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That is Article 1(18), which seems to add substance to the initial article mentioned, Article 2(198).

Baroness Ashton of Upholland: I am very grateful to my noble friend. As far as we and our lawyers are concerned, it is very clear. I cannot speak for the Dutch Government and their interpretation.

Lord Waddington: I do not have the page before me, but in the EU Committee report, which we debated at the same time as Second Reading, there was a reference to a Commission official saying that double-hatting was not an issue at present, but that it might well become a live issue in the near future. I seem to remember that that was said in the report.

Baroness Ashton of Upholland: I will have to check whether an official said that. I am going, first, on the conclusions of the committee, regardless of what evidence was put before it—and there was much and varied evidence; secondly, on what is in the treaty and the consolidated text which tells me what it would look like if this is ratified; and, thirdly, on how the legal interpretation will be taken forward. I am keen to make progress, if I may.

Lord Williamson of Horton: I say on the basis of a lot of experience that you do not have to believe every word that a Commission official says.

Baroness Ashton of Upholland: I could not possibly comment.

Lord Blackwell: According to the passage that the Minister read out, the high commissioner for foreign affairs is, as I understand it, a member of the Commission, but is also double-hatting as the high representative. How is that different from the president of the Commission also being the president of the Council? Why does it work for one but not for the other?

Baroness Ashton of Upholland: It does not really work for one. The proposal is that we have a high representative who becomes the vice-president of the Commission with very specific functions. That is a defined role within the treaty which is vested in one person. I was being asked whether one could then take the other roles and combine them into one person and one role. The answer which is given in the treaty is that—for good reasons, with which I am sure the Committee would agree—a member of the Commission cannot take on both roles. It is not possible. Noble Lords were specifically concerned that we would end up with an amalgam of these positions. Noble Lords quite reasonably fear that it would be a very powerful figure who would do a huge variety of things. It would probably be an impossible job in any event, but it is not possible under the treaty.

Lord Anderson of Swansea: Any future double-hatting would require a specific amendment to the treaty that is agreed by all national Governments.

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Baroness Ashton of Upholland: Precisely.

Baroness Ludford: As I am, as the Minister pointed out, an MEP, I should have declared an interest. One safeguard against double-hatting is the right of the European Parliament to elect the president of the Commission. I can never see the European Parliament agreeing to double-hatting.

Lord Lea of Crondall: Perhaps I may make a suggestion. It seems to me that there are so many different types of double-hatting. It has been obvious on the Foreign Affairs, Defence and Development Policy Sub-Committee that many jobs around the world require some double-hatting. As there are special cases such as Kosovo, Macedonia and so on, we need double-hatting. The president of the Commission and the president of the Council of Ministers could be described as double-hatting in the same sense as other kinds of double-hatting. Perhaps we need a note about the different types of double-hatting, because we are talking about all sorts of things at once and it is not helpful.

Baroness Ashton of Upholland: I think I am grateful to my noble friend. The issue he raises is absolutely right. In a sense, we are discussing a concept which means different things to different people. The principle behind the concerns on this issue is the amalgamation in one person of all of these different responsibilities. I hope that I have at least in part laid this to rest, by reference to the treaty. I hope noble Lords will take the chance to look at that.

Lord Owen: On page 58 of its third report of Session 2007-08, on foreign policy aspects of the Lisbon treaty, the House of Commons Foreign Affairs Committee states that,

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Baroness Ashton of Upholland: Indeed, and that rather goes back to what is in this as well, which is why I went back to the treaty and the consolidated text. The wording in the treaty on the functioning of the European Union is what I read out and was supplemented by my noble friend Lord Anderson. The wording of the treaty is in fact what we can go back to. I fear that there has been a lot of discussion about something that can be proven by simply going back to the treaty, which is explicit. Nothing I have read has moved me from that opinion, but if noble Lords can prove differently, that could change.

I shall move to the issues that have been raised in the amendment and perhaps put a little flesh on the bones or, in my new description, colour-in a bit some of the questions raised about the responsibilities of the roles. Amendment No. 4 focuses on the powers and duties of the President of the European Council and the post of the high representative, which are clearly set out in the Lisbon treaty. I shall go through quickly what it says about the role of the full-time President of the European Council, as the noble

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Lord, Lord Waddington, reasonably wants to know what the job is. The treaty states:

At that level and capacity the president shall,


That is the job description.

