Here, we report the exchanges between Bill Cash and the Foreign Secretary and other parliamentarians in the European Scrutiny Committee debate on 2 July, which considered the legal “guarantees” for Ireland in relation to the Lisbon Treaty.
Mr Cash: Only because you mentioned the fact that I was shaking my head, Foreign Secretary, could I simply say that I have been in favour of enlargement of a European Community that would actually work. The problem is that, for a variety of reasons – and I do not have time to go into them today – and as I have argued in Standing Committees and on the floor of the House for decades, I just do not believe that the model that is currently on offer is going to work, and I think there is plenty of evidence of that. My concern is that we should have an association of nation states cooperating in trade and also politically but not European government. We may differ about what that word means but I would simply like to put on record the fact that there is nothing negative about my view. I do not think it is anti-European to be pro democracy, and I do think it is extremely unwise to bring in countries which, I am afraid to say, however much we may want to respect them, have a record of a lack of democracy and, as my hon friend here was saying in terms of human trafficking, cocaine trade, et cetera, will weaken any political cooperation in Europe rather than the other way round. That is the problem. You are bringing upon the United Kingdom, in my opinion, a system which is liable to and will implode.
Chairman: I think that is one of these “Do you agree with me?” questions but I would ask you to limit your answer.
David Miliband: Can I say seriously that I actually respect Bill Cash for the way that he has prosecuted his view over the last decades, as he says, on this issue. To be fair to him, he has been very consistent about that. I think, decades on from when the argument started, there are some facts that we can bring to bear about this. We can point to former dictatorships which are actually now thriving democracies and the strength of their democracy I think is in part explained by the way they have engaged in the European Union. So it is a good argument, it is one where Mr Cash has a very consistent position, but I do think, the point of what I said before, that I am in a stronger position to make my case now because of some enlargement that has happened. Mr Cash thinks he is in a stronger position because he thinks he can point to the negative aspects and that is politics in a way but we do have a different view of that. I think when he looks at the record he may want to think whether or not he does want to refer to former dictatorships in the way that he did because, the Spains, the Portugals, the Greeces of this world are easy to dismiss in that sort of formulation, and those were countries which were until very recently dictatorships and now they are very strong democracies. In Eastern Europe – I was in Poland last week – people still talk in civil society and in politics about Poland as a recently captive nation. That is the phrase that is used, and it can bring you up short in a way because, in a 24-hour media world, one is taught to believe that anything more than five years ago is ancient history but actually 1989 is not that long ago; 1991 and the crushing of Solidarity by General Jaruzelski is not that long ago and those are former dictatorships, in the phrase you have used.
Mr Cash: But now we have the rise of the far right, as I predicted 15 years ago. That is part of the problem. Perhaps we have to leave it at that.
. . . .
Chairman: Knowing you as I do, Secretary of State, I am sure you will have prepared meticulously for both sections of the business and will not be surprised by anything we do ask you. Clearly, as I said when you interrupted me with your glowing smile, we do have very warm feelings towards our Irish colleagues and do understand the context in which people hold referenda which are not always asked about the questions of relevance to the country. There are often other things that are put forward but clearly, in the case of Ireland, there have been some deeply embedded concerns with the Lisbon Treaty as it stands, and they have sought to get some reassurance that, if they go to a further referendum, the concerns will be placated, because we as a Committee have some concerns that what is being touted around as “the Irish guarantees” are not guarantees, and that they are not something that can be done by the Council without calling for a second look at the Lisbon Treaty itself, in this country and in other countries. So the question I have to start this off is, if the decisions amount to an international agreement, which you have said, between EU member states that is legally binding, which I think is the word that was used, why not give it national effect by subjecting it to ratification processes in EU member states now? Would that not give a more immediate assurance to Ireland? We did it in this country for the Lisbon Treaty. We see this as in fact going to be guarantees that are legally binding. Surely, the only way they can be legally binding is if they are in fact ratified as an addition to the Lisbon Treaty at this time?
David Miliband: You asked two things there, Chairman: one, would it give more succour or assurance to Ireland? That is surely a matter for Ireland to decide, not for me to decide, and at no stage did Ireland propose that this should be done immediately. They proposed that there should be a decision of the European Council and subsequently, as was finally agreed, at the time of the next accession an agreement appended as a protocol. The second question you asked was: can this be legally binding? I think the best way of starting out what I am confident is going to be an extremely tortuous discussion on this legal question is to quote...
Chairman: I hope it is also illuminating. Tortuous often loses the audience. Let us keep it illuminating. David Miliband: I wait in the eager anticipation to see if our legal friends who are gathered here make it illuminating or not. This is what John Major said in December 1992.
