Select Committee on European Union Forty-First Report


APPENDIX 5

Transcript of oral evidence taken by Sub-Committee C

THURSDAY 9 OCTOBER 2003


Present:

Bowness, L.

Harrison, L.

Hilton of Eggardon, B.

Jopling, L. (Chairman)

Maclennan of Rogart, L.

Park of Monmouth, B.

Williams of Elvel, L.

Williamson of Horton, L.

MR N WITNEY, Director General, International Security Policy, Ministry of Defence; DR SARAH BEAVER, Director, Europe and UN, Directorate for Policy and International Organisations, Ministry of Defence; MR PAUL JOHNSTON, Head, Security Policy Department, Foreign and Commonwealth Office, examined.

Chairman

1. Mr Witney, welcome. Can I thank you and your colleagues for coming? We are, as you know, interested in the Draft Treaty with particular reference to the elements which concern defence in that. Sadly, Lord Inge is not with us today. Would you first of all like to introduce your colleagues and if you would like to make a short opening statement feel free. Perhaps I could start by asking what are the significant changes which are proposed by the Draft Treaty with regard to defence?

(Mr Witney) I am supported on my left by Dr Sarah Beaver, who is the director for the EU and the UN within the MoD and Mr Paul Johnston, who is the head of the Security Policy Department in the Foreign and Commonwealth Office. I have no opening statement to make. I know you will understand that it will be difficult for us to comment on specifics about what the government's precise negotiating position might be, still less what compromises might emerge from the great negotiation which has still to begin on defence matters, but we shall do what we can to elucidate our understanding of the Treaty and the government's approach to the negotiation as set out in the White Paper. You ask me about the significant changes in the new draft. I have a list here of perhaps seven and a half, which is possibly too long. We are not sure that they are all significant or even potentially significant but for the sake of completeness. Most relate to Article 40 and the associated Articles in Part III of the Treaty and, with your permission, I will just canter down this list. Firstly, there is the updating and expansion of the Petersberg tasks. The details of that are to be found in Part III, Article 210 but that relates to Article 40.1, the first part. Second, there is the development of the familiar language about a future perspective for common defence which is found at Article 40.2. I think that is one of the points we might regard as not especially significant but no doubt we will discuss that. Thirdly, there is the establishment of what is called in the Draft Treaty at the moment a European Armaments Research and Military Capabilities Agency, to be found at 40.3. Fourthly, there is the provision at 40.5 allowing the Council to entrust the execution of a task to a group of Member States, again we think not very significant and essentially a Treaty based development of current Nice arrangements. Next, the introduction of structured co-operation at Article 40.6. Sixth, the introduction of closer co-operation on mutual defence at Article 40.7. Lastly, the removal from the current Treaty of the explicit exclusion of military and defence matters from the enhanced co-operation provisions which are to be found in Part III between Articles 322 and 329. Those are the seven primary issues, we think, but for completeness I would add an eighth which is the new solidarity clause to be found at Article 42 in the first part. I think properly that is more a matter of the common security and defence policy, but it has bearings on European defence as well.

2. That last point is purely with regard to terrorism and manmade disasters? Is that right?

(Mr Witney) That is correct, mutual solidarity in such an event.

Lord Williamson of Horton

3. Thank you for the list. You did comment on one or two that they were not very significant. There is a slight difference, if I may say so, in the existing Treaty provision on the famous words that we spent a long time negotiating about this may lead to a common defence and the current text. I realise that there is still a stop on it but it is a little bit different to say this will lead to a common defence when the European Council acting unanimously so decides. There is a slight nuance which is a little different and it implies that there is a genuine possibility of leading to a common defence and it requires only this further decision. I do not want to make too much of it but the people who proposed the change must have thought there was some difference. Would you care to comment?

(Mr Witney) I accept that point entirely. There is a difference. The move from the subjunctive to the future is a change in language, clearly.

4. As a classics scholar, I am sure you realise there is a significant element of change in that.

(Mr Witney) Balanced by the explicit insertion of the statement that this will only happen when the Council decides by unanimity. I suppose if I sounded dismissive of the importance of this change our view probably is that it is a statement of political intent which is clearly important to some Member States but has no bearing on the real world in the foreseeable future.

Lord Williams of Elvel

5. Can we concentrate on Articles 40(6) and 40(7)? Is the government in favour of a core group of Member States collaborating on defence throughout the EU framework? Has the Berlin meeting changed that? Is the government in favour of the creation of a mutual defence clause for a core group of Member States and has the conversation in Berlin changed any of that?

