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I am conscious that I come as rather a novice to these well-trodden paths. I am not entirely convinced that I shall be successful in changing the minds of many noble Lords who have spoken today. The passion

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and determination with which they spoke suggests to me that minds have arrived made up, rather than necessarily to be altered by what I shall say. But I hope to bring some clarification to those noble Lords for whom this is not their natural subject and offer some thoughts that noble Lords can deliberate on before we reach the next stage of our discussions.

I should be clear at the beginning that it was with great wisdom that the Government in 1992 agreed to establish the common foreign and security policy. Without it we would not have had EU crisis management missions in Bosnia and Afghanistan or EU sanctions against Iran, which went beyond the position of the UN Security Council. I want to be absolutely clear that when we and other member states agree on a course of action at European Union level, it increases our influence, which is incredibly important in an increasingly interconnected world. The noble Lord, Lord Ashdown, talked about the future and other noble Lords referred to it as well. This is a changing world; it is not the world of 20, 30 or 40 years ago. Through all the developments that we see and the way in which the world is on the move, whether because of starvation, climate change or conflict, we are increasingly interconnected and increasingly have to think of ways in which as nation states we operate together. When we do not agree on a course of action, however, we shall continue to act independently, as this country has always done—and as it has always done under previous treaties, so it will continue.

The motivation behind the treaty of Lisbon in putting forward these reforms is that member states want to improve the delivery of shared foreign policy objectives. What they are considering is based on the experiences that we have gained in collaboration over the years. I believe that the move in this treaty is to build on that shared experience and take us forward—as I have already said, when we agree.

Noble Lords referred to the beginnings of all this in the Maastricht treaty. However, long before the Maastricht treaty, when the intergovernmental pillar of foreign policy co-operation was established, policy and funding instruments under the European Community were important to the delivery of our foreign policy goals. Trade policy, development and enlargement are all examples of what one might describe as traditional Community activity, ultimately decided by the member states but largely delivered by the Commission, which can have a profound and important impact on how we deliver our foreign policy objectives.

I question whether what one might describe as classic foreign policy tools could have helped the countries of central and eastern Europe towards a stable, democratic and increasingly wealthy and economically open status. The reform was driven by the prospect of eventual EU membership. A process delivered by the Commission was central to achieving that key objective of British foreign policy. When I spent time in Romania and Bulgaria before accession, discussing with the Justice and Home Affairs team in both countries ways in which we could support them to deal with issues with their courts, anti-corruption measures and collaboration on many issues, they were very focused on the opportunity

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that being part of the European Union would afford them for their future development, trade and economic and social well-being.

We also see environmental policy in global terms, with market-based carbon trading, which is a Community competence and an important element in tackling climate change. The consequences of not tackling it have been discussed in your Lordships’ House during the passage of the Climate Change Bill and in many other debates. As we look at states emerging from conflict all over the world, we use both our own foreign and security policy instruments, delivered by member states and the Council, whether that is for policing or peace-keeping, combined with the longer-term tools—development agreements that could be delivered by the Commission. If we are going to help to bring long-term peace, stability and prosperity, whether in Afghanistan, the Middle East or Aceh, we have to ensure that these efforts reinforce themselves in the most effective and efficient way.

Improving the delivery of our foreign policy objectives through the European Union is a long-standing UK aim, to which all member states agreed at the Hampton Court summit during our presidency in 2005. I submit that it makes sense to bring these two ways of delivering external policy objectives closer together while respecting the fundamentally distinct intergovernmental nature of the common foreign and security policy. That is what the treaty does. CFSP remains intergovernmental and non-legislative. The decision making is by unanimity. European Court of Justice jurisdiction is excluded with two narrow exceptions. That is a clear and fundamental objective of what the treaty seeks to do.

Perhaps I may give a couple of examples of where that greater coherence could make a difference. If one thinks of what is happening in the Middle East peace process, Javier Solana, the high representative, is engaged in political dialogue with the parties in pursuit of the EU common, foreign and security policy objectives set by member states. Two European security and defence policy missions are decided by the member states. The first looks at the border crossings in Gaza which are currently suspended; the second looks at Palestinian security reform and police training.

At the same time the Commission under the EC treaty is engaged in activity to promote Palestinian economic development and institution building and provide funding to the Palestinian authority; and, of course, Mr Solana and the External Relations Commissioner, Benita Ferrero-Waldner, both represent the EU in the quartet. The treaty will bring together these activities in a more coherent and effective manner. The high representative, in pursuit of the political priorities agreed by the member states in the European Council and the relevant Council of Ministers, is able to do that under the treaty. That is an important example—I could give others—of how the coherence within the treaty could make a difference.

