HC 120- I
Incorporating HC 166- ii, iii, iv Session 2006- 07
Published on 20 January 2008
by authority of the House of Commons
London: The Stationery Office Limited
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House of Commons
Foreign Affairs Committee
Foreign Policy Aspects
of the Lisbon Treaty
Third Report of Session 2007– 08
Report, together with formal minutes, oral and
written evidence
Ordered by The House of Commons
to be printed 16 January 2008
Foreign Affairs Committee
The Foreign Affairs Committee is appointed by the House of Commons to
examine the administration, expenditure and policy of the Foreign and
Commonwealth Office and its associated agencies.
Current membership
Mike Gapes ( Labour, Ilford South), Chairman
Mr Fabian Hamilton ( Labour, Leeds North East)
Rt Hon Mr David Heathcoat- Amory ( Conservative, Wells)
Mr John Horam ( Conservative, Orpington)
Mr Eric Illsley ( Labour, Barnsley Central)
Mr Paul Keetch ( Liberal Democrat, Hereford)
Andrew Mackinlay ( Labour, Thurrock)
Mr Malcolm Moss ( Conservative, North East Cambridgeshire)
Sandra Osborne ( Labour, Ayr, Carrick and Cumnock)
Mr Greg Pope ( Labour, Hyndburn)
Mr Ken Purchase ( Labour, Wolverhampton North East)
Rt Hon Sir John Stanley ( Conservative, Tonbridge and Malling)
Ms Gisela Stuart ( Labour, Birmingham Edgbaston)
Richard Younger- Ross ( Liberal Democrat, Teignbridge)
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Foreign Policy Aspects of the Lisbon Treaty 1
Contents
Report Page
Conclusions and recommendations 3
1 Introduction 8
Terminology 10
Treaty name 10
The EU’s “ Community” elements 10
“ Foreign policy” and “ external action” 11
“ Council” 11
2 The 2007 IGC process 12
The Constitutional Treaty 12
Renewed Treaty reform: the 2007 Intergovernmental Conference 13
Treaty transparency 15
Parliamentary involvement 16
3 Foreign policy in the 2007 IGC process 20
Foreign policy in the current Treaty reform process 20
The Government’s approach to foreign policy in the 2007 IGC: the foreign policy
“ red line” 23
4 Foreign policy in the Lisbon Treaty 30
External action in the Lisbon Treaty architecture 30
Single legal personality 32
General external action provisions 33
Simplified Treaty revision procedure 34
“ Community” areas of EU external action 36
Common Foreign and Security Policy 36
General CFSP provisions 36
CFSP decision- making 38
Article 308 43
ECJ role 43
CFSP decision- making: overall assessment 44
Enhanced co- operation 45
Solidarity clause 46
Enlargement 48
European Neighbourhood Policy 49
5 New foreign policy posts 50
High Representative for Foreign Affairs and Security Policy 50
The High Representative at the UN 56
European Council President 57
Appointment issues 60
6 European External Action Service 63
2 Foreign Policy Aspects of the Lisbon Treaty
Staffing the EEAS 67
EU delegations in third countries 68
Consular co- operation 69
7 European Security and Defence Policy 71
General ESDP provisions 71
Lisbon Treaty changes 72
8 Overall assessment 76
Annexes 78
Annex 1: Foreign policy provisions in the Lisbon Treaty architecture 78
Annex 2: Foreign policy- making structures and processes under the current and
Lisbon Treaties 79
a) Under the current Treaties 79
b) Under the Lisbon Treaty 80
Annex 3: Functions of the High Representative for Foreign Affairs and Security
Policy under the Lisbon Treaty 81
Annex 4: Foreign policy provisions of the Lisbon, current and Constitutional
Treaties compared 84
Annex 5: Glossary and abbreviations 88
Formal Minutes 91
Witnesses 102
List of written evidence 103
Foreign Policy Aspects of the Lisbon Treaty 3
Conclusions and recommendations
1. We conclude that, although we have some sympathy for the Government’s stress on
the EU’s “ delivery deficit” rather than its “ democratic deficit”, and for the
Government’s desire to bring the EU institutional reform process to a speedy
conclusion, we accept that the loss of the Constitutional Treaty undermines the effort
to make the EU’s Treaty base more comprehensible and transparent. ( Paragraph 27)
2. We recognise that the compressed timetable during which the most important
decisions on the EU’s new Treaty were taken, over a few days in June, was driven by
the EU’s Presidency- in- office. The Government could and should have provided
more information to Parliament during Spring 2007 about its approach to the
renewed EU Treaty reform process. It should also have pressed for a less compressed
timetable in June. Parliament was entitled to expect adequate time to be consulted
and to be able to make an input into the contents of the Treaty, through the
Government. After the Treaty was finalised, Parliament was also entitled to have
adequate time to make a thorough examination of the Treaty’s detailed impact on
the EU and the United Kingdom constitution. Parliament has been denied these
opportunities, on both counts. We conclude that the procedure followed meant that
the 2007 Intergovernmental Conference mandate was agreed with little scope for UK
public or Parliamentary debate and engagement. This sets an unfortunate precedent
which is in our view damaging to the credibility of the institutional reform process
itself. ( Paragraph 38)
3. We conclude that the Government is correct to argue that political positions and
political will among the Member States are more important than institutional
changes in determining the quality of EU foreign policy. We are also sympathetic to
the Government’s wish to see the end, for at least some years to come, of further EU
institutional reform. However, we are concerned that the Government risks
underestimating, and certainly is downplaying in public, the importance and
potential of the new foreign policy institutions established by the Lisbon Treaty,
namely the new High Representative and the European External Action Service. We
recommend that the Government should publicly acknowledge the significance of
the foreign policy aspects of the Lisbon Treaty. ( Paragraph 67)
4. We conclude that the insertion of principles and objectives for all EU external action
into the Treaty on European Union is a sensible way of encouraging greater EU
policy coherence while two main EU Treaties remain in place. ( Paragraph 71)
5. We conclude that the European Council’s new ability under the Lisbon Treaty
formally to determine “ strategic interests and objectives” for all areas of EU external
action represents a symbolically important assertion of Member State authority over
“ Community” policy areas, although it remains to be seen whether this will have any
significant impact in practice. ( Paragraph 81)
6. We conclude that the section of the amended Treaty on European Union giving
authority to the European Council to make strategic determinations for EU external
4 Foreign Policy Aspects of the Lisbon Treaty
action is unnecessarily ambiguous and should be clarified by the Government in its
response to this Report. ( Paragraph 84)
7. We welcome the Bill’s provisions giving Parliament the right to accept or reject
individual proposals to extend qualified majority voting. However, we are concerned
at the implications of the provisions whereby Parliament could be invited to set aside
this right in respect of “ any later draft decision”, as long as a Minister certifies that
the decision in question is an amended version of the original decision. We see
nothing on the face of the Bill that would preclude this power being invoked in
circumstances where the “ amended version” of the draft decision contains further
transfers to qualified majority voting not found in the original decision. If this were
to be the case, transfers to qualified majority voting might take place without specific
Parliamentary approval. This could represent a breach of the undertaking given by
the Prime Minister. We recommend that further consideration be given to
procedures which would allow Parliament to decide separately on “ amended
versions” of initial draft decisions to transfer items to qualified majority voting. We
further recommend that all amendments to the Treaty, including extensions of
qualified majority voting, should be done by primary legislation and not simply by a
vote of the House. ( Paragraph 88)
8. We conclude that the simplification of the nomenclature for Common Foreign and
Security Policy decisions introduced by the Lisbon Treaty represents an
improvement on the current situation. ( Paragraph 95)
9. We conclude that the Commission’s loss of the right to make Common Foreign and
Security Policy proposals is welcome because it represents an important assertion of
the intergovernmental nature of the Common Foreign and Security Policy.
( Paragraph 97)
10. We conclude that greater clarity would have been helpful in the Lisbon Treaty
wording on the Council of Ministers’ new ability to vote by qualified majority on
proposals from the High Representative. ( Paragraph 105)
11. We conclude that the Government’s confirmation that any movement of further
Common Foreign and Security Policy decisions from unanimity to qualified
majority voting under the “ passerelle” procedure would be subject to a prior vote in
Parliament, even where the Lisbon Treaty itself does not provide for national
Parliamentary involvement, is welcome, although we recommend elsewhere that all
Treaty changes are the subject of primary legislation. However, our concerns remain
about the possible use of the provision in the Government Bill which would allow
“ amended versions” of decisions moving items from unanimity to qualified majority
voting to avoid a separate Parliamentary vote. ( Paragraph 112)
12. We conclude that it seems highly likely that, under the Lisbon Treaty, the Common
Foreign and Security Policy will remain an intergovernmental area, driven by the
Member States. We welcome this. ( Paragraph 118)
13. We conclude that the process of the EU’s enlargement to now 27 Member States has
been a success. ( Paragraph 130)
Foreign Policy Aspects of the Lisbon Treaty 5
14. We conclude that the inclusion for the first time of a Treaty reference to the EU’s
neighbourhood policy represents a welcome expression of the importance of the
Union’s relationships with states surrounding it. ( Paragraph 133)
15. We conclude that the new post of High Representative of the Union for Foreign
Affairs and Security Policy has the potential to give the EU a more streamlined
international presence and to contribute to the more coherent development and
implementation of external policy. We further conclude that it is clear that the High
Representative is there to enact agreed foreign policy. ( Paragraph 154)
16. We conclude that there are grounds for concern that the holder of the new post of
High Representative of the Union for Foreign Affairs and Security Policy could face
work overload. We recommend that the Government engages with the other
Member States and— when known— the nominee for the post to ensure that the
potential benefits of the new post are not jeopardised by a plethora of duties and
excessive workload. ( Paragraph 155)
17. We conclude that the Lisbon Treaty provision for the new High Representative to
speak at the UN Security Council will make little difference to current practice. It
will not undermine the position of the UK in the United Nations system nor the
UK’s representation and role as a Permanent Member of the Security Council.
( Paragraph 157)
18. We conclude that it is regrettable that the Lisbon Treaty does not state explicitly that
the new European Council President may not simultaneously hold any other office.
( Paragraph 162)
19. We conclude that the reshaped role of the President of the European Council could
help to generate consensus among EU leaders and lead to greater continuity in the
chairing of the European Council. However, we are concerned by the current degree
of uncertainty which surrounds the role and by the potential for conflict with the
High Representative in representing the EU externally. This could undermine one of
the main aims of the current Treaty reform process in the external field. We
recommend that in its response to this Report, the Government sets out more clearly
its conception of the role of the new European Council President, and its assessment
of the likelihood that this will be realised. We further recommend that the
Government initiates, in the course of discussions with its counterparts on the
appointments to the new posts, the drawing- up of a memorandum of understanding
on the respective roles which the European Council President and the High
Representative are to play in the external representation of the Union. ( Paragraph
170)
20. We conclude that the personal characteristics of the individuals who are appointed
to the key posts of European Council President, High Representative for Foreign
Affairs and Security Policy, and President of the Commission— in particular, their
capacity for teamwork and hard work— will play a critical part in determining
whether the new EU foreign policy arrangements work effectively. We recommend
that the Government should place a high priority on working constructively with its
6 Foreign Policy Aspects of the Lisbon Treaty
European partners to ensure that the right individuals are selected for these posts.
( Paragraph 177)
21. We conclude that the new European External Action Service may serve a useful
function as a means of reducing duplication between the Council Secretariat and the
Commission and facilitating the development of more effective EU external policies,
operating in parallel with rather than as a substitute for national diplomatic services.
