Examination of Witnesses (Questions 100
- 114)
THURSDAY 6 DECEMBER 2007
Professor Alan Dashwood and Mr Charles Grant
Q100 Lord Selkirk of Douglas:
It is going to be entering into a Treaty? Does that not require
a state?
Professor Dashwood: No.
Q101 Lord Hannay of Chiswick:
Can I just be clear, in each case where the European Union is
going to acquire an international legal personality with respect
to a particular international instrument, there would be a unanimous
decision by the Council to do so? I think that is what the provision
says, does it not?
Professor Dashwood: If it is going to enter
into an international agreement on a CFSP matter, yes, there would
be.
Q102 Lord Hannay of Chiswick:
So if you were to decide that a particular Convention on the law
of the sea or torture, or whatever it was, was going to be acceded
to by the European Union, then the 27 Member States of the European
Union would have to take a decision that that would be so and
then the European Union would have legal personality with respect
to that Convention, I think I am right in saying?
Professor Dashwood: That is correct. It would
be concluded by the Council in the name of the European Union
and the Union would be a party to the Convention.
Q103 Chairman:
Would that also apply to those international agreements which
it entered into under its competences under the old Treaty on
a Community basis?
Professor Dashwood: Yes, for instance the European
Union will succeed to the Community's membership of the WTO.
Q104 Chairman:
But for example if there were within the WTO some new Convention
negotiated, would it require a unanimous decision of the Council
for the European Union to ratify that particular Convention of
the WTO?
Professor Dashwood: Yes.[2]
Q105 Lord Hannay of Chiswick:
It has been suggested that in some way or another the UK would
lose its seat or diminish its capacity to act in the UN Security
Council as a result of the Reform Treaty. Would you perhaps comment
on that?
Professor Dashwood: In my view, there is no
risk whatsoever that the UK would lose its seat in the Security
Council. As you know, there will be an obligation under Article
19(2) of the Treaty on the European Union and on the Member States
themselves who are members of the Security Council to request
that when the Council is discussing a subject on which the Union
has defined a position that that position should be presented
by the High Representative. That is something that may happen
from time to time. If the precise subject matter which is on the
Security Council's agenda is one on which a Union position has
been defined by unanimity it seems to me that has no bearing at
all on the status of those Member States that are members of the
Security Council.
Lord Hannay of Chiswick: And the provision
that enabled the Member States to agree collectively that the
High Representative should be represented at the meeting of the
Security Council is already in effect under the existing Treaties
and has already taken place under the existing Treaties, so it
is not an innovation here. There are provisions, if I remember
rightly, in the Maastricht Treaty about co-operation in the Security
Council. It was not quite the same wording but it quite clearly
foreshadowed the continuing membership of the permanent Security
Council of two members of the European Union because it referred
to that.
Chairman: But in practice there are often
four or five members of the European Union who are sitting at
any time on the Security Council. In addition to the two permanent
members, there are two Western European members and one Eastern
European member, all of whom may well be members of the European
Union.
Q106 Lord Swinfen:
Does a similar position apply to, say, the African Union if situations
in Africa are being discussed by the Security Council? If it applies
for the European Union when they have an interest, why not the
African Union when they have an interest?
Professor Dashwood: I have no idea of the content
and the terms of the instrument that established the African Union.
I have no idea what they do.
Mr Grant: That is a matter for the African Union
to sort out.
Lord Hannay of Chiswick: If I could just
help a little bit as I sat on the Security Council for some five
years. First of all, there are no African permanent members of
the Security Council so the complexities of European involvement
are not replicated in the case of Africa at the moment. Secondly,
it is of course entirely open to the Presidency of the African
Union, whoever it is, to ask the Security Council to decide that
in a particular debate their President should be represented and
he should come along and speak in the name of the African Union.