The noble Lord, Lord Howell, talked about the role of the European Court of Justice. I know that we will return to that issue. The noble Lord quoted from my letter. Three words—“as at present”—were missing from the quotation. My letter says that the court may

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police the CFSP/non-CFSP border. That is not new. That, as noble Lords who were involved will know, dates back to the Maastricht treaty. Interestingly, the treaty requires the European Court of Justice to make sure that there is no encroachment the other way; in other words, that non-CFSP policies cannot encroach into CFSP policies. I know that noble Lords have worried in the other direction, that maybe the European Court of Justice, for those who believe that it is a—I quote—“creative court”, would see it in that way. Actually the treaty says that it is very important that the European Court of Justice polices that border and ensures that there is no encroachment. So the treaty strengthens the ring-fencing of CFSP, and the European Court of Justice will, if necessary, be able to restrict any other activity that impinges on the CFSP.

Lord Tebbit: Can the noble Baroness give us any examples of the European Court finding against deeper and further integration?

Baroness Ashton of Upholland: It depends what the noble Lord means by “deeper and further integration”. There is a lot of case law in the European Court of Justice. In our discussions on the previous day of Committee, when we referred to the European Court—we will again, I have no doubt, in our discussions particularly on justice and home affairs—we looked at examples. The noble and learned Lord, Lord Slynn, who is not in his place at the moment, as a former judge in the European Court of Justice, was extremely helpful in describing both the methodology of the court and the fact that it does not operate in a political fashion, but that a lot of the work of the Court in determining its role and function was established long before the UK joined the European Union. The noble Lord will know that for himself. Any suggestion that the Court was seeking to try to move beyond its role of interpreting the law was in the noble and learned Lord’s view wrong. I am sure the noble Lord will look at the Hansard references for what the noble and learned Lord, Lord Slynn, referred to.

Lord Pearson of Rannoch: The noble and learned Lord, Lord Slynn, was replying to what I had said. We thought that what he said was extremely helpful and supports the thrust of the question from my noble friend Lord Tebbit. In other words, it stands in Hansard. The noble and learned Lord, Lord Slynn, said yes of course the Court advances the project of European integration because that is what it was always meant to do. That is what is in the treaty. It has to support ever closer union of the peoples.

Baroness Ashton of Upholland: The interesting thing is interpretation, which is what I was saying to the noble Lord, Lord Tebbit. I have discovered in my days in Committee that interpretation is everything. As far as I am concerned noble Lords were divided in their interpretation. I think we go back to the words of the noble and learned Lord. He is not in his place at the moment, but I know that he intends to give us the benefit of further interventions. I am sure that he would indeed speak to the noble Lord, Lord Tebbit, about these issues. I am very clear that this is about the role of a court in interpreting the law as it stands,

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which is what courts do. We have already discussed the value of that. The point I make in this context is that I believe that the treaty helps to define the boundaries more effectively between the role of the Court in terms of non-CFSP and CFSP.

The noble Lord, Lord Howell, quoted an Open Europe allegation about the moves to QMV within CFSP. It is quite clear within the treaty that unanimity remains a general rule for CFSP. Implementing measures can be taken by QMV where the original decision has been unanimous; so if all 27 member states decide they want to do something they can then decide to implement it by QMV. That is our choice. We are not bound to do it; we do it because we want to do it. Unanimity is the determining factor on the decisions that we take.

The Lisbon treaty has one case—and noble Lords referred to it—where the high representative returns with a specific request that has been given to him by the Council. It is not beyond the wit of this Government or another 26 governments to determine the precise boundaries of what the high representative will return with proposals on. Any noble Lord will know that as it will be a QMV decision, such proposals the high representative returns with will work only within set parameters and boundaries. Therefore they will make sure that those parameters and boundaries are set. As they are set by unanimity, we need to have no fear. We can point to examples. We talked about this in the context of our previous discussions where QMV can be an important tool to aid moving on and getting on with implementing decisions.

The other cases cited by the noble Lord, Lord Howell, refer to non-CFSP action, where QMV already applies; for example emergency and humanitarian aid, and so on.

Lord Blackwell: The noble Lord, Lord Owen, asked about unanimity on the External Action Service. The response was that that required unanimity. The reason I believe there may be some uncertainty about that is that the treaty says that the Council will act on a recommendation from the high representative in establishing an External Action Service. As the noble Baroness has said, elsewhere in the treaty it says that when the high representative is asked to come to the Council with a recommendation that may then be by QMV. I just want to be clear whether the Government have got precise legal interpretation on this point or whether there is scope for ambiguity.

Baroness Ashton of Upholland: I will reach that point as I go through the amendments. I will not forget the point about unanimity. Indeed, from a sedentary position, I spoke about the unanimity rule within the setting up of the EAS.

I shall comment briefly on some of the amendments. Amendment No. 13A calls for a report to be laid annually before Parliament certifying that nothing undertaken in pursuit of common policies and actions promoted in any international forum has restricted or will restrict the independent foreign policy of the UK. The CFSP is a tool which this Government use to further their policy aims. Where we agree unanimously

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a common policy with our European partners we stick to it, because we do not agree it if we do not think it is in the national interests of this country.

The declarations have been partly read out and partly cited, either to confirm that we have got this absolutely nailed or used, depending on noble Lords’ views, to suggest that we do not have it nailed at all. I shall read out the two declarations. These were agreed unanimously by all member states. Declaration 13 states:

Declaration 14 states:

I think that wording is crystal clear and that the UK’s independent foreign policy is protected.