However, the Lisbon Treaty gives only a bare outline of the role of the new External
Action Service, leaving most of the details of its functioning to be determined. This
could well be a case of “ the devil is in the detail”. We conclude that the establishment
of the European External Action Service will be a highly complex and challenging
exercise. Given the scale and significance of the issues that remain to be resolved, it is
vitally important for the Government to be fully engaged in negotiations on these
matters, in order to ensure that the European External Action Service works as
effectively as possible, and in a way concomitant with UK interests. ( Paragraph 189)
22. We recommend that the Government reports regularly to Parliament during 2008
and beyond on the progress of the discussions with other Member States and the EU
institutions on the establishment of the European External Action Service, and on
the positions it is adopting. Parliament should be kept informed of developments in
resolving all the practical, organisational, legal, diplomatic status and financial issues
which we have specified in paragraph 182 above. We further recommend that, in its
response to this Report, the Government informs us of the arrangements which it
proposes to put in place to ensure that Parliament and its committees receive the
information necessary to scrutinise on an ongoing basis the work of the European
External Action Service. ( Paragraph 190)
23. We welcome the opportunity that the new European External Action Service will
offer for a greater intermingling of national and EU personnel and careers. We
conclude that it would be beneficial to the UK for national secondees to be well
represented among the new Service’s staff. We recommend that the FCO encourages
high- quality candidates among its staff to undertake secondments to the European
External Action Service, by assuring them that they will have a “ right of return” and
that the experience will form a valued part of an FCO career. We recommend that
the FCO should also reciprocally encourage European External Action Service staff
to undertake secondments within the UK diplomatic service, in the interests of
maximising the European External Action Service’s collective understanding of UK
national interests and foreign policy. ( Paragraph 194)
24. We conclude that the emergence in third countries of EU delegations which may be
active in Common Foreign and Security Policy areas will at the least require careful
management by UK Embassies on the ground. This might be of particular
importance in those countries where there is no resident UK diplomatic
representation. We recommend that in its response to this Report, the Government
sets out its position regarding the conversion of Commission delegations into Union
delegations, and informs us of the guidance which it is giving to British posts on
working with the new EU bodies. ( Paragraph 199)
Foreign Policy Aspects of the Lisbon Treaty 7
25. We recommend that in its response to the present Report, the Government sets out
its reaction to the proposals that there should be “ common offices” of EU Member
States in third countries and that the new EU delegations may take on consular tasks.
We also recommend that the Government clarifies the role and responsibilities of
EU delegations in countries where the UK has no Embassy or High Commission.
( Paragraph 203)
26. We conclude that the Lisbon Treaty retains from the Constitutional Treaty a
wording that on the surface at least is clumsy and ambiguous in its references to the
prospect that the European Security and Defence Policy both “ might” and “ will” lead
to a common defence. We therefore recommend that in its response to this Report
the Government states whether or not it agrees that this is the case, providing such
clarification as is necessary. ( Paragraph 207)
27. We conclude that there is no material difference between the provisions on foreign
affairs in the Constitutional Treaty which the Government made subject to approval
in a referendum and those in the Lisbon Treaty on which a referendum is being
denied. ( Paragraph 219)
28. We conclude that the creation of the post of High Representative for Foreign Affairs
and Security Policy, and of the European External Action Service, represent major
innovations in the EU’s foreign policy- making machinery. We further conclude that
although their establishment does not risk undermining the Common Foreign and
Security Policy’s intergovernmental nature, the Government is underestimating, and
certainly downplaying in public, the significance of their creation. This is unlikely to
be beneficial to the UK’s position in the EU. We recommend that the Government
should publicly acknowledge the significance of the foreign policy aspects of the
Lisbon Treaty. ( Paragraph 220)
29. We conclude that the new institutional arrangements for EU foreign policy created
by the Lisbon Treaty have the potential to encourage more coherent and effective
foreign policy- making and representation. However, the way in which the new
arrangements will work in practice remains unclear. Much will depend on the
individuals chosen to fill the new posts and how they choose to interpret their roles.
We recommend that the Government engage actively with its EU partners to
minimise the short- term disruption involved in the introduction of the new
arrangements created by the Lisbon Treaty, and to help them contribute to the EU’s
development as a more effective international entity. It is particularly important that
the Government and the FCO should not neglect the critical opportunities that are
likely to arise over the next 12 months to influence the detailed planning of the new
foreign policy arrangements, so as to ensure that they operate in ways which are fully
compatible with UK interests. ( Paragraph 221)
8 Foreign Policy Aspects of the Lisbon Treaty
1 Introduction
1. The Foreign Affairs Committee has maintained an ongoing Inquiry into Developments
in the European Union since 2001.1 We take evidence from the Foreign Secretary or the
Minister for Europe before each six- monthly formal meeting of the European Council, the
body of EU heads of state or government. We also periodically publish Reports, the last of
which assessed a number of issues following the UK’s Presidency of the EU in the second
half of 2005, and was published in July 2006.2
2. In 2007 we took a particular interest in the process of EU Treaty reform. We questioned
the then Foreign Secretary, the Rt Hon Margaret Beckett MP, on this when she gave
evidence on 19 June, in advance of the June European Council. 3 Under the Portuguese EU
Presidency in the second half of the year, an Intergovernmental Conference ( IGC) among
the Member States opened in July and concluded in December with the signing of the
Treaty of Lisbon. We held further evidence sessions following the launch of the IGC— with
the new Minister for Europe, Mr Jim Murphy MP, on 12 September; 4 with the new Foreign
Secretary, the Rt Hon David Miliband MP, on 10 October; 5 and with the latter again on 12
December, in advance of the December European Council. 6 The following day, 13
December, Mr Miliband and the Prime Minister signed the Lisbon Treaty on behalf of the
UK.
3. On 24 October 2007 we decided to produce a Report on foreign policy aspects of the
new EU Treaty. 7 At the informal meeting of the European Council in Lisbon on 18- 19
October, the Member States had reached political agreement on a new Treaty which was
expected to be signed at the formal European Council meeting in December. By this stage
it was clear that the Government would be asking Parliament to consider legislation in
early 2008 incorporating the provisions of the new Treaty into UK law, thereby enabling its
ratification.
4. In publishing this Report, our aim is two- fold. Our primary purpose is to inform the
House’s consideration of the Government’s Bill, which was published on 17 December as
the European Union ( Amendment) Bill. In addition, the Treaty sets out a bare outline of
several aspects of the EU’s new foreign policy arrangements, leaving the details of their
implementation to be worked out. Under these circumstances, we thought it useful to
identify some policy issues for the Foreign and Commonwealth Office ( FCO) to address
when it participates in discussions on these matters.
5. Although our focus in this Report is on foreign policy aspects of the new Treaty, we do
not wish to imply that other issues are unimportant or of no interest to us. We have
1 Foreign Affairs Committee, Session 2001– 02, press release No 3, 20 July 2001
2 Foreign Affairs Committee, Sixth Report of Session 2005– 06, Developments in the European Union, HC 768
3 Qq 103- 206
4 Qq 207- 307
5 Qq 308- 410
6 Qq 494- 614
7 Minutes of the meeting on 24 October 2007, via www. parliament. uk/ facom
Foreign Policy Aspects of the Lisbon Treaty 9
questioned Ministers widely on a number of aspects of the new Treaty and the 2007 IGC
process. Our remit is to scrutinise the “ expenditure, policy and administration” of the FCO
and its associated bodies. 8 This report aims to illuminate for Parliament and the public
those aspects of the Lisbon Treaty most directly relevant to the future operation of the FCO
and of UK foreign policy in the EU framework. These include a number of matters which
go wider than the narrow focus in the public debate on the Government’s “ red lines”. We
are also aware that other aspects have been looked at in detail by the European Scrutiny
Committee. 9
6. To help us prepare this Report, we took oral evidence on three occasions, in addition to
the sessions on general EU issues referred to in paragraph 2 above. On 21 November 2007,
we heard from Professor Christopher Hill, of the University of Cambridge; Professor
Richard Whitman, of the University of Bath; and Mr Graham Avery, of St Antony’s
College, University of Oxford, and until retirement in 2006 a longstanding European
Commission official, whose career included service in the Directorate- General for External
Relations. 10 On 5 December, we heard from the Rt Hon the Lord Owen, former Foreign
Secretary. 11 On 8 January 2008, we took evidence in Brussels from Dr Javier Solana, the
EU’s High Representative for the Common Foreign and Security Policy ( CFSP). 12 We are
grateful to all those who gave oral evidence and made written submissions. 13 We also wish
to thank our interlocutors at a series of informal meetings during our visit to Brussels, and
staff at the UK Permanent Representation to the EU who facilitated that visit.
7. In addition to the witnesses listed above, we invited serving officials of the EU Council
Secretariat and European Commission to give oral evidence. However, they declined to do
so before the new Treaty was signed, on the grounds that such a move would be premature.
We regret that we were not able to elicit their views in a public evidence session. This has
unavoidably limited the extent to which we could draw upon those views in this Report.
8. The structure of this Report is as follows. Chapter 2 briefly considers matters relating to
the 2007 IGC in general, including necessary background to the rest of the Report and
consideration of the involvement of Parliament in the IGC process. The rest of the Report
deals with foreign policy aspects of the Lisbon Treaty. Chapter 3 briefly considers the
development of the foreign policy arrangements contained in the Treaty, including the
Government’s position in regard to its foreign policy “ red line”. Chapters 4 to 7 deal with
the Treaty’s substantive foreign policy content. In each of these chapters, we first set out the
relevant provisions in the Treaty and then assess them. Chapter 8 provides several points of
overall assessment. Annexes 1- 4 set out in diagrammatic or tabular form many of the key
8 House of Commons, Standing Orders of the House of Commons: Public Business 2007, HC 405, 29 March 2007, SO No.
152
9 European Scrutiny Committee, Thirty- fifth Report of Session 2006– 07, European Union Intergovernmental Conference,
HC 1014; and Third Report of Session 2007– 08, European Union Intergovernmental Conference: Follow- up report,
HC 16- iii
10 Qq 411- 457
11 Qq 458- 493
12 Qq 616- 630
13 Full details of the oral and written evidence are given at pp 102- 103 in this volume and in the preliminary pages of the
companion volume of evidence HC 120- II.
10 Foreign Policy Aspects of the Lisbon Treaty
foreign policy arrangements under the Lisbon Treaty which are referred to in the text, and
Annex 5 provides a glossary.
9. This Report was prepared on the basis of the final text of the Lisbon Treaty, dated 3
December 2007.14 Article numbers in the final text of the Treaty— which are referred to in
the text of our Report— may vary from those in earlier drafts of the Treaty, which may be
those referred to by witnesses in their evidence.
Terminology
Treaty name
10. When we decided to produce this Report, the new Treaty was commonly referred to as
the “ Reform Treaty”. This was the term used both by the UK Government and in the
mandate for the 2007 IGC agreed by EU leaders. 15 As a result, it is the name which is used
in much of our evidence. However, when the final text of the new Treaty was published in
December, the term adopted was the “ Treaty of Lisbon”. This is the name used in the
Government’s Bill, and in this Report we therefore refer throughout to the “ Lisbon Treaty”.
The EU’s “ Community” elements
11. The Maastricht Treaty of 1992 made formal a distinction between “ Community” and
“ intergovernmental” elements of the EU. “ Community” elements are governed according
to the “ Community method”, under which there may be legislation which is binding on the
Member States, which only the European Commission may propose, which typically
requires European Parliament approval, and which is subject to the jurisdiction of the
European Court of Justice ( ECJ) and to enforcement by the European Commission. Until
the Maastricht Treaty, only the European Community ( EC) existed, governed according to
the Community method under the Treaty establishing the European Community ( TEC).
The Maastricht Treaty, officially called the Treaty on European Union ( TEU), added to the
EC two “ intergovernmental” elements, namely co- operation in the field of foreign and
security policy, and co- operation in the field of justice and home affairs. These two
elements fell outside the Community method. The Maastricht Treaty brought all three
elements together under the umbrella of the new European Union. The three elements are
often referred to as to the EU’s three “ pillars”, namely the Community first pillar, the
intergovernmental Common Foreign and Security Policy ( CFSP) comprising the second
pillar, and intergovernmental cooperation on Justice and Home Affairs ( JHA) comprising
the third pillar.
12. The Lisbon Treaty would abolish the European Community. If the Lisbon Treaty
comes into force, only the European Union will exist. However, despite this, the
“ Community method” and its associated institutions and procedures will continue to exist
as part of the EU, governed by an amended version of the TEC, which would be renamed
14 CIG 14/ 07 and CIG 15/ 07, 3 December 2007, via www. consilium. europa. eu
15 The IGC mandate is document 11218/ 07, 26 June 2007, via www. consilium. europa. eu; see also FCO, The Reform Treaty:
The British Approach to the European Union Intergovernmental Conference, July 2007, Cm 7174, July 2007; and
minutes of the Committee’s meeting on 24 October 2007, via www. parliament. uk/ facom
Foreign Policy Aspects of the Lisbon Treaty 11
to refer to the EU instead of the EC. Compared to the status quo, the difference— under the
Lisbon Treaty— is that these “ Community” elements would legally and linguistically be
subsumed into the European Union. Although the proposed formal abolition of the EC
means that it is problematic to continue to refer to these elements as “ Community” ones, 16
it is vital to be able to continue to distinguish between “ Community” and
intergovernmental elements of the foreign policy aspects of the Lisbon Treaty. At the time
of preparation of this Report, no new conventional terminology had emerged; we have
therefore continued to refer to “ Community” elements, as the wording least likely to cause
confusion.
