Examination of Witnesses (Questions 41
- 59)
THURSDAY 6 DECEMBER 2007
Professor Alan Dashwood and Mr Charles Grant
Q41 Chairman:
Professor Dashwood and Mr Grant, we are very grateful to you for
coming to see us this morning. As you know, we have been asked
by the Select Committee on the European Union to look at the aspects
of the Reform Treaty which deal with foreign external relations
and prepare material which will be a component of the report which
the Select Committee intends to make to the House before the legislation
on the Reform Treaty is dictated in this House, which is likely
to begin some time in March. We would be very glad if you would
take these questions. Some of them have a primary legal angle
and there we are looking to Professor Dashwood, and those which
have more of a foreign policy dimension we look forward to hearing
from Mr Grant, but obviously feel free to intervene on any question.
We have rather a lot so, as I have said to my colleagues, I think
it is an occasion for relatively short questions and not too long
answers. Could I begin by asking you whether you feel that the
Treaty can serve as a basis for a more effective and coherent
European Union foreign policy?
Professor Dashwood: The external relations of
the EU will still be conducted under two separate sets of institutional
and procedural arrangements and that will continue to be a complicating
factor. It is not possible to give a clear answer to the question
at present. Everything depends on how well the High Representative
is able to fulfil his role and how useful the External Action
Service will be to him.
Q42 Chairman:
Thank you, we will be coming back to both of those later. Mr Grant?
Mr Grant: I would agree with that. Arguably,
the most important set of elements in the new Treaty is the foreign
affairs provisions, the foreign policy-making provisions. I think
they are absolutely essential and there is a real need for them.
The current institutions are deeply dysfunctional and the way
they operate is almost shameful—the lack of co-ordination
between the Commission and the Council, the ineffectiveness of
the rotating Presidency and so on. Therefore this Treaty gives
us the opportunity to greatly improve the machinery. As Alan says,
that is not guaranteed by just having the Treaty; how they actually
implement the Treaty will be crucial in determining whether or
not it really improves the way foreign policy is made.
Q43 Lord Chidgey:
Lord Chairman, that moves us very neatly on to the CFSP. I believe
our witnesses have already seen the questions so in the interests
of brevity, straight to the point: in the context of your reply,
will the common foreign and security policy retain its inter-governmental
character? Will the Treaty give—and this is the important
bit—new competences to the European Union in the area of
CFSP? Is there a problem here of any mutual exclusivity between
the big Member States' interests in foreign policy and the EU's
interests in a common foreign policy?
Professor Dashwood: My answer to the first question
would be that the CFSP will retain its present character. I am
not certain whether it is quite right to describe it as inter-governmental
because there is an institutional dynamic at work, but it is obviously
a very different dynamic from the Community model and it will
continue to be. Various legal steps have been taken to preserve
the particularity of the CFSP. For instance, the CFSP has been
kept outside the Treaty on the Functioning of the European Union.
It will be in a separate title of the Treaty on European Union
(the TEU). This is in contrast to the Constitutional Treaty, where
the chapter on the CFSP was juxtaposed with the chapters relating
to other aspects of external relations governed by the EC Treaty
under the present arrangements. There is also a new provision
in Article 11(1) of the Treaty on European Union which refers
explicitly to the specificity of the CFSP's rules and procedures,
and of the role of the institutions in this area. In addition,
the primacy which the Treaty on European Union gives to the so-called
first pillar of the European Community will not be reflected in
the amended Treaties. There will be a new Article 25 of the TEU
which provides for mutual protection against encroachment by the
CFSP on other Union competences, and encroachment by those competences
on the CFSP; whereas under the present Article 47 of the TEU,
there is protection of Community competences against the CFSP
but not the other way about. So the CFSP is being given equal
protection under the new Treaties. My answer to the second part
of the question, will the Reform Treaty give new competences,
is no. I do not think it will give new competences, because the
Union's competence under the present CFSP as organised by Title
V of the TEU is about as wide as it could be. What will happen,
we hope, is that the competences that the Union has will be more
effectively examined. The present definition and scope of the
CFSP pursuant to Article 11(1) of the TEU covers pretty well all
of what you might call the political aspects of external relations,
all those that are not governed by the socio-economic provisions
of the EC Treaty.