(Mr Witney) Taking the question of the core group first, the position is that we regard the language here as a little cryptic. There is talk of this core group being defined by higher criteria and there is talk of the core group undertaking more binding commitments. In the White Paper we make clear that we do have detailed military, robust arrangements to provide for flexibility in ESDP and we are concerned that provisions of new forms of co-operation such as possibly this core group should not undermine these arrangements. To a degree, we approach this with caution. That said, we do see potential possibilities and opportunities from this concept. I think the government has been clear that it wants an inclusive ESDP, one in which the fundamentals are agreed by unanimity, an ESDP with which all 25 Member States are comfortable. There is also a recognition that once the Union expands to 25 an effective ESDP may well benefit from provision for some Member States to be more ambitious, to go faster, to do things which other Member States would not feel comfortable to do. To that extent, this is possibly an opportunity. The other thing that is potentially attractive about this is the concept of peer pressure, the way in which it might well be used to leverage European capabilities to encourage people to spend more on defence or produce more effective forces for the tasks of ESDP. At the moment, a cautious attitude. We see potential problems. We see potential opportunities with this.

6. We are not proposing at this stage, as I understand it, to tie in what I will call the Tervuren group?

(Mr Witney) We thought the 29 April summit was perhaps not a particularly happy precedent for small group activity. It is well known that some of the proposals that came out of that the government has had difficulty with. This would, as we read the text, involve clear criteria for the group to come together. We would like it as inclusive as possible and it would involve clear commitment, so no direct read across between the Tervuren group and what might come out of this Article on structured co-operation.

Chairman

7. With regard to the activities of the group of four and the concerns about setting up a command structure which was apart from NATO, I see in a press handout that we have had circulated, in The Financial Times, "In a symbolic gesture Paris and Berlin could agree to the military centre being located within NATO's European military headquarters in Belgium." Is that a true reflection and to what extent does that relieve anxieties which were created by the proposal of the four to set up a separate command/control structure?

(Mr Witney) There is no doubt that a certain amount of political symbolism has now begun to attach to the very word "Tervuren". We know that there are anxieties and concerns in the United States about this. Tervuren has acquired a certain resonance as a place name. Nonetheless, our concerns about this are not really an issue of geography. As the Prime Minister's spokesman made plain shortly after the Berlin summit, we just do not see this as the way ahead. The issue here is the function of a European operational headquarters in Brussels. There are things that we believe can be done with the EU military staff in the centre of Brussels. We see some scope for expanding their capability to undertake strategic planning. We have advocated the idea of an EU planning cell being established at SHAPE to improve co-ordination with NATO but at the moment an operational headquarters in Brussels, whether at Tervuren or not, seems to us not the way ahead, in the words of the Prime Minister's spokesman.

8. I do not think you have answered fully Lord Williams's question about a mutual defence clause.

(Mr Witney) I am sorry. That is 40.7. The starting point has to be the White Paper and what the government had to say there, a fairly categoric statement that we will not agree to anything which is contradictory to or would replace the security guarantee established through NATO. To pick up the words of the Prime Minister's spokesman after Berlin, he said that nobody at that trilateral meeting was challenging the fundamental point that NATO remained the basis of our territorial defence. Our view remains that ESDP is essentially about conducting crisis management operations outside the EU's borders and that collective defence is the province of NATO. As the solidarity clause recognises, if an individual Member State were to suffer attack, it is clearly the case that other EU Member States would not stand by, but the wording as it is currently presented in this Article 40.7 is difficult. This must fall under the heading of the sort of language which the government was alluding to in the White Paper when it said it could not support all the proposals in the current Draft Treaty as currently drafted.

Lord Williams of Elvel

9. There has been some discussion of an extension of the Petersberg tasks. Does that fit anywhere near government thinking?

(Mr Witney) I think we are very happy with what is proposed for the extension of the Petersberg tasks. They do not in practice extend the range or difficulty of the tasks being set out. The most challenging task is peacemaking and has been included for a number of years. That has been, if you like, the top of the menu in terms of challenge. What the revision of the tasks does is to round out the range of activities that we could see ESDP tackling and reflect the realities as we have seen them develop in Afghanistan, in Macedonia and as we have seen potential for future possible ESDP engagements.

Lord Maclennan of Rogart

10. On mutual defence, Article 40.7, this is not very different in its formulation from the provision in the Western European Union Treaty under Article 5. Why is there concern about it and what sorts of changes would make it more acceptable?

(Mr Witney) On the first part of the question, the WEU commitment predated NATO and when NATO arrived it was made explicit that the commitment there was to be discharged through NATO. To benefit from the WEU guarantee, you must be both a member of the European Union and NATO. That seems to us a rather different proposition from what we find in the text here which is plainly a Treaty for the European Union as such. It is possible that one of my colleagues is more expert on this and could elaborate.