Mr Cash: Edinburgh.
David Miliband: Post Edinburgh actually, after the European Council, and he said it in the House of Commons. He was referring to the previous decision that is the best preparatory example for what has happened. If you will allow me, Chairman, I will read it out. He said, “We agreed a solution to the issues raised by the Danish Government following their referendum. The solution is binding in international law. It does not in any way change the Maastricht Treaty or require a new round of ratification in member states. It provides an interpretation of the Treaty which Prime Minister Schlueter believes will enable him to hold a second referendum in Denmark in the Spring. It has been welcomed by all seven parties that drafted the original Danish document.” I think that binding international law, legally binding, as I described it to the FAC in the meeting we had there, is right because this is an agreement between the states, it will be lodged at the UN in the way that international treaties are, and that is the sense in which it is legally binding. It does not change the Lisbon Treaty as it affects the UK. It does not require ratification to have legal effect, and that is the reason that I think the Irish proposed that we proceed in this way, first of all to a decision and then to an appending of it to the protocol. I think that is the legal explanation. I am confident however that is not the last word on the matter because I know that there are others on this Committee who have a lot of interest in this.
Chairman: There will, Foreign Secretary, be others but can I just say to you that the statement of the Council’s conclusions was that the decision gave legal guarantees that meet the Irish concerns and, quote, “is legally binding from the date the Lisbon Treaty enters into force” and I believe you have repeated that. My understanding is that under section 1 subsection 2 of the European Communities Act 1972 it cannot have legal effect until it is incorporated by national legislation. My understanding and my recall is that the Danish protocol became a protocol, and in fact, I quote Baroness Kinnock of Holyhead...
David Miliband: A renowned legal authority.
Chairman: ... of 1 July 2009 saying that it becomes binding in international law when the guarantees are translated into a protocol at the time of the next accession, not when the Lisbon Treaty is ratified. So we have a contradiction here.
David Miliband: No, no, I am sorry, Chairman, there is not a contradiction. It is legally binding because of the decision that was taken. A decision is legally binding in international law. It is an agreement between states. There is no argument about that. It is deposited at the UN. It can be adduced by international courts as they try to seek interpretation of the Lisbon Treaty. The decision does not change the Lisbon Treaty; it provides clarification, which we had already provided to our own satisfaction in this Parliament but which the Irish wanted further clarification about. The Danish example: the decision remained legally binding as a decision for seven years before it was appended to the 1999 Treaty. The quotation from the European Communities Act does not obviate or negate the fact that a decision of the European Council is legally binding in international law.
Mr Clappison: I think that is in accord with the advice which we have been given. It is in accord with international law but, of course, international law is not the same as EU law and it leaves open the question of the justiciability of the decision. I think you agree, do you not, Secretary of State, that this decision is justiciable in the EU under EU law and by the European Court of Justice?
David Miliband: I think there is a discussion about the European Court of Justice. There is also the International Court in The Hague, which may eventually have...
Mr Clappison: No, let us just stick with the European Court of Justice.
David Miliband: I want to give you a full answer because it would be wrong to mislead. In respect of the European Court of Justice, if there were a case concerning, for example, abortion in front of the European Court of Justice and the European Court of Justice was in any doubt at all about whether or not the Lisbon Treaty interfered with Irish rules and law on abortion, they could happily turn to this decision for further legally binding clarification, and underlining 12 times, that Irish laws on abortion are Irish laws on abortion and are not interfered with by the Lisbon Treaty. That is the extent to which this might be of use to the ECJ.
Mr Clappison: There are a number of things jumbled up there, if I may say, Secretary of State. You spoke of interpretation of it being legally binding. It is the decision of the European Court of Justice which is legally binding. The decision is not legally binding on the European Court of Justice, is it? It may look at it for interpretation but it is not legally binding upon it. That is the reason why you are going to have a protocol later on, at some uncertain time.
David Miliband: I do not accept the second half of what you said because the job of the ECJ is to interpret the treaties. That is the point. It is not the question that the ECJ is somehow legally binding. The ECJ is there to interpret the law, and European law is set in ways that you know extremely well. In our view, the Treaty of Lisbon is absolutely clear on matters of tax and defence and abortion/right to life. The decision gives further legal force in that respect without changing the Lisbon Treaty one jot that came through the British Parliament, and I think you would agree this is a decision of the European Council – a decision as opposed to simply a conclusion – and a decision of the European Council is an agreement between states and is therefore legally binding.