Q44 Lord Swinfen:
Knowing that the EU is a collection of sovereign states, can the
EU conclude an international treaty when one or more of its sovereign
states disagree?
Professor Dashwood: The Union acts by unanimity
for the purposes of the CFSP but there is a procedure which is
known as "constructive abstention", (I believe it has
never actually been resorted to), that would enable a decision—and
I think that must also include a decision on an international
treaty—to be taken by the Union, which is not binding upon
a Member State invoking the procedure. Recourse to a qualified
majority is possible only in a situation governed by a decision
that has previously been taken by unanimity; only for the purpose
of implementing a decision which had been adopted unanimously.
Q45 Lord Swinfen:
As a corollary to that, does the EU have any sanctions against
a sovereign state that concludes an international agreement that
is incompatible with an agreement that has already been signed
by the EU?
Professor Dashwood: One of its own Member States?
Q46 Lord Swinfen:
One of its own Member States.
Professor Dashwood: It does not, and that is
one of the weaknesses of the system, because the Court of Justice
has very limited jurisdiction in the area of the CFSP. There would
not be any judicial proceedings that could be brought in those
circumstances.
Lord Swinfen: Thank you, that is very
interesting.
Q47 Lord Hannay of Chiswick:
Could I be a little bit clearer in my mind, you have answered
this question from Lord Swinfen on the point of CFSP only, and
you carefully kept off questions that related to external obligations
centred in pillar one, where some of the negatives that you have
given do not apply of course.
Professor Dashwood: Indeed.
Q48 Lord Hannay of Chiswick:
I am not quite sure that Lord Swinfen's questions were limited
to CFSP. He spoke about sovereign states, et cetera, but they
were not limited to CFSP. I think for the avoidance of misunderstanding
it would be as well to be clear that if one of the 27 Member States
concludes an agreement that is inconsistent with an international
agreement entered into by the EU under pillar one, then that is
the AETR judgement, is it not?
Professor Dashwood: It is indeed. I am sorry,
I thought that we were focused on the CFSP.
Lord Hannay of Chiswick: So did I but
I just wanted to be clear.
Q49 Chairman:
Lord Swinfen asked a supplementary question that in fact went
wider than the scope of this particular section of questions because
he was dealing not only with international agreements entered
into by the European Union under the CFSP but also international
agreements entered into by the Union under other matters? At least
that is my understanding.
Professor Dashwood: I apologise, my answer was
therefore incomplete. There are important fields of external relations,
for instance trade and development co-operation, where in the
Community as it now is (though under the Reform Treaty the Union
will have similar competences) the Council acts by qualified majority.
A Member State of the Union could find itself outvoted on that
kind of matter, but nevertheless bound by the international agreement;
and in those circumstances the enforcement procedure under Article
226(8) of the EC Treaty, which again will be taken over into the
TFEU, would apply.
Q50 Lord Hannay of Chiswick:
Perhaps you could just add that none of that is changed one iota
by the Reform Treaty; it exists already?
Professor Dashwood: Indeed.
Q51 Chairman:
The other thing which you said—which I would just like to
get you to confirm—is that whereas there is within the CFSP
an opportunity to use qualified majority voting for the implementation
of a decision which is reached by unanimity, this is not distinct
from the provision that already existed within the Maastricht
Treaty as far as the implementation of a joint action which had
been agreed in unanimity, as I understand, so there is no change,
although we no longer use the words "joint action",
we use the word "decision" for all the actions taken
within the CFSP?
Professor Dashwood: Yes, the general principle
is that the Council acts by unanimity except when it is taking
implementing decisions. There will be one small new instance of
decision-making by QMV, which I can mention now or later. It is
a question that relates to Council procedures.
Chairman: We will come back to it. Lord
Hannay?
Q52 Lord Hannay of Chiswick:
Some commentators have expressed concern that the changes in the
Reform Treaty with regard to external policy will in some way
affect the independence of the UK's foreign and defence policy,
which has been defined by the Government as one of the UK's "red
lines". Are those concerns well-founded when you look at
them in the light of the actual provisions in the Treaty or not?
