Examination of Witnesses (Questions 80
- 99)
THURSDAY 6 DECEMBER 2007
Professor Alan Dashwood and Mr Charles Grant
Q80 Lord Jones:
Mr Grant, I thought you were very helpful in your forthright opening
statement and you did use the words "almost shameful lack
of co-ordination"—and I do not cavil with it—and
a little later and consistently you said "it cannot be worse".
Looking at it in that context, the question that we have for you
here is: in your view what are the major changes that will be
brought about by the Treaty in the area of defence and it follows,
what impact will these changes have on the UK?
Mr Grant: As I have already said, I do not think
the Treaty provisions on defence are hugely significant. Changing
the list of so-called Petersburg tasks—these are the tasks
that the European security and defence policy now undertake and
I think they have added a few extra ones, although I forget what
they are, it was just humanitarian relief and peace-keeping, it
is now a few more—is not really very significant. The structured
co-operation provision could become quite interesting from a British
point of view but I am not sure that it will. As some of you I
am sure are aware, this is about allowing a smaller group of Member
States, not all 27, to set up a defence club, the entry criteria
being how good your military capabilities are. If establishing
this kind of club persuades those governments which do not spend
enough money on defence (which is most European governments) to
spend more and have more helicopters and more transport aircraft
and all the things they should do, then it is a good idea. You
could make a parallel with the euro. To get into the euro you
had to jump through a few hoops and get your budget deficit under
control and so on, and if to get into this defence club you need
to have ready and deployable 5,000 chaps who would go off to Africa
when they are called for, then that is rather useful. This defence
club might be interesting but I do not know what is going to happen
and whether it will actually be implemented or not.
Q81 Lord Hamilton of Epsom:
Does Afghanistan not give you a good enough picture that they
do not want to go anywhere where anybody is firing live rounds?
Mr Grant: I think that is a fair point and I
think Afghanistan is very significant for the future of NATO.
Q82 Lord Hamilton of Epsom:
For the EU as well.
Mr Grant: Yes, not enough countries have been
prepared to send troops to the south although, to be fair, others
who have not had troops in the south, such as the Germans, have
suffered very serious casualties through having troops in other
places, and we should acknowledge that, and also people like the
French have special forces which are doing extremely useful work
in Afghanistan, so I do not think it is a black and white thing.
I accept at that the moment not enough countries are willing to
send troops there, although of course because we have troops there,
we do not send troops to Chad for example and we have almost no
troops in the Balkans where other European countries are providing
troops, sometimes in dangerous situations, so there is a bit of
swings and roundabouts, but I take the broad thrust of your question.
Q83 Chairman:
Going back to something you said a little time ago about additional
Petersburg tasks, with all the tasks which have now been put into
the Treaty, I think it is in fact a codification of tasks which
were referred to in the European Security Strategy which was adopted
by the Union a few years ago, so it is bringing it into the formal
Treaty and not adding to the range of things which the European
Union was already considering doing?
Mr Grant: Yes.
Lord Hannay of Chiswick: It is also updating
some of the United Nations work in this area so there is a proper
fit in this area if the European Union decides to go into a mission.
Q84 Lord Hamilton of Epsom:
Will the mutual assistance clause, which covers cases of armed
aggression on the territory of Member States, undermine NATO and
what specific impact will it have on UK defence policy? Could
I just extend that. If there were a perception by Russia that
the Russian minority in Estonia was being persecuted even more
than they are now and they moved troops in there, what do you
anticipate would happen then?
Mr Grant: I have the clause in front of me and
I am just reading it. Whatever words are in the clause, the perception
of the clause amongst governments is that what matters is NATO's
Article 5 rather than this mutual assistance clause. Why that
is I am not sure and other people have perhaps a more knowledgeable
answer than me. I think it is desirable that we should help countries
that are threatened by attacks and we should try and help each
other; that is a very good idea, but the one that people really
care about is NATO Article 5. That is my view.
Q85 Lord Hamilton of Epsom:
You think in a case of Russian aggression against Estonia NATO
would be the organisation to take responsibility?
Mr Grant: Yes, the general view of governments
is that European defence policy is about the Petersburg tasks,
as Lord Roper referred to—it is the peace-keeping, it is
the humanitarian relief, it may be peace-making—and that
collective defence is a matter for NATO. I have not heard anybody
argue that the EU should become a collective defence organisation.
People think that is what NATO is for.
