Treaty of Lisbon
Good morning. We need to start on time because we have a very full agenda this morning. Welcome to the third meeting of the European and External Relations Committee this year. The first item on the agenda is evidence from Andrew Duff MEP, as part of our consideration of the Treaty of Lisbon. He has been invited in his capacity as one of the three representatives from the European Parliament who participated in the intergovernmental conference that, as members will be aware, negotiated the treaty.
We will start the session with a 10-minute opening statement from Andrew Duff and then move to general questions. Thank you for coming, Andrew—we look forward to hearing what you have to say.
Thank you for asking me—it is a great privilege to be here. I view it firmly as an important staging post, as I have been speaking to the scrutiny committees of several national Parliaments as part of the IGC process, and as part of the essential project, which is to try to understand this extraordinarily complex treaty and to explain and justify it to fairly sceptical public opinion and to sometimes fairly cynical Parliaments.
As members appreciate, my broad assessment of the Treaty of Lisbon is that it is an extremely good settlement. It strengthens the capacity of the European Union to act effectively abroad and within its own member states; it streamlines the decision-making processes; it rationalises instruments; and, importantly for us, it greatly strengthens parliamentary democracy. The British enjoy—if that is the word—several protocols that amount to opt-outs from key areas of integration. I cannot explain or justify why the British Government thought it was necessary to negotiate all the opt-outs; it seems to us in Brussels to be a strange Westminster obsession. I suspect that it looks like that from Edinburgh, too.
I turn now to the Scottish perspective. It seems that Scotland needs to focus on its place in the British parliamentary system and to assert itself as a component part of the British parliamentary scrutiny structures. As you know, the powers of national Parliaments have been strengthened in the treaty. In some countries, such as France, the powers that are granted to the national Parliaments are even stronger than those that they have under the domestic constitution. Therefore, the French, as we speak, are reforming their system to strengthen the powers of the Assemblée nationale to meet the requirements of the Lisbon treaty. The Belgians saw fit to include declaration 51, which spells out the powers of Belgium's federal Parliaments. So far, the British have been silent on that issue. The Government and Parliament at Westminster could be obliged to express themselves on the new set-up in relation to the Scottish Parliament that the treaty implies.
I will briefly set out some of the measures. National Parliaments are afforded greater powers to be informed, the early-warning mechanism on subsidiarity has been strengthened and there are special reserved privileges for national Parliaments with respect to freedom, security and justice—especially concerning the scrutiny of the European Police Office and Eurojust. National Parliaments have powers over future reform of the treaties, including in relation to the accession of new member states. There are also specific instructions to the European Parliament that it must strengthen the system of collaborating with national Parliaments, especially on interior affairs, but also on foreign security and defence policy. In article 3, which describes the principle of subsidiarity, the regional dimension is referred to expressly for the first time.
The protocol on application of the principles of subsidiarity and proportionality contains the provision that the European Commission must consult at regional level and include the regional dimension in its assessments of draft law. Article 6 of the protocol on the application of the principles of subsidiarity and proportionality is crucial. It states:
"It will be for each national Parliament … to consult … regional parliaments with legislative powers"
within the eight-week formal period for pre-legislative consultation. National Parliaments will be able, for the first time, to approach the European Court of Justice to defend their prerogatives, through the agreement of member states. A similar provision applies to the Committee of the Regions, which also receives the power to approach the court.
The changes that are being wrought by the Lisbon treaty will have an extensive impact—that should be of primary concern to the Scottish Parliament, especially this committee, in its future work.
Thank you very much. That was extremely useful and there are obviously many issues to cover. I will kick off. I am not sure whether other members will follow suit, but I will try to keep the Scottish angle to the fore. I have two questions, but I will ask just one now, to give others a chance. Ted Brocklebank will be next.
We are interested in how the justice and home affairs issues in the treaty relate to Scotland. You expressed some disapproval about the opt-outs—or perhaps it is an opt-in, in the case of justice and home affairs. How will the treaty work in that respect? We know how it will work in general terms, but our specific question is how it might affect Scotland, particularly given that justice and home affairs are substantially devolved.
That is correct. I disapprove of the protocols; I think that, essentially, they are spurious. In effect, the current British Government will seek to opt in to all the areas in which it has the privilege of excluding itself. That is what I suspect—we will have to see what happens in practice.