(Mr Johnston) That is the main point. The Western European Union guarantee was never in any sense a guarantee that was backed in terms of the WEU by a military structure that would be capable of providing collective defence because NATO was already there. In the presidency report on ESDP endorsed by the European Council at Nice which effectively set up the permanent architecture of the European Union, the Council recognised that NATO remained the basis for the collective defence of its members; and emphasised specifically that the European Security Defence Policy was about conducting crisis management tasks. That seemed to us an entirely appropriate and complementary division of labour between the European Union and NATO. It is underpinned by the EU/NATO permanent arrangements. One of the things that has changed since the adoption of the ESDP permanent arrangements at Nice is of course 11 September and the much greater political and practical recognition of the dangers posed in European countries by the threat of terrorism or of natural disasters, which is why the Treaty recognises this with a cross-pillar, in the old terms, solidarity clause. We regard it as a political reality that if a Member State was attacked, using all the instruments at its disposal, the European Union and its Member States would want to help. We see, as our White Paper says and as the Prime Minister's spokesman says, that commitment to helping out a partner in trouble as being very different from a collective EU territorial defence commitment, in particular one that appeared to sit alongside NATO rather than being exercised through NATO. One has the additional point that, whereas all WEU Member States were NATO Member States, that is not the case in the European Union and still will not be the case after enlargement. You will have a number of EU Member States who are not or are not likely to become members of NATO.

11. I remain a little unclear as to what it is you take exception to in the language and drafting of subsection (7) which does actually spell out in the second last sentence that participating Member States in this sphere shall work in close co-operation with the North Atlantic Treaty Organisation. The language is very close to that of the WEU and I am bound to say it seems a little as though you are starting at shadows.

(Mr Johnston) One of the points about which we are unclear relates to the Article 3 elucidation of this Part I Article which makes it clear that what one is talking about here is not a provision that applies to the European Union as a whole, but suggests that a small subset of states would establish this mutual defence commitment amongst themselves. That is one of the areas lacking in clarity which we think the IGC needs to probe. This is not solely a British preoccupation. There have been quite a few Member States both in the Future of Europe Convention, as you will know Lord Maclennan, and in the general discussions rather than specific discussions of a draft constitution, who have raised concerns about this and how it relates to the other forms of co-operation provided for. It is worth noting that the reference to Article 51 of the UN Charter implies something more than simply providing help to a Member State facing problems. It does imply some form of collective self-defence. We start from the position as set out in the White Paper that nothing should be done that would undermine NATO's security guarantee but, with that position we are prepared, as we have been ourselves in advocating a solidarity clause, to look at ways in which one can recognise and turn into practice the reality that in the modern security environment the EU is a community of nations with common security interests. We would not stand idly by if another member was in trouble. It is a question of making sure that whatever the EU does complements rather than in any way undermines the basis of what NATO does.

12. Is that not exactly what this sentence provides? Not all members of the EU are members of NATO and it would be difficult to go further than that without ruling out any kind of mutual defence arrangement affecting non-members of NATO.

(Mr Witney) There is also a more fundamental point here. Our vision of ESDP is that it is part of crisis management. It is there to serve the purposes of the common foreign and security policy. We are not attracted to the idea of ESDP concerning itself with territorial defence. We see that as the business of NATO and we regard ESDP and NATO as two complementary instruments with distinct roles. To associate ESDP more closely with armed aggression against the territory of a Union Member seems to us something of a misdirection of what is the important, main thrust of ESDP. That is why we can regard this as one of those articles which the government would find difficulty in accepting as drafted here.

Baroness Park of Monmouth

13. The Solana strategy, which we were told I believe is not going to be part of the Treaty, is nevertheless being taken quite seriously and is at the IGC going to be recognised as an acceptable policy. Would you not say that one of the problems in all this is that more and more the EU or rather that group of enhancement people in the EU is moving towards taking on defence, which is a very different thing from the Petersberg tasks on limited peacemaking? I notice that the strategy speaks about defence very frequently and says that there is no reason why we should not "be able to sustain several operations simultaneously. We need to develop a strategic culture that fosters early, rapid, and when necessary, robust intervention and operations involving both military and civilian capabilities". The whole tone of that is going to encourage, is it not -- and here I am entirely with you -- that group of states who wish to set up their own particular group to behave more and more as if Europe is in practice and in reality self-sufficient? It is not just a question of the Americans not liking this; it is a very dangerous issue for us because our troops are already double hatted and treble hatted and now they are probably going to be quadruple hatted. It is still only one soldier. Would you not agree that one of the problems is that sidelining NATO -- and this does sideline NATO -- is going to bring appalling problems?

(Mr Witney) We rather like the Solana strategy. It seems to us to focus on exactly the right things. It deals with the true threats that ESDP should concern itself with as being the global threats that are coming from terrorism, weapons of mass destruction, state failure and ethnic conflict. These are things which are out there, beyond the borders of Europe, nothing to do with the collective or territorial defence of Europe. We think that strategy is heading in the right direction. You are quite right. It is an encouragement to the development of robust and realistic military capabilities for Europe to take its share of responsibilities around the globe. That does not rule out -- and I am sure it is acknowledged in the strategy -- that Europe also has a great many other instruments to bring to bear on dealing with international crisis management. We see it as one of the comparative advantages, if you like, of the ESDP that so many other instruments, civil as well as military, can be brought to bear on these circumstances of state failure and so forth.

