Examination of Witnesses (Questions 80-95)
MR ANDREW
DUFF AND
MR GUILLAUME
MCLAUGHLIN
9 OCTOBER 2007
Q80 Chairman: Could I just ask two
quick follow-up questions on that? One is really a yes or no one,
is it clear that enhanced co-operation has now been extended to
ESDP? The second question I have is a little more elaborate, and
that is on the question of representation in international fora
by the high representative. Am I right in saying that the high
representative can only speak in those fora on the basis of what
has been agreed in the Council? When we say "agreed in the
Council" do we mean agreed by consensus or do we mean that
he would be barred from speaking if there are constructive abstentions,
in which case he would not be representing the whole of the EU?
I am not quite clear what he or she is allowed to do, taking into
account the manner in which a consensus might be reached in Council?
Mr Duff: On your first question you are correct
in thinking that the agreement on permanent structured co-operation
in defence for the militarily capable and the politically willing
core group of Member States is still in the treaty, and it is
very centrally and firmly in the British interest that it is so.
On the second issue it depends slightly on the forum that we are
speaking of as an international forum. In negotiations on international
environmental policy, for example, the Commission would seek a
very strong mandate from the Council, or on trade, where it is
very important to have a clear, strong mandate with negotiating
flexibility allowed, built-in, but there are some other matters,
especially the more geopolitical security questions—in the
Middle East for example—where the high representative will
not enjoy plenipotentiary powers, far from it; he will have to
be aware of and tolerate the sensibilities of all the Member States,
and they are very different. By constructive abstention, if we
can pick up the example I cited earlier of Kosovo, I think we
will see the majority of Member States approving Kosovo's progress
to a more independent state. Some Member States will have greater
apprehension about that, but in order to agree that the EU should
be able to assist Kosovo with technical or financial assistance,
and certainly with some element of an armed force, there will
be what I call constructive abstention because they will agree
that we have to assist the Kosovans to encourage the pacification
of the Balkans, despite residual misgivings about the pace of
development. To track the evolution of the CFSP will be one of
the most important and fascinating things that we will have to
do over the next four or five years.
Chairman: Thank you very much indeed.
I would like to move on to the Charter of Fundamental Rights.
Lady Cohen.
Q81 Baroness Cohen of Pimlico: Thank
you. Mr Duff, what is the European Parliament's view on the status
of the Charter of Fundamental Rights and what concerns does the
Parliament have about the Polish and indeed the UK protocol on
the Charter?
Mr Duff: The agreement is that the Charter will
have the same legal value as the treaties and that it will be
binding on the EU itself—by which we mean the Commission,
the Parliament and the Council—and the agencies of the EU
which include of course Member States, but in so far as they are
carrying out EU law. The Charter exclusively applies itself to
the competencies conferred on the EU and to the areas where those
competencies have had a practical effect. We are anxious that
the Charter which, as you know, is not going to be published as
part of the Treaty is published with sufficient profile, with
visibility, to be seen and appreciated. The agreement is that
it is solemnly proclaimed between the three presidents of the
Commission, Parliament and Council, before the signing of the
Treaty, which we expect to be in December, and published in the
official journal. So it can then be referred to simply in the
Treaty in Article 6. Now the opt-out: here I have, as you probably
know, great unhappiness. I cannot see that it is in the interest
of the British citizens to be deprived of the privilege of being
protected from any abuse of the EU's powers, which is the purpose
of the Charter; that is what it is for. There is a domestic discussion
that we have to have in Britain on that, but I also have a concern
that the British opt-out will contaminate the legal system for
everyone else and will subvert the value of the decision to make
the Charter binding. The principal reason for my fear is that
we sign up in the Treaty to drawing our inspiration, our sources
of fundamental rights, from the common constitutional traditions
of all Member States. But the British are saying "Oh no we
don't, we only recognise them as stemming from British law."
If the opt-out is juridically flawed is not for me to say, there
are greater lawyers than me—even in this room—but
I do think that serious questions have to be asked of the British
government about precisely what it is that they are trying to
achieve; do they appreciate the jeopardy that they are putting
everyone else in with their decision on the Charter? My third
anxiety is that there is not only legal contamination but political
spill-over, and we see that the Poles have agreed to sign up too,
incidentally for quite opposite reasons. The Polish are strongly
in favour of Title IV of the Charter which is about the social
dimension and have actually now proposed a declaration which says
as much—I think it is number 54. (There will be other declarations;
there will be a lot of them to come). The Polish concern centres
on the claims of the descendants of German refugees to get their
property back. Mr McLaughlin and I were in Warsaw on Friday and
we explained clearly to Madam Fotyga, the Foreign minister, that
the Charter did not apply easily, is not relevant to this issue
of property litigation, but for all that they have agreed on their
opt-out, because they are in the middle of an election campaign,
and this is the most appropriate thing for them to achieve. The
European Parliament has proposed that Britain accepts an "escape
clause" from the opt-out, that is to say a third clause in
the protocol, which would say that if Britain were to change its
opinion about the Charter, having seen the soundness of the jurisprudence
that will flow from the Court in this area of fundamental rights,
then the UK could unilaterally suppress its opt-out without putting
everyone through the pain of an IGC. On the other hand—and
here again I look forward to hearing from Mr Miliband precisely
why he has not accepted this proposal—the Poles are very
attracted by the idea of an "escape clause" I am sorry
for that slightly protracted answer, but it is a highly controversial
if not poignant question for us in the European Parliament.
