Examination of Witnesses (Questions 73-79)
MR ANDREW
DUFF AND
MR GUILLAUME
MCLAUGHLIN
9 OCTOBER 2007
Q73 Chairman:
Thank you very much indeed, Mr Duff, for coming to join us this
afternoon. This is on-the-record public evidence; we will be sending
you a transcript—you know the form, you have been kind enough
to appear before this Committee on a number of occasions, either
here or in Brussels, and we are grateful to you for coming to
see us here on the second day after our return from the summer
vacation, during which you have been working very hard. We are
also very grateful to Guillaume McLaughlin who is with you. If
at any time you want Mr McLaughlin to join in the conversation,
at your proposal he is obviously welcome to do so. Maybe you would
like to make an opening statement, a brief one, and in doing so
perhaps you could cover two issues: one is how you came to be
one of the EP representatives—how did the European Parliament
manage to push the door open so that you are there—and what
has been your role. We will then get into some of the more detailed
questions after that, but you are welcome to start.
Mr Duff: Lord Grenfell, your Lordships and Ladyships,
it is a great privilege and pleasure to be here this afternoon
and I can bring you greetings from Den Haag because we started
today speaking to the Tweede Kamer and the Erste Kamer, the Dutch
Parliament, on this very subject, so if you like I have had a
practice run today at the Inter-Governmental Conference (IGC)
in front of a national parliament. The three of us—Elmar
Brok, Enrique Baron Crespo and myself—see it as an essential
part of our function as representatives of the European Parliament
at the IGC that we speak frequently and frankly to national parliaments,
obviously through the formal mechanisms such as COSAC but also
in inquiries and committees of scrutiny such as this. We three
are there because in the past we have had two "observers"
in IGC, although it is not easy to determine precisely how effective
they have been. It is a sign of the growing constitutional importance
of the Parliament and a signal that our record in constitutive
developments over the last years has been creditable, that this
time the IGC accepted our request that we should have three "representatives".
That implies we are there of course to represent the settled opinion
of the Parliament on all these matters, as it were, because we
are complicit in the drafting of both the Charter of Fundamental
Rights through the first Convention, complicit in the drafting
of the 2004 Constitutional Treaty through the second Convention,
and we have a record to defend and justify. I suppose our primary
duty is to see that the advances that we made in the drafting
of the 2004 treaty are salvaged as much as possible with respect
to the powers of the Parliament, which as you know are promised
to increase substantively in the budgetary and legislative fields.
But we feel ourselves quite able to opine on almost anything else
that crops up in the course of the IGC.
Q74 Chairman: Thank you very much
indeed. Maybe we could move on then to the role of the Constitutional
Affairs Committee of the European Parliament. I am sorry that
we were not able to be present ourselves during the recess, but
could you give us some idea of how some of the national parliament
representatives present reacted; were they helpful to you?
Mr Duff: Of course, one starts from the understanding
that this IGC is not quite like previous IGCs in that its task
is to transform a complicated but fairly precise mandate to a
proper treaty form and the room for manoeuvre, both politically
and legally, for all parties is fairly limited. The Constitutional
Affairs Committee leading for the Parliament drafted in July the
opinion of the Parliament, without which the IGC could not have
started, and we are simply seeking to ensure that the terms of
that acquis are faithfully followed. National parliamentarians
who have attended—and we have had a fair selection—have
expressed a certain frustration at their comparative disadvantage
because they are not allowed to be there as observers at the IGC
themselves, so there has been a fertile exchange of opinions.
Q75 Chairman: There was a move, I
remember, at the Lisbon COSAC, led by the Bundestag, to have national
parliamentarians at least represented there. I presume that came
to nothing.
Mr Duff: The Presidency declined, as politely
as possible, that request, and it pointed out as it was bound
to do, that ministers in the IGC represent national parliaments
(one hopes).
Q76 Chairman: Yes, one hopes. Let
us go on for a moment to the technical and legal discussions.
These seem to have taken rather longer and been more complex than
had originally been envisaged. There was an October 2 to October
3 so-called deadline for them to finish that work; what was holding
it up, was it just the complexity of the text or was it a problem
of the different languages?
Mr Duff: The legal expert group has been able
to expose several technical problems in the drafting of the mandate,
and indeed has discovered some areas where the mandate was silent;
it is not a comprehensive mandate in the sense that all issues
are covered. For example, the necessity of accepting in practice
the decision in principle to suppress the third pillar requires
a whole clutch of agreements and decisions and conventions in
the area of justice and interior affairs to be transposed somehow
into first pillar disciplines and instruments. This was not spoken
of much in the mandate, but it has proved to be both a complex
and controversial issue. Of course, as we know, the greatest political
obstacle was the British proposals for its own opt-ins and opt-outs
which have proven to be extraordinarily complicated, even tortuous,
to negotiate satisfactorily. I will say more about that later.
Chairman: We will come on to that in
a little while but what you have just said about the pillars leads
us nicely to a question that I know Lord Blackwell wanted to ask
you.
