Select Committee on European Union Minutes of Evidence


Examination of Witnesses (Questions 47 - 59)

TUESDAY 27 NOVEMBER 2007

Mr David Heathcoat-Amory, Lord Leach of Fairford and Mr Neil O'Brien

  Q47  Chairman: Before I formally welcome our witnesses, may I draw your attention to the declaration of Committee Members' interests that you have before you. Having dealt with that formality, may I say how pleased we are to see David Heathcoat-Amory, Lord Leach of Fairford and Mr O'Brien. We are also very happy that sitting behind them is Derek Scott, who is the Deputy Chairman of Open Europe. Mr O'Brien is the Director of course and Lord Leach is the Chairman. I should add that Mr Heathcoat-Amory is a distinguished member of the European Scrutiny Committee in the other place and he will be speaking in a personal capacity here this afternoon. This meeting is on the record. You will be sent a transcript for checking as soon as possible following this session, in the next few days. Thank you all again, for being with us. May I ask if any of you would like to make an opening statement before we go into questions?

  Lord Leach of Fairford: I would like to say a word about Open Europe's approach to the Reform Treaty. It is guided by two main principles: that political structures should be built on democratic assent and that free markets are the key to competitiveness. The Laeken Declaration that launched the Constitution suggested addressing the democratic deficit by bring decisions closer to the people. In the event, however, the Constitution and its successor, the Reform Treaty, pursued the centralising course that had caused the democratic deficit in the first place. Additional competences are transferred to the EU; pillar compromise, some would say pillar collapse, puts the Union into policy areas once reserved for the Member States; and the ability of Member States to block legislation, though not to pass legislation, is reduced. The provisions to involve national parliaments are essentially a mere tokenist step towards devolution. The defining ingredient of democracy is reversibility—the right to replace legislators at elections and to repeal laws that prove defective. This ingredient is lacking in the Union's structure and the Treaty does not offer reform. Turning to free markets, the Community's golden economic period was when it was dismantling internal and external trade barriers. Recent times have seen a somewhat less liberal approach, with excessive regulatory harmonisation within the Union, accompanied by increasing protectionism abroad. The Treaty, with its symbolic downgrading of undistorted competition and its opening of new avenues for legislation, sends a regressive message to citizens already overburdened with regulation. The Government claims that our red lines protect us from some elements of the Treaty, but this ignores the lesson of history. From Van Gend en Loos in 1963 onwards, the Court of Justice has consistently taken an activist view of European law, expanding its scope beyond what can be derived directly from the text of the Treaties. Readiness and ability to circumvent our red lines are in the DNA of the Union. Remember the Working Time Directive, brought in through Health and Safety despite our opt-out. This brings me to a final principle, that electoral promises should be honoured. All the main parties promised a referendum on the Constitution. The then Prime Minister said it was unthinkable, if it was defeated, to just change a few things and bring it back, but that is exactly what is now proposed. Research shows a 97-98% identity between the Constitution and the Reform Treaty. The only reason the public is not to be offered a referendum is that the Government expects defeat. Such cynicism may buy a temporary reprieve for the Treaty, but it is another nail in the coffin of public affection for Europe and public confidence in our own political standards.

  Q48  Chairman: Thank you very much. Before calling on Mr Heathcoat-Amory, may I just state that the purpose of our inquiry in this Select Committee is to look at the institutional reforms and what the impact is going to be. It would be fair to you for me to say right away that we are not planning to engage you in a discussion as to whether or not there should be a referendum. It is not in our terms of reference but that is in no way to suggest that you should not have had your say. I want to make that point clear at the outset.

  Mr Heathcoat-Amory: I would like to extend a point made by Lord Leach about the Laeken Declaration because it was that that launched the reform process. The Heads of Government meeting in Laeken in 2001 required that the Convention on the future of Europe designed a Europe that was simpler and more democratic and "closer to the citizen", an accordant phrase. In my judgement, neither the Convention nor the documents subsequent to it discharged that mandate, but at least the Constitutional Treaty did have one simplifying element in it, which was that it merged the two existing Treaties; that is to say the European Community Treaty and the Maastricht Treaty or European Union Treaty, and it merged them into a single text. Although it was fantastically complicated and far too long, at least its structure was an attempt at simplification. The Reform Treaty which we are now considering does not do that. It retains the two-treaty structure. When one hears people saying that the constitutional concept has been abandoned, that is true only in the sense that a single unifying text had been abandoned. So the result is an attempted amendment of the existing Treaties. It is now fantastically complicated, a document that is really only accessible to lawyers and politicians. The instruction to bring in the public and engage them and get them to understand what is happening in Europe in my view has completely failed. Meanwhile, the substance and legal effect of the Reform Treaty is very similar to the Constitutional Treaty, as is easily shown by a comparative table of the Articles in the two Treaties. All the centralisation and the transfer of powers that I have long objected to are still present in the document we are considering. I think one reason for the complexity is actually the process whereby it was adopted this year. Just to remind the Committee, the European Council meeting on 21 June effectively decided the Treaty politically, but the document on which it did that was only available to Member States two days before, when the German Presidency produced the draft mandate on 19 June. Not only the public but all national parliaments were completely cut out of that process. If they had not been, I think there would have been more incentive, more pressure, on the drafters to make it accessible and comprehensible to at least parliamentarians. I think it is a failure of process as well as substance. My last comment, if I may, my Lord Chairman, is over the institutions because your inquiry is specifically about that. All of them gain powers under the Treaty. I saw the process at work myself in the Convention, which very rapidly became a kind of institutional bargaining session whereby well organised Commissioners and Members of the European Parliament tended to see the process in terms of their own institutions. The only group that was disorganised was my own, the national parliamentarians, because we did not know each other; we had no unifying agenda. Perhaps it is national parliaments that are the losers. Certainly all the institutions we will be considering soon I think are gainers, and the losers are national parliaments and, I am afraid, the public. My main point I would want to emphasise is that it is a very serious defect in any treaty that it is not understood by the people who are bound by its provisions. I think we are beginning to slide into a system whereby the very legitimacy of the laws and directives will be under question because people not only do not understand it but they are still baffled by who makes these laws and to whom are they accountable.

