Examination of Witnesses (Questions 280
- 296)
WEDNESDAY 19 DECEMBER 2007
Mr Jim Murphy, Ms Shan Morgan, Mr Paul Berman and
Mr Martin Shearman
Q280 Lord Dykes:
Following the second part of Lord Harrison's question, are you
content with the actual text in the Treaty as laid down about
the expansion of the Court's functions or will HMG make further
structural suggestions, like sub-panels of judges, court of second
instance, which are the examples that have been mooted in other
circles in Europe?
Mr Murphy: In general, in the Treaty and the
text we are content with the powers, remit and competence of ECJ.
The significant areas we were keenest on was the relationship
between the ECJ and CFSP and that is clear, and it perhaps could
be argued that it just confirms what happens at the moment but
it confirms in Treaty text that there is no role for the ECJ in
terms of Common Foreign and Security Policy, and that was important
for us. The other was on the Charter of Fundamental Rights and
ECJ competence. Those were the really significant in principle
protections that we were looking for. In terms of further changes
to Treaty text or the 52 declarations attached to the Treaty,
we are not looking to change any of those at the moment.
Q281 Lord Roper:
Minister, obviously the number of references have stabilised with
the present jurisdiction but clearly the enlargement of the jurisdiction
will almost inevitably increase the number of references. One
particular group of references is those dealing with people who
are in custody, of which there have only been relatively few so
far but of whom there might be significantly more with the expansion
to what is at present Pillar 3. Is there a problem given the time
which the Court tends to take over a case in dealing sufficiently
quickly with people who are in custody?
Mr Murphy: As I referred to earlier, there is
the combination of the five year transitionary period, the currently
stable number of references and the fact that the backlog is being
reduced. Without in any way being complacent about it, structurally
things are in place that are driving improvements. That five year
transition gives an opportunity to look ahead and manage any additional
caseload. An additional reform that is being introduced is about
specialist tribunals. The impact of specialist tribunals, which
we strongly supported and was why we supported the extension of
QMV on specialist tribunals, there is one currently on civil service
tribunals and the evidence thus far seems to be pretty positive.
There is a whole set of important reforms being put in place to
ensure that the ECJ is able to deal with the types of concerns
that have been raised.
Q282 Chairman:
Thank you very much indeed. Maybe we had better move on to the
next issue. I want to raise with you, Minister, a couple of questions
relating to the Charter of Fundamental Rights. In particular,
what, if anything, does the Protocol add to the horizontal clauses
in the Charter? Secondly, would you accept as inevitable the ECJ
over the course of time developing jurisprudence in the field
of fundamental rights by reference to the Charter and that this
might in the long run undermine the Government's "red lines"?
Mr Murphy: My Lord Chairman, this is now an
increasingly well-rehearsed argument and is one of the issues
that will attract considerable attention as we proceed with the
deliberations on the Bill giving effect to the Treaty. We are
very clear indeed both politically and legally as to where we
are. There is an acknowledgement, or perhaps acceptance may be
a fairer way of putting it, across Europe that the Charter in
and of itself does not create any additional new rights, it records
in one place existing rights, but the important effect is for
the first time institutions are bound by the specific rights gathered
together within the Charter. There were specific concerns in the
UK that also existed in Poland and we sought to address those
concerns, with apologies to your Lordships who have asked about
the negative language of some of these deliberations in the past,
about future competence creep of the ECJ in developing jurisdiction
through case law elsewhere relying on the Charter. We wished to
put it beyond any doubt whatsoever and that is the purpose of
the UK and probably the Polish Protocol on the Charter of Fundamental
Rights. Your Lordships have got copies of this. It refers to both
the United Kingdom and Poland in Article 1 but it applies to all
Titles of the Charter of Fundamental Rights. The horizontal articles
do confirm that the Charter cannot expand any of the EU's powers
at all. If you like, more colloquially put, it is a belt and braces
approach. We are very clear, and all other countries are very
clear, that the Charter does not create new rights, that is the
belt, and the braces is we have got a Protocol for the avoidance
of any doubt.
