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The EU Reform Treaty - A Response to Criticisms

The aim of this paper is to focus discussion on what is in the Treaty and, of equal political importance, on what is not in it. A longer description of the contents of the Treaty appears in a separate paper.

It is alleged that the Treaty would make a fundamental change to the powers and role of the Member States in relation to the European Union (EU). This statement is often supported by saying that the original constitutional treaty, rejected by the French and the Dutch, was a "Constitution" and that the Reform Treaty is virtually the same. This is misleading. The former was designed to replace all the existing treaties and to codify in one document all existing EU policies, but fell far short in its content of any existing constitution of a country. The Reform Treaty has no such pretensions and merely amends the existing treaties (Rome, Single European Act, Maastricht, Amsterdam and Nice) all of which were ratified by the British Parliament. Naturally it adopts some of the good ideas in the constitutional treaty, none of which however can reasonably be regarded as making a fundamental change in the balance of power between the EU and the Member States.

The Reform Treaty aims to make the EU of 27 members, as it now is, into a more effective instrument for decision-taking, especially in the field of foreign policy. If the Intergovernmental Conference agrees a text to go to Member States for ratification, as planned;

(a) the foreign policy roles of the Commission and the High Representative of the Council will be combined in one person. He will be appointed by the European Council and can be sacked by it. He will chair the Foreign Ministers’ Council and be responsible to it, replacing the system under which the chairmanship changes every six months. This will improve the consistency of EU actions in the foreign field and make it easier for non-EU governments to know to whom to talk about EU foreign policy positions. It transfers no new authority of any kind from capitals to Brussels, but is rather a re-distribution of existing functions in Brussels (Presidency, High Representative and Commissioner for External Relations) in order to make them more effective in arriving at and implementing policies all Member States agree on;

(b) the European Commission’ s existing delegations in third countries (some 120) will be subordinated to the new High Representative, will be strengthened from Member States’ diplomatic services and will cover foreign policy issues as well as the aid and trade issues which are now the Commission’s responsibility. This combined External Action Service will be the ears and eyes abroad of the High Representative, greatly increasing the weight in third countries of the EU where it has common policies. It will not affect in any way Member States’ diplomatic services, foreign offices or foreign ministers, which will continue to serve their own governments. If Member States want to ask the EU service to take over functions (eg consular) for financial or other reasons which make sense to them, this will have to be agreed in Brussels and will be entirely voluntary.

It is argued that these changes would remove or diminish the ability of Member States to conduct their own foreign policy. These arrangements do not affect the existing system under which Heads of Government agree guidelines in the European Council, acting unanimously, and these are carried out, and day-to-day foreign policy decisions taken, by Ministers of Member States in the Council. Member governments will be bound to follow commonly agreed policies, but they already are, and obviously it would make no sense for a member to agree a common position and then do something different. If there is no agreed common policy, there will be no constraint on individual members’ conduct of foreign policy (other than an obligation of consultation). Even where there is a common policy, Member States do not lose the right to speak or act (eg in the UN), as is often alleged: they are obliged only to speak/act in accordance with the agreed policy, a not unreasonable requirement.

The implication of what many critics of the Treaty say is that it is against the interests of the UK to improve the effectiveness of EU actions in the foreign field. The contrary is true. For example, the EU3 (Britain, France and Germany) are engaged in trying to use diplomacy with Iran to prevent the Iranians developing nuclear weapons. It is important to the world that they succeed and this is demonstrated by the fact that the EU3 are for this purpose working on behalf of the other permanent members of the Security Council (Russia, China and the US) - the EU3 plus 3. Britain on its own would be a bit player in this game. To say that our own voice in the world will be less important if the EU is more effective ignores the fact that we can (and do) have great influence over EU policies and that the leverage we have through the EU makes us more important to third country partners (and potential adversaries). If we were to reject the Reform Treaty, we should have less influence.

Critics of the Treaty also claim that as a result of the Treaty the UK will lose its seat on the Security Council. This is simply nonsense. Like France, we will retain our seat. The UN Charter, which makes no provision for groupings like the EU to become members, would have to be amended, which could only be achieved with UK and French concurrence. Inviting the High Representative to address the Security Council on issues on which the EU has a common position, as provided for in the Treaty, is already practiced and is generally seen as adding weight to the views being expressed on behalf of (now) 27 countries, not just one.

Critics claim that (because the Treaty would bestow legal personality on the EU) the EU will be able to sign treaties on our behalf in its own right for the first time. The facts are that the EU has always been able to sign treaties where it is competent, provided that the Member States in the Council authorised this; Council approval will still remain necessary in future.

The Reform Treaty also retains from the constitutional treaty a number of provisions which are the opposite of integrationist or supranational, such as the increase in the role of national Parliaments, the strengthening of the role of the Heads of Government in the European Council and the increased weighting given to the big countries in the voting arrangements. The draft of the constitutional treaty was criticised on the Continent as giving away too much to the British! Contrary to some allegations, not only does the Treaty make no changes on the defence side, it states – for the first time in an EU treaty – that national security "remains the sole responsibility of each Member State". Finally, the Reform Treaty retains from the constitutional treaty the very important principle that the powers which the EU has are only those which Member States confer on it "to attain objectives they have in common".

It does provide for greater EU cooperation and action against crime and illegal immigration. These are increasingly fields of cross-border activity, often organised, where it is common sense that common action will deliver better results than national action on its own. Nevertheless, in order to be sure that EU decisions do not encroach undesirably on our freedom of action, we were able to negotiate an opt-in/opt-out clause which allows us to join in EU action if we want to – or not, as the case may be.

Critics of the Treaty make much of the fact that in these fields, and a few others, decisions will in future be taken by qualified majority voting. Obviously where we have an opt-in/opt out clause no problem could arise. In the case of criminal law, a special "emergency brake" procedure in the Treaty will mean that a country could refer a proposed directive back to the European Council where unanimity would be required before it could be adopted by the whole of the EU.

The introduction of QMV in energy policy will help us to open up Europe’s restricted energy markets to fair competition. The other QMV changes are in relatively unimportant areas where it is in our interests to get things done.

To sum up, the case cannot be made that the Treaty would fundamentally change the relationship between the EU and the Member States. The additional opt-outs for the UK make this even truer of the Reform Treaty than was the case with the Constitutional Treaty. Those critics of the Treaty who campaign for a referendum in order to vote no, may care to note that in the Netherlands - which voted no to the constitutional treaty in 2005 - the independent legal body which recommended a referendum last time (the Council of State) because the previous treaty had "constitutional implications" has said that no referendum is needed on the Reform Treaty because it would not have the same effect.

October 2007

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