  Q49  Chairman: Thank you very much. One of the points that has been made I will just make a very brief comment on, and that is that you were mentioning the very unsatisfactory process that followed the IGC through with the very short timing allowed of 48 hours. I think that we fully agree with you there because we did in our interim report on this note that this should not be repeated in future IGCs, so we are at one on that. Would Mr O'Brien like to make an opening statement? You do not. We can go straight into questions. We leave it to you to decide who will answer the questions; one or all of you may do so, bearing in mind the fact that we have quite a lot of questions to get through and only just under an hour and a quarter in which to do it.

  Lord Leach of Fairford: We will probably normally just reply with one of us so as to save time.

  Q50  Chairman: That is very helpful. The first question that we have for you is on the restructuring of the Treaties and whether you think that the division into a Treaty of the European Union and a Treaty on the Functioning of the European Union has clarified or made more difficult our understanding of the Treaty. Secondly, do you feel that there is greater significance in the fact that the objectives are now all in the TEU and the Treaty on the Functioning therefore becomes subordinate to the TEU, and whether you have any comments to make on this structure.

  Mr Heathcoat-Amory: I only comment that perhaps the most prominent change to the Treaty on the European Union, the successor to the Maastricht Treaty, will be the collapse of the pillars. The pillared structured that came out of Maastricht will only persist in some form as regards common foreign and security policy. Matters of criminal justice and policing, which are at present in the third pillar, will go formally into the other treaty. This is important because those policies will therefore be subject to majority voting instead of unanimity at the minute, and also will come under the jurisdiction of the European Court, and the Commission will be able to launch infraction proceedings against Member States. In this very delicate and important area of criminal justice where we are talking about the coercive power of the state in its various forms, the definition of penalties and so on, I think it is a very big change that that should cease to be intergovernmental and should become a mainstream European Union activity.

  Mr O'Brien: May I add a little to re-emphasise the practical importance of the collapse of the Third Pillar? It is simply to note that our own Government for a long time were opposed to giving the Court of Justice jurisdiction over the Third Pillar. Back in 2000, the Government argued: "The Government does not accept that we should agree to extend the full ECJ jurisdiction over the very sensitive areas covered by the Third Pillar. These raise sensitive issues relating to national sovereignty ... ." Even last November, November 2006, Geoff Hoon told the Lords European Union Committee: "There is clearly a risk that adding what is in effect an avenue of appeal at a very early stage in the process might be an opportunity for further complicating our existing asylum and immigration processes." So these are not just technical movements between pillars; they have very important practical effects for our criminal justice system and also our asylum and immigration system.

  Chairman: Thank you very much. I think we will come back to that. Could we go on then to the question of the conferral of a legal personality on the Union?

  Q51  Lord Wright of Richmond: Mr Heathcoat-Amory, you referred in your introduction to the legal effect of the Reform Treaty, and Mr O'Brien has just talked about practical effects. Would one of you like to give us a view on the practical effect of conferring a legal personality on the Union, particularly in the area of foreign and security policy?

  Mr O'Brien: This is something that the UK Government has traditionally always resisted. Back after the signing of the Amsterdam Treaty, Tony Blair made quite a point of having said that we had resisted this attempt to go for the single legal personality. He said: "Others wanted to give the European Union explicit legal personality across all the pillars of the treaty. At our insistence, that was removed." Peter Hain said during the European Convention: "We can only accept a single legal personality for the Union if the special arrangements for CFSP and some aspects of JHA are protected." I think the worry that the Government has had about this is that if the Union gets into the business of signing treaties in both the JHA and the CFSP pillars, that could have implications for internal competences as well, because of course if the Union is doing international deals in these areas, there is implied internal competence and that could have knock-on effects on our laws here. I suppose it also has practical implications in terms of the long-running debate about single external representations for the Union in various international bodies because if you have mixed competences at the moment, it is very hard to have a single representation, be it in the UN, the IMF or the World Bank. Those are the two main practical effects. You could have, for example, the Union making a treaty to do with justice and home affairs and that having internal implications in the UK.