Chairman: Does anybody want to follow
up on that?
Q283 Lord Powell of Bayswater:
I suppose the real point is if it does not create any more rights,
with which I agree, it does not diminish them or restrict them
or restrain them from the present position in any sense. Given
that the Court is a dynamic institution which is constantly fulfilling
its mandate, which is advancing the purpose of the Union, then
we must look to the fact that it is likely to steadily extend
the scope of the rights that are in that Charter, not because
they are in the Charter but simply because it decides that in
the interests of the Union they should be extended, so we are
as undefended as we were in the past, put it like that. There
are no extra rights in the Charter, we have no additional blocking
power or defences against further extension of the ECJ's judgments
on these matters.
Mr Murphy: I will offer a comment and then invite
Mr Berman to comment. First of all, I would like to say to your
Lordships what I have said in the Commons already, which is that
we do not have an opt-out from the Charter. Some of my colleagues,
the trade union movement in particular, had a concern that we
did and we have made it very clear that we do not have an opt-out
but that the Charter does not create rights in the Protocol. The
fact is the Protocol, Article 1, is about ensuring that this protection
of the Protocol has the full weight of European law because it
is contained, as you know, in the way that it is and that is a
legally binding Protocol. I will invite Mr Berman to comment more
specifically about the legal point.
Mr Berman: My Lord, you are right, the Charter
Protocol is concerned with the Charter itself and the concerns
that were raised in the Charter. Clearly fundamental rights have
been part of Community law since 1970, so we have lived with them
for getting on for 40 years, and there has been an evolution of
those rights in accordance with developments in broader case law,
the Treaties in which Member States participate and in practices
in national constitutions, and that will continue. There has never
been an acceleration, the floodgates have not opened, it has been
there to protect the individual, particularly in relation to the
conduct of institutions, and that will continue to evolve organically
as it has done since before we joined the European Community and
we have lived through it for nigh on four decades without a problem.
What we are concerned to make clear is that the Charter itself
does not create a source of new rights, and that is pinned down
principally in the Treaty itself to go with the explanations,
but guaranteed in the belt and braces way, as the Minister says,
by our Protocol.
Lord Powell of Bayswater: I think my
point is that the Protocol defends us against a red herring, which
is not a very terrifying animal to be defended against.
Q284 Chairman:
I agree with that. Before I ask Lord Kerr, I want to re-emphasise
this point. We had a former judge of the European Court before
us here giving evidence and he rather charmingly said that they
do not do propensity in the European Court, which is to say that
there was not a propensity to get more and more proactive, but
at the same time we were left with the clear impression that the
Court will develop considerable jurisprudence in the years to
come and that one of the sources of that jurisprudence will be
the Charter. Therefore, even though the Charter itself will not
be creating any new rights, the European Court's jurisprudence
will in fact be leaning very heavily in some instances on Charter
rights.
Mr Murphy: On that basis, of course, my Lord
Chairman, the UK Protocol in that scenario, contrary to what has
been suggested, would be significant on the basis that the Protocol
is clear that no right can be derived from reliance upon a text
of the Charter or the rights contained within the Charter, no
new EU rights can be extended as a consequence. That is the purpose
of the Protocol.
Chairman: We will see if that turns out
to be the case and time will tell.
Lord Kerr of Kinlochard: I am sure you
are right, my Lord Chairman, that the Court will develop jurisprudence
based on its reading of the Charter, but there is a difference.
It will now be reading, if this Treaty is ratified, the version
of the Charter in the Treaty which contains the horizontal clauses
which are not in the Charter which the Court reads now, the one
that was promulgated at the Nice European Council. I agree with
those who say that the Protocol is completely unnecessary because
the horizontal articles at the end do the job. They are very precise
and deal with precisely the threat that worries Lord Powell about
the existing situation, the potential for constructive interpretation
by a dynamic Court. It seems to me that this threat was very well
dealt with by Baroness Scotland when she negotiated the horizontal
articles into the Charter. I think the belt is very good, therefore
I cannot quite understand the need for braces as well. I am sure
the belt deals with the problem that Lord Powell raised.
