our national law.
Q32 Chairman: We are looking forward
to hearing from the Government about whether or not we have got
our red card in the Lords! I think that is as far as we can go,
thank you. Once again, may I thank you and your colleagues very
warmly indeed for answering our questions so fully and so frankly,
and in such a friendly manner. I sound like I am giving a communique
after a summit meeting! It has been a pleasure to be with you.
We wish you well in your post here. It is going to be very exciting
times you will be living through. We thank you and all of your
colleagues again. We will be sending you the transcript.
Mr Darroch: Thank you very much. It is a great
pleasure and honour to have you here. What you are doing is extremely
important and we hope that you will come back regularly. We will
always be available to give you every help.
Chairman: That is very kind of you, thank
you. We will take you up on that, I am sure.
| 