Mr Grant: As far as I can see, those concerns
have no grounds for substance because, as Alan has said, key decisions
on foreign and defence policy require unanimity and therefore
anything that the British Government dislikes it can stop, so
I do not see how that could undermine Britain's ability to run
its own foreign and defence policy the way it wants to.
Q53 Lord Truscott:
The Treaty provides, as you know, for the post of High Representative
for Foreign Affairs and Security Policy who will be both a Vice
President of the Commission and Chairman of the Foreign Affairs
Council. Do you think that this post will improve the effectiveness
and coherence of foreign policy as far as the European Union is
concerned, given from what you said earlier, Mr Grant, that any
improvement would be welcomed on the current position? Perhaps
you would like to expand on that.
Mr Grant: Obviously a lot depends on the people
involved, and perhaps something we may get on to is the relationship
between the High Representative, the President of the Commission
and the President of the Council. If the people do not get on
well it is not going to work well, however clever the institutional
provisions. Certainly I agree with the implication of your question,
the current system is very, very sub-optimal. As it happens, the
current High Representative and the current External Relations
Commissioner are not particularly close buddies, and the way I
see it at the moment, partly because of that and partly for structural
reasons, we have two separate bureaucratic machines trying the
run EU foreign policy. There has been an enormous lack of co-ordination
whether you look at Russian policy, Balkans policy, China policy.
The two sides of the House, to use the Brussels jargon, do not
really work together or co-ordinate their policies or try and
consider how they can pursue common outcomes. It is not quite
as bad as that always. There are sometimes joint papers worked
on by the relevant officials of the Council and Commission, so
some efforts are being made to improve the situation, but I do
think that this new person, if it is the right person, together
with the External Action Service, which we will come on to, could
potentially produce a much more efficient machine. Certainly if
the High Representative replaces the rotating Presidency (Foreign
Minister of) and the current High Representative and the Commissioner
for External Relations, at least Europe will speak with one voice,
and if you speak with one voice instead of three you stand a better
chance of getting your message across in most parts of the world.
Certainly as I travel around to places like Russia and China and
the United States, the contempt when I hear people talk about
the EU's current institutions, particularly the rotating Presidency
and the division between the Commission and Council, is really
quite extraordinary. I would hope that this innovation of the
new High Rep would have a great potential to improve the EU's
image and, more importantly, allow the EU to project its common
policies (when it has a common policy) more effectively.
Q54 Lord Truscott:
Even if this does improve co-operation between the Commission
and the Council in the area of foreign affairs, do you think there
is sufficient co-operation with other parts of the Council and
the Commission in other elements, for example on energy policy?
Is there sufficient co-ordination and delivery of foreign policy
in all the various different parts of the Commission and Council?
Mr Grant: That is a very good question. I do
not think, sadly, this new person will solve all the problems
of co-ordination. One problem which you alluded to is in the Commission
itself there are a number of Commissioners with responsibility
for different bits of external relations—humanitarian aid,
development policy, trade, enlargement, and so on—and they
really do their own thing without talking to each other very much
at the moment. On China for example, I think at least half the
members of the European Commission in the current Commission have
been to China and I do not believe there is much effort to co-ordinate
their activities in China to get them to sing from the same hymn
sheet. So although the new High Rep job, assuming that his or
her responsibilities and those of the External Action Service
cover basically the subjects today covered by the policy unit
of the Council of Ministers' Secretariat, by the External Relations
Directorate General of the Council of Ministers and by DG External
Relations in the Commission, and I am assuming that that is roughly
the scope of the new provisions, there are a whole load of policy
areas like development policy and trade policy and others that
will not be covered, and the question of how we co-ordinate or
how the different bits of the Commission in particular are co-ordinated
together with the new High Representative is an open question,
and that is rather important.
Q55 Chairman:
Will the fact that the High Representative is a Vice President
of the Commission—the first time a Vice President (although
there have been Vice Presidents in the past) has been formally
stated in this way—not give him an opportunity to co-ordinate
the other external activities of Commissioners?