Chairman: Lord Tomlinson may ask you
to make it even more protracted, but that is all right; go ahead.
Q82 Lord Tomlinson: My Lord Chairman,
mine is a very simple question. I read with some interest an article
on "Reform Treaty MEPs push for inclusion of Charter and
citizenship", and in that my good friend, the Spanish Socialist
Enrique Baron is quoted as saying that the Charter and citizenship
are the European Parliament's "red lines". I would like
to know a little bit more clearly what these red lines are. You
seem to be stealing the British Prime Minister's language about
having red lines; what are the red lines and how do you interpret
the final sentence of that paragraph where he says: "One
possible solution to this problem could be to leave the Charter
out of the new treaty whilst having a `solemn proclamation' of
it at a later date." It seems a very pinkie sort of line
that last one.
Mr Duff: I have not seen the article and I myself,
I hope, will refrain from falling into Blair/Brown language about
red lines. It would be a great mistake for the whole Parliament
to seek to be too obstreperous on this, but Enrique Baron Crespo
is quite correct that we were extremely concerned that the concept
of citizenship had disappeared from the Treaty on European Union.
Q83 Lord Tomlinson: Put citizenship
aside and stick with the Charter. It is the Charter part that
I am really asking about.
Mr Duff: You have asked the question and for
the record, if I might, I would like to explain just what we have
asked for and achieved with respect to defining citizenship. It
had been put in draft into Article 17b of the Treaty on the Functioning
of the Union and we have succeeded in bringing it forward to Article
8 of the Treaty on the European Union, so if we speak of the citizens,
which we do, we also will now have some understanding of just
who they are and what is entailed in the privilege of being an
EU citizen. On the Charter, your press article must have been
published some time ago because a decision has now been reached
that the Charter itself is not to appear in the treaties but will
be solemnly proclaimed, probably in Strasbourg, in a plenary session
of the Parliament in November and published. That is what Mr Baron
Crespo was speaking about. He does not like that, but I must say
that I do, I think that actually in the 2004 treaty structure—if
I may look at Lord Kerr here—the Charter was Part II, as
you know, and it was a bit sandwiched, a bit squeezed there, between
the first and the third parts. It is now to be a stand-alone proclamation
which is the way, after all, that we drafted it in the first place.
I think it improves with that special treatment that it gets.
Q84 Chairman: Good, thank you very
much. In the quarter of an hour to 20 minutes that we have left
there are three issues that we need to cover: one is the question
of the orange and yellow cards, which is of particular interest
to national parliaments, then the question of the allocation of
seats of Member States and, finally, your feelings about what
may be still the tough points for negotiation when we come to
the General Affairs Council followed by the informal council.
Could we start with the orange and yellow cards? We would be interested
to hear your views on where we stand on that, because we are not
quite sure whether there has been any discussion of the provisions
requiring the EP as part of the legislature within the Council
to take account of national parliaments' opinions on subsidiarity.
Could you expand on that?
Mr Duff: We have considered it and our tentative
conclusion is that the orange card, as it has been described—because
it was inspired (if that is the right word) by our friends in
the Low Countries—is an improvement on the subsidiarity
early warning mechanism that we had in the 2004 treaty, because
that first one stopped at the pre-legislative phase and was solely
targeted at the Commission. We all know that the Commission plays
a very important part in initiating a proposal, but then it is
sent to us, to the legislature, the Council and the Parliament.
It is quite correct that a final assessment of a complaint from
national parliaments ought to be in the hands of the legislature
as opposed to the Commission. I do not expect it will be often
used—I certainly hope it is not going to be deployed too
often. I would be awfully surprised if a measure that had so antagonised
over 50% of national parliaments was in any sense capable of survival
in the Council, but for all that it is an appropriate insurance
policy which national parliaments both need and deserve. I do
hope—and Lord Grenfell and I discuss this frequently—that
the stimulus provided by the existence of these instruments will
encourage national parliaments to take more seriously their task
of scrutinising, in an informed way, the affairs of the EU. As
a European Parliamentarian, I would greatly welcome more of an
input on policy matters from national parliaments.