“ Foreign policy” and “ external action”
13. In the policy field discussed by this Report, the distinction between the EU’s
“ Community” and intergovernmental elements gives rise to a need for a term which
encompasses both. In the title and some of the chapter headings and conclusions of this
Report, we use the term “ foreign policy” informally in this inclusive way. However, in the
Lisbon Treaty, the official EU term encompassing both “ Community” and
intergovernmental elements is EU “ external action”. 17 Given the purposes of our Report,
we felt that we should adhere as closely as possible to the terminology of the Lisbon Treaty.
To refer jointly to “ Community” and intergovernmental elements as “ foreign policy” might
in any case cause confusion with the intergovernmental Common Foreign and Security
Policy ( CFSP). In the main text of this Report, therefore, the term EU “ external action”
refers jointly to relevant “ Community” areas of policy plus the intergovernmental CFSP.
“ Council”
14. There are two EU bodies with the word “ Council” in their title. The European Council
is the grouping of Member State heads of state or government, i. e. Presidents and/ or Prime
Ministers. The Council of the European Union is the body of Member State Ministers. As
such, the Council of the European Union has been known as the Council of Ministers. The
Council of the European Union meets in different configurations of Ministers depending
on the policy area under discussion— for example, Foreign Ministers meet currently in the
General Affairs and External Relations Council. Along with the European Parliament, the
Council of the European Union is the EU’s legislative body. By contrast, the European
Council has no legislative powers, but sets the EU’s direction and strategy. In this Report,
we follow conventional practice in using the shortened form “ Council” to refer only to the
Council of Ministers; when we mean the European Council, we use the full term.
16 See Q 457 [ Mr Avery]
17 Ev 82 [ Professor Whitman]
12 Foreign Policy Aspects of the Lisbon Treaty
2 The 2007 IGC process
The Constitutional Treaty
15. The Lisbon Treaty is the product of an EU institutional reform process which stretches
back to 2001. In that year, the European Council at Laeken declared that the recently
concluded Amsterdam ( 1997) and Nice ( 2001) Treaties still left the EU with an inadequate
institutional framework, particularly in the face of the EU’s— probably large— forthcoming
enlargement. The “ Laeken Declaration” said, as regards internal matters, that “ the
European institutions must be brought closer to its citizens”, while, as regards external
matters, that the EU “ needs to shoulder its responsibilities in the governance of
globalisation.” 18 At Laeken, the European Council initiated a Convention on the Future of
Europe— comprising representatives of the EU institutions, Member State governments
and national Parliamentarians— which was to draw up a draft of a new EU Treaty. 19
16. The Convention placed its “ Draft Treaty establishing a Constitution for Europe” in
front of Member State leaders in July 2003. The Convention’s draft formed the basis for
negotiations on a new EU Treaty among the Member States at a traditional
Intergovernmental Conference ( IGC) in 2003– 04. The Member States reached agreement
on the text of the Constitutional Treaty in June 2004 and signed the document that
October. It was planned that the Constitutional Treaty would come into force, following its
ratification by the Member States, on 1 November 2006.
17. On 20 April 2004, before the final Constitutional Treaty text had been agreed, the then
Prime Minister Tony Blair announced to the House that the UK would hold a referendum
on the new Treaty. 20 It was envisaged that the referendum would be held after Parliament
had passed the necessary legislation allowing the new Treaty to take effect in the UK. The
Government Bill providing for the Constitutional Treaty to pass into UK law, subject to the
outcome of the referendum for which the Bill provided, was given a second reading in
February 2005 by 345 votes to 130. In their 2005 general election manifestos, all three
major political parties promised to hold a referendum on the Constitutional Treaty. 21 The
Government immediately reintroduced the Bill following its re- election in May 2005.
18. On 29 May and 1 June 2005 respectively, the French and Dutch electorates rejected the
Constitutional Treaty in referendums, by 55% and 62% respectively. As EU Treaties can
take effect only when ratified by all EU Member States, the French and Dutch “ no” votes
prevented the Constitutional Treaty from ever coming into force. With most of the
Member States which had not yet ratified the Constitutional Treaty putting their
ratification processes on hold in the wake of the French and Dutch votes, in the end the
18 “ Laeken Declaration on the Future of the European Union”, Annex 1 to Laeken European Council, Presidency
Conclusions, 14- 15 December 2001, via www. consilium. europa. eu
19 Two Members of our Committee, the Rt Hon David Heathcoat- Amory MP and Ms Gisela Stuart MP, served as the
House of Commons representatives to the Convention.
20 HC Deb, 20 April 2004, col 155
21 “ Britain forward not back”, the Labour Party manifesto 2005, pp 83- 84; “ Are you thinking what we’re thinking?”,
Conservative election manifesto 2005, p 26; “ Liberal Democrats: The Real Alternative”, 2005 English general election
manifesto, p 14
Foreign Policy Aspects of the Lisbon Treaty 13
Constitutional Treaty was ratified by 18 of the 27 Member States. The UK was one of the
Member States which put its ratification process on hold. 22
19. In the wake of the French and Dutch referendums, in June 2005 the EU declared a
“ period of reflection” to consider the future of the institutional reform process. 23 In June
2006, the European Council extended the “ period of reflection” for another year, but it
requested Germany, which would hold the rotating EU Presidency in the first half of 2007,
to present a report which would “ serve as the basis for further decisions on how to
continue the reform process”. 24 The same European Council emphasised the need for
public involvement. Its conclusions stated, in a paragraph headed “ Europe Listens”, that
“ reinforced dialogue with the citizens requires adequate means and commitment”. 25
Renewed Treaty reform: the 2007 Intergovernmental Conference
20. The German Presidency made clear from the start of 2007 its hope of resolving the EU’s
institutional impasse. The first concrete sign that the German Presidency’s ambitious
timetable might be becoming a serious prospect came in the “ Berlin Declaration” of 25
March 2007, which announced the aim of “ placing the European Union on a renewed
common basis before the European Parliament elections in 2009.” 26 However, the Berlin
Declaration was signed only in the name of the Presidents of the three EU institutions—
European Council, European Commission and European Parliament— as there was no
agreement among the Member States themselves. 27 At this time, the Member States were
split between those which wished to revive the Constitutional Treaty and those, including
the UK, which preferred a very different and less ambitious approach to Treaty reform.
21. The German Presidency prepared its report to the June 2007 European Council on the
future of the institutional reform process by taking soundings from Member State
representatives— known as “ focal points” or, informally, “ sherpas”— rather than by
circulating draft texts for comment. The UK’s “ focal points” were Mr Kim Darroch, then
head of the Cabinet Office European Secretariat, and the FCO official Ms Nicola Brewer,
who was replaced after she left the FCO in March by Ms Shan Morgan, EU Director
there. 28 Most of the German Presidency’s contacts with the “ focal points” occurred
bilaterally; the “ focal points” met as a group with the German Presidency on four
occasions, on 24 January, 2 May, 15 May and 19 June. 29
22 See the statement of the then Foreign Secretary, the Rt Hon Jack Straw MP, at HC Deb, 6 June 2005, col 991- 2
23 “ Declaration by the Heads of State or Government of the Member States of the European Union on the ratification of
the Treaty establishing a Constitution for Europe”, Brussels European Council, 18 June 2005, via
www. consilium. europa. eu
24 Brussels European Council, Presidency Conclusions, 15- 16 June 2006, via www. consilium. europa. eu, paragraph 48
25 Ibid., paragraph 3
26 Text via www. eu2007. de; on the Berlin Declaration, see also Qq 122- 23 [ Mrs Beckett], Ev 41 [ Mr Murphy] and Ev 140
[ Mr Hoon]
27 Q 123 [ Mrs Beckett]
28 HC Deb, 15 January 2007, col 786W, 788W; HC Deb, 27 March 2007, col 1493W
29 Ev 41 [ Mr Murphy]; Qq 113 [ Mrs Beckett], 310 [ Mr Murphy]; see also European Scrutiny Committee, First Special Report
of Session 2007– 08, European Union Intergovernmental Conference: Government Responses to the Committee’s
Thirty- fifth Report of Session 2006– 07 and the Committee’s Third Report of Session 2007– 08, HC 179, pp 2- 3
14 Foreign Policy Aspects of the Lisbon Treaty
22. The German Presidency presented its report on the institutional reform process to the
Member States on 14 June 2007.30 In its report, the Presidency concluded that the way
forward was to “ preserve the substance of the innovations agreed upon in the 2004 IGC”
while abandoning the structure of a single Constitutional Treaty and “ constitutional”
language and symbols. The Presidency therefore proposed “ a return to the classical method
of treaty change”— that is, a return to the practice of amending, rather than replacing,
existing Treaties. The Presidency further proposed that an IGC be convened rapidly, with
the aim of reaching agreement on a new Treaty by the end of 2007. To that end, the
Presidency recommended that the European Council meeting on 21- 22 June agree a
detailed mandate for the IGC.
23. The German Presidency’s report was discussed by Member State Foreign Ministers
meeting informally on 17 June. On 19 June, the German Presidency published a draft IGC
mandate. 31 This was the first time that Member States saw proposed Treaty terms, only two
days before the opening of the European Council. This left no opportunity for
Parliamentary scrutiny, and also appears unlikely to have allowed scope for extensive
consultation within Government. 32 A final mandate for the 2007 IGC was agreed four days
after publication of the Presidency draft, in the early hours of 23 June, following intensive
negotiations at the European Council. 33 The IGC mandate was to provide the “ exclusive
basis” for the new Treaty. 34 Given the detailed nature of the IGC mandate, the substantive
negotiating work of a normal IGC was as a result almost wholly concluded before the IGC
opened. Once the European Commission and European Parliament had issued their
opinions as required, 35 the 2007 IGC was launched on 23 July 2007, under the EU’s new
Portuguese Presidency. On the same day, the Portuguese Presidency published the first
draft text of the new EU Treaty, on the basis of the IGC mandate agreed in a few days
under the German Presidency. 36 For its part, the Government published on 23 July a White
Paper setting out its approach to the 2007 IGC. 37
24. The 2007 IGC moved through several phases. First, the draft Treaty text of 23 July was
checked by legal experts to ensure that it reflected exactly the IGC mandate agreed by the
European Council in June. There was an opportunity for political- level discussion among
Member State Foreign Ministers at their informal meeting on 7- 8 September. On the basis
of the work completed by that point, a further draft Treaty text was published, dated 5
October. 38 This text went before the informal European Council meeting in Lisbon of 18-
30 10659/ 07, 14 June 2007
31 SN 3116/ 2/ 07 REV2
32 The Government told the European Scrutiny Committee that the Cabinet discussed the IGC mandate on 21 June;
European Scrutiny Committee, European Union Intergovernmental Conference: Government Responses, p 14
33 On these matters, see also European Scrutiny Committee, European Union Intergovernmental Conference, paras 5- 11,
and European Union Intergovernmental Conference: Follow- up report, paras 7- 8
34 IGC mandate, document 11218/ 07, 26 June 2007, via www. consilium. europa. eu
35 “ Reforming Europe for the 21st Century”, Opinion of the European Commission, pursuant to Article 48 of the Treaty
on European Union, on the conference of representatives of the governments of the Member States convened to
revise the Treaties, COM( 2007) 412 final, 10 July 2007; “ Convening of the Intergovernmental Conference”, Opinion
of the European Parliament, P6_ TA( 2007) 0328, 11 July 2007
36 CIG 1/ 07 and 2/ 07, 23 July 2007
37 FCO, The Reform Treaty: The British Approach to the European Union Intergovernmental Conference, July 2007, Cm
7174, July 2007
38 CIG 1/ 1/ 07 REV 1 and CIG 2/ 1/ 07 REV 1
Foreign Policy Aspects of the Lisbon Treaty 15
19 October, where EU leaders reached final political agreement on the new Treaty. A
further draft Treaty text, incorporating the changes agreed at Lisbon, was published with a
date of 30 October. 39 Following checking by lawyers and linguists, the text of the Lisbon
Treaty was published on 3 December, ahead of the Treaty’s signature by the Member States
on 13 December. 40 The Government published the Treaty as a command paper on 17
December, 41 together with the Bill to give effect to the Treaty in UK law. 42 Summing up the
2007 IGC process on his return from the informal European Council meeting which
agreed the new Treaty in October, Prime Minister Gordon Brown told the House that
not just for this Parliament but also for the next, it is the position of the Government
to oppose any further institutional change in the relationship between the EU and its
member states. In our view, there is also a growing consensus across Europe that
there should be no more institutional change for many years. 43
Some have argued that the prospect of a period of institutional stability in the EU is
undermined by the possibilities which the Lisbon Treaty provides for further Treaty
change without the convening of a further Intergovernmental Conference. 44
Treaty transparency
25. The 2007 IGC process has given rise to concerns regarding the transparency of the new
Treaty which has resulted from it. The 2001 Laeken Declaration had identified a need for
the EU to become “ more transparent”, and suggested that “ if we are to have greater
transparency, simplification [ of the Treaties] is essential.” 45 Some supporters of the
Constitutional Treaty argued that this document answered the perceived need for
transparency by giving the EU a single main Treaty, bringing together provisions which
had previously been found in repeatedly amended versions of several Treaties. In its White
Paper on the Constitutional Treaty in 2004, the Government said that the new
Constitutional Treaty “ would make the EU simpler to understand, with the Union’s main
Treaties reorganised into one, more coherent Treaty”. 46
26. The format which was agreed at the June 2007 European Council is different. The
Lisbon Treaty is an “ amending treaty”. This means that the EU will continue to operate on
the basis of two main Treaties:
• The Treaty on the Functioning of the European Union ( TFEU). This will be the
new version of the Treaty establishing the European Community ( TEC), as
39 SN 4579/ 07
40 CIG 14/ 07
41 FCO, The Treaty of Lisbon amending the Treaty Establishing the European Union and the Treaty Establishing the
European Community, Cm 7294, December 2007
42 European Union ( Amendment) Bill [ Bill 48 ( 2007– 2008)]
43 HC Deb, 22 October 2007, col 22
44 The simplified Treaty revision procedure and CFSP “ passerelle” clause are outlined in paragraphs 85- 88 and 111- 112
respectively in Chapter 4 below.