Mr Grant: Hopefully that will be seen as part
of his or her job. I myself believe that no one individual can
do the job of High Representative. At the moment Javier Solana
is extremely busy, he works about 100 hours a week, and if you
asked him in addition to his current jobs to be Vice President
of the Commission responsible for Ferrero-Waldner's portfolio
and you ask him to chair the Council of Ministers' Foreign Ministers
and to replace the rotating Presidency, there would not be enough
hours in the week. He will need two deputies, one in the Commission
and one in the Council. Nobody seems to have thought of this as
far as I can see. I cannot see how the job can work unless he
has a senior deputy in both the Council and the Commission to
help co-ordinate it.
Q56 Lord Hannay of Chiswick:
I think you have really answered the question I was going to ask
but, just for the avoidance of misunderstanding, what you are
saying, with which I would agree, is that a great deal of the
effectiveness of these reforms will not depend on what is written
on a piece of paper in the Reform Treaty, which does not actually
make provision for the departments in the Commission and the Council
you have described working together and for the people described
in the Reform Treaty to act in a sensible and coherent way, it
will depend on the decisions that are taken subsequently to give
effect to and to implement those matters. They are not laid down
in the Treaty, which is quite proper because these are not the
sorts of things you can lay down in treaties, and a lot will depend
on how it is put into effect?
Mr Grant: Absolutely.
Q57 Chairman:
You did refer earlier to the fact that we have at the moment three
people. Is there not a risk that given that the Chairman of the
European Council does have some responsibility at this level for
external relations and you have the High Representative, and then
Presidents of the Commission sometimes have wanted to have an
external dimension to their activities, that you may still have
three people; it will just be a different set of three people?
Is this necessarily going to be an improvement?
Mr Grant: I think that is a very real worry
and concern. I still think even if this triangular relationship
does not work perfectly it cannot be worse than the current system—that
is impossible! I think it is very important that governments do
work out rough job descriptions of the Council President and the
High Representative in particular. We know what the European Commission
President does and we know what a good one should do. I have heard
an opinion from amongst British officials that the way to solve
this is to make sure that the so-called High Representative is
a rather junior chap, a sort of senior official almost, to make
sure that he does not tread on the territory of the Commission
President. I think the implication of the comments I have heard
from some British officials was that he should not really be a
politician at all, more a little servant scurrying around doing
things for the Foreign Ministers. I would be a little concerned
about that. While it is important to make sure that there is a
distinction of roles between the President of the Council and
the High Rep, I think the High Rep will not be able to do his
job effectively unless he is a figure of some political weight.
When he goes to Moscow or Beijing, nobody will talk to him if
he is a retired civil servant. I think it should be someone with
political clout. I see the distinction as being that he should
do the negotiation, the nitty-gritty, banging heads together on
Bosnia and Kosovo, talking to other foreign ministers, and the
President of the European Council will have a lot to do that is
nothing to do with foreign policy. He has got to chair the Council
and ensure that decisions are followed up and ensure that it has
a good agenda, and he will go in for the big summits with other
heads of government when they happen. That is how I foresee the
distinction between them, and the most important thing of all
is that the two individuals get on with each and can work together
whatever their actual job descriptions.
Q58 Lord Hamilton of Epsom:
I thought that Solana was being pencilled in for this job; is
that not the case?
Mr Grant: No. I have heard it said that he would
like to be considered for the job but I know a number of other
individuals who also want to be considered for the job, so I do
not think it is a certainty by any means.
Q59 Lord Swinfen:
Will the powers conferred on the High Representative have any
impact on the United Kingdom's defence and foreign policy?
Professor Dashwood: If the High Representative
uses his powers effectively then more Union positions will be
defined and more Union actions will be determined, and there will
have to be more systematic co-ordination of national foreign policy
with those positions and actions. So I think inevitably the result
of a more successful CFSP will be to constrain to some extent
the freedom of action of the Member States. However, that is a
choice governments will have made by voting in favour of the decisions
that these positions and actions should be adopted. If more is
being done, more successfully, at the level of the European Union,
there will be some restriction of the scope for unilateral action.
But, in a sense, that is what the whole thing is about; it is
to ensure that the CFSP becomes more of a success.
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