Q86 Lord Truscott:
The problem with Article 5 is that it does not apply to all EU
Member States because not all EU Member States are members of
NATO. I think the question would then be how would the mutual
assistance clause be applicable in legal terms to those Member
States who are not members of NATO. Is it perhaps more of a reference
to the general legal right of every country to protection of its
territorial integrity and to call for assistance from other countries?
Mr Grant: Yes, luckily, all of the countries
bordering Russia are in NATO, except for Finland, and Finland
may join one day.
Q87 Chairman:
Just returning to something which Professor Dashwood referred
to earlier, and it is rather important, which is that in the Maastricht
Treaty there is this provision that although unanimity is referred
to everywhere else there is this opportunity for constructive
abstention as far as CFSP is concerned. Does constructive abstention
also apply to decisions where military action is intended?
Professor Dashwood: I think it does not.
Q88 Chairman:
If when you check you find that it does not—
Professor Dashwood: I would need to check that
for you.[1]
Chairman: It would be useful for us to
get it on record. Lord Crickhowell?
Q89 Lord Crickhowell:
We have already touched on structured co-operation and enhanced
co-operation. Mr Grant referred to it as perhaps becoming more
interesting. There is a different point of view I have seen expressed
and I would like some comment on it. What it actually means is
that smaller groups of Member States can pursue ES/GDP projects
and co-operation. I think such groups would make decisions by
qualified majority voting, so either we take part in such a group,
let us say if there is a French/German group or any other group,
in which case we are subject to qualified majority voting for
the activities of that group, or we opt out and we are not part
of the group, either way we effectively lose a veto on defence.
As we subsequently have to act actively and unreservedly in support
of activities in this field, are we not actually entering an area
where we can could find ourselves losing control of quite important
aspects of defence policy? Let us face it, the French have from
time to time taken a very different view of what is the right
approach to NATO and everything else and are wanting their own
effective grouping and there are signs that they want to do it
again. We say, okay, we do not want to be part of this group.
You spoke earlier of the opportunities perhaps. Are those who
see this as a real danger on to something or not?
Mr Grant: Alan Dashwood can perhaps make some
legal points on this, but I think possibly you will need to distinguish
between foreign policy and defence policy in that, as far as I
understand it, the structured co-operation which may apply to
defence is about military missions and military activity, it is
not about EU foreign policy, and therefore if you are saying to
me a group of EU countries may wish to embark on some military
mission, which Britain does not take part in, is that a problem,
could that be a problem—no, because that military mission
would have to be subordinate to an EU foreign policy which Britain
has a veto over. Britain may choose not to take part in the military
means of preventing that policy but it certainly has a say over
the foreign policy itself, so if a group of countries wants to
send off a peace-keeping mission to the Central African Republic,
that would have to be compatible with a broader EU foreign policy
that Britain had subscribed to. Therefore I do not quite see how
structured co-operation could be injurious to British interests.
Q90 Lord Crickhowell:
Except that we could have the development of military structures
and organisations which are leading in quite separate directions
from the ones which we would like to take part in, notably based
on NATO. If there is a potential conflict or duplication of the
activities best done by NATO, is this not one way that it might
happen?
Mr Grant: I do not think so because President
Sarkozy has decided to put France back into NATO's military structures.
That is not guaranteed to happen—although I personally believe
it will happen—and I think that will lead to a situation
where we have less damaging rivalry between the EU machinery and
the NATO machinery. The reality of EU defence co-operation is
that Britain has to be involved or it does not happen at all.
Everybody knows that Britain's Armed Forces are the most effective—even
the French know that—and therefore it is not serious to
suggest that people are going to do something without the Brits
in it, at least in terms of organisation. In terms of a particular
mission maybe we do not have any soldiers going to Chad but you
do not need structured co-operation to organise that. In terms
of organisation, I do not believe anything will actually happen
without British participation.
Professor Dashwood: Well, it is difficult at
this stage to answer questions about permanent structured co-operation
because the details still have to be worked out, but it is certainly
not to my understanding that participating in the co-operation
necessarily means that a Member State has to allow their troops
that are committed for this purpose to be used for every action
which is determined by the Council. I think one has to distinguish
between the permanent structured co-operation, which is about
creating the means for taking effective military action outside
the territory of the Member States, and the decisions that will
have to be taken on a case-by-case basis as to when those means
should be deployed, and the United Kingdom will have a veto over
every one of those decisions. Is that correct?
Mr Grant: I think so.
Q91 Chairman:
One of the possible confusions is that as well as the proposals
for permanent structured co-operation, which is quite new and
which did not appear before, the other change in the Reform Treaty
is the provisions for enhanced co-operation between a limited
number of Member States, which previously did not apply to CFSP
and now could apply within the CFSP area, so one has got two different
changes occurring which to some extent look a little similar but
are in fact distinct.