A decision will then be taken on that under the rules and procedures
of the Security Council which permit non-members to participate
in debates. It could happen perfectly easily. If the African Union
wished it to happen it would happen. That would not mean that
the African members of the Security Council at that time handed
their powers over to the African Union. It would just mean that
they would ask for this gentleman or lady to come along and speak
on behalf of the African Union in the name of policies decided
by the African Union. I think I am right in saying that can be
done even now. It may even have been done in the case of Darfour,
I am not sure.
Q107 Lord Chidgey:
Can I ask you this question on development co-operation and humanitarian
aid. Are there any important changes in the area of development
co-operation and humanitarian aid? Are any of these a cause for
concern?
Professor Dashwood: As far as
I am aware, the only change is that there will be a new legal
basis for humanitarian aid. At one time instruments of humanitarian
aid had to be adopted under Article 308 of the Treaties which
confers residual competence. I think more recently they have been
pretending that it is a form of development co-operation and that
does not sit very comfortably with the language on that legal
basis. All they are doing is creating a specific legal basis,
which I think is entirely the right thing to do.
Lord Chidgey: I see.
Q108 Lord Selkirk of Douglas:
Are there any other important legal or political questions or
indeed any other considerations relating to our inquiry which
you think should be brought to the attention of our Committee
this morning?
Professor Dashwood: This is probably a rather
technical sounding point but in the Constitutional Treaty, Article
I-6, there was a provision which would have enacted the principle
of the primacy of Union law, and there was a great academic debate
as to whether, because it was included in Part I of the Constitutional
Treaty, this was intended to apply across the whole of the Union's
competences, including the CFSP. It was argued by some that on
CFSP matters national courts would have to recognise—even
though the Court of Justice could not be involved—the primacy
of the rules and any decisions taken for the purposes of the CFSP.
I think the deletion of that principle from the present Treaty
removes that ambiguity and the fact that the CFSP is located in
an entirely different Treaty from the other external relations
competences, I think makes it quite clear that is it is ring-fenced.
Mr Grant: There is one final point on defence
which is not directly relevant to today's questions but perhaps
indirectly relevant. I do think that what happens in the defence
area, whatever the Treaty says, is much less important than what
the governments decide to do and what principally the British
and French Governments decide to do. There is a big issue brewing
next year, which I am sure your Committee will be interested in,
which is, as I have mentioned already, the Sarkozy initiative
to rejoin NATO in return for a stronger European defence in some
form. I have certainly picked up on a recent visit to Washington
genuine concern in the US Administration that the British Government
is so reluctant to talk about defence at the moment in the context
of Treaty ratification and so unwilling to engage with the French
that we (meaning in this context the British and the Americans)
may miss an opportunity to effect a quite profound change in the
way European defence is organised, namely the full reintegration
of France into NATO. I know that is a bit beyond the scope of
our discussion but it is indirectly relevant because it makes
my point which is that I do not think this new Treaty really changes
anything significant in the real world of defence. What is significant
is what Britain, America and France decide amongst themselves
on these issues.
Q109 Lord Hamilton of Epsom:
I am rather amazed there should be consideration that there should
be a price to be paid for France rejoining NATO. If it is in France's
interests to rejoin NATO they should rejoin it and if it is not
they should not. On a rather wider issue, where do you think the
European Project is leading ultimately? What are the end goals
of the European Project? This is to Mr Grant, as it is a political
issue.
Mr Grant: That question is impossible to answer
because the different countries of the EU have different views.
One or two countries still subscribe to what I would call a "federalist"
view which is that we should create a much closer union, with
the Commission becoming the executive government. The Belgians
basically support that line; some people in Italy do; some people
in Germany do; virtually nobody else does these days. Most people
these days have what I call an "instrumentalist" view.
They think that the EU is quite a useful tool for achieving outcomes
that cannot easily be achieved by single countries working on
their own. That pragmatic or instrumentalist view is now the dominant
one but because it is a pragmatic view you cannot talk about the
final goal. It depends how the world changes. The EU will evolve
in response, in my view, to things outside it—the changes
in Russia, China, the Middle East, climate change, energy security.