I accept that the detail on what the person will do on a daily basis is not in the treaty, nor would we expect it to be, but it gives us part of the colouring-in on what the role is meant to be. Noble Lords may not agree with the role but as my noble friend said, while the rotating presidency might be beneficial in many ways, it creates issues of continuity in some of the extremely high-level negotiations that take place. We shall talk in more detail later about the role of the president. In discussions with the European Union, President Putin of Russia has met 16 different presidents of the Council because of the changeover, many of whom will have had different priorities because of their status. They are running their own countries as well, so when President Sarkozy becomes president of the Council he will also be running France. That is an arduous additional responsibility for many, and I am delighted that the European Union has decided to move to a much more sensible way of taking the matter forward while ensuring that it is done properly, the person is appointed correctly and that it is for two and a half years, plus two and a half, making a maximum of five years.

Within the text we also have the high representative’s role concerning the EU’s common foreign and security policy, contributed to by proposals to that policy, but he will carry it out as mandated by the Council. The same applies to common security and defence, and he will preside over the foreign affairs council. Article 94E of the treaty sets out the high representative’s role as one of the Commission’s vice-presidents and his responsibility for aspects of external relations and for co-ordinating some of the external action. This is meant to be a consolidation and a bringing together of the different aspects of how the European Union operates externally. I am sure that noble Lords will see that that is of huge potential benefit.

Amendment No. 164 specifically looks for clarification on questions around the full-time president’s role. Methods of election and terms of office are clear from the Lisbon treaty, which states:

It is explicit that the president of the European Council,

There is no provision regulating previous occupations of candidates but they certainly could not take up that

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role and currently hold a national office. It is equally clear that the roles of the President of the European Council and high representative cannot be duplicated. It is clear in the text that the President of the European Council should,

Noble Lords have rightly indicated that the high representative brings together the current high representative introduced in Amsterdam and the Commission For External Relations. As I said, it is an important move. The Foreign Affairs Committee in another place concluded that,

Those words “enact agreed foreign policy” are very important in the context of the position—executive or administrative. The high representative is not in that context a policy-maker appearing on the stage as it were to represent the 27 nations. It would be an agreed mandate.

The Select Committee on the European Union report on the impact of the treaty similarly concluded that the creation of a high representative for foreign affairs and security policy by the president of the Commission represents an important institutional innovation of the Lisbon treaty, which could have significant impacts on the way in which the EU formulates and implements external policy. In the light of evidence the post could bring additional coherence and effectiveness to the EU’s external action. The questions relating to the powers and duties of the president and high representative are clearly answered in the treaty and I do not accept the argument that the amendment puts forward.

Amendment No. 155 requests that we lay a report on how the provisions on the high representative and external action service differ from those in the treaty establishing a constitution for Europe. It is not necessary. The Lisbon treaty does not change the mandate for the high representative, including the provision that he be supported by the European external action service drawn from existing foreign policy services of the Council secretariat, the Commission and member state secondees.

The Government supported these reforms as sensible improvements to the structures for implementation and we continue to support them in the Lisbon treaty. We secured the deletion of what we regarded as a misleading title: Union Minister for Foreign Affairs. The new title makes it absolutely clear that the high representative will represent the agreed views of member states. He will not in any sense be a Foreign Minister.

Lord Stoddart of Swindon: Will the Minster clarify the position of the high representative in relation to agreed foreign policy matters that may involve the United Nations? Would the high representatives be able to speak at the UN or would that policy be put by one of the permanent representatives to the UN Security Council?

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Baroness Ashton of Upholland: It will not affect the relationship with the Security Council. As happens now with Mr Solana there are occasions when the EU speaks at the UN. In so doing the high representative could speak only on agreed European Union policy. He could not speak in any other context. He cannot make policy or determine changes in policy. He can speak only when there is an agreed policy. If there is not an agreed policy on which all member states, including the UK are agreed, the high representative could not speak on that policy. It would be for the UN to determine if it wished him to do so. I hope that that is clear.