45 “ Laeken Declaration on the Future of the European Union”, Annex 1 to Laeken European Council, Presidency
Conclusions, 14- 15 December 2001, via www. consilium. europa. eu
46 FCO, White Paper on the Treaty establishing a Constitution for Europe, Cm 6309, September 2004, p 14
16 Foreign Policy Aspects of the Lisbon Treaty
amended and renamed by the Treaty of Lisbon. The TEC was itself the renamed
and frequently amended version of the original Treaty of Rome.
• The Treaty on European Union ( TEU), as amended by the Treaty of Lisbon. The
TEU was originally the Maastricht Treaty, which again has been amended by
subsequent Treaties up to and including Lisbon.
The Lisbon Treaty itself cannot be read unless in conjunction with the two Treaties which
it amends. At the time we approved our present Report, no official consolidated text of the
two Treaties as amended by the Lisbon Treaty was available. 47 Furthermore, and to a
considerable extent as a result of the opt- ins, Protocols and Declarations inserted at the
UK’s request, the Lisbon Treaty— and the main Treaties as amended by it— are particularly
complex. Lord Owen told us that “ we have reverted to using the old Treaty, which I
personally think is a good idea, but it makes it very difficult to find out exactly what has
happened.” 48 Professor Whitman, of the University of Bath, said that “ because it is a set of
amendments to the existing Treaties […] trying to get a handle on whether things have
changed does require very close and careful reading and the referencing of one text across
to the other.” 49 Professor Whitman’s conclusion was that “ it is impossible for a reasonably
intelligent individual to sit down and read [ the Lisbon Treaty], where they could read the
Constitutional Treaty.” 50
27. When we asked Ministers about what appears to be a loss of transparency as a result of
the Lisbon Treaty, they responded by referring to what they saw as the limited value of
institutional reform in tackling the EU’s so- called “ democratic deficit”. The current
Foreign Secretary, Mr Miliband, told us that he had “ never believed that institutional
reform is the route to love and respect for the European Union among the peoples of
Europe […] I believe that a delivery deficit is the fundamental barrier between the
European Union and the peoples of Europe”. 51 We conclude that, although we have some
sympathy for the Government’s stress on the EU’s “ delivery deficit” rather than its
“ democratic deficit”, and for the Government’s desire to bring the EU institutional
reform process to a speedy conclusion, we accept that the loss of the Constitutional
Treaty undermines the effort to make the EU’s Treaty base more comprehensible and
transparent.
Parliamentary involvement
28. Serious concerns have been expressed about the lack of Parliamentary involvement in
scrutinising the 2007 IGC process and the resulting Treaty. In its first Report on the 2007
47 The Government is expected to publish consolidated texts on 17 January 2008. One of our witnesses, Professor
Whitman, has produced a consolidated version of the CFSP provisions in the TEU, as amended by the Treaty of
Lisbon; see Ev 82.
48 Q 475
49 Q 420
50 Q 425
51 Q 498; see also Mr Murphy at Q 229. Ministers’ arguments on this point were closely connected to their arguments
about the limited value of institutional reform in delivering more effective EU external policies; see Chapter 3.
Foreign Policy Aspects of the Lisbon Treaty 17
IGC, published in early October, the European Scrutiny Committee concluded that the
process “ could not have been better designed to marginalise” 52 national Parliaments.
29. During Spring 2007, the Government’s official position regarding further EU Treaty
reform was that set out in a Written Ministerial Statement of 5 December 2006.53 The
Statement set out six principles which would guide the Government in its discussions with
the forthcoming German Presidency: “ pursuing British interests”; “ modernisation and
effectiveness”; “ consensus”; “ subsidiarity”; “ use of existing Treaties”; and “ openness”.
30. Apart from the December 2006 document, the most important statement of
Government policy regarding the EU institutional reform process came at a press
conference held by the former Prime Minister Tony Blair and his visiting Dutch
counterpart on 16 April 2007. At the press conference, Mr Blair announced the
Government’s wish that any new EU Treaty should be “ an amending treaty, but not a
treaty with the characteristics of a constitution”. 54 The most significant subsequent
statement of Government policy regarding further EU Treaty reform came on 18 June,
three days before the European Council which was due to reach agreement on the matter.
On that occasion, appearing before the Liaison Committee, Mr Blair announced the
Government’s negotiating positions, in the form of four “ red lines”. 55
31. In an attempt to learn about the Government’s approach to the revived institutional
reform process being pursued by the German Presidency, we sought to take evidence from
a Minister during the Spring. Having already agreed to appear before the Committee as
normal immediately before the June European Council, the then Foreign Secretary
Margaret Beckett declined to make another appearance earlier in the process. Efforts to
secure an evidence session with the then Minister for Europe, the Rt Hon Geoff Hoon MP,
on a mutually convenient date in May also proved unsuccessful.
32. The Chairman wrote to the Foreign Secretary on the matter, saying that “ the
Committee regards the refusal of the FCO to provide a Minister to give oral evidence
during this crucial phase of the discussions on the future of Europe as a failure of
accountability to Parliament”. The Chairman expressed the Committee’s “ deep concern”. 56
In her reply, the Foreign Secretary rejected “ the suggestion that the Government [ had]
been unco- operative” and attributed the lack of an evidence session to the difficulties of
finding mutually convenient dates. 57 The then Minister for Europe also said that he had
been unable to appear entirely as a result of diary commitments. 58
52 European Scrutiny Committee, European Union Intergovernmental Conference, para 71
53 HC Deb, 5 December 2006, cols 10- 11WS
54 Transcript via www. number10. gov. uk
55 HC 300- ii Q 171; the Government’s foreign policy “ red line” is discussed in Chapter 3 below at paragraphs 49- 60
56 Ev 140
57 Ev 141
58 Ev 140- 1
18 Foreign Policy Aspects of the Lisbon Treaty
33. Throughout the Spring, Ministers consistently responded to Parliamentary questions
on the EU institutional reform process by stating that there was no consensus among
Member States on the way forward. 59 The former Foreign Secretary told us on 19 June that:
there have not been feverish negotiations and discussions in Europe; I wish that there
had, but there have not […] I am sure that the Committee imagined, as did we
probably, that we would have had a draft document weeks ago, and that there would
have been a lot of discussion and argy- bargy and all those kinds of things. You as a
Committee did not want to be left out of it. I understand and sympathise. I have not
seen the draft document either— nobody has. It has not been produced”. 60
The former Foreign Secretary also told us that:
when we were asked to identify two people [ i. e. the “ focal points”], we assumed that
there would be a sustained process of dialogue and exchange together with potential
draft documents and so on, but that has not happened […] The process has not
evolved in the way in which I think that most people imagined that it would when we
were asked to appoint the two people. 61
34. When asked to confirm that agreement both on the IGC process and on the IGC’s
mandate was reached in less than a week, between 19 and 23 June, the Minister for Europe,
Mr Murphy, did so unequivocally. 62 Mrs Beckett said that the compressed timetable was
“ challenging”, 63 while her successor told us that “ distinctive” would be “ a diplomatic way”
of describing the German Presidency’s approach. 64
35. In evidence to us on 19 June, responding to queries about the occurrence of “ specific
discussions about Treaty content”, Mrs Beckett told us that: “ there had not been in the way
that I consider to form part of a negotiating preparation and a discussion leading up to
that.” 65 She went on to say: “ you could probably say that there still have not been […]
discussions in Council, around the Council table, about the approach on the Treaty or its
content. No such discussions have taken place.” 66 However, this appears to have been
contradicted by the former Prime Minister Tony Blair when he told the House on his
return from the June European Council that “ We have been talking about this for two
years.” 67
36. Mrs Beckett also told us in June that “ our main negotiating goal in this particular
process […] has been to get acceptance that the treaty that is put forward should be an
59 See, for example, HC Deb, 1 February 2007, col 499W; 19 February 2007, col 15- 6W; HC Deb, 13 March 2007, col 243W;
HC Deb, 20 March 2007, col 678; HC Deb, 16 April 2007, col 35- 6W; HC Deb, 1 May 2007, col 1347; HC Deb, 10 May
2007, col 391- 2W; HC Deb, 16 May 2007, col 779W.
60 Q 162
61 Q 164
62 Q 233; see also Qq 212, 214, 218, 219 [ Mr Murphy]
63 Qq 105, 114
64 Q 310
65 Q 127
66 Q 128
67 HC Deb, 25 June 2007, col 40
Foreign Policy Aspects of the Lisbon Treaty 19
amending treaty and should have the characteristics and the likely content of an amending
treaty.” 68 This was the Government position announced in mid- April. The former Foreign
Secretary also said on 19 June that “ we have been keeping our negotiating powder dry and
so has everybody else”. 69
37. Since the IGC was launched on 23 July, FCO Ministers have appeared before us on two
occasions in addition to the Foreign Secretary’s normal pre- European Council appearance
in December 2007. The Minister for Europe and the Foreign Secretary both provided
written follow- up information after their respective appearances in September and October
2007.70 During the IGC, the FCO also forwarded to the House public Presidency papers,
such as draft Treaty texts, although these were also available on the EU Council website.
38. We recognise that the compressed timetable during which the most important
decisions on the EU’s new Treaty were taken, over a few days in June, was driven by the
EU’s Presidency- in- office. The Government could and should have provided more
information to Parliament during Spring 2007 about its approach to the renewed EU
Treaty reform process. It should also have pressed for a less compressed timetable in
June. Parliament was entitled to expect adequate time to be consulted and to be able to
make an input into the contents of the Treaty, through the Government. After the
Treaty was finalised, Parliament was also entitled to have adequate time to make a
thorough examination of the Treaty’s detailed impact on the EU and the United
Kingdom constitution. Parliament has been denied these opportunities, on both
counts. We conclude that the procedure followed meant that the 2007
Intergovernmental Conference mandate was agreed with little scope for UK public or
Parliamentary debate and engagement. This sets an unfortunate precedent which is in
our view damaging to the credibility of the institutional reform process itself.