These are the issues and the challenges that will make the EU
evolve, but you cannot say where it is going because you do not
know where those challenges will be in the future.
Q110 Chairman:
Professor Dashwood, did you want to comment on that?
Professor Dashwood: I just want to make one
point which is this: I take the view that the European Union is
a unique constitutional order and what is unique about it is that
it is composed of sovereign states but they have come together
in a constitution-like relationship. It seems to me that the uniqueness
of the Union order, which does not have statehood in its DNA,
is brought out much more clearly by the language of the Treaties
as amended than it is by the present Treaties. They make it very
clear—as the present Treaties do not—that the Union's
competences are conferred by the Member States to enable them
to pursue interests that they have in common. There is a lot of
language which you do not find in the existing Treaties saving
the identity and the fundamental competences of the Member States.
Q111 Chairman:
Is that to some extent a response to what had been called for,
a lack of a European Council, which suggested that we ought to
move in that direction?
Professor Dashwood: It is that, yes, and most
of this language was present in the Constitutional Treaty. That
is why I used to describe the Constitutional Treaty as a "sheep
in wolf's clothing", because it had called itself a constitution
and because there are various flourishes in it like calling the
High Representative a minister. This gave an entirely false impression
of what it was fundamentally about.
Q112 Lord Swinfen:
I wonder if you could clarify something for me which is not entirely
on foreign and commonwealth policy but I am sure you are much
more knowledgeable on this than me. Can a sovereign Member State
withdraw from the EU without a qualified majority vote allowing
it to do so or is the qualified vote that is talked about in some
documents the penalties or sanctions against it if it was to be
brought?
Professor Dashwood: Under the existing Treaties
there is no express right of withdrawal although of course if
any Member State chose to withdraw nobody would send an army in
to prevent them from doing so. The new Treaty will provide specifically
for a right of withdrawal and that is a matter to be decided by
the Member State itself.
Q113 Lord Swinfen:
Did you say Member State or Member States?
Professor Dashwood: No, the Member State itself.
Q114 Lord Swinfen:
Singular?
Professor Dashwood: Yes, it does not need to
have the agreement even of a qualified majority of the other Member
States. Of course, any sensible government would want to negotiate
its way out because it would want to have a future relationship
with the European Union, but there will certainly be an absolute
right to withdraw. Under the new Treaty; this is made clear.
Chairman: Thank you both very much indeed.
You have certainly been very helpful in elucidating what is a
somewhat complex subject. Not all the discussions which have appeared
in public print have been as helpful at elucidating it as you
have been this morning. I think there are one or two aspects in
the Reform Treaty where one really is only being given powers
to do things in the future. We have seen in the discussion both
about the External Action Service and the structured co-operation
that it will probably be developments that it is implementing
in the course of the next year before the Treaty comes into force
which will be of importance and of interest. The Sub-Committee
may very well want to return to those issues when a little more
is known about them and we may well want to call on your advice
again when we come to that. In the meantime, thank you very much
indeed for what has been a very useful session.
2 Note by witness: "For the avoidance
of misunderstanding, answers given to a question by Lord Swinfen
(QQ 44-46) are recalled here. Under the Treaty of Lisbon, international
agreements will be concluded by the Council in the name of the
Union with respect to CFSP matters, on which, as at present, it
will act by unanimity (except when implementing an earlier unanimous
decision). In addition, the Council will conclude agreements in
the name of the Union with respect to the foreign policy matters
that have hitherto fallen within the domain of the Community.
Here, the Council's voting rule will be determined by the relevant
legal basis. For instance, international agreements on trade or
development cooperation will be concluded, as now, by QMV, while
association agreements will continue to require unanimity. The
WTO agreement was concluded by a unanimous Council decision because
it concerns various matters, in particular some service sectors,
where unanimity is the prescribed voting rule. Any future agreement
within the WTO framework is likely to require unanimity for the
same reason, unless it relates specifically to a sector for which
QMV suffices." Back
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