Chairman

14. Mr Johnston referred to the WEU. Have we some sort of timetable for the demise of the WEU?

(Mr Johnston) I do not think so. There was, as I recall, a declaration by the WEU Council in 2000, in which the WEU Council agreed that the WEU had now served its purpose. There was a collective agreement among the governments concerned that ESDP, now being well on its way to being up and running, the operational purpose of the Western European Union had ceased. It was in effect put in cold storage. There is still a continuing WEU formally in the sense of the Assembly and it not having all been wound up. Part of the reason for that was a recognition that there was going to be after Laeken, in a different part of the forest, a convention on the future of Europe and a future Inter-Governmental Conference. The decision was taken, probably wisely, not to decide what would be the timetable for the rest of the WEU's future until it was clear what was happening in the IGC on CFSP and ESDP. My understanding is that that is still the position.

Lord Williamson of Horton

15. I would like to come back to Article 40, paragraph 2, but this time to the second paragraph of it which is the NATO paragraph. We have had acres and acres of column inches over the last year about the relations between NATO and the European Union and the rapid reaction force, the European non-army and so on. It is very important that we should be absolutely satisfied that this text which is 40(2)(2) is really satisfactory for us, because it is a definitive text at the end of rather a long saga. It is going to be quoted again and again. I quite understand as a long term civil servant myself that you cannot say absolutely whether the government will query one word or another word in these texts in the IGC, but basically do you think that this definitive part of Article 40(2) does provide the belt and braces that we need?

(Mr Witney) My colleagues will correct me if I am wrong but my understanding is that these words are verbatim from what has been in the Treaty on European Union before and therefore are a tried and trusted formula.

(Mr Johnston) Article 17 of the Nice Treaty has the very same formulation as the second subparagraph of Article 40(2).

Lord Maclennan of Rogart

16. 40(7) seems to provide belt and braces. It seems the government needs to have assurance that nothing in the provision for mutual defence will undermine the commitments and obligations of the NATO arrangements and makes it the more difficult to understand the not very clearly specified objections to Article 7. Article 2 recognises that different members of the Union have different views about how their common defence is to be realised but Article 7 is dealing in part at least with the situation which is not covered by the NATO obligations. Why, because we are members of NATO, should we seek to exclude from mutual defence provisions within Europe those who are not members of NATO? Is it the view that they should sign up to NATO? What lies behind this objection? It remains elusive and unclear. What language in Article 7 would supplement Article 40.2 and make it more acceptable?

(Mr Witney) I am not sure I can improve on what I have tried to say about Article 40(7) in itself. We are concerned that it looks duplicative of the NATO guarantee.

17. Which does not apply to other non-members, if I may interrupt.

(Mr Witney) Non-members who have not joined NATO so far have not felt the need for a mutual security guarantee.

18. Why should they now not be permitted to have it?

(Mr Witney) Our concern is that ESDP, in the government's view, should be directed towards crisis management activities beyond the boundaries of the European Union and that collective defence should be left to NATO and that you would get into a position of unnecessary duplication between the two organisations if we went down the track of collective defence as part of the European Union's mandate. There is the further concern that we do not seem to have, judging by Part III of the Treaty, a very inclusive proposal here. It is for a limited number of Member States. As for whether our concerns should be adequately regarded as covered off by what you find in Article 40.2, this comes down to the overall feel and balance of the text in the round, the possibility for individual Articles to be taken and used out of context in the Treaty overall. I am afraid I cannot speculate as to exactly what language or negotiating positions might be acceptable, other than to indicate the government's discomfort with the draft as it currently stands on 40.7 and the reasons for it.

19. It really does sound increasingly like a spoiling operation to prevent countries that are not covered by the NATO mutual assistance arrangements from having any under this Treaty. You are saying it is all right for them to have ESDP arrangements but they may not have mutual security arrangements. I cannot understand why the government would take this view. It is quite clear from the drafting of Article 7 that it only applies to those who wish it to apply.

(Dr Beaver) The countries that are not in NATO have not expressed a wish to be part of such a mutual security guarantee. Indeed, they would have difficulty because many of these are by constitutional arrangements neutral countries. Our discussions with fellow Member States suggest that other countries would also have a difficulty and would not wish to see a mutual security guarantee through the EU.

20. With respect, I think they may be allowed to speak for themselves. That has not surfaced in the Convention. It may be the case but that remains to be seen. What we are looking at is the attitude of the British government to this. It looks to me just like a spoiling operation designed to distinguish us from the non-members of NATO and saying, "Up with this we will not put because you are not members of NATO."