Do we accept that the decision to opt in or opt out ought to be that of the Executive in Whitehall, or should it come under a parliamentary process? At present, the Commons and Lords committees that have responsibility for such matters do not believe that they are going to be asked for their opinions until some way through the legislative process. For Scotland, which has devolved powers in an awful lot of the relevant areas, the importance of asserting yourselves extremely early on in the decision-making processes in London—at Executive and Parliament levels—seems to be crucial.
I imagine that your memoranda of understanding with Whitehall and Westminster should be reviewed with particular regard to the development of common policies in freedom, security and justice.
We are interested in how the whole treaty will affect Scotland. Are you perfectly happy that the Lisbon treaty is basically the same as the constitutional treaty?
I preserve such degrees of joy for my private life.
I am satisfied that the Lisbon settlement is as close to the 2004 constitutional treaty as it can be, given the fraught circumstances of its negotiation. However, for the United Kingdom the package is distinctly changed from 2004 because of the opt-outs.
Which you do not agree with.
You are absolutely right.
You said that the treaty will strengthen parliamentary democracy. However, in its report of 20 January, the House of Commons Foreign Affairs Committee, which is Labour dominated, accused the Government of "downplaying" the treaty's importance and said that it
"is unlikely to be beneficial to the UK's position in the EU."
That hardly sounds like a strengthening of parliamentary democracy.
The Foreign Affairs Committee was primarily considering foreign, security and defence policy aspects of the package. Of course, parliamentary powers in EU common and foreign security policy and in foreign affairs more broadly are weaker than they are in domestic legislative matters. That is par for the course.
I disagree with people who try to downplay the importance of the substantive changes that will affect Parliaments. The European Parliament is the principal victor in the negotiations. The struggle for power between the institutions in Brussels has clearly been won by the European Parliament, which has won greatly extended legislative and budgetary powers and powers of scrutiny. I sincerely believe that the improvements that I summarised with respect to national Parliaments will strengthen the parliamentary system as a conduit between the citizen and the powers that are exercised in Brussels. Scotland ought to assert itself to be as important a part of the federal structure that connects Parliaments as it can be.
So, you are saying that, although the treaty is unlikely to be beneficial to the United Kingdom's position in the European Union—which was the view of the Foreign Affairs Committee—it might, paradoxically, strengthen Scotland's position.
I do not agree with the essence of the opinion of the Foreign Affairs Committee. It is bizarre to think that Britain alone will not profit from the existence of a mature and effective common foreign, security and defence policy—but that is my political opinion.
Welcome to the Scottish Parliament. I want to explore a little further the role of the Scottish Parliament in scrutiny of legislation. In particular, I want to explore our relationship with Westminster. At present, we have a memorandum of understanding and protocols between the Governments, but no protocols or formal arrangements between the Parliaments. Would it be wise for the Scottish Parliament to consider with the Westminster Parliament how we can develop protocols for handling matters that are referred to the UK Parliament but on which it has a responsibility to consult the Scottish Parliament? In answering that question, you may wish to talk a little more about what is happening in Belgium.
A formal agreement between the Edinburgh and Westminster Parliaments is now essential. Among the 26 other member states, plenty of examples exist of agreements between regional Parliaments with legislative powers and their national Parliaments. It will be interesting for the committee to scrutinise those agreements and try to draw out some good practice.
I have to say, however, that not all the practice is good. Germany, of course, is a federal republic and the regions are represented formally in the second chamber. There is a protocol between the Bundestag and the federal Government, and that protocol is broad in its scope and great in its aspiration. However, if the Bundestag were to put it into effect, it would do nothing but scrutinise European affairs. A balance has to be struck between being interested in absolutely everything and being completely excluded. One has to prioritise and be discriminating. The Scottish Parliament would have to study the legislative programme that is published after being agreed between the Commission, the Parliament and Council, so that you could see what was coming up and pick out all the elements that you thought you ought to take an interest in and scrutinise. You could then exert your devolved authority on the decision-making procedures at Whitehall and Westminster.