Q85 Chairman: Could you give us a
word of comfort on one related issue. You will recall that during
the Council last year, it was agreed that the Commission should
respond to queries or complaints or comments from national parliaments,
not necessarily to do with subsidiarity and proportionality? We
have raised this issue a number of times in various fora, saying
we were disappointed this was not reflected in the treaty, and
the reply we got—and I accept it but I am a little bit unhappy
about it—was just trust in the good faith of the Commission
not to be delinquent when it comes to responding to complaints
and queries and comments from national parliaments that are not
to do with subsidiarity.
Mr Duff: That is quite right actually, I think
that was the appropriate answer. Frankly, I find, if I can be
completely open with you, this subsidiarity a bore. For us to
become obsessed by this federalist principle is complete nonsense.
What actually we ought to be concerned about as parliamentarians
is the quality of regulation and legislation and of policy that
flows out of Brussels and Strasbourg, and in the pursuit of improved
quality we have also got to improve our scrutiny of the implementation
of the things we do. This is not just about subsidiarity, or it
only plays one little part in that, so I am quite sanguine about
this reform and I look forward to a more proactive networking
of national parliaments across the whole policy spectrum of the
EU.
Chairman: I cannot speak on behalf of
the Committee but I can say that that is music to my ears, so
thank you very much indeed. Let us move on now; Lord Kerr.
Q86 Lord Kerr of Kinlochard: Mr Duff,
the Parliament is given the task of proposing the reallocation
of seats in the Parliament that will be elected in 2009, and my
understanding is that the Constitutional Affairs Committee of
the Parliament has come up with a report, with its proposal, which
presumably the Parliament will be looking at now. Can you describe
that proposal and its prospects in the Parliament, and what will
be the effect on UK representation? Can you also tell us whether
this is the definitive answer or whether for the Parliament that
is elected in 2014 there will be something more?
Mr Duff: We are in the throes of the debate
about the recomposition of the Parliament after 2009. As you know,
if the treaty comes into force then the size of the Parliament
can be increased to 750 members. Germany, the largest country,
will have to have 96 and Malta, the smallest, will have to go
up from five to six. Between those two parameters we have set
ourselves the principle of defining, in practice, the principle
of degressive proportionality, which implies that the more populous
States have more members than the less populous States, but that
the MEPs from those more populous States should represent more
people than the MEPs from the less populous States. Messrs Lamassoure
and Severin are the co-rapporteurs in this, and we have agreed
in the Constitutional Affairs Committee by an impressive majority,
17 votes to 5 or 6 or 7, something like that, to support the proposal.For
the United Kingdom we increase the representation for the 2009
Parliament from 72 to 73. You asked if this is the definitive
all-time formula; no, it is not. Apart from anything else the
Italians have raised the issue of just how do we define a citizen.
As we know, there is a Diaspora of Italians from Chicago to Buenos
Aires and, apparently, a lot of these people have Italian passports
and if you take all of them into account then Italy shoots up
the league and so forth. The Italians, bless them, have opened
up a can of worms on this and there is to be a further report
that will emerge in the spring of next year which will have a
look at the primary law, the 1976 Act which brought in direct
elections to the European Parliament, to see if we cannot tease
out some of these more tricky issues. I am afraid to say that
the rapporteur of that report is myself, so I will not be able
to escape this, so perhaps we could schedule a further discussion
about these matters sometime in the spring?
Q87 Baroness Symons of Vernham Dean:
Having, as a minister, had to argue on this appallingly difficult
issue in terms of Parliamentary acceptability in this country,
in my experience it was not so much the actual numbers that people
in here cared about, it was how it compared to everybody else
and whether we were getting our fair slice. It may be a base argument,
but actually that is the way that national parliaments tend to
think about this. Mr Duff, may I ask you the all-important question:
how do we compare to the French under this formula that you have
just articulated to us?
Mr Duff: I am certain that I do not detect in
Lady Symons' question any Francophobia!
Q88 Baroness Symons of Vernham Dean:
Of course not, it is a perfectly straightforward question!
Mr Duff: France has been doing excellently with
its population and, incidentally, an awful lot of them are not
exactly firstborn French, a lot of them are English and Germans:
France will get the two. France goes from 72 to 74, Britain goes
from 72 to 73, and the Italians stay on 72. That is quite correct,
you have pointed the torch at the really sensitive issue. I am
afraid it is also true that some ministers do not care how many
MEPs they have—in fact I have spoken to several who would
prefer to have a reduction in the number of their MEPs, who are
perceived as troublemakers inside the political regime at home!
It is not as straightforward as it looks, therefore. But to be
serious for a second I think that we are going to achieve an agreement
on this in the plenary session on Thursday, and we have to, because
if we do not then the IGC will have to determine this on our behalf
and it will be like the casino at Estoril with the chips being
handed out across the table at the IGC, which would be unseemly,
even squalid and certainly not in the interests of the institution
which I represent.