(Mr Johnston) In conceiving the European Security and Defence Policy, we did so against a backdrop that this had been an issue which had been controversial in European and domestic terms. It is in some ways quite remarkable that a community of Member States in which you have full NATO members, one country which is not fully in NATO, a Member State, Denmark, which has an opt out from ESDP and a number of Member States who are not in NATO at all, could have all coalesced around a project which defined its ambitions in terms of the Petersberg tasks and its scale in terms of the headline goal, has developed ESDP very quickly over the last few years, and has been conducting three operations this year. I think there is a concern which is not solely a British concern but has come up with a number of other countries that the clear parameters of ESDP, in terms of doing crisis management outside the European Union, are not fully reflected in this text and that there might be political difficulties for a number of countries if it looked like the European Union was being moved from an organisation with the military capacity to support its foreign and security policy towards third countries towards an organisation which was developing either as a whole or as a subset some sort of embryonic mutual defence commitment.

Baroness Park of Monmouth

21. Surely there is the practical point that the members of the EU recognise that if they were dealing with armed aggression they could not do it without NATO.

(Mr Johnston) Yes.

Chairman

22. I know this is something Lord Inge is bothered about. Is there not a danger that we have here a grey area, a sort of wilful misunderstanding between those states within the Union who wish to see a much stronger European military capacity in competition with NATO and those other states who think in the way you have described this morning that NATO is the prime area of defence co-operation? In 40, paragraph 2, when it talks about a common defence without really setting out what "common defence" means, are you not worried that there is this grey area between so-called common defence and reliance on NATO which means that various groups or individual states can go their way but in the end it will end up with a mighty row in years to come?

(Mr Witney) Whether or not the aspirations of Member States who do not think entirely like us are to act as a counterweight to the US, it is a fact with which we have had to live for many years that there are Member States who have a long term aspiration for something called common defence. It is something that I do not think successive British governments have been particularly enamoured of as an aspiration. We have to recognise that there will be different views within the Union and we have lived with that since the words "common defence" were first introduced at the time of Maastricht. The language is evolving slightly here but not as fast as the pace of the actual development of a real, practical, useful ESDP which we strongly support.

Lord Harrison

23. I notice in your CV that at one time in your life you worked on the Common Agricultural Policy for the European Community Department before seeking refuge in a secondment to the Ministry of Defence. I must say how much I sympathise with anyone who seeks refuge from the CAP. I would like to turn to the creation of an armaments agency which is proposed in Part I, Article 4(3) and Part III, Article 212. I would like you to give us the views of HMG in the light of a couple of comments. First of all, perhaps you could say what the government thinks would be useful about an armaments agency, especially in the light of Lord Robertson's general comments about the money that the European taxpayer pays and hence the British taxpayer pays, and whether we get value for the money we put into common defence as a whole. Of course the creation of an armaments agency may help to ensure that our money is better spent. Could you say a little bit about what are some of the problems which you envisage with the creation of such an agency? It has been put to our Committee that it could be vulnerable as a tool for protectionism or indeed constrain the ability of Member States to order armaments independently. Perhaps you could balance those two and say why the government on the whole does favour the armaments agency, which I think it does.

(Mr Witney) Yes. The government does favour the creation of this agency and the only thing that we have a particular problem with about this is simply the title, as is currently reflected in the Treaty. The full title is European Armaments Research and Military Capabilities Agency. We think it has that the wrong way round and that the starting point for the agency's activities should be capabilities. The European Council Thessaloniki conclusions produced an alternative version. It is more of an essay than a title: "An inter-governmental agency in the field of defence capabilities development, research, acquisition and armaments." It is not just a semantic point. Our fundamental concern about what the agency should focus on is the development of Europe's defence and military capabilities and, in support of that, what could be done to extract better value for money out of the defence technological and industrial base and ensure that that base prospers. We have a very clear sense of priorities. The defence industry is there to support European defence ministries and their armed forces and not, as perhaps some others have tended to think, the other way round. This particular issue is being quite intensively negotiated through the normal European channels and we like to think we are making good progress. All Member States have explicitly agreed that the agency should be capabilities driven. They accept that work in relation to strengthening the European defence technological and industrial base must be directed at creating an internationally competitive base. It is absolutely no use attempting to establish Fortress Europe or constraining people's options to buy military equipment overseas, significantly from the United States. At the moment, we feel that the way the discussion within Europe on the agency is going is quite satisfactory. We do strongly support Lord Robertson and collectively European states spend in the order of $200 billion or 200 billion euros a year on defence and we do not get enough out of it. A clearer view on what we actually need in the way of capabilities, a clearer approach to seeing where we can harmonise our requirements, do things together and achieve economies of scale hopefully will mean that that money is better spent.