Although the United Kingdom is not a fully federal United Kingdom and the powers of the House of Lords are somewhat attenuated—for example, compared with the relative powers of the Bundesrat—I suspect that there would still be a friendly reception for the idea. Certainly, the Lords would give such a reception to the idea that its extensive scrutiny procedures could be specifically focused on conserving and promoting the interests of Scotland. The idea is a sort of foreshadowing of a proper federal system whereby the second chamber has a duty of care for the regions.
Obviously, the question whether the UK Parliament pays attention to any consultation responses that it receives from the regional Parliaments—the Scottish Parliament, National Assembly for Wales, and Northern Ireland Assembly—is a matter for itself. However, is there any comeback for the Scottish Parliament if the UK Parliament were to fail to consult the regional Parliaments on a matter on which it is obliged by the treaty to consult them?
Yes. My answer is straightforward: a Scottish Parliament that found itself neglected by London could make a complaint to the European Court of Justice in Luxembourg. Several clauses in the protocol on subsidiarity could be deployed towards that end. I have no idea how far the case would travel through the court or whether it would be successful, but one of the big issues would be whether the Parliament was a privileged litigant. That said, if the Parliament could expose a failure to have been consulted in time on key issues that it had identified in advance as being important, it would at least have a sympathetic hearing.
The Scottish Parliament could also deploy the resources of the European Parliament, which is on the side of parliamentary democracy. If the European Parliament saw that the spirit of the treaty—which was so tortuous to negotiate—was not being respected properly, it would express itself on the matter.
I seek clarification on one point, which no doubt you made clear, but about which I want to be certain. Do the treaty rights for the Scottish Parliament relate not to wider policy but purely to matters of subsidiarity?
It would be far more straightforward for the Parliament to approach the court on the ground of the UK Parliament's failure to respect the subsidiarity provisions than to approach it on a substantive point of policy.
In that case, it might be easier for Scotland to have separate membership.
My question is on the new president of the Council. Clearly, over time, that person will become a much more important person than the current president is. There has been speculation about who might apply to be or will be president in the near future, but it is not beyond the bounds of possibility—indeed it is quite likely—that the president will be a person who has gone past his sell-by date in his own country. Is what has been proposed the best way of enhancing the European Union's reputation among an increasingly sceptical public?
I understand how separate membership might seem to be attractive and tempting, but I assure you that it would not be as simple in practice as it is appealing in theory.
I think that the part of the Lisbon settlement on the European Council presidency is one of the parts that are not perfect, but the formulation is the optimum agreement that we were able to achieve at the IGC. We cannot improve on what has been proposed before it has been tried out.
There is a lot of private discussion in Brussels on the criteria for the person who would fill the post of president—the job specification, as it were. The emerging lines of agreement that I have discerned are that the person could not be a former Prime Minister of a country that is not playing a full part in all aspects of integration—for example, a country that operates outside the security and defence policy and the Schengen agreement, that has not adopted the single currency, and that has opt-outs from security and justice affairs and the European charter of fundamental rights. It would be difficult for such a person to be president. The other important but unspoken criterion is that the person would need the full-hearted support of the Prime Minister of his own country.
That Prime Minister may, of course, change during the person's two-and-a-half-year tenure. Is the proposal an improvement on the current rotating presidency? I know why it was made, but it increasingly looks as if there would be a carve-up in giving somebody the job. The proposal is not particularly impressive, is it?
It is an improvement on the current fluctuating six-monthly presidencies, which disrupt the smooth programming and operation of the European Union. In 2007, we experienced two exceptionally strong and successful European Council presidencies. It is important to see the presidency historically and assess the proposal to have a permanent president in the light of the current Slovenian presidency and the successor French presidency in the second half of the year, which will be exciting, to say the least. Stability in the European Council is important. It is essential that the Council should be grounded in the EU treaty structure, which it is not at the moment—it is a free-floating creature.
The creation of a permanent presidency will be accompanied by such things as the drafting of rules of procedure for the European Council, which should also be very interesting. You can be certain that the European Parliament will pay special attention to the powers of the permanent presidency and to its relations with the President of the Commission, with the high representative for foreign policy, and with the trio of team presidencies that chair the sectoral councils. You pose a serious question that deserves continuing and thorough scrutiny.