68 Q 132
69 Q 121
70 Ev 40- 42 [ Mr Murphy], 62- 81 [ Mr Miliband]; see also the letter to the Chairman from Mr Miliband of 11 January 2008,
at the end of this volume.
20 Foreign Policy Aspects of the Lisbon Treaty
3 Foreign policy in the 2007 IGC process
Foreign policy in the current Treaty reform process
39. The original European Community initially focused on internal integration, and
became involved in external affairs as a result of its competence for issues such as trade and
development assistance. After the early failure of the European Defence Community in the
1950s, it appeared that resistance from Member States would render the “ Community”
method of integration inapplicable to traditional foreign policy. In the 1970s and 1980s,
Member States began gingerly to try to co- ordinate their foreign policies in an informal
way, in what was known as European Political Co- operation.
40. The Maastricht Treaty ( the Treaty on European Union, TEU) of 1992 established the
Common Foreign and Security Policy ( CFSP). The CFSP was created as an
intergovernmental process, outside the EC’s “ Community” method, and falling instead
within the new European Union. The European Security and Defence Policy ( ESDP) was
added within the CFSP following the UK- French St Malo initiative of 1998.
41. Professor Hill of Cambridge University reminded us that “ There has been nothing else
in the history of modern diplomacy to match this attempt to provide systematic co-ordination
between separate sovereign states.” 71 However, events in the 1990s— primarily
in the former Yugoslavia— exposed the continuing weaknesses of the fledgling CFSP, and
of the EU more generally as an international entity. Such events prompted further efforts at
institutional change. The Amsterdam Treaty of 1997 established the position of High
Representative for the CFSP, taken by Dr Javier Solana, the former Spanish Foreign
Minister and Secretary- General of NATO. The figure in Annex 2a) shows the current
arrangement of EU foreign policy structures and processes, before the Lisbon Treaty.
42. According to our witnesses, much scope remains for improving the EU’s international
effectiveness. Mr Donnelly told us that “ almost all external commentators have concluded
that movement towards the goal of a functioning CFSP […] has been limited and
patchy.” 72 Professor Whitman told us that, in terms of implementing EU positions in
relationships with third countries and in international organisations, the EU “ is certainly
not as good as one might expect, certainly in terms of some of the resources and energy
that are put in by Member States”. 73 The former European Commission official Mr Avery
said that the EU “ is on the way towards having a foreign policy, but it is only partly on the
way— maybe halfway, maybe not even halfway.” 74 Most bluntly, Sir Peter Marshall
described the EU as “ the world’s principal under- performing asset.” 75 Dr Solana told us
that, in his years in post, he had “ been frustrated by the difficulty in delivering and the
rhythm with which the European Union delivers.” 76
71 Q 411
72 Ev 143
73 Q 411
74 Q 411
75 Ev 142
76 Q 616
Foreign Policy Aspects of the Lisbon Treaty 21
43. The evidence is mixed as regards public opinion poll data on the EU as a foreign policy
entity:
• In a poll taken in certain major states and published by the Bertelsmann
Foundation during the preparation of our Report, 43% of respondents in France,
86% in Germany and 80% in the UK named the EU as among the best
“ frameworks for ensuring peace and stability”. 77
• In the most recent of the regular Eurobarometer polls published by the European
Commission, 67% of respondents across the EU said that decisions on defence and
foreign affairs should be made jointly within the EU. 78 However, the range of
national responses ran from 83% supporting common decision- making in this
field in Slovakia to 26% doing so in Finland. In the UK, the Eurobarometer figures
gave a 54- to- 40 majority in favour of defence and foreign policy decisions being
taken by the national Government.
• In a Populus poll in the UK for Global Vision in June 2007, 54% of respondents
thought that the Government should sign the UK up for a common European
foreign and defence policy, against 43% opposing the step. 79
• In an ICM poll in the UK for Global Vision in June 2007, 34% said that the UK
Government should and 55% that the Government should not sign up to a
“ common European foreign and defence policy decided by European Union
institutions rather than agreed directly between governments”. 80
• In a November 2006 ICM poll in the UK for the Centre for Policy Studies, 60% of
respondents thought that foreign affairs should be controlled by the UK
Government, with 30% favouring the EU; the figures were 69% and 21%
respectively for defence. 81
44. In the 2001 Laeken Declaration which launched the current Treaty reform process,
“ Europe’s new role in a globalised world” was identified as one of the central challenges
facing the EU. The Declaration asked, “ Does Europe not, now that it is finally unified, have
a leading role to play in a new world order, that of a power able both to play a stabilisation
role worldwide and to point the way ahead for many countries and peoples?” More
specifically, the Declaration asked, “ How should the coherence of European foreign policy
be enhanced?” 82
45. In the Treaty reform process launched by the Laeken Declaration, the central means of
improving the “ coherence” of EU foreign policy has most typically been seen as bringing
together, via institutional means, the intergovernmental CFSP and the “ Community” areas
77 Bertelsmann Stiftung, “ Who rules the World?”, 22 October 2007, p 33, via www. bertelsmann- stiftung. de
78 Eurobarometer 68, First Results, December 2007, p 28, via www. ec. europa. eu/ public_ opinion
79 Populus Global Vision Poll, June 2007, via www. global- vision. net
80 ICM “ Europe Poll” for Global Vision, June 2007, via www. global- vision. net
81 ICM Economy Survey for the CPS, November 2006, via www. global- vision. net
82 Laeken Declaration on the Future of the European Union”, Annex 1 to Laeken European Council, Presidency
Conclusions, 14- 15 December 2001, via www. consilium. europa. eu
22 Foreign Policy Aspects of the Lisbon Treaty
of external policy handled by the Commission. Dr Solana told us that, in his experience
“ we have a High Representative who helps to define, implement and explain foreign policy,
but then there is a component— the Commission— with some important resources, and the
two are linked in a very loose way.” 83 Although, Dr Solana said, the use of Commission
resources ought already to be determined according to the policies set in the Council, “ in
practice [ this] may not be so natural”. 84 Dr Solana also noted that “ the autonomy of the two
decisions [ made by the Commission and the Council] […] sometimes creates problems
and even contradictions”, 85 and elsewhere he suggested that bringing together the EU’s
Community/ Commission and Council elements would be a means of reducing “ rivalry”
and “ friction”. 86 Dr Solana suggested that, in particularly in situations requiring rapid or
changing action, it was problematic that “ the priorities in the use of resources are
sometimes so fixed that when a crisis comes it is very difficult to adopt the structure and
deploy them rapidly.” 87
46. In terms of foreign policy posts, the Laeken Declaration asked, “ How is synergy
between the High Representative and the competent Commissioner to be reinforced?” 88
Ironically, support for the idea of bringing the posts of CFSP High Representative and
External Relations Commissioner together was generated in part by what was seen as the
productive relationship established by Dr Solana and the then External Relations
Commissioner Chris Patten, working in the two posts separately. Professor Hill told us that
“ there is certainly a case for trying to avoid the inherent tension that there is between the
Commissioner for External Relations and the Common Foreign and Security Policy.” 89
“ Mr Solana and Mr Patten worked well together”, Professor Hill continued, “ and the
argument would be that if those different roles were put together in a single individual, the
degree of coherence would be increased.” 90 Mr Avery told us that, in giving the two jobs to
the same individual, the new Treaty “ aims to eliminate some of the duplication that exists
in Brussels and the multiplicity of voices that exist elsewhere in the world.” 91
47. In the wake of the rejection of the Constitutional Treaty in 2005 by the French and
Dutch electorates, attention turned to ways in which EU external action might be made
more effective even within the existing institutional framework. The European
Commission set out its ideas in this respect in its “ Europe in the World” communication in
June 2006.92 There have been some signs that improved co- ordination between the EU
83 Q 618
84 Q 618
85 Q 619
86 Q 627
87 Q 619
88 Laeken Declaration on the Future of the European Union”, Annex 1 to Laeken European Council, Presidency
Conclusions, 14- 15 December 2001, via www. consilium. europa. eu
89 Q 412
90 Q 412
91 Q 411; the new position of High Representative for Foreign Affairs and Security Policy created by the Lisbon Treaty is
discussed in Chapter 5.
92 European Commission, “ Europe in the World— Some Practical Proposals for Greater Coherence, Effectiveness and
Visibility”, COM( 2006) 278 final. On the “ Europe in the World” paper, see House of Lords European Union
Committee, 48th Report of Session 2005– 06, Europe in the World, HL Paper 268. We also commented on the
Commission paper in our 2006 Report: Foreign Affairs Committee, Developments in the European Union, paras 98-
Foreign Policy Aspects of the Lisbon Treaty 23
institutions is indeed occurring within the existing Treaty framework. For example, CFSP
High Representative Solana has worked jointly with the Commission in the new field of
energy security policy for the EU. 93
48. Several of our witnesses argued that it would be in the UK’s interest to see a more
effective EU external policy. Mr Avery told us that “ In many of the problems which are a
priority for British foreign policy, acting with the European partners and trying to define a
European common interest is likely to be a much more effective way also of effecting
British interests.” 94 Lord Owen said that an agreed position among the EU Member States
on international issues can be “ of value to the UK”, 95 and Professor Hill said that “ if the
CFSP did not exist, the UK would probably want to invent something like it”. 96
The Government’s approach to foreign policy in the 2007 IGC: the
foreign policy “ red line”
49. The former Prime Minister Tony Blair set out the Government’s detailed negotiating
aims for the new EU Treaty in an appearance before the Liaison Committee on 18 June
2007, three days before the meeting of the European Council which was due to negotiate
the IGC mandate. The Government’s negotiating aims took the form of four “ red lines”.
One of these concerned foreign policy. Mr Blair told the Committee that the Government
“ will not agree to something which displaces the role of British foreign policy and our
foreign minister”. 97 In its White Paper on the 2007 IGC, the Government reformulated its
foreign policy “ red line” as requiring “ maintenance of the UK’s independent foreign and
defence policy” as a condition for signing any new Treaty. 98
50. On the basis of its public statements, it appears that the Government understands its
foreign policy “ red line” as meaning that the CFSP should “ remain an intergovernmental
process”. 99 In turn, according to evidence provided by the FCO, the Government appears
to understand this as meaning, more specifically, that:
unanimity in decision- making will remain the rule ( i. e. the UK will hold a veto),
legislative activity is excluded, and the ECJ will not have jurisdiction over CFSP
except […] on consequential questions of boundaries and sanctions. 100
It is possible to question whether the maintenance of an “ intergovernmental” CFSP is
sufficient to maintain an “ independent foreign and defence policy”. For example, the large
101. For a think- tank view on the same issues, see, for example, Charles Grant and Mark Leonard, “ How to
strengthen EU foreign policy”, Centre for European Reform Policy Brief, July 2006.
93 See for example “ An External Policy to serve Europe’s Energy Interests”, joint paper from the European Commission
and the High Representative for the Common Foreign and Security Policy submitted to the June 2006 European
Council, via www. consilium. europa. eu
94 Q 414
95 Q 461; see also Lord Owen at Q 460
96 Q 414
97 HC 300- ii, Q 117
98 FCO, The Reform Treaty: The British Approach to the European Union Intergovernmental Conference, July 2007, Cm
7174, July 2007, p 7
99 Ev 63 [ Mr Miliband]
100 Ev 63 [ Mr Miliband]
24 Foreign Policy Aspects of the Lisbon Treaty
number of EU “ common positions” which now exist on a wide range of foreign policy
issues arguably represent a considerable constraint on UK foreign policy.