Chairman: Shall we move on.
Q285 Lord Dykes:
This is another area where seemingly a separate stance was going
to be maintained by HMG. It was not the only more colourful comics,
I suppose, that masquerade as newspapers in Britain, but actually
quite serious commentators in the serious newspapers who referred
to the concern that the changes brought about the Treaty would
affect the basic independent of the UK's foreign and defence policy
formation in the future. The Government described this matter
as a "red line" issue, I believe. Are these concerns
well-founded?
Mr Murphy: No. It may be bad manners to suspect
your Lordships will let me leave it at that! The concerns are
not well-founded. They are not well-founded on any objective analysis
of the text of the Treaty, the text of declarations, the text
of Article 11, nor any of the agreements by the heads of government.
The fact is that CFSP has been in place since Maastricht. I rightly
will be chastised if I even gently tread on the politics of that,
but many of those who are now apparently so angry about what we
are seeking to achieve here in a Common Foreign and Security Policy
were amongst those who voted so enthusiastically and energetically
for the Maastricht Treaty. As I say, we have had CFSP since Maastricht,
and that was the right thing to have had incidentally, it is not
a criticism, just an observation about apparently facing two different
ways. The EU's operations in Bosnia and Afghanistan, the common
approach on Burma, sanctions on Iran, there is a plethora of important
ways in which the European Union's Common Foreign and Security
Policy has helped or is helping. There are two new declarations,
one about the capacity of those Member States who are members
of the United Nations Security Council who continue to operate
independently, and secondly about our own foreign policy. In Article
11, I think it is on page 29 of the Treaty, there is a text there
which is pretty clear about the Common Foreign and Security Policy.
There is much more we could say about this and this debate on
foreign and security policy will continue over the months ahead.
Foreign policy has been in place since Maastricht and it has not
stopped us, on occasion very controversially, going outside of
what would be considered the mainstream of European opinion and,
more importantly, outside the consensus in Europe in terms of
military action.
Q286 Lord Dykes:
You are thinking of Iraq?
Mr Murphy: I am thinking particularly of Iraq.
This approach was in place pre-Iraq, and we will continue to have
disagreements within parties and across parties about the merits
of the case in terms of Iraq, but the fact is the United Kingdom,
working with other allies, was able to embark on its own foreign
policy and will continue to be able to do that and it is not affected
by the Lisbon Treaty. It is an agreement at a political level
in terms of unanimous declarations but also in Treaty text that
makes that beyond doubt whatsoever.
Chairman: We will continue on foreign
affairs with Lord Roper.
Q287 Lord Roper:
Article 13a of subsection 3 on page 31 talks about the way in
which the European External Action Service will be set up. I wonder
if we can get some sort of idea as to the timetable as to when
there is likely to be the decision of the Council which is going
to determine the organisation and functioning of the Council and
what sort of role the British Government feels it is going to
play in this process? What efforts will the Government make to
ensure that the External Action Service is given the resources
and political support it needs to be effective? In particular,
there is a reference in that Article and subsection to staff seconded
from national diplomatic services of Member States. I believe
that it would be to the advantage of the United Kingdom to ensure
that we are able to second able and competent people and play
an important part in developing that External Service in the right
direction. Does the Minister agree?
Mr Murphy: I strongly agree. The role of the
High Representative is an important one but it is not a job exclusively
for one person, that person would need logistically support of
the type that we can all envisage. The details of the External
Action Service have not been debated yet and certainly have not
been agreed yet. When ultimately it is decided upon, it will be
decided upon by unanimity, which is important. There are some
quite fair concerns about how we come to the decisions on the
External Action Service and it will be by unanimity. It will be
our intention to play our part in terms of UK secondees to that
service. We currently have secondees to a variety of European
institutions and bodies and it would be the correct and proper
thing to do for the United Kingdom, along with others, to play
our part and provide secondees to that service.
Q288 Lord Roper:
Perhaps I can pursue one point which goes back to something we
were discussing earlier. Obviously bringing together what you
referred to as the two silos of the work done in the Council Secretariat
and the work done in the external relations part of the Commission,
also presumably the present representations of the Commission
in the field which will, of course, become Union representations
in future, they will presumably be double-hatted to that extent.