24. What about those two possible criticisms that it will be used as a tool for protectionism and constrain the ability of Member States to order armaments independently? Do you have those worries?

(Mr Witney) It has been a debate which we have been engaged in for some months to establish the consensus that this is an agency fundamentally directed at making sure that we get the tools for the job, not just in terms of armaments but in terms also of force structures and military capabilities in the round and not as a benefit bonanza for the defence industry. Defence industrial policy is always tricky ground. It can never be entirely divorced from the very particular position of governments as the sole customer for their industries. All governments have concerns for employment. We know that the European Commission is interested in finding ways to promote and support defence industries within Europe. I am sure this is a debate about the exact balance between looking after industries and promoting capabilities that will continue. We think that on balance this is a good proposal and we are tolerably confident today that the agency will come out with the right pedigree.

(Dr Beaver) One of the things we have been discussing in our more detailed negotiations in Brussels is how the agency might operate. We have made it clear to our partners that we would expect to see the agency working for the progressive adoption of the kind of agreements that have been LoI framework agreements and any procurement to be done through OCCAR which involves the renunciation of the narrowly based juste retour principles. Although some countries would not necessarily be able to sign up for LoI framework agreements, I think there is a general acceptance that we might be able, through the agency, to encourage those states to at least adopt some form of adaptation of those agreements. I think it could be quite a useful instrument for opening up the European defence market.

25. I am very grateful to Dr Beaver and Mr Witney for those answers with which I wholly agree. My criticism therefore is this: is the government not being lukewarm about this? Is this not an area which we should really drive home with enthusiasm because of the kinds of benefit in terms of how it would strengthen our defences and so on, as well as the Robertson point about taxpayers getting value for money?

(Mr Witney) I do not think we are being lukewarm. It is mentioned in the White Paper as an innovation which the government welcomes. Dr Beaver was in Brussels last week pursuing this. I shall be in Brussels next week pursuing it. It is buying up quite a lot of our time at the moment.

Lord Williams of Elvel

26. I am trying to penetrate the thicket of language here. Does this particular paragraph allow for a move towards interoperability?

(Mr Witney) The concept of the agency is very much in terms of ensuring that the capabilities that we develop are indeed able to work together to meet the needs of operations as ESDP is beginning to undertake them. There is a recognition that much of the basis for interoperability within the European Member States is inevitably all the good work that NATO has done for 50 years on standardisation and standard procedures, but the large, central thrust of the agency proposal is that Member States should come together, understand and agree collectively what are the capabilities that they need to generate together, be able to field together, and therefore interoperability is very much part of the equation. Whether we have the language that reflects that ----

(Dr Beaver) We are trying to develop a more detailed specification of what this agency would be trying to do. We are not content with the language that we have in 212 where it says "Evaluating observance of the capability commitments given by Member States." What we see the agency doing is taking a much more proactive role in assessing and evaluating the contributions of Member States against agreed criteria, one of which, although it is not spelled out, would be interoperability.

(Mr Witney) Mr Johnston has just pointed out to me that at Article III- 212, subclause (b), there is reference to promoting the harmonisation of operational needs which is the ghost at least of this interoperability idea.

Baroness Hilton of Eggardon

27. Can we go back to peacemaking, crisis management and the Petersberg tasks and so on and ask you to speculate about what situations you think the EU would be involved in. In Bosnia, we needed United States assistance to be effective. Most other operations outside Europe have been individual countries like ourselves and Sierra Leone. What sort of scenarios do you see as being appropriate for peacemaking?

(Mr Witney) We are still very much at the foothills of this enterprise. The Helsinki Headline Goal set quite an ambitious target for European capabilities to be achieved by the end of this year and at the mid point of this year, when Thessaloniki took stock of how far we had got to, there was acknowledgement that there was a degree of operational capability achieved across the range of the Petersberg tasks but limited and constrained by recognised shortfalls. We have a way to go. After the hold-up over Berlin plus, we have had less than 12 months in which ESDP has been there ready to operate, with its operations in Bosnia, Macedonia and, most recently, Bunia, which have all been good learning and development experiences. We are by no means even at the first target point that we set ourselves in this enterprise and therefore the scope of what could realistically be undertaken tomorrow is still limited and constrained. The aspiration is clear. At the highest end of the activity, it would be peacemaking, which would be the separation of warring parties. The headline goal was intended to produce a capability to tackle that sort of task, modelled on some of the experience of the Balkans in the 1990s. In what scenarios could one envisage peacemaking activity taking place? I think we must think of ethnic conflict situations, probably in a broadly consensual diplomatic or political environment, but where maybe the writ of the central government does not run or where there are still parties who are determined to pursue their conflict and obstruct the diplomatic or political process. The Balkans have shown recent examples. There must be other examples in Africa which one can only speculate what might emerge.