Professor Dashwood: That is quite correct, Lord
Chairman, yes.
Chairman: Lord Jones?
Lord Jones: Again to Mr Grant, I am going
back to the topic of Russia.
Chairman: With great respect, we are
carrying out an inquiry on Russia but this is an inquiry on the
Reform Treaty.
Lord Jones: To help progress let me end
that question.
Chairman: Can I now turn to Lord Truscott.
Q92 Lord Truscott:
I think we have covered question 11 earlier in terms of changes
to the Treaty. I can pursue it if you like but we have talked
about it quite a lot.
Professor Dashwood: I do not know whether it
is interesting, Lord Chairman, but I did mention one new possibility
for qualified majority decision-making—and that is when
the Council acts on a proposal by the High Representative following
a specific invitation by the European Council. I do not think
that is a significant change because there would have to be consensus
within the European Council before the instruction could be given
to the High Representative.
Q93 Chairman:
There is also provision in this particular section dealing with
the CFSP for the possibility of some sort of passerelle, a rapid
change and revision of the Treaty, and of course one of the issues
which I think will be considered by both Houses of Parliament
is whether the assurance which the Government has given about
parliamentary control over such changes in decision-making without
a full IGC would apply as far as that particular passerelle is
concerned as well as the more general one.
Professor Dashwood: Yes.
Q94 Chairman:
I wonder whether I might go on to ask you a question which is
a technical matter about the operation of the Foreign Affairs
Council. Do you assume that in those areas such as development
co-operation and humanitarian aid, where the external action of
the EU requires legislation by the Council on the proposal of
the Commission, those discussions and that legislative action
would be taken in the Foreign Affairs Council and that it would
adopt the necessary instruments, or do you assume that the General
Affairs Council will continue to take those responsibilities under
the Presidency of the rotating President?
Professor Dashwood: It would certainly be my
expectation that decisions would be taken and any legislation
adopted by the Foreign Affairs Council. I think this would follow
as a corollary from the creation of the post of High Representative
because part of the objective is to ensure some kind of co-ordination
between these different aspects of foreign policy; political and
socio-economic.
Q95 Chairman:
But that is an assumption, it is not absolutely clear from the
Treaty where that would take place?
Professor Dashwood: It is not specified in the
Treaty, no, but I would be very surprised if any other solution
were adopted.
Q96 Lord Crickhowell:
We started a long time ago with the change from the proposal of
the Constitutional Treaty which would have just abolished the
three-pillar structure and we moved instead to I think what Professor
Dashwood described as a more complicated arrangement, under which
there were still different duplication treaty arrangements, and
we have been told—and I think it has been said in the course
of the evidence—that this does not extend the power of the
European Court. However, I notice Professor Dashwood's phrase
about it was very limited jurisdiction in the area of the CFSP'
and we later moved on to talk about matters such as trade and
development co-operation and the links between foreign policy
and trade policy. As I understand it, under the new single EU
the Court has jurisdiction except where it is explicitly excluded,
and it would be very difficult to exclude certain areas of these
complicated arrangements, particularly as it moves on to what
is the legal definition of common foreign and security policy
if you started to exclude it. One can think of all sorts of examples.
I have one in front of me which is the extradition treaty with,
say, the United States. Is that solely a matter of foreign and
security policy? Clearly not because it involves justice issues
and some of the issues that you yourself referred to—trade
policy and so on—so are these not areas where at some point
the Court might find itself taking a view that this was really
a matter that was within the jurisdiction of the Court and therefore
extending its activities into fields that are foreign and security
policy?
Professor Dashwood: On the issue of the structure
of the Union, I think I would make myself unpopular with some
of my academic colleagues by saying I believe the result of the
Reform Treaty will be to create a two pillar structure instead
of a three pillar structure. I think that is essentially what
will happen. So far as concerns the Court, there is a very specific
provision which stands at the beginning of the chapter on the
CFSP and which says that the ECJ shall not have jurisdiction with
respect to the provisions on the CFSP, with a couple of exceptions.