Q77 Lord Blackwell: Thank you, My
Lord Chairman. Mr Duff, I have some specific points I would like
to ask about the collapse of pillars 2 and 3 but before I do that
could you just elaborate a bit on what concerns you have and the
Parliament has, if any, about the way those pillars are treated
in the new treaty?
Mr Duff: Perhaps "collapse" is not
the right word here, but the deconstruction of the third pillar
has finally been satisfactorily concluded. We understood—and
as this was in the mandate we were not seeking to overcome this
or to throw it out—that the British wanted the freedom to
opt-in and opt-out of the Schengen measures and of the classical
third pillar. Clearly, it was going to be unacceptable for everyone
else to have a situation where the UK could opt in at the start
of a negotiation, change the shape or direction of that negotiation,
that draft law, perhaps reduce its whole value, and then at the
end opt out leaving everyone else with what they considered to
be an inferior product. We had therefore to devise procedures
that manage that process without obliterating the British request
to have freedom of manoeuvre, and I think we have succeeded. Essentially
it is up to the Council, or the Commission in certain circumstances,
to decide precisely just how the UK participates in Schengen and
in Justice and Home Affairs (JHA) measures. Timetables have been
set which determine the pace of these decisions, including obliging
the British to decide promptly, at the start of a negotiation
or at the end of a first reading, if they are going to exercise
their option or not. Effectively, Britain cannot act but on the
terms that will be set by the European Union. Britain cannot claim
that a previous measure in which it had agreed to play a part
can still be in force should its partners want to change it, and
there are also possible financial penalties which could be imposed
on the UK in certain circumstances. The essence of this is to
ensure that the commonality of the common policy and that the
instruments and resources applied to support it are still sufficient
for the common law policy to be effective.
Q78 Lord Blackwell: If I could just
have a couple of follow-ups on pillar 3, the deconstruction as
you call it does involve this whole area moving into the main
EU competence of Commission legislation, and a large amount of
qualified majority voting. I guess the concerns about what you
have said for those who might have reservations about that are
firstly, as I understand the Treaty the opt-out only applies to
legislation passed or laws passed before the Treaty comes into
effect at the end of 2009, in other words the five year transition
only applies to things that are passed before the Treaty comes
into effect. The second point is the point I just mentioned, that
if at the end of five years we then give notice that we do not
want to be part of this, the penalties that can be imposed by
QMV on the UK are unspecified and therefore could be whatever
the rest of the Community decide they would like to use to induce
us not to opt-out.
Mr Duff: One ought not to think of this in the
sense that we wish to penalise the UK. Obviously we want to encourage
the UK and the Irish to opt into everything; that is the spirit
of integration. You are correct that at the end of a five-year
transition period the UK could refuse to accept the authority
of the Commission and the supervision of the Court in an existing
measure, part of the acquis as is. If that is the case,
that measure will cease to apply to the UK, so it is a self-exclusion.
We are not seeking to bar the UK from playing a part; indeed,
rather the opposite, we are trying to facilitate its association
with all aspects of common policy in justice and interior affairs.
Q79 Lord Blackwell: If I could just
have a quick follow-up on pillar 2 then, for which I might also
use the language "collapse", there is a question of
whether pillar 2 remains inter-governmental but as far as I can
see it again moves into an area where the Commission or the foreign
minister can set forward proposals and where the foreign minister
or the high commissioner has proposed things, they can then be
adopted by QMV. Do you have any concerns that that is de facto
turning foreign and security matters into an EU competence where
inter-governmental sovereignty is in fact overall?
Mr Duff: You will understand that we start from
a slightly opposite premise. We were always in favour of strengthening
the capacity of the EU to act abroad, and for that we need a genuine
common foreign and security policy, which will apply to those
issues and activities where the Member States can agree by consensus.
That includes constructive abstention which we might see, for
example, in respect of Kosovo. The British have succeeded in,
as it were, strengthening the inter-governmental character of
CFSP in this reform treaty. As you know, the name of the Solana
figure has been changed: he will be called the High Representative
as opposed to the Minister, but he will still be in the Commission
as a vice-president of the Commission, chairing the Council for
Foreign Affairs, managing the external action of the service which
is, in my view, the key to his potential success. It is in combining
the resources and foreign policy know-how of the Commission in
its classical external services, trade, development of a common
energy policy and so forth with the classical foreign ministry
functions that this new creature will perform so much more effectively
than the situation we have at present. Britain has, as you know,
insisted on gluing on to the Treaty certain other minimalistic
interpretations of the CFSP and we still wait to hear from the
Foreign Secretary precisely why he thought these minimalistic
interpretations were and are necessary. But they have been accepted,
so in so far as Britain has sought to strengthen the separateness
of CFSP from everything else, it has succeeded. As to your precise
question, the Commission can propose policy in collaboration with
the Solana figure, they cannot do it if he does not agree, so
there is a sanction there, and of course we all have to work within
the broad policy guidelines established by the European Council.
I do not think, therefore, that anyone has anything to fear from
the agreement which will be reached with respect to the CFSP.
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