  Q52  Lord Wright of Richmond: Can I make a comment on the Annapolis conference that is going on at the moment in which both the EU and the United Kingdom are represented? It is an example where both can be properly and fully represented. I just make that point.

  Lord Leach of Fairford: Could I just add one word here? This has always been regarded as a matter of immense symbolic importance. I am not sure it does not go back to Spinelli; it certainly goes back a very long way. It has always been resisted by some governments including the British Government and been proposed by the most ardent integrationists. I do not believe one should overlook the symbolic effect, though I realise the question is specifically addressed to the practical effect.

  Q53  Chairman: We are clear, are we not, that in any case where the European Union speaks with one voice in a multilateral institution, it can only do so where there has been a declared consensus amongst the Member States that that policy be enunciated by their representative?

  Mr O'Brien: During the negotiations in the Convention, take the vexed issue of the Foreign Minister or High Representative who has the right to speak on the behalf of the UN: first during the Convention the Government tried to have that right to speak on our behalf on issues where the Union has defined a position deleted. Then when it failed to be deleted, the Government tried to get the wording changed so that it would say that the Union Minister for Foreign Affairs could request to speak on behalf of the Member States which had seats on the UN Security Council. That model of requesting to speak strikes me as a better one than that of automatically speaking. I think that is pretty clearly what the UK Government would really have liked. I think there is a difference between having the option of working together and being forced to have a single position, if you see what I mean.

  Q54  Lord Roper: Would there not have to be unanimity in the Foreign Affairs Council before the European Union could receive a mandate to negotiate a treaty?

  Mr O'Brien: One of the interesting questions about the Treaty that follows the Constitution is the whole issue of majority voting on proposals from the High Representative, as he is now known, because the way the process works is that by unanimity the Council asks the High Representative to make a proposal. Then when that proposal comes back, you are into majority voting on it. The problem there is that you as a Member State sign up in principle to something, say a position on Darfur, but then when the proposal comes back, you do not like it but then you are into qualified majority voting and you could be out-voted.

  Q55  Lord Roper: We are talking about the point you are making about the legal personality having the right to negotiate treaties. As far as this is concerned, would there not have to be unanimity in the Foreign Affairs Council before the European Union could start negotiating a treaty?

  Mr O'Brien: It is not clear to me from reading the Treaty whether or not international agreements are one of the things you could do using this power of QMV on proposals from the Foreign Minister or not.

  Q56  Lord Roper: The High Representative?

  Mr O'Brien: I am sorry, the High Representative.

  Q57  Lord Roper: But he could only bring those proposals forward if he had received a mandate from the Foreign Affairs Council to bring such a proposal forward, I think.

  Mr O'Brien: I am not sure that that is true.

  Q58  Lord Roper: I think you should re-read the Treaty.

  Mr O'Brien: I am just giving you my honest opinion about this rather than trying to make a point.

  Mr Heathcoat-Amory: I do not want to over-state the significance of the EU having a legal personality. After all, the EC has one at the minute. I think it has an important symbolic significance. It will encourage the European Union to be seen and to try and be seen on the international stage as a unit replacing Member States. It is quite interesting that Article 6 says that the European Union shall accede to the European Convention on Human Rights. At the minute, there is no provision for non-states to do that, so it is quite clearly foreseen that the European Union shall accede to a body in that sense like a state. I think what is also significant is Article 3 of TFEU, which gives to the Union, or will give, exclusive competence for the conclusion of an international agreement in a number of eventualities, but including, "in so far as its conclusion may affect common rules or alter their scope". It is not very good language but what this means is that where the Union has internal policies for things, shall we say, like climate change or alternative energy, it gives them not just a right but exclusive competence to decide international agreements on behalf of Member States in that policy area. So we would actually be prevented from signing international agreements on matters on which the European Union has domestic competence. I think that is actually quite a significant extension of its international part for which its legal personality will be more important.

  Q59  Baroness Symons of Vernham Dean: Can I ask about what Lord Wright mentioned a minute or two ago, Annapolis at the moment? Is it in your view detrimental that we operate on the Quartet through the EU? There is currently an arrangement where on this occasion there is some representation of the United Kingdom too but when the Quartet meets over the Middle East Peace Process it meets as the United Nations, the EU, the United States and Russia. Is that arrangement something that you disapprove of or think is an ill-founded arrangement?

  Mr Heathcoat-Amory: Speaking for myself, I am an internationalist and I believe that Britain must have a formal position in as many international bodies as we can and try to project ourselves internationally. In many cases it is extremely useful that we have an intense relationship with a number of continental European countries in order to assist this. It may well be that on occasion the European Union should come together and speak with one voice, but what the Treaty does is that it mandates this and it will progressively exclude the possibility of Britain having bilateral agreements over a range of policy matters with other countries. I think this is a denial of choice and it is that choice that I think is very important if we are to have an independent foreign and security policy, which the Government assures us we will have, in parallel with working in the European Union. I think, frankly, the text of the new Treaty puts that in doubt.


 
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