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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