51. The Government claims that the Lisbon Treaty does not cross its “ red line” in foreign
policy ( nor in the other three “ red line” areas). Addressing the House on his return from
the informal European Council meeting in October which agreed the new Treaty, Prime
Minister Gordon Brown said that he believed it was “ absolutely clear that the basis of
foreign and security policy will remain intergovernmental— a matter for Governments to
decide.” 101 In the Queen’s Speech debate in November, Foreign Secretary David Miliband
told the House that “ in each and every area where we promised to secure our red lines, they
have been secured.” 102
52. In his letter to the Chairman of 11 October, the Foreign Secretary identified four Treaty
provisions on which the Government rests its claim that the Lisbon Treaty does not cross
its foreign policy “ red line”. 103 In the relevant Annex to the Foreign Secretary’s subsequent
letter of 18 October, the FCO also provided “ commentaries” to the four pieces of text,
explaining how the FCO considered that they secured the Government’s foreign policy
“ red line”. 104 The four pieces of Treaty text are:
• Article 1 27) of the Lisbon Treaty, amending Article 11 of the Treaty on European
Union. This inserts a new paragraph stating that the “ the common foreign and
security policy is subject to specific rules and procedures”, before setting out what
these are. 105
• Article 2 223) of the Lisbon Treaty, inserting Articles 240a and 240b of the Treaty
on the Functioning of the European Union. The new Article 240a states that “ the
Court of Justice of the European Union shall not have jurisdiction with respect to
the provisions relating to the common foreign and security policy nor with respect
to acts adopted on the basis of those provisions”, before setting out two specific
exceptions, providing for ECJ jurisdiction over the boundary between the CFSP
and “ Community” areas, and over the imposition of sanctions. 106
• Declaration 13 concerning the common foreign and security policy, which states
that the provisions of the Treaty on European Union concerning the common
foreign and security policy “ do not affect the responsibilities of the Member States
[…] for the formulation and conduct of their foreign policy nor of their national
representation in third countries and international organisations.” 107
• Declaration 14 concerning the common foreign and security policy, which states
that the provisions of the Treaty on European Union concerning the common
101 HC Deb, 22 October 2007, cols 19- 22
102 HC Deb, 12 November 2007, col 412
103 The Foreign Secretary’s letter included the four pieces of text as a set of four Annexes; see Ev 62- 70
104 Ev 71- 81
105 Ev 68- 69 gives the text in full.
106 Ev 69 gives the text in full. The role of the ECJ is discussed further in Chapter 4 below.
107 Ev 69 gives the text in full. When the Foreign Secretary wrote to the Committee, on the basis of the 5 October draft
Treaty text, the Declaration was numbered 30.
Foreign Policy Aspects of the Lisbon Treaty 25
foreign and security policy “ will not affect the existing legal basis, responsibilities,
and powers of each Member State in relation to the formulation and conduct of its
foreign policy”, and notes that “ the provisions covering the Common Foreign and
Security Policy do not give new powers to the Commission to initiate decisions nor
do they increase the role of the European Parliament.” 108
While the first two of the provisions on which the Government relies form part of the
legally- binding body of the Lisbon Treaty, the two Declarations on the common foreign
and security policy— in common with other Declarations to EU Treaties— are not legally
binding. 109
53. In the relevant Annex to the Foreign Secretary’s letter of 18 October, the FCO also
referred to “ the improved provisions of Article 25” as a further means by which “ the
distinct character of CFSP is reinforced against encroachment by non- CFSP matters”. 110
What in the end became Article 25b of the amended Treaty on European Union ( TEU)
disbars interference in the CFSP provisions of the TEU as a result of the implementation of
policies governed by the Treaty on the Functioning of the European Union ( the TFEU), as
well as vice versa. In the existing TEU, the relevant Article provides only that
implementation of the provisions of the TEU shall not affect the TEC. 111 According to the
FCO, the new version means that “ the Court [ of Justice] must […] protect the distinct
character of CFSP against encroachment from non- CFSP provisions.” 112
54. The Lisbon Treaty provisions which the Government claims meet its foreign policy
“ red line” apply to all the Member States. In this respect, they contrast with the provisions
which the Government secured in order to meet its red lines on labour and social
legislation, and on the legal system and police and judicial processes, where the
Government pursued country- specific Protocols and opt- ins. 113
55. Of the four Lisbon Treaty provisions which the Government claims secure its foreign
policy “ red line”, the new paragraph in Article 11 and the two Declarations are wholly new,
compared both to the existing Treaties and to the Constitutional Treaty. The paragraph
ruling out ECJ jurisdiction over the CFSP ( except in the two specified cases) is found in the
Constitutional Treaty, 114 as is the language now in Article 25b disbarring mutual
interference between the CFSP and “ Community” areas of policy. 115
56. The Government’s foreign policy “ red line” raises the central issue of the current
reform process in the external action field, namely the relationship between “ Community”
108 Ev 69 gives the text in full. When the Foreign Secretary wrote to the Committee, on the basis of the 5 October draft
Treaty text, the Declaration was numbered 31.
109 Q 277 [ Mr Murphy]. The Declarations are discussed further in Chapter 4, paragraph 94.
110 Ev 79; see also the Foreign Secretary’s second letter of 18 October, at Ev 70.
111 Ev 70, 79- 80 [ Mr Miliband]
112 Ev 80 [ Mr Miliband]
113 See Ev 62- 63, 64- 68, 70- 79 [ Mr Miliband] and European Scrutiny Committee, European Union Intergovernmental
Conference and European Union Intergovernmental Conference: Follow- up report
114 Article III- 376
115 Article III- 308
26 Foreign Policy Aspects of the Lisbon Treaty
and intergovernmental elements. 116 We assess the Lisbon Treaty’s provisions on external
action in the next chapter. Here we raise a number of points in connection with the
Government’s “ red line” negotiating approach.
57. Under its “ red line” approach, the Government secured language in the Lisbon Treaty
which was absent from the Constitutional Treaty, as noted above. However, going into the
2003- 04 IGC which negotiated the Constitutional Treaty, the then Prime Minister Tony
Blair set out the same “ red line” for the UK as he did in 2007. The Foreign Secretary told us
that the Government had been “ clear all along that the most important red line […] is that
foreign policy should retain an area of unanimity and that each country should be able to
exercise a veto.” 117 In 2003, the then Prime Minister wrote that the UK “ could only accept a
final text that made it clear that issues like […] defence and foreign policy remain the
province of the nation state.”. 118 Once the Constitutional Treaty had been agreed, the
Government stated that the text met its requirements on this front. The then Prime
Minister wrote that the Constitutional Treaty did “ not force us to […] have our foreign
policy dictated from Brussels”. 119 Given that the Government had declared that the
Constitutional Treaty met its foreign policy “ red line”, the question arises as to why the
Government later felt that further changes to the Constitutional Treaty provisions were
necessary. On 19 June, immediately before publication of the German Presidency’s draft
IGC mandate, the then Foreign Secretary told us that “ what is now in the proposals for the
common foreign and security policy is something that we want to look at.” 120 According to
press reports, the Government sought changes to the foreign policy provisions which had
been contained in the Constitutional Treaty beyond those which it in the end secured. In
what the Financial Times called an “ 11th- hour attempt to water down plans for a stronger
EU foreign policy”, the former Foreign Secretary Margaret Beckett reportedly “ questioned
the role and status of the proposed EU foreign minister and diplomatic service”. 121
58. We asked Minister for Europe Jim Murphy why the Government had felt it necessary
to secure further changes to a Treaty that it had agreed in 2004. He said:
in that period […] there was a view that the solution to the disconnect— the lack of
connection and affection for Europe— was simply about getting structures right and
having a relatively maximalist approach to European structures. The referendums in
the Netherlands and France put paid to that. They forced a rethink among politicians
and the political class across Europe.” 122
59. Several of our witnesses said that the Government’s “ red line” approach to the
negotiation of foreign policy aspects of the new Treaty had been overly negative, and
116 As discussed in paragraphs 45- 46 above.
117 Q 495 [ Mr Miliband]
118 FCO, A Constitutional Treaty for the EU: The British Approach to the European Union Intergovernmental Conference,
Cm 5934, September 2003, Preface
119 FCO, White Paper on the Treaty establishing a Constitution for Europe, CM 6309, September 2004, Preface
120 Q 159
121 “ Union angry at UK's foreign policy plans”, Financial Times, 19 June 2007; see also “ A very British foreign policy
coup”, European Voice, 26 July 2007. The renamed foreign minister post is considered in Chapter 5 and the
“ diplomatic service” in Chapter 6.
122 Q 266
Foreign Policy Aspects of the Lisbon Treaty 27
damaging to the UK. Mr Avery said that the language of “ red lines” “ comes from the
vocabulary of confrontation and demarcation, rather than co- operation, and […] it has
[ not] improved the image of the United Kingdom as a partner in the European Union as a
result.” 123 Professor Whitman told us that the way in which the Government had presented
its foreign policy positions to its EU partners caused “ some disquiet”, 124 while the former
British diplomat Sir Peter Marshall told us that “ drawing ‘ red lines’ is an inadequate and
atypical UK contribution to the Reform Treaty”. 125 Sir Peter went on to argue that the
Government’s “ role in the preparation of the Treaty was effectively reduced to a damage-limitation
exercise of drawing red lines around what were judged to be key UK interests
[…] [ This] is a strategy which just leaves the field to others to get their way at your
expense.” 126
60. The Foreign Secretary rejected the charge of negativity. He told us:
the Government have been clear and firm in setting out what we understand to be
the national interest. I think that clarity is valued in the European Union, and people
know where we stand on the treaty. That does not mean that people agree with us,
but they understand our position: the fact that we have stuck to it is respected. 127
61. The Foreign Secretary referred to three sets of ideas to explain the Government’s
approach in the 2007 IGC. He set out an argument on grounds of principle against further
“ Communitarisation”, including as regards foreign policy, stating that:
the site of legitimacy for citizens is the nation […] It is […] to the nation state that
people owe and commit a significant part of their sense of identity. I think that any
attempt to produce foreign policy that negates that sense of identity would be quite
dangerous because it would corrode the sense of legitimacy. 128
The Foreign Secretary added that “ keeping a national foreign policy is important in getting
the right blend of legitimacy and efficiency”. 129
62. The Foreign Secretary was in any case— and secondly— sceptical about the ability of
institutional change alone to produce greater “ efficiency”. He told us that he would be
“ wary of believing that there are administrative […] mechanical reforms that got us out of
the fact that different countries and different people disagree about foreign policy ends and
goals.” 130 The Foreign Secretary noted: “ What fundamentally decides whether the
European Union has a foreign policy on Kosovo is whether you can reach agreement
among the 27 Members.” 131
123 Q 449
124 Q 449
125 Ev 141
126 Ev 141
127 Q 497
128 Q 513. The Foreign Secretary made similar points in his Bruges speech of 15 November 2007; text via
www. fco. gov. uk
129 Q 513
130 Q 513
131 Q 377
28 Foreign Policy Aspects of the Lisbon Treaty
63. The limitations of institutional change alone was a theme picked up by several of our
witnesses. Professor Hill told us that:
institutional change has too often been a substitute for change at the level of policy
and a willingness to grasp the nettle of difficult decisions on high politics and
international relations. Whenever there is a problem in European Union foreign
policy, the instinct is to say, ‘ Let’s invent some new procedure’. 132
Professor Whitman agreed that “ historically a lot of effort has gone into the procedure
rather than the policy”, 133 and Lord Owen reported that, in his experience, the EU spent
too much time on “ institutional development and press relations”, whereas the best way to
strengthen EU foreign policy was “ practical success on the ground”. 134
64. The Foreign Secretary’s scepticism about the value of institutional change alone
extended beyond the foreign policy sphere to the EU in general. Both he and his
predecessor cited to us the agreements on climate change targets reached by the European
Council in March 2007135 as examples of the way in which the EU could function well even
with its existing institutional structures, without further Treaty reform. 136 Mr Miliband told
us that the EU’s actions on this front “ have done more to show the relevance of the
European Union than any amount of institutional tinkering.” 137 In June, Mrs Beckett
referred to what she called “ comments from various quarters that if the European Union
cannot get an agreement [ on Treaty reform], there will be a huge crisis and […] the EU will
no longer be able to function”. The former Foreign Secretary told us that in fact “ the last
few months have shown that that is not actually so. The EU is functioning and has, indeed,
reached some quite far- reaching decisions”. 138 Professor Whitman provided support for
this view, telling us that he thought “ the CFSP could carry on working quite happily
without the changes that are in [ the Lisbon] Treaty.” 139
65. In their evidence to us, and in their public statements in other forums, the Foreign
Secretary and other Ministers have often appeared to place little emphasis on the
significance of the institutional changes made by the Lisbon Treaty, preferring to argue
instead— and thirdly— that the value of the new Treaty lies primarily in the fact that it
brings to a close the EU’s institutional reform process and, in the Government’s view,
allows the EU to “ move on”. What the Government wants to see the EU “ move on” to is
the “ delivery agenda” of policy issues which it outlined during the UK EU Presidency in
2005,140 and which it has continued to take forward with the publication of the paper
132 Q 416
133 Q 417
134 Q 459
135 Brussels European Council, Presidency Conclusions, 8- 9 March 2007, via www. consilium. europa. eu
136 Q 106 [ Mrs Beckett], Q 498 [ Mr Miliband]
137 Q 498
138 Q 106
139 Q 419
140 Q 167 [ Mrs Beckett], Q 250 [ Mr Murphy], Q 498 [ Mr Miliband]; see “ Statement of informal meeting of EU Heads of
State or Government - Hampton Court, 27 October 2005”, via www. number10. gov. uk/ output/ Page8475. asp
Foreign Policy Aspects of the Lisbon Treaty 29
“ Global Europe” by the Prime Minister and the Foreign Secretary in October 2007,141 and
the initiation of the “ Declaration on Globalisation” which the European Council made in
December 2007.142 The Foreign Secretary told us that “ the critical point about the Reform
Treaty is that it brings to an end six or seven years of institutional obsession and allows us
to get on and tackle issues”. 143 While the Foreign Secretary was quick to add that “ it is a
twofold thing. There are good things in the Treaty, and it says ‘ enough is enough, let’s get
on with the real business’”, 144 the latter consideration has come over more strongly in
Ministers’ evidence to us as regards foreign policy aspects of the Treaty.