Obviously the posts have yet to be filled. We have yet to ratify the treaty so there are issues about its implementation. Some preparatory technical discussions have taken place under the Slovenian presidency, which is normal practice in any legislation that I have been involved in. You make the preparations but that should be done only on the basis of not pre-empting decisions that would be reached. When there have been technical issues or developments, details that we have had available have been given to the Select Committees, as we would be expected to do.

I think the real issue behind all this is how we make sure we are kept in touch with what happens next, not in terms of negotiations on a treaty but on implementation, particularly around these rules. My honourable friend Jim Murphy, the Minister for Europe, has today written to the noble Lord, Lord Grenfell. I shall not read out the whole letter—it is hot off the press, and I hope the noble Lord has actually got it—but I will quote from it and will make sure that noble Lords get a copy of it and that a copy is put in Library:

I shall pass on the full text, which goes into some detail about the kinds of things that are being discussed, and I hope noble Lords will find it of benefit.

As I have indicated, some preparatory work has been carried out by the Council legal service. When I met Jean-Claude Piris, the head of the legal service of the Council, in Brussels, he was clear that it was simply to allow the Lisbon treaty changes to be given effect smoothly and that nothing would be done that would pre-empt ratification.

We will have a chance to debate the issues concerned with the role and function of the external action service later because there are amendments that will enable us to do that.

Lord Dykes: As the noble Baroness the Leader of the House was enunciating those propositions about the terms and conditions of employment, in a way, of the high representative and the Commission president,

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I was reflecting on them in the overall context of all the member states and the process of ratification. I believe that eight countries have now ratified the treaty and a bunch of nine countries is to come soon. Then there is, presumably, the Irish referendum and the ratifications in the summer and the autumn, finishing with Sweden in November. It is a long process, and it would be quite improper for any specific terms or conditions to be laid down by anybody, whoever it might be, even the Commission or the Council Ministers, in terms of draft conditions on any of those matters until full ratification has occurred.

Baroness Ashton of Upholland: The noble Lord is absolutely correct; it would indeed be improper, and we have made that clear. From discussing the issues with some Council officials working on this and with the Commission in Brussels, I can say that there was no suggestion of doing anything like that. On the other hand, as the noble Lord would accept, with a possibility of ratification towards the end of the year and the treaty potentially coming into force at the beginning of next year, there is lots more to do. We will not bring it all in at once, but none the less it is important to work out how the process would take place. We have endeavoured to keep in touch with the Select Committees here on the technical issues, and we will make sure that we continue to do that. As the letter of my honourable friend Jim Murphy indicated, we will make sure that we keep people in touch with that. It does not preclude debates in your Lordships’ House or another place on specific issues concerned with it.

Lord Roper:It might help the Committee to know that Sub-Committee C of the European Union Committee is going to be holding a short inquiry on the implementation of the sections of the treaty dealing with external action and hopes to be able to bring a report to the House if not before the summer then in time for us to debate it when we come back in the autumn, which is probably when the decisions will be becoming ripe in Brussels.

Baroness Ashton of Upholland: I am grateful to the noble Lord. I am sure that that will be replicated in other sub-committees of the Select Committee and in another place.

I shall finish by going a bit further on some of the issues relating to the external action service. The technical discussions relate to the implementation of the provisions in the Lisbon treaty. Article 13a states:

The detailed composition of that service will be agreed by the member states by unanimity following the entry into force of the treaty. At Lisbon, member states agreed a declaration that preparatory work

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should begin as soon as the treaty is signed for the reasons that I have given, but I have already indicated that no big decisions are to be taken.

It is not a new bureaucracy. It will be drawn together from the Council secretariat, Commission services and member states’ representatives structured through secondments. As the Select Committee noted, the creation of an external action service is an important institutional innovation of the Lisbon treaty. The service is intended to provide the high representative and the EU with analysis and support as well as to improve the consistency of the EU’s representation in third countries and at international organisations. There will be no detailed discussion on the composition and function and no decision to launch until the treaty is in force and the decision is taken by unanimity. There will be discussions over the next two months. The presidency envisages further discussions, including about the scope of the general affairs council and the foreign affairs council, the list of council configurations and the role of the internal security committee. As I have indicated, we intend to keep Parliament updated on those issues.

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