On the other hand, in the external representations of the Commission
at the moment there are quite a lot of people dealing with things
like development aid who are coming from parts of the Commission
which are not going to be under the direct responsibility of a
High Representative. Do you think that they will become part of
the External Action Service or will they continue to be directly
coming from their own Directorate-General?
Mr Murphy: We have not considered the detail
of how this will operate and I think it would be inappropriate
for me this evening to make it up on the hoof, colloquially speaking.
These are things that within the UK Government we will come to
a settled position on as to what we think will be the most effective
way for this to operate, and then by unanimity of the other 26
to come to what will be operationally sensible, what does not
repeat some of the mistakes of the past.
Q289 Lord Roper:
The decision on the functioning and operation of the External
Action Service which is referred to will presumably not have to
be made before the Treaty is ratified but some time after, so
it could come in 2009 once the High Representative is appointed,
so it will be possible for this Committee or one of the Sub-Committees
to return to that question during that period.
Mr Murphy: It will be for your Lordships to
make that decision. It is not for me to dictate the work of this
Committee or to anticipate an opportunity to appear before you
again, but the timescale for any decision on this is such that
there will be ample opportunity for your Lordships to consider
the detail of this. In fact the truth, as I have said already,
is that the UK Government has not worked through the detail of
our position so there will be limited validity in questioning
us about a position we do not yet have. Perhaps it will be sensible
as we develop our view and thinking on the External Action Service
for me to notify the Committee and then for the Committee at a
time of its choosing to perhaps seek the appropriate minister
to provide evidence to you.
Chairman: That is fine. We might raise
this with you when we meet you again. We have a date fixed for
you to come and talk to us about the European Council, so we could
raise it on that occasion.
Q290 Lord Wright of Richmond:
Minister, I think you have told us that you are not really in
a position yet to talk about things like secondments to the External
Action Service, but to what extent does the Diplomatic Service
already second people to the Commission representation abroad?
Mr Murphy: We do second people to the Commission.
I do not have the figures with me today but it may be helpful
if I provide those figures to your Lordships.
Q291 Lord Wright of Richmond:
I would be very interested.
Mr Murphy: I will happily do that.
Q292 Lord Roper:
If they could show both the numbers seconded to work in the Commission
in Brussels and those seconded to work in Commission representations
outside Brussels.
Mr Murphy: I will happily provide
the details to you, of course.
Chairman: That is an interesting point.
We recall the interesting article in The Economist quite
recently about the number of UK nationals working in positions
in the Commission and elsewhere which seemed at least to alarm
The Economist and I must say it somewhat alarmed me too.
I think we have an interest in this.
Baroness Howarth of Breckland: I do not
know whether I am permitted this question really. At the beginning
you talked about the need for reform because you would not run
a bowls club with the present structures, with which I agree with
you. One of the issues that we have not talked to you about, and
one that we may want to ask about later, is how you explain this
complexity to the ordinary consumer, the ordinary bowls club member.
I was interested listening as you went through and you talked
about the ambiguities that still exist in the detail and, of course,
the general population find ambiguity very difficult to deal with.
Some of the issues about quality, quantity and speed that you
have talked about, people might understand better if they thought
it was a speedier reaction they were going to get but the multiple
voting means it may be slower, how does the general population
understand that? I just wondered what you would say in a sentence
if you were going to say three things about this debate to your
bowls club to really win them over, because this is the real crunch
about the complexities of these issues. I am Sub-Committee G and
we deal with consumers and those sorts of affairs. How do you
get ordinary consumers to really grasp those sorts of issues,
quality, quantity, ambiguity and change, when you do not have
the kind of detail people do understand?
Q293 Chairman:
You get equal time with the Baroness if you wish to.
Mr Murphy: I was only given three sentences.
First of all, I think there are some excellent bowling clubs throughout
the United Kingdom.
Q294 Lord Wright of Richmond:
Some of your best friends.
Mr Murphy: Some of my voters, which are of course
the same thing.