Q89 Lord Tomlinson: I was just reflecting,
My Lord Chairman, on that last answer—I had not realised
you were taking me to an unseemly gaming house for the meeting
of COSAC in Estoril! Just to wrap it up, Mr Duff, perhaps you
might reflect a little bit on some of the broad political issues
that might complicate the final negotiations. Obviously there
is the Polish election, what sort of effect will that have, will
the timetables stick, is there any Member State or any other Member
State besides Poland which is likely to have difficulty in meeting
the timetables?
Mr Duff: That is an excellent question and first,
if I could just say, the European Parliament still has one or
two outstanding issues which it will want to address, especially,
and I would like to bring these to your Lordships' attention.
Article 24 of the Treaty on European Union concerns the protection
of personal data in the field of security where the proposal is
that the Council, acting exclusively, by itself, on its own, without
scrutiny either from yourselves in national parliaments or the
consent of the European Parliament, should set the rules for the
transfer and passage of this personal data. It also would exclude
the Court from having any supervisory function in this area, and
we feel that this is contrary to the spirit of the 2004 constitutional
settlement. We would like the support of all Member States in
correcting what we think is an anomaly here. The Polish situation
of course is troublesome, to put it mildly. They are still demanding
that the "Ioannina clause", which is to be subject to
a decision of the Council, having the status of secondary law,
should be upgraded and brought into the treaty itself to have
the status of primary law. This is highly controversial and you
will expect the majority of Member States and the Commission and
the Parliament to object to such a change to the decision-making
procedures. Just how that Polish request and the earlier issue
that I talked about, the property rights issue, will play at the
IGC is almost anyone's guess. I hope and the Poles hope that these
are not going to be insuperable obstacles to achieving a political
accord. It is in the interests of the Parliament that the quality
of that accord is first class, or is as first class as we can
make these things. Expect the negotiations to go on until the
early hours of Saturday morning, Lord Tomlinson; I will phone
you then.
Lord Tomlinson: If it is in the early
hours do not bother!
Q90 Chairman: As a matter of interest
could the Ioannina problem be solved by a political declaration?
Mr Duff: In its present draft it is a political
declaration which establishes the decision—it instructs
the Council to take this decision.
Q91 Chairman: I see, so it is already
one, it is just a question of keeping it there.
Mr Duff: Historically it is a descendant of
the old Luxembourg compromise, which was a gentleman's agreement,
so it would be quite incorrect to put it into the primary law.
Q92 Baroness Thomas of Walliswood:
Did I hear you say that the Court would not have any jurisdiction
on this exchange of personal data?
Mr Duff: Yes.
Q93 Baroness Thomas of Walliswood:
That does strike me as being quite dangerous.
Mr Duff: Yes. I am sorry to say that the United
Kingdom has sought especially to exclude the Court from playing
a function in the area of foreign security policy.
Q94 Chairman: Thank you. We are just
about out of time, just a little over. I hope you will not think
this is a frivolous final question, but I would very much like
to get your view on this. Val«ery Giscard D'Estaing said
when he read the text of the reformed Treaty that 90% of what
he found in it came from the original IGC accord plus the Laeken
declaration. Others have slightly tweaked that statement and said
that 90% of the Constitutional Treaty is in the new one. They
cannot both be right because there is a significant difference
between the two. Could you give us an authoritative statement
on where the mathematical truth lies in this?
Mr Duff: With great respect I will decline to
try out a percentage; I do not work like that. I am far more interested
in the contrast between the Reform Treaty we are going to get,
we hope, and the present situation, which is not working well,
and there is huge progress there for all concerned. Clearly, structurally,
the two treaties are entirely different; substantively they are
also very different in some respects. In some respects what we
have now will be an improvement on what we had in 2004, the bringing
in of combating climate change to the environmental policy, for
example: the establishment of a proper common energy policy on
the supply side as well as the demand side; the strengthening
of the excessive deficit procedure. All these things I think are
pluses, are improvements, on what we had before. Of course, for
the United Kingdom with its opt-outs and opt-ins and exemptions
and derogations, the two experiences are going to be very different
and so there is a special argument to be had here, if one is interested
in compare and contrast, the comparisons and contrasts would be
greater for the UK than they are for the rest of the EU. That,
I am afraid, is not a thing that I welcome, but I do know there
are other people here at Westminster who do not quite have that
view.
Q95 Chairman: Thank you very much
indeed, Mr Duff, and also Guillaume McLaughlin, for being with
us this afternoon. This has been extremely helpful for us in producing
the next in our series of reports on the treaty, and we thank
you for your time. We will send you the transcript and we wish
you well in what remains of the work to be done on the treaty.
Thank you very much.
Mr Duff: We are extremely grateful for the invitation,
thank you very much indeed.
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