66. The Foreign Secretary did not mention the specific new foreign policy institutions
created by the Lisbon Treaty— namely, the new High Representative for Foreign Affairs
and Security Policy, and the European External Action Service— in either his major speech
on the EU in Bruges on 15 November 2007,145 or his contribution to the debate on the
Queen’s speech the same month. 146 Although the Prime Minister referred to these new
institutions in his statement to the House following the October European Council, he
drew attention to the way in which the new Declaration 14 to the Lisbon Treaty said that
they would not affect national foreign policies in any way, 147 while in their joint “ Global
Europe” paper the closest that the Prime Minister and Foreign Secretary came to
mentioning the Lisbon Treaty’s foreign policy provisions was to note that “ recent efforts to
improve the effectiveness of Europe’s Foreign and Security Policy should continue”. 148
Giving evidence in December, the Foreign Secretary told us that “ We have a responsibility
to be as clear as possible about the reality.” 149
67. We conclude that the Government is correct to argue that political positions and
political will among the Member States are more important than institutional changes
in determining the quality of EU foreign policy. We are also sympathetic to the
Government’s wish to see the end, for at least some years to come, of further EU
institutional reform. However, we are concerned that the Government risks
underestimating, and certainly is downplaying in public, the importance and potential
of the new foreign policy institutions established by the Lisbon Treaty, namely the new
High Representative and the European External Action Service. We recommend that
the Government should publicly acknowledge the significance of the foreign policy
aspects of the Lisbon Treaty.
141 Cabinet Office/ FCO, “ Global Europe: Meeting the Economic and Security Challenges”, October 2007, via
www. fco. gov. uk
142 “ EU Declaration on Globalisation”, Annex to Brussels European Council, Presidency Conclusions, 14 December 2007,
via www. consilium. europa. eu
143 Q 498
144 Q 500
145 Text via www. fco. gov. uk
146 HC Deb, 12 November 2007, col 399
147 HC Deb, 22 October 2007, cols 19- 22
148 Cabinet Office/ FCO, “ Global Europe: Meeting the Economic and Security Challenges”, October 2007, p 26, via
www. fco. gov. uk
149 Q 550
30 Foreign Policy Aspects of the Lisbon Treaty
4 Foreign policy in the Lisbon Treaty
68. This chapter sets out the way in which EU external action would be governed under the
Lisbon Treaty. It first establishes where provisions on external action would be located in
the EU’s Treaty architecture, and refers to the connected issue of the EU’s single legal
personality. We then discuss the provisions which govern EU external action in general—
that is, those which are intended to apply both to “ Community” areas of policy and to the
intergovernmental CFSP. We then consider each of these in turn, briefly referring to
“ Community” areas before examining the provisions on the CFSP in greater detail. We
consider the Treaty’s provisions on “ enhanced co- operation”, which may apply to policy
areas which include the CFSP. Finally, we discuss several provisions in the Treaty which do
not fit fully into either the “ Community” or CFSP areas: the “ solidarity clause”,
enlargement and neighbourhood policy. 150
External action in the Lisbon Treaty architecture
69. If the Lisbon Treaty comes into force, provisions on EU external action will continue to
be found in two separate Treaties. This is a result of the abandonment of the idea—
embodied in the Constitutional Treaty— of consolidating the EU’s major Treaties into a
single main Treaty for the EU. 151 Under the Lisbon Treaty, in broad terms, provisions
governing the “ Community” elements of EU external action would be found in the Treaty
on the Functioning of the European Union ( TFEU), the renamed and amended Treaty
establishing the European Community ( TEC). 152 Provisions governing the
intergovernmental Common Foreign and Security Policy ( CFSP), including the European
Security and Defence Policy ( ESDP), would continue to be found in the amended Treaty
on European Union ( TEU). 153 The splitting of EU external action provisions between two
Treaties, and the broad division between “ Community” elements in the TEC ( or its
successor) and intergovernmental ones in the TEU, would be the same as at present.
70. In the field of the EU’s external action, the central declared aim of the current Treaty
reform process has been to achieve greater coherence between the “ Community” and the
intergovernmental elements of policy. 154 In the Constitutional Treaty, this was attempted
not only by bringing all the provisions governing EU external action together in a single
Treaty, but also by introducing new text on the principles and objectives of EU external
action. These latter were to apply both to “ Community” policy- making and to the
intergovernmental CFSP. 155 Under the Lisbon Treaty, the Constitutional Treaty chapter
which set out principles and objectives for EU external action would be inserted into the
150 The figure in Annex 2 b) presents foreign policy structures and processes under the Lisbon Treaty, including
institutional arrangements discussed in Chapters 5 and 6 as well as the present Chapter.
151 As discussed in Chapter 2 above.
152 Provisions on external action in the TFEU would be gathered into a Part Five.
153 On the ESDP, see Chapter 7. In the TEU as amended by the Lisbon Treaty, provisions on EU external action, including
the CFSP and ESDP, would continue to be found in Title V, as at present. Annex 1 presents the arrangement of
external action provisions under the Lisbon Treaty.
154 See Chapter 3 above.
155 Part III, Title V, Chapter 1, Article III- 292
Foreign Policy Aspects of the Lisbon Treaty 31
amended TEU. This would constitute a new chapter of the TEU, on “ General provisions
on the Union’s external action”. 156 The TEU would then deal in a following chapter with
“ Specific provisions on the Common Foreign and Security Policy”. 157 The part of the TEU
which contains both chapters ( Title V) would be renamed “ General provisions on the
Union’s external action and specific provisions on the Common Foreign and Security
Policy”. 158 In the current TEU, by contrast, Title V deals only with the CFSP.
71. By virtue of the new chapter which it would insert into the Treaty on European Union,
the Lisbon Treaty would seek to retain from the Constitutional Treaty the single set of
principles and objectives governing all of the EU’s external action, despite the fact that the
EU would continue to have two main Treaties, both of which would contain external
action provisions. In proceeding in this way, the Lisbon Treaty would effectively establish a
hierarchy between the EU’s two main Treaties in the external action field: the amended
Treaty on European Union would set out principles and objectives which would apply
both to the CFSP and to “ Community” external action otherwise governed by the TFEU. 159
Annex 1 presents these arrangements. We conclude that the insertion of principles and
objectives for all EU external action into the Treaty on European Union is a sensible
way of encouraging greater EU policy coherence while two main EU Treaties remain in
place.
72. The Government has suggested that the fact that the CFSP will continue to be governed
by one Treaty, and “ Community” areas of EU external action by another, offers a stronger
demarcation of the CFSP than would have been available under the single Constitutional
Treaty. Mr Murphy told us that the new Treaty “ will leave us with two Treaties— including
a separate Treaty governing CFSP”. 160 Similarly, Mr Miliband told us that “ CFSP remains
distinct from other policy areas, in a separate Treaty. In effect, we have retained it in a
separate pillar.” 161 Dr Solana acknowledged that the retention of two Treaties had been
“ important conceptually” for the UK. 162 Dr Solana said that, under the Lisbon Treaty, “ the
second pillar and the autonomy within that […] is maintained”. 163
73. In terms purely of the location of Treaty provisions, under the Lisbon Treaty
arrangements for the retention of two main Treaties the CFSP is clearly governed more
separately from “ Community” areas of policy than it would have been in the single
Constitutional Treaty. However, under the Lisbon Treaty, more provisions that are
relevant to the CFSP appear to be included in the Treaty on the Functioning of the
European Union ( TFEU) than are at present included in its predecessor, the Treaty
establishing the European Community ( TEC). This appears partly to result from the
156 Article 1 24) of the Lisbon Treaty, inserting new Articles 10A and 10B TEU
157 Article 1 25) of the Lisbon Treaty
158 Article 1 23) of the Lisbon Treaty
159 Under Article 2 155) of the Lisbon Treaty, the TFEU would refer ( in Part Five, Title I, Article 188A) to the principles
and objectives for EU external action set out in the first chapter of Title V TEU. The arrangement of external action
provisions under the Lisbon Treaty is shown in Annex I.
160 Ev 41
161 Ev 63
162 Q 616
163 Q 616
32 Foreign Policy Aspects of the Lisbon Treaty
abolition of the European Community. When both the EC and the EU were in place,
provisions governing international agreements and “ enhanced cooperation” for the two
distinct entities were placed in the two separate Treaties, the TEC governing the European
Community and the TEU governing the European Union. Under the Lisbon Treaty,
governing the now unified European Union, detailed provisions governing these two
policy areas— including provisions relevant to the CFSP— are placed in the TFEU. 164
Furthermore, the new “ solidarity clause” is placed in the TFEU, despite the fact that it has
CFSP relevance. 165 Detailed provisions on the imposition of sanctions under the CFSP
continue to be found in the TFEU, as they are currently in the TEC. 166
74. Lord Owen was concerned for different reasons that the EU’s intergovernmental
elements might no longer be sufficiently ring- fenced under the Lisbon Treaty. He told us
that the Lisbon Treaty “ dismantles the intergovernmental pillars” and is therefore a
“ massive step towards further integration.” 167 Lord Owen was also concerned that the
movement of remaining areas of justice and home affairs to the “ Community” method
might impinge on the CFSP, because he contended that it is no longer possible to keep
anti- terrorism issues separate from foreign policy. 168 Lord Owen urged that the
Government’s Bill giving effect to the Lisbon Treaty should make it “ clear at least in UK
legislation that [ the CFSP] retains its separate legal character.” 169
Single legal personality
75. The Lisbon Treaty would give the EU legal personality. 170 Hitherto, the EC has had this
attribute, but not the EU. The attribution of legal personality to the EU is a concomitant of
the abolition of the EC. It is a provision previously found in the Constitutional Treaty. 171
76. Open Europe told us that the attribution of legal personality to the EU “ would be a
huge transfer of power and make the EU look more like a country than an international
agreement.” 172 However, Open Europe did not elaborate on this assertion.
77. At present, the EU has a degree of “ functional” legal personality to conclude
international agreements. 173 This legal personality is made more general by the new
provision introduced by the Lisbon Treaty, but the new provision does not by itself make
the Union’s legal capacity the same as that of a state. Under the Lisbon Treaty, it will
164 On international agreements, Article 2 171) of the Lisbon Treaty, inserting Article 188L of the TFEU; on enhanced
cooperation, Article 2 278) of the Lisbon Treaty, inserting Articles 280A to 280I of the TFEU.
165 Article 2 176) of the Lisbon Treaty, inserting Article 188R of the TFEU. The “ solidarity clause” is discussed in
paragraphs 122- 125 below.