Mr Cash: Foreign Secretary, just to clarify one point, you quite rightly of course pointed out that this was the European Council statement. It is odd that your Minister for Europe refers to it as a meeting of the Council of Ministers but I have the references here. That is a bit odd but let us just pass over that for the moment. Far more important, however, is the fact that, in the light of an exchange I had, as it happens, with the Prime Minister on 23 June on the European Council statement, the fact is that this decision, which was taken at Edinburgh, was a matter which at that time, in 1992 – and I do remember it really quite well as I was leading the rebellion at that time. I think you will find this very important – at least, I hope you will. At that time the House of Commons was in a position to deal with the question which arose during the passage of the Maastricht Bill – in other words, a completely different situation, because this is emphatically not the case now. So how on earth could you not agree that the European Council decision of 18 June must now be re-ratified and then implemented in Parliament with a new Bill? They are completely different circumstances from what you described.
David Miliband: For a very simple reason: paragraph 5 of the presidency conclusion says as follows. “…the Heads of State or Government have declared that: (i) this Decision gives legal guarantee that certain matters of concern to the Irish people will be unaffected by the entry into force of the Treaty of Lisbon; (ii) its content is fully compatible with the Treaty of Lisbon and will not necessitate any re-ratification of that Treaty; (iii) the Decision is legally binding and will take effect on the date of entry into force of the Treaty of Lisbon; (iv) they will, at the time of the conclusion of the next accession Treaty, set out the provisions of the annexed Decision in a Protocol to be attached, in accordance with their respective constitutional requirements… (v) the Protocol will in no way alter the relationship between the EU and its member states. The sole purpose of the protocol...
Mr Cash: That is their assertion.
David Miliband: Hang on. Let me finish before we get on to your assertion. “The sole purpose of the Protocol will be to give full treaty status to the clarification set out in the decision to meet the concerns of the Irish people. Its status will be no different to the similar clarifications in protocols obtained by other member states. The Protocol will clarify but not change either the content or the application of the treaty.” Then when you turn to the text of the decision itself, which of course takes a different place in the conclusions; it is not included in the main conclusions, precisely to draw attention to the fact that a decision is different from a conclusion; it is in annex one...
Chairman: Before Mr Cash comes back, can I ask you a question that most people looking at this process will be asking. If in fact this is a legally binding decision without the need for ratification, because you have said it does not need ratifying, why do you want to incorporate it into a protocol? Why would you want to do that at some unknown date in the future? To people looking at it, this sounds like a stitch-up to get round the fact that if we do not give Ireland something that is not in the Lisbon Treaty at this moment, which we ratified – it was not there when this Parliament discussed and ratified it, and I supported that ratification and spoke a number of times on that basis – if it is not in that treaty, why do we have to have a protocol? Is it because this is basically a political stitch-up...
David Miliband: No, I reject that.
Chairman: ... to get round the Irish people’s concerns that those things are not in the Lisbon Treaty that we were asked to ratify as a Parliament? Can you not see why people are suspicious? David Miliband: No, I cannot. They can only be suspicious if they do not have the facts about what has happened, because the allegation one from you – not necessarily that you believe but that you are putting on behalf of those who might believe it – is that this is to get round the Irish decision, but the Irish are going to have a referendum. There is no getting round the Irish decision. The Irish Government have decided to put to the Irish people a further question on the Lisbon Treaty. So no-one can get round the Irish people, and it is important to say that because when I came back to the House after the Irish referendum vote last year, people said, “Aha! You are going to find a way to ratify the Lisbon Treaty without the Irish people agreeing to it.” There is no obfuscation and no going through the back door – nothing like that. The Irish people will have to do it. That is point one. Point two: the Irish Government asked for this to be in a protocol and, as we described in the pre-Council discussions we had, there were two ways of giving legal force to the legal guarantees that had been asked for in the December European Council, and they asked for it and we did not object to it once the text of the protocol decision had become clear. Then, thirdly, and critically, this decision and this protocol in no way in terms change one jot of the Lisbon Treaty as it affects Britain and as was passed by this Parliament. There are quotes in all of the areas from Ministers as this went through the House explaining why tax was not affected, why defence was not affected either and the rights of neutral and other countries would be respected, and non-NATO countries; I remember those debates and therefore it is very important to have on the record that the Lisbon Treaty that was passed by this Parliament as it affects the UK in the range of ways that we have discussed is unaffected by this decision. What is more, the heads of state of 27 European countries have said the same, and they are absolutely clear that no re-ratification is necessitated
. . . .
Chairman: It seems a fair point. It requires it requires unanimity of all countries for a protocol.
David Miliband: It is a good point but that is why it is important that the decision has legal force. That is why the fact that this is a decision, not a conclusion, is important, because the Taoiseach can go to the people of Ireland say, “We have got a decision which is legally binding in international law. It is an agreement between states.”