Q295 Baroness Howarth of Breckland:
It is rather better than the Clapham omnibus, is it not?
Mr Murphy: The Clapham omnibus you have to spend
less time on than you do in a bowling club. How would I describe
it? That Europe has been a great force for change in the past.
Its rules are outdated. There were six countries in membership—I
do not know how many sentences this is now—when we joined
and we should celebrate there are now 27. Those countries freed
from Communism are now full members of our club. Like every organisation,
the rules have to take account of those changes. If we do not
change and improve the way we work the great things that we all
believe in will not be achieved through Europe. That would be
my approach in trying to justify and argue the general thrust
of the Treaty.
Baroness Howarth of Breckland: You have
got a lot of work to do.
Chairman: I think that was a pretty good
stab at it, if I may say so, Minister.
Baroness Howarth of Breckland: It was
a good stab.
Chairman: This leads us on to what Lord
Sewel and Lord Maclennan may wish to put to you in the final moments
of our meeting.
Q296 Lord Maclennan of Rogart:
We have heard statements, not only from our Prime Minister but
also from other heads of government, that these constitutional
reforms embodied in the Treaty of Lisbon mark the end of the road
for institutional reform. Are we expected to believe that if in
practice they turn out to be less than optimal the Union is setting
its face against any more IGCs to improve the situation, or is
it anticipated that any necessary changes would be achieved by
evolution of the constitutional developments comparable to those
in Britain or, per contra, is it lack of imagination that suggests
there cannot be any improvements made?
Mr Murphy: The pure structural organisational
answer first and, if you will permit me, a political comment.
The conclusions of the European Council are pretty clear, no more
change in the foreseeable future. The quote is that, "In
the foreseeable future we should concentrate on concrete challenges
including globalisation and climate change". Domestically
our own Prime Minister has ruled out any future Treaties for this
or the next Parliament. On the basis that these Treaty changes
are by unanimity there is just no appetite any longer for another
IGC process and further Treaty change. This process has been going
on now for seven or eight years. That is the straight structural
response. My more political response would be that if Europe was
to go through another period of near a decade of having a conversation
with itself, the detail of which only a thousand people across
the continent have followed the precise twists and turns of every
move from QMV to DMV, to Protocols, Charters, "red lines",
opt-ins, opt-outs and legally binding protocols, we risk our collective
ability to do the things that we wish to do because we erode contemporary
political consent for Europe, the European project and what we
believe it can achieve. My sense about this disconnection between
European populations and Europe as an institution and as a force
for good is driven by the fact that a Treaty in itself will not
change that and a clever speech by a politician or business leader
will not change that. Until such time as people's lives reflect
the reality of our argument they are right to feel sceptical that
Europe has yet to deliver the improvements that we all believe
it should, can and has done in the past. It is about delivery.
The importance of the Treaty for me is that it gives us an opportunity
to help deliver much of that. If I could finally sum it up. Many
more people, myself included, are much more interested in the
Lisbon Agenda and changes and growth than in the important detail
of the Lisbon Treaty. Once we have come to the conclusion of the
deliberations of ratification of the Lisbon Treaty we should put
as much energy into the Lisbon Agenda when there are 92 million
people across the European Union economically inactive. That is
a massive challenge for us and the test will be will we collectively
put as much energy into that as we have into this. If we do not
then I think we run the risk of just talking to ourselves and
undermining future consent.
Lord Sewel: I cannot add anything to
Lord Maclennan's question and I am totally content with the Minister's
answer. I think we are all a little bit exhausted. Thank you.
Chairman: That is the Chairman of Sub-Committee
D. I think the long inquiry into the wine regime has got him down.
Lord Plumb: It has not, my Lord Chairman,
it has built him up, I think!
Chairman: Minister, thank you very, very
much indeed for giving very generously of your time and answering
all of our questions in your customary very precise and informative
way. We look forward to seeing you on 15 January when we will
have a chance to discuss the outcome of the recent European Council.
Thank you very much to Shan Morgan, Paul Berman and Martin Shearman.
Thank you.
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