166 Article 2 169) of the Lisbon Treaty, inserting Article 188K of the TFEU
167 Ev 104
168 Q 467
169 Ev 106
170 Article 1 55) of the Lisbon Treaty, inserting Article 46A TEU
171 Article I- 7
172 Ev 150
173 Under Articles 24 and 38 TEU.
Foreign Policy Aspects of the Lisbon Treaty 33
remain the case that the EU will be able to conclude international agreements only within
the scope of the powers conferred on it by the Member States. 174
78. Dr Solana told us that he thought the EU’s acquisition of legal personality was “ not a
minor issue”, but that it was “ important politically more than legally”. 175 Dr Solana thought
that it would be easier for third countries to understand the EU without the complication
of dealing with, and sometimes signing agreements with, different entities. 176
General external action provisions
79. Under the Lisbon Treaty, the principles and objectives for EU external action which
would be inserted into the TEU177 are largely ones which are already contained separately
in the existing TEU and TEC. As already noted, the list of principles and objectives would
also have appeared in the Constitutional Treaty. 178
80. On the basis of these stated principles and objectives, the Lisbon Treaty would charge
the European Council— the body of EU heads of state or government— with determining
“ the strategic interests and objectives of the Union” for all the EU’s external action. Such
determinations “ may concern the relations of the Union with a specific country or region
or may be thematic in approach.” They would apply for a specified duration, which could
presumably be prolonged. They would require unanimity. However, such “ strategic”
determinations by the European Council would take place on the basis of proposals from
the Council of Ministers which would for their part be adopted according to the voting
procedure applicable to the policy area in question— that is, by qualified majority in
“ Community” areas of policy. 179
81. The European Council’s ability to make determinations of “ strategic interests and
objectives” for all of the EU’s external action represents a change from the current Treaties.
Under the current TEU, the European Council may make such “ strategic” decisions only
for the CFSP. 180 The expanded remit for the European Council contained in the Lisbon
Treaty is taken over from the Constitutional Treaty. 181 Through this provision, the Lisbon
Treaty would insert a unanimity requirement at European Council level into areas of
external action otherwise governed by the “ Community” method. As any proposal for a
“ strategic” decision would have to come from the Council of Ministers, the European
Council would probably be asked to make such a determination only where the Member
States were united in any case ( because, in policy areas governed by qualified majority
voting, Member States in a majority in the Council of Ministers could prevent a proposal
from going forward to the European Council if they feared it might there be rejected). The
European Council also already issues conclusions and declarations— including on matters
174 On this point see also Declaration 24 concerning the legal personality of the European Union
175 Q 624
176 Q 624
177 Under Article 1 24) of the Lisbon Treaty, inserting Article 10A TEU, as discussed in paragraphs 70- 71 above.
178 Part III, Title V, Chapter 1, Article III- 292
179 Article 1 24) of the Lisbon Treaty, inserting Article 10B TEU
180 Article 13 TEU
181 Article III- 293
34 Foreign Policy Aspects of the Lisbon Treaty
which fall under “ Community” competence— which, while they have no legal force, can
help to shape the direction of policy. 182 We conclude that the European Council’s new
ability under the Lisbon Treaty formally to determine “ strategic interests and
objectives” for all areas of EU external action represents a symbolically important
assertion of Member State authority over “ Community” policy areas, although it
remains to be seen whether this will have any significant impact in practice.
82. The Lisbon Treaty would make the European Council into an official institution of the
European Union for the first time. As such, the European Council would have the duty to
practise “ mutual sincere cooperation” with the other official EU institutions, according to a
provision which does not mention the Member States. 183
83. Under the Lisbon Treaty, the section of the amended TEU which would give the
European Council authority to make “ strategic” determinations for EU external action, as
described above, on the basis of proposals from the Council of Ministers, would contain
the following provision:
The High Representative of the Union for Foreign Affairs and Security Policy, for the
area of common foreign and security policy, and the Commission, for other areas of
external action, may submit joint proposals to the Council. 184
This provision appears to facilitate the joint working between the High Representative and
the Commission which is implicit in the practice of “ mutual sincere cooperation”. We
welcome this. However, a subsequent provision of the Lisbon Treaty, relating to the TEU
chapter dealing specifically with the CFSP, explicitly excludes the Commission on its own
from making CFSP proposals to the Council of Ministers, and does not mention the
possibility of “ joint” Commission and High Representative proposals, only the possibility
of the High Representative making proposals with Commission support. 185 The unclear
wording is taken over directly from the Constitutional Treaty. 186
84. We conclude that the section of the amended Treaty on European Union giving
authority to the European Council to make strategic determinations for EU external
action is unnecessarily ambiguous and should be clarified by the Government in its
response to this Report.
Simplified Treaty revision procedure
85. The Lisbon Treaty provides for a “ simplified Treaty revision procedure”. 187 The
procedure is taken over from the Constitutional Treaty188 and does not exist under the
182 The “ Declaration on Globalisation” adopted by the European Council at its meeting on 14 December 2007 is an
example; see Brussels European Council, Presidency Conclusions, 14 December 2007, via www. consilium. europa. eu.
On the nature of European Council conclusions, see the European Scrutiny Committee’s ongoing Inquiry into this
topic, via www. parliament. uk/ parliamentary_ committees/ european_ scrutiny. cfm
183 Article 1 14) of the Lisbon Treaty, amending Article 9 TEU
184 Article 1 24) of the Lisbon Treaty, inserting Article 10B TEU
185 Article 1 33) of the Lisbon Treaty, amending Article 22 to become Article 15a TEU. This change is discussed further in
paragraph 97 below.
186 Article III- 293
187 Article 1 56) of the Lisbon Treaty, amending Article 48 TEU
Foreign Policy Aspects of the Lisbon Treaty 35
current Treaties. Under the part of the simplified Treaty revision procedure which applies
to the external action part ( Title V) of the amended TEU, for an area in which Title V
provides for the Council of Ministers to act by unanimity, “ the European Council may
adopt a decision authorising the Council to act by a qualified majority in that area”. 189 The
European Council would have to make any such decision by unanimity. Decisions in the
defence field or with military implications could not be moved to qualified majority voting
( QMV) in this way. For Title V items, the European Parliament would have to consent to
this form of Treaty revision. In addition, any national Parliament could block the Treaty
revision by making known its opposition within six months.
86. Lord Owen urged the Government to incorporate in its Bill giving effect to the Lisbon
Treaty in the UK a “ Parliamentary braking mechanism” across “ all the most sensitive
political questions that concern the British people”. These would include any extension of
QMV or of ECJ jurisdiction over the CFSP. 190
87. On his return from the informal European Council in Lisbon in October, the Prime
Minister told the House that “ we will make a provision in the Bill that any proposal to
activate the mechanisms in the Treaty that provide for further moves to QMV, but which
require unanimity of member states, will have to be subject to a prior vote by this
House.” 191 The European Union ( Amendment) Bill, as published, contains a provision that
a Minister may not support a decision adopting qualified majority voting under the
simplified Treaty revision procedure without Parliamentary approval, which is defined as
the agreement without amendment by each House of Parliament to a Government motion
that that House “ approves Her Majesty’s Government’s intention to support the adoption
of a specified draft decision”. 192 The Bill also provides that an approval motion brought
before the House may include provision dispensing with the need for a further motion in
respect of “ any later draft decision”, as long as a Minister certifies that the decision in
question is “ an amended version of” the original draft decision. 193
88. We welcome the Bill’s provisions giving Parliament the right to accept or reject
individual proposals to extend qualified majority voting. However, we are concerned at
the implications of the provisions whereby Parliament could be invited to set aside this
right in respect of “ any later draft decision”, as long as a Minister certifies that the
decision in question is an amended version of the original decision. We see nothing on
the face of the Bill that would preclude this power being invoked in circumstances
where the “ amended version” of the draft decision contains further transfers to
qualified majority voting not found in the original decision. If this were to be the case,
transfers to qualified majority voting might take place without specific Parliamentary
approval. This could represent a breach of the undertaking given by the Prime
Minister. We recommend that further consideration be given to procedures which
would allow Parliament to decide separately on “ amended versions” of initial draft
188 Article IV- 444
189 Article 1 56) of the Lisbon Treaty, amending Article 48 TEU
190 Ev 106; see also Qq 464- 465 [ Lord Owen]
191 HC Deb, 22 October 2007, cols 19- 22
192 European Union ( Amendment) Bill, Clause No. 6 ( 2)
193 Ibid., Clause No. 6 ( 3)
36 Foreign Policy Aspects of the Lisbon Treaty
decisions to transfer items to qualified majority voting. We further recommend that all
amendments to the Treaty, including extensions of qualified majority voting, should be
done by primary legislation and not simply by a vote of the House.
“ Community” areas of EU external action
89. Under the Lisbon Treaty, the “ Community” areas of EU external action would
continue to comprise trade, development assistance and other types of co- operation with
third countries. Measures on humanitarian aid and on the provision of urgent
macrofinancial assistance would become subject to qualified majority voting for the first
time. 194 The EU would also gain the right to legislate by qualified majority on measures
“ establishing the co- ordination and co- operation measures necessary to facilitate” the
diplomatic and consular protection of Member State citizens by Member States other than
their own, in third countries where the relevant citizens’ own Member State has no
representation. 195
90. Open Europe told us that the movement of civil protection policies to qualified
majority voting under the Lisbon Treaty should also be seen as an incursion of QMV into
foreign policy- related areas. 196
Common Foreign and Security Policy
General CFSP provisions
91. The Lisbon Treaty introduces four substantive changes of wording in relation to
general provisions on the nature of the CFSP, compared to the existing TEU. First, under
the Lisbon Treaty, the CFSP would be based on— among other things—“ the achievement
of an ever- increasing degree of convergence of Member States’ actions.” 197 Second, the
Treaty would oblige Member States to “ comply with the Union’s action” in the area of the
CFSP. 198 Third, the aim of consultation among Member States would become that of
“ determining a common approach”. 199 Fourth, the Treaty would insert new text stating
that:
Before undertaking any action on the international scene or entering into any
commitment which could affect the Union’s interests, each Member State shall
consult the others within the European Council or the Council. Member States shall
ensure, through the convergence of their actions, that the Union is able to assert its
interests and values on the international scene. Member States shall show mutual
solidarity.
194 Article 2 167) and 168) of the Lisbon Treaty, inserting Articles 188I and 188J of the TFEU; Ev 145 [ Mr Donnelly], Ev 149
[ Open Europe]
195 Article 2 36) of the Lisbon Treaty, amending Article 20 TEC/ TFEU. This change is referred to further in paragraph 201
in Chapter 6 below.
196 Ev 150
197 Article 1 27) of the Lisbon Treaty, amending Article 11 TEU
198 Article 1 27) of the Lisbon Treaty, amending Article 11 TEU
199 Article 1 35) of the Lisbon Treaty, amending Article 16 TEU
Foreign Policy Aspects of the Lisbon Treaty 37
[…] The diplomatic missions of the Member States and the delegations of the Union
in third countries and at international organisations shall co- operate and shall
contribute to formulating and implementing the common approach. 200
These four sections of text were all included in the Constitutional Treaty. 201 Open Europe
told us that the fourth of the new pieces of text, dealing with consultation among Member
States, “ has the potential to significantly restrict the freedom of the UK Government in
implementing foreign policy it deems appropriate, by subjecting it to evaluation and
approval [ by] other EU Member States.” 202
92. An FCO legal adviser pointed out that the existing TEU contains language referring to
“ convergent action” by the Member States in the CFSP. 203 The adviser also said that general
language on the CFSP had to be “ applied within the framework of decision making of the
Common Foreign and Security Policy. It does not undermine the unanimity checks
elsewhere.” 204 The Foreign Secretary agreed that Member States were only obliged to
pursue positions that they had already agreed, by unanimity. 205 However, we note that the
existing Treaty reference to “ convergent action” by the Member States occurs in the
context of an Article specifically on consultation among them. Under the Lisbon Treaty,
the reference to an “ ever- increasing degree of convergence of Member States’ actions”
occurs outside the context of Member State consultations, as part of the description of the
CFSP in general.
93. Professors Hill and Whitman reminded us that, however strong its common
obligations may appear to be, there are no formal enforcement mechanisms in the CFSP as
there are in “ Community” areas of policy. 206 The ECJ has no powers to bring rulings
against Member States which may violate CFSP acts. 207 Under the Lisbon Treaty, the
Council would continue