28. The Balkans obviously are a European concern but countries beyond Europe's borders surely should be under the auspices of the United Nations rather than a separate EU initiative? That is what I find rather puzzling. Surely we should be going in at the request of the United Nations rather than an EU initiative?

(Mr Witney) That is exactly right. That was indeed the basis upon which the operation in Bunia was undertaken. There is quite a wide consensus within the European Union that as ESDP is developed it should be developed in ways which make it available, on many occasions, as a tool essentially for the United Nations.

Chairman

29. This is another matter which I know Lord Inge was bothered about. Let me ask whether you are satisfied with the extended terms of Petersberg which are in general set out in Article III, 210? Are you satisfied with that extension and what exactly will be the practical implications as far as the EU and the UK are concerned in order to be able to fulfil those extended tasks?

(Mr Witney) The expansion of the tasks is essentially a rounding out of the definition of the sort of missions that we should be thinking about rather than making them more difficult or challenging. If you interpret peacemaking as the separation of warring parties, it is the most militarily challenging aspiration for ESDP and that has been around since the original Petersberg tasks were formulated in 1992, I think. The new bits here are joint disarmament operations, the task that NATO undertook in Macedonia, Operational Essential Harvest. That is a precedent. Military advice and assistance. Conflict prevention and peacekeeping tasks. I suppose you could characterise Bunia as an example of conflict prevention. And post-conflict stabilisation, which might look forward to a potential European role in the sort of situation which NATO is handling in Afghanistan at the moment. So nothing more militarily challenging but a wider sense of the range of how ESDP might usefully be employed overseas.

Baroness Park of Monmouth

30. I cannot lay my hands on it but I am sure I have seen recently a statement about a proposal for the EU to co-operate closely with the UN on operations, including training together, planning together and so forth. What do you feel about that?

(Mr Witney) We have just had a reorganisation in the Ministry of Defence and Dr Beaver has only within recent days assumed a responsibility for the United Nations which reflects exactly the thought that you are bringing out there, that we are going to have to think about the EU and the UN and the way they interact on the global stage more closely in future.

(Dr Beaver) This is very much an initiative of the Italian presidency, which I think in principle we support. There are quite a lot of things in the statement which would be quite challenging in terms of achieving full interoperability between the EU and UN. There is obviously a wide range of quality of forces available to the UN. The UK would like a bit more time to work through the details of these proposals. In principle, we are very supportive of the idea of getting more effective synergy between the EU and the UN.

31. Have we the resources? Or has the EU the resources?

(Dr Beaver) I think the general view of the UN is that the EU under-commits military resources to UN peace-keeping operations. One thing that the EU might be able to do is through the ESDP it has a way of assembling forces and developing and presenting capabilities which could be used on an UN operation. So we do see them as essentially complementary, but obviously there is only one set of forces which can be used at one time for particular operations and decisions would have to be made.

Lord Maclennan of Rogart

32. I wanted to clarify what Mr Witney meant when he said that the definitions of the Petersberg Tasks in Article 32(110) would not involve anything more militarily challenging from the wider range of situations which would be covered. Is the confinement as described purely a reflection of the current limitations of military capability? If the wider range of situations gave rise to challenges which are mentioned in the Government White Paper as actually requiring a greater military capability than at the hands of the Union would that be excluded by the language of the definitions, as I understand it?

(Mr Witney) I may have been guilty, Lord Maclennan, of slightly underselling the importance of the expansion of this list of tasks. When I said there was nothing more challenging there, I was referring to a scale of intensity of military operations, the sophistication of the fire-power you would need to bring to bear to deal with the situation and peace-making remains at the top of the scale in those terms. Certainly the explicit inclusion now in the list, or proposed new list of Petersberg Tasks, of post-conflict stabilisation could be very challenging in terms of the resources and capabilities which might have to be brought to bear on a situation over a considerable period of time. I cite Afghanistan as an example of that. There could be much more that governments need to do to make sure they could undertake those operations and sustain them over a considerable period.

33. Is it fair to say this is an attempt, which the Government accepts, to construct an enabling clause that reflects not the capabilities but the challenges?

(Mr Witney) I think it would, yes.

Chairman: Let us move on to the last series on QMV. Lady Park?

Baroness Park of Monmouth

34. Are you satisfied that Part III Article 201(4) is sufficient to ensure that CFSP decisions with defence implications cannot, under any circumstances, be decided by QMV? I wonder how that can be reconciled with Article I-39(8) which states "The European Council may unanimously decide that the Council of Ministers should act by qualified majority voting in cases other than those referred to in Part III", in other words a passerelle clause for the CFSP? We are concerned too because the Minister is going to have a formal right of initiative right across that area. He has to be mandated I believe by unanimous decision by the Council but nevertheless there are a lot of pitfalls, again such as Article III 201 2c when "adopting any European decision implementing a Union action". That in shorthand, I understand, is if there is a common strategy or a common position, action within that is implemented and therefore could be decided by QMV and not by unanimity. How do you feel about whether we really have a technical position as far as defence is concerned?