I have a small point about a slightly different part of Alasdair Morgan's question that merits further exploration: the cynicism of citizens and how we can make Europe relevant to them. Some years ago, Mr Duff was kind enough to participate in a committee initiative when we invited civic Scotland to the chamber and asked people what Europe is for. I think that he will agree that that was a helpful exercise. What is there in the treaty that we can take to citizens and say, "This is relevant to you and will help you"? There was a discussion in Strasbourg a few weeks ago about the rights of children. If we can make Europe more relevant to citizens' everyday lives by, for example, showing them that the treaty will assist in tackling the exploitation and trafficking of children, that will help us to demonstrate how important Europe is and show that it is not about foreign affairs but about things that happen in people's lives.
That is quite correct. The Treaty of Lisbon contains improvements on the 2004 treaty with respect to competences in the environment policy, for example. The previous approach was to focus on pollution control, but now the approach has been broadened to combating climate change. There is also now a supply side to the common energy policy; whereas previously the policy was about demand, we are now committed to working to ensure the security and stability of supply. Furthermore, the extension of combating discrimination in the post-modern fields that we all know and seek to respect through our legislative and political processes is very important. Frankly, the sooner we bring the Treaty of Lisbon into force and proceed to improve the quality of public policy that flows out of Brussels and Strasbourg, the more pleased we all will be. I expect there to be a favourable popular response to a union that is working effectively in the context of globalisation and meeting the challenges that we have not had to meet before.
I am sorry that, all too often, the focus of the parliamentary debate at Westminster is not the substantive improvements that Lisbon brings to the Treaty of Nice set-up but an obsession with comparing and contrasting with the failed 2004 treaty. That is an extremely interesting partisan issue of Westminster politics, but the public are nonplussed by it. The public are a lot more interested in whether the Union can be effective and whether it can it build the financial resources to match its political priorities. Those are the interesting issues.
I return to the point about the need for Scotland to assert itself. We have taken a lot of evidence from organisations and institutions in Scotland, and a theme that runs through that evidence is that it is difficult to influence what happens in Europe. In many cases, our influence comes down to good will on the part of Whitehall. Our influence depends on whether Whitehall listens to Scotland. I was heartened by your references to article 6, but it seems a little hard to have to go to court. Should there be a mechanism whereby devolved Governments have a right to engage? At present, from what I can see, Whitehall turns its nose to Scotland only if it wants to.
I partly agree. Scotland ought to build up the network of regional Parliaments with legislative powers, which is of growing importance. I would be interested to hear your assessment of that network. To exercise informal power and influence in Brussels on the legislator is an important part of the exercise.
Members of the European Parliament are lobbied by industry, the diplomats of member states, non-governmental organisations and so on, but we seldom hear explicit or express opinions from regional Parliaments. Perhaps that is because we do not have the treaty in force yet, and the present third pillar in justice and interior affairs is an intergovernmental procedure. Of course, that will change when we get Lisbon into force. Parliament will have full powers of co-decision, the Council will have to act by qualified majority, and the Commission will have full powers to initiate and enforce common policy. I expect there to be a dramatic increase in the volume of interaction between Edinburgh and the European Parliaments.
That is the informal side, which always has to be worked at. However, the fact that we are seeking to ground all of that in treaty form and to provide for the interaction formally means that there are forms of redress if the system is not working well. Your first port of call, of course, is London. However, if you are still dissatisfied, there are further instruments that you can push in Brussels and Luxembourg. Of course, it would be an expensive distraction to always end up in the European Court of Justice in Luxembourg—I understand that. However, a class action brought by, for example, several regional Parliaments with regional powers to assert your claim on the system of government of the European Union would be an interesting option to explore occasionally.
The way that the opt-outs are structured suggests that they are simply a way for Governments to bypass the referendum question. Later on, when the heat is off, Governments could quickly transform the opt-outs into opt-ins one by one when it suited them to do so. That is very close to being dishonest.
That is not a question as much as it is a comment.
Do you agree that the situation is as I outlined?
It would be easy to cry that what we are discussing is an exercise in obscurantism from start to finish, designed—following the failure of referendums in France and the Netherlands—to extricate ourselves from the pledge to have a referendum. However, I am also a believer in realpolitik. The key thing for Europe, Britain and Scotland is to see the new, reformed treaty in force. There is a bit of high politics and low skulduggery at play, but if it achieves the principal objective, I shall be satisfied, if not happy.