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The noble Baroness, Lady Park, is not in her place, but she referred to the relationship between the External Action Service and the diplomatic services of existing European Union countries, particularly of ours. The noble Lord, Lord Stoddart, raised the same issue. We have had EU Commission delegations in third countries and international organisations since the 1970s. At the present time, there are 131 overseas delegations. They will be renamed Union delegations under the authority of the high representative. We believe that makes them more accountable through the high representative of the member states and ensures that they represent the Union as a whole—as defined by the member states—rather than those of just one of its institutions, in this case the Commission. It is about making better use of existing Union resources and better policy implementations. That will be an important element of how the service will bring together existing work that is going on. Of course we make clear in the treaty that the External Action Service shall work in co-operation with the diplomatic services of other member states. That is an important part of the work it will do. It will

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not be issuing visas for any other nation. It will be working in collaboration with existing diplomatic services and consular services. It will not be in any way replacing them.

The treaty is clear on the establishment of the External Action Service. The EAS establishment is by unanimity. If it is decided to go ahead and establish it, that will be how it is established. Again, that is clear within the treaty. When I was in Brussels a couple of weeks ago, I spent some time talking about the potential for the External Action Service in terms of the opportunity it will give to bring together the different elements of the service to provide a better service through member states and provide opportunities for diplomats from countries all over the European Union who want to spend time working in the External Action Service. I see this as nothing other than a great move. I see nothing ambiguous about it. It will be important in terms of the development of supporting the policies of the European Union. I hope that noble Lords will agree with that.

Amendment No. 14 aims to exclude the UK from having to comply with EU action taken under the common foreign and security policy. The noble Lord, Lord Pearson of Rannoch, spoke with brevity about this amendment. We have agreed by unanimity our policy in the Council. Of course, we want to see it delivered and respected by all member states, otherwise there is no point in agreeing it unanimously in the Council. If member states did not comply with what they had agreed, then the whole thing would be completely unworkable. That is just inexorable logic. The new wording requires that member states shall comply with the Union’s action in this area. I would say that that is simply common sense. We have agreed something unanimously because we all want to do it. Therefore we all do it. That is it.

In reply to the noble Lord, Lord Tebbit, about binding future governments, the noble Lord will know that it is a basic principle of international law that the signatories of a treaty respect the provisions of the treaty. That is why they have signed it. United Kingdom Governments, on coming into office, have always accepted the international obligations and rights which they inherit. To do otherwise would be to undermine, in my view, our international standing. There is nothing new in substance in any of this. The Maastricht treaty in 1992 stated:

It also made clear that member states were obliged to ensure that their national positions complied with the positions which they had just agreed in the common foreign and security policy. Of course, noble Lords who do not want us to be part of the European Union do not like that. I completely accept that. But the fact is, if you sign up to something you agree to it. It is as simple as that.

Amendment No. 15A calls for the Secretary of State—

Lord Tebbit: Will the Minister be clear about this? Is she saying that there are no circumstances in which a British Government could be required to support a policy which had been clearly rejected by the electorate

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of this country at a general election, or is she saying that a British Government could be required to support such a policy which had been clearly rejected at a general election?

Baroness Ashton of Upholland: What I am saying to the noble Lord is that when one signs up to an international treaty, and the noble Lord would have signed up to international treaties—

Lord Tebbit: Is it yes or no?

Baroness Ashton of Upholland: I cannot answer yes or no because I want to explain exactly what I mean. The noble Lord asks the question in a very particular way and I am going to answer it in my own particular way. The long-standing tradition is that treaties that have been signed are respected by incoming Governments. That does not mean—the noble Lord will know this—that Governments do not on occasion go back to renegotiate their position. The noble Lord will know that when coming to power in 1997 this Government signed up to the Social Chapter, to which the previous Government had not signed up. So there are changes that are made. The tradition is that we come into treaties that we have signed up to. In the main, most of the treaties that this country is a part of are well respected on all sides and have often been negotiated through such long time periods that Governments have come and gone. The argument I am making is that that would be the position now. It is not a case that noble Lords would expect to come into a Government of a particular kind, who took a different view, and expect that that treaty was null and void. It would be required that a Government would have to renegotiate. I think that that is the position—

Lord Tebbit: The noble Baroness is making a point about treaties. I am making a point about the policy which is to be carried out under a treaty. Those policies change from time to time under the European treaties, as she knows. I am not talking about repudiating the treaty. We know that we could repudiate the treaty of Rome if we so wished. It is the policy I am talking of, not the treaty.

Baroness Ashton of Upholland: Indeed. I was using the treaty as an example. The noble Lord is not incorrect in saying that if you look at the policies that follow from the treaty—if we had an agreement between 27 nation states—we would, for example, wish to support a mission in Kosovo of around 2,000 personnel. If a Government came in who did not wish to continue that, they would wish to open and re-open the discussions on that. My point is a different one. At the point of becoming the Government, one is bound by the obligations until one has renegotiated—whether it is a policy or a treaty.


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