Mr Cash: You have made some very significant remarks. I may disagree with them but they are significant and they are on the record. I believe, frankly, Foreign Secretary, this whole operation for a long time has, as the Chairman has suggested, had the characteristic of stitch-up and cover-up but I would rather get down to the actual nitty-gritty here because it affects all the member states. What I would simply like to refer you to is what the Minister for Europe in the House of Lords, in the other place, stated yesterday at column 219. I have it here in case you would like me to hand it to you. I have it marked up because I think it is important that you should have a look at this. It has a ring round it and it has a couple of crosses. (Same handed) The Minister said yesterday, and I am quoting exactly what she said, “Everything in the guarantees has been agreed by the Parliament of this country” – she means the Irish guarantees – I repeat, “Everything in the guarantees has been agreed by the Parliament of this country.” Does the Foreign Secretary agree with her or will he admit that this simply is not true?
David Miliband: I would like to know why you think it is not true.
Mr Cash: For the simple reason that we certainly have not agreed in this Parliament to the Irish guarantees.
David Miliband: No, Bill, really. You read out a quote which said, “I am surprised that some Members are not aware that everything in the guarantees has been agreed” and then you said, “Aha! Tell me that we agreed the guarantees.” Of course, the point that Glenys Kinnock made, which you dropped from your second quotation, was everything in the guarantees. The guarantees are about tax, defence and abortion.
Mr Cash: You know perfectly well, Foreign Secretary, that the Irish protocol of 1992 has been, as I said to the Prime Minister...
David Miliband: Danish you mean?
Mr Cash: No, I am talking about the Irish protocol – has been greatly extended. There is a whole sheet of things that have been added in and that affects all the member states, so we are dealing… It seems to me that perhaps you have not been given a briefing on this point.
David Miliband: No. Let us be absolutely clear. The allegation you made is that somehow...
Mr Cash: It is a greatly extended Irish protocol which affects all the member states, therefore there is a need for ratification of this treaty, implementation by a new Bill in this House. How can you deny that?
David Miliband: For the very simple reason that every European country agrees that this decision does not change the Lisbon Treaty. Secondly, if you go through the debates that we had in this House on the Lisbon Treaty and look at what was said about tax and about defence and about abortion – I stand to be corrected but I have a feeling that you challenged me at various points to say “Isn’t this just a ramp to the end of British sovereignty over our taxation policies?” and I said, “No,” and that is what has been reconfirmed by the Irish decision.
Mr Cash: I am sorry to have to say, Foreign Secretary, I think that you are in a very serious muddle over the legal situation here, and I am afraid to say I would have to add – finally, because I think we have to leave it at this point because you cannot answer my questions – that there seems to be no limit – and I am not making personal accusations – to the general deceit which has covered this, and I believe we have to have a referendum as the only means, as 88% of the British people want one.
Chairman: I do not think “deceit” is an appropriate word.
Mr Cash: I shall withdraw the word “deceit”. Shall I call it chicanery?
David Miliband: Can I say, Chairman, that Mr Cash made a series of allegations but ended up repeating his political view, which is sincerely held...
Mr Cash: My legal and political view.
David Miliband: I listened to you so you should listen to me, with respect. He made an allegation that somehow something had been said in the other place last night that was not true. That is not true.
Mr Cash: It is true.
David Miliband: No, I am sorry. It is not true. What you first of all alleged related to the substance of the guarantees, and then you tried to corner this into the question of whether or not the guarantees had been previously discussed in the Parliament.
Mr Cash: “Agreed.”
David Miliband: Secondly, you then went on to a series of allegations relating to the possibility that this decision, and subsequently the protocol, would be a ramp for all sorts of new powers with some parallel that you drew with 1992. There is absolutely no evidence of that. Then when you had been beaten back on both of those two things, you resorted to personal/governmental abuse that restated your position that the European Union is a deceit on the people of Europe, which is your view but the fact that it is your view does not make it correct.
Mr Cash: The manner in which this has been conducted...
Chairman: Mr Cash, Mr Cash.
Mr Clappison: Just briefly to follow on from that, you mentioned the defence debate on the Treaty of Lisbon, which I took part in, as you may remember, or attempted to take part in. We had very little time in those debates to debate defence. Defence was hardly reached because of the way in which the Government organised the debate. I put that as a preamble. The question I want to ask you is the same question on this. When is it that we will have the opportunity to have a debate and a vote in this House on the Irish guarantees?
David Miliband: I do not know how many times I have repeated it here, and I do not know how many times it has been read by people, but there is absolutely no doubt about it: at the time of the next accession treaty the protocol will be appended.
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