One of those exceptions relates to Article 25, the provision that
I mentioned, which protects other competences against the CFSP
and the CFSP against those competences. The Court has to have
the role and it already has the role—this is not something
new—of monitoring the interface between the CFSP and other
policy areas simply in order to decide whether an instrument which
has been adopted under, say, a development co-operation competence
ought rather to have been adopted under a CFSP competence or vice
versa. It already has that role and the only change—and
this is a change that favours the CFSP—is that the Court
must now treat the CFSP and other policies even-handedly. At the
moment it is required to protect the first pillar against the
second and third pillars. It seems to me that it is inevitable
that the Court of Justice should have that role and it is a role
that it has already. The other minor jurisdiction is to review
the legality of CFSP provisions that are taken providing for restricted
measures against individuals. Sometimes it is necessary for a
restrictive measure to be adopted which imposes travel restrictions
and that sort of thing, on individuals. It is really very unsatisfactory
that there should be no way of challenging the legality of such
decisions, and that new jurisdiction would be created by the Reform
Treaty.
Q97 Lord Crickhowell:
Thank you very much for that. I am aware of the exclusions in
11(1) but we are dealing, are we not, with a term of art rather
than a tightly defined legal concept here, and as the Court does
very specifically cover trade and similar matters, quite clearly,
and as a string of things which by their nature are also part
of foreign policy, therefore is it really true that you can keep
the Court out of this area? There will be areas where inevitably
the High Representative and Council will go down routes where
they do want to obscure these separations of definition and in
that situation it is not true, as is declared, that the Court
is simply out of this. This is an area which you yourself have
said is complex and by the very fact that it is complex is there
not a possibility that the Court will have to intervene to unravel
some of the complexities? I am not a lawyer but I just ask the
question.
Professor Dashwood: I think the only role for
the Court would be to decide whether a particular measure ought
to have been adopted under CFSP competence or under some other
competence in the TFEU and, as I have said, it has that jurisdiction
already. There is a case before the Court of Justice at the moment
in which I am acting for the United Kingdom where the Court has
to decide whether a particular measure which was adopted as a
CFSP measure ought rather to have been adopted as a development
co-operation measure. It was about control of small arms and light
weapons in West Africa. It will be interesting to see what happens,
because that will be the Court's first opportunity to draw a line
between the first and the second pillars. It has had opportunities
in the past to draw a line between the first and the third pillars.
Q98 Lord Selkirk of Douglas:
May I ask a question relating to the legal personality of the
European Union. What changes do you foresee due to the recognition
of the legal personality of the European Union in international
organisations and forums, including where the European Community
currently is a member or participates, and also where only the
Member States are members or participate?
Professor Dashwood: It is my view that the recognition
of the legal personality of the European Union is a purely technical
change. I think most lawyers would now agree that although the
Treaty does not say so, the EU is already possessed of de facto
legal personality because our main international partners have
been willing to deal with the EU as an entity. This started in
a fairly modest way with agreements about EU forces in Macedonia
and the other countries where they are present, but we now for
instance have an extremely important agreement with the United
States about extradition. This was concluded, not under second
pillar competence, but under third pillar competence; however
the issue of legal personality is the same for the third pillar
as it is for the second pillar. So de facto the European
Union already has legal personality. The present situation, which
is quite amusing for lawyers but absurdly complex, is that the
European Union considered as a whole has a separate legal personality
for the European Community but its own de facto legal personality
for the purposes of the second and third pillar. Once there is
a single EU personality—and the Treaty provides for this—the
Union is going to succeed to the EC, so that in international
organisations like the WTO where the Community is a member in
its own right, the EU will simply step in and take the Community
chair. Since legally the Union will be the successor to the EC,
I do not think it will be necessary to do more than to write a
courteous letter to the Director General. In organisations like
the UN where only Member States are members there will not be
any change resulting from the acquisition by the Union of legal
personality.
Q99 Lord Swinfen:
You say that the EU de facto has a legal personality. Does
that make it a state?
Professor Dashwood: No it does not. There are
many international organisations that have international legal
personality. States are in the unique position of being full subjects
of the international legal order. That is true only of states,
but there are many international organisations that have legal
personality for specific purposes. In the case of the European
Union, the European Community has legal personality, so does the
European Central Bank, so does Euratom. And, as I said, there
are many other international organisations which have legal personality
and international capacity with respect to the matters for which
they are competent.
1 Note by witness: "It appears from the
wording of the present Article 23 of the TEU that the constructive
abstention procedure is available in the case of decisions having
military or defence implications. The procedure is laid down by
paragraph (1) of Article 23. The exclusion relating to decisions
having military or defence implications is provided for by paragraph
(2) of the Article and applies only to that paragraph, which is
about QMV. The corresponding version of the TEU as amended by
the Treaty of Lisbon (Article 15b) will be to similar effect." Back
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