Treaty Reports

Written by Andrew Duff MEP and published in ft.com on Wed 30th Jan 2008

Two important reports on the same subject in the same week, but from different parliaments invite comparison. Both documents, from the foreign affairs committees of the British House of Commons and the European Parliament, form part of the ratification process of the Treaty of Lisbon. Both are intended by their respective parliamentary majorities to support the case for ratification, and, therefore, try to take into account the reasons the new treaty's precursor failed to be ratified in 2005.

The House of Commons is largely preoccupied by how the 2007 Lisbon treaty differs from the 2004 constitutional treaty in the field of common foreign and security policy (CFSP).

Its report reflects the defensive tone of the British government's approach to the development of CFSP. MPs equivocate between welcoming the new provisions in theory and worrying about them in practice. Their choice of witnesses excludes representatives of other member states, the European Commission and the European Parliament. Unsurprisingly, therefore, the committee complains of being poorly informed about the negotiations which led up to the new treaty.

The European Parliament, on the other hand, as expected, warmly endorses the new arrangements as a "very great improvement" on the current Treaty of Nice (2001).

According to the MEPs, the treaty "raises the Union's international profile and enhances its capacity to act effectively in world affairs". Their report identifies sixteen substantive improvements in the field of foreign policy and another seven in the field of defence. These reforms orbit around the upgrading of the job currently held by High Representative Javier Solana, who is to become Vice-President of the Commission as well as chair of the Council of foreign affairs ministers, and the establishment, under him, of a new diplomatic service drawn jointly from the Commission, the Council secretariat and national diplomacies.

Both parliaments wish to accentuate the importance of the changes on offer, one to warn, the other to laud. The Westminster parliament is alarmed by the extension of qualified majority voting (QMV) in the Council and the role of the European Court of Justice; the Brussels parliament regrets the modesty of these reforms.

For the record, once the Lisbon Treaty comes into force, QMV will apply to decisions which implement foreign and security strategies determined by consensus in the European Council (of heads of government), the definition of actions or positions proposed by the High Representative either at his own initiative or that of the European Council, the appointment of the High Representative and other EU special representatives, the practical imposition of sanctions agreed in principle by unanimity, and action to give effect to mutual solidarity in response to a terrorist attack or other disaster. However, an emergency brake mechanism will allow any government worried about protecting a vital national interest to ask the Council of Ministers, acting by QMV, to refer the matter to the European Council for a decision by unanimity. In a related field, consular law will be made by QMV.

Although a unanimous decision will be needed to establish enhanced cooperation in CFSP among a core group of states who wish to go further than their partners, a decision to establish permanent structured cooperation in defence among the militarily capable (and politically willing) will be taken by QMV. The reason for this dichotomy is that, whereas the UK has not been able to align its foreign policy with that of its EU partners, it has always imagined itself to be an indispensable part of any EU defence effort. Likewise, the UK has agreed to allow 'rapid access' by QMV to the EU budget to trigger expenditure on security and defence missions.

When it comes to foreign policy, however, the British appear blind to the fact that retaining their own veto means the retention of another twenty-six vetoes too. To circumnavigate the vetoes, the new treaty stresses the advantages of constructive abstention - a practice which is already being tried out, on a tentative basis, with respect to Kosovo.

As far as the Court of Justice is concerned, its jurisdiction in CFSP is to be limited to policing the frontier between CFSP and the Union's other competences, to hearing appeals against sanctions, and to delivering opinions about the EU's international treaties.

There is another stark contrast between the approaches of the two foreign affairs committees. The European Parliament puts great emphasis on its role in helping to appoint the High Representative and in setting up, and paying for, the external action service. MEPs stress the need for good collaboration between themselves and national parliamentarians in the scrutiny of EU foreign, security and defence policy. Indeed, the Lisbon treaty expressly requires there to be a special interparliamentary conference between European and national foreign affairs and defence committees. On these matters, the House of Commons remains completely silent.

The European Parliament also suggests that on the coming into force of the new treaty the Assembly of the Western European Union (WEU) should be closed down. All but two manifestations of the WEU, which was re-established by the British in 1954 after the failure of the European Defence Community, have already been passed to the EU. One surviving WEU provision - actually its primary commitment - is the automatic, collective defence of its ten signatory states when under attack. From next January, a similar commitment will be taken over under the terms of the Treaty of Lisbon on behalf of all twenty-seven EU member states. Then only the interparliamentary assembly will linger on in limbo.

There is still time for the House of Commons to join with European Parliament in delivering the coup de grâce to WEU, and, more generally, to put its weight behind the effort to ensure that the EU's fast emerging foreign, security and defence policies are democratically accountable.

Andrew Duff's 'True Guide to the Treaty of Lisbon'