You have not referred to the issue of engaging the voters. We have left the public entirely to one side. It is a bit like the question of the EU presidency—there is no real democracy involved; it is more a case of its being a job for the boy.
I have already voiced that concern, but I put it to you because you are a supporter of what is happening and because what you said about the opt-outs did not convince me that they are anything other than a way to get round having to hold a referendum. My point is that, regardless of whether or not we are in favour of having a referendum, we should engage with the public. We in politics are driving a coach and horses between ourselves and the public. What has been proposed is another way of disfranchising the public. I put it on record that I agree with the way in which the treaty deals with most matters, so it is likely that I would vote for it in a referendum. Nevertheless, something is missing—democracy.
I have great sympathy with your fear. A great responsibility falls on our political parties to face up to the full scale and scope of European integration and to speak the truth about the importance of Europe for our lives as citizens, which successive generations of political parties in Britain have failed to do.
The absence of a political party at the European level to act as a channel between the citizen and the EU is a serious problem. If we are to consolidate the success of the parliamentary achievements that are embodied in the Treaty of Lisbon, we must put a great deal of hard work into building up the essential sinew of democracy that does not exist at the moment—the ability of political parties to embrace the European dimension with confidence. That is not a party-political point; I include my party, the Liberal Democrats, in the class of party that, so far, has not succeeded in connecting with the public on such issues.
However, in defence of the present package, I point out that we can exploit the European Parliament election campaign in June 2009 to hold a thorough debate between the parties and the public on the constitutional progress that the EU is making.
I am sorry, Alex, but we will have to round off our questioning because we must keep each item to an hour. However, you can have five minutes to ask questions, if you want.
For the sake of time, I will put a couple of points to Andrew Duff, both of which I hope he will be able to answer.
You have mentioned the House of Commons Foreign Affairs Committee a great deal but, under the chairmanship of Michael Connarty, the House of Commons European Scrutiny Committee—which is a cross-party committee—has done a lot of work on the treaty. It said that, basically, it is a con to say that the treaty is not the constitution. More important, given where we are now, it said that the opt-outs that the UK has obtained are pretty academic because, ultimately, the European Court of Justice will overturn them anyway.
First, what is your opinion on the European Scrutiny Committee's conclusions? Secondly, if Ireland, which is the only country that is having a referendum and conducting the whole thing democratically with the people, votes against the treaty, will it be dead?
First, I have had the privilege to speak in front of Mr Connarty's committee on several occasions. You say that he did a lot of work on this. I do not agree. He sought formal evidence from two or three foreign secretaries while he was doing the exercise, and from the Minister for Europe, Mr Murphy. He did not seek the opinion of the Commission, the European Parliament, foreign Governments, NGOs or professors of this or the other. Therefore, I do not think that the European Scrutiny Committee's report on the treaty is its finest work. It is shallow and tendentious. I hope that one can say such things here, under parliamentary privilege. Does that exist for MEPs in the Scottish Parliament?
I would put far greater faith in the upcoming report from Lord Grenfell's committee in the House of Lords, which is doing a wide and thorough inquiry. That report will be published soon.
The House of Lords is hardly a democratic institution.
But it is a very clever place.
When it agrees with you.
On the effect of the opt-outs, in the end jurisprudence from the court in Luxembourg will percolate through British judicial systems, especially on the charter.
To clarify, are you saying, despite your criticism of the committee chaired by Malcolm Chisholm's colleague—this committee is chaired much more proficiently—that you agree with that committee that over time the courts will effectively erode the opt-outs?
Yes.
My second question was on the Irish referendum.
You are right that if the Irish were, unfortunately, to reject the treaty, that would be that. We could not return to an IGC to unpick the thing all over afresh. I fear that the chance to reform the treaties and to create circumstances for an efficient, effective, democratic union would be lost for a generation.
I propose that we go and campaign in the Irish referendum.
You can do what you like, Alex.
We could profitably and enjoyably go on for another hour, but as we have three major items on our agenda today, we must restrict each item to one hour. Thank you for coming to the Parliament to give us evidence. That was a useful, stimulating and possibly at times controversial—in a good way—session.
It is a pleasure to be here.
Meeting suspended.
On resuming—