(Mr Witney) This is a very dense and complicated area. I myself feel ill-qualified to be very definite on this point and this has been considered by government legal advisers on a cross-government basis. Provisionally the advice I have had is, yes, we think we are all right here. The only explicit exception to the unanimity rule on defence implications is the proposals for the agency we have been discussing to be set up by qualified majority voting. We do not have a difficulty with that because we think in practice the agency will come into being before this Treaty enters into force. There is an article in Part III, Article 201, which sets out that the CFSP decisions and therefore those which concern us will be taken by unanimity. There are derogations in the following two sub-paragraphs and the final clincher says that those derogations do not apply where there are military and defence implications. None of that deals with your point about the famous passerelle clause, which is an issue which is being thought about at a cross-government level.

35. What concerned me was when the Foreign Secretary spoke to the House of Commons Committee, he expressed great confidence that all would be well but he went on to say later that if it were not so, he recognised in a very short aside that it was not impossible we would be confronted with exactly what we do not want. What is being done to ensure there is an absolute veto on that?

(Mr Witney) I am afraid I am not able to help you on exactly what is being done. This is, as I say, being dealt with by government lawyers broadly across the whole of the Treaty. There is an interesting contrast between this sub-paragraph you have just quoted, the passerelle clause, at 39.8 and the immediately preceding sub-paragraph which seems to state equally explicitly that "European decisions relating to the Common Foreign and Security Policy shall be adopted by the European Council and the Council of Ministers unanimously."

36. "Except in the cases referred to in Part III."

(Mr Witney) Yes, "... except in the cases referred to in Part III."

37. That is Article 319.5 I think you will find, "Positions of the Union: Implementation of Actions and Position."

(Mr Johnston) If one looks at the Part III provisions which cover this, which is Article III 201, it replicates in a sense the structure of Part I in that paragraph 1 says, "The European decisions referred to in this chapter", i.e. the CFSP including ESDP, shall be done unanimously. Then in paragraph 2, as Mr Witney says, a certain number of derogations are set out. In paragraph 3 the derogation is set out which is essentially the passerelle clause referred to in Part I in Article 39.8, i.e. that the European Council may decide unanimously that the Council of Ministers will decide on an issue by qualified majority. Paragraph 4 clearly states that paragraphs 2 and 3 do not apply in the field of ESDP. So we take that to mean that the passerelle clause does not apply to ESDP.

Chairman

38. Could I suggest with regard to your difficulty in answering Lady Park's questions, you should write to the Committee, or rather get legal advice which you understandably do not have, so the Committee can be acquainted with what the Department's current view is on the questions Lady Park was asking? I think that would be helpful.

(Mr Witney) Thank you, Chairman. We are very glad to do that.

39. I think we will bring this to a close now because we have to consider other things in private; the Committee will be reverting to a private session. Can I say to you, Mr Witney, as a fellow escapee from the Common Agricultural Policy, that we are very grateful to you and your colleagues for coming. I think you have certainly enlightened us most helpfully. Thank you.

(Mr Witney) Thank you, Chairman.

Supplementary Memorandum from Sharon Wroe, HCDC, Liaison Officer, Ministry of Defence

Dear Audrey

When Mr Witney and colleagues appeared before your Committee on 9 October, they agreed to provide a written response to your question whether "Article III-201(4) is sufficient to ensure that CFSP decisions with defence implications cannot under any circumstances be decided by QMV".

Article I-39(7) sets out that European decisions relating to CFSP shall be adopted unanimously except as set out in Part III. The only specific provision with defence implications in Part III which requires QMV is III-212(2): the decision on the Defence Agency's statute, seat and operational rules. In practice the Agency is likely to be established, by unanimity, by a Council decision before the Treaty comes into force. The Government supports this. I-39(8), the "passerelle" clause, additionally provides for a future European Council decision taken by unanimity to authorise the Council of Ministers to take decisions by QMV, including in CFSP.

The detailed provision for CFSP are set out in Part III. III-201(1) sets out the general rule established in I-39(7), adding provision, as in the current Treaty, for constructive abstention. III-201(2) and (3) specify the limited areas where the general unanimity rule does not apply. In particular III-210(3) merely repeats I-39(8), the "passerelle" clause. III-201(4) makes clear however that the exceptions in the previous two clauses do not apply to decisions having military or defence implications. In other words such decisions are by unanimity.

The Committee will accept that the draft Treaty itself is subject to change, both substantively in the IGC, and through a process of legal toilettage to clarify ambiguities or inconsistencies, as well as to ensure that the various translations of the Treaty properly match. Equally our legal advisers' work on the draft Treaty and its implications continues.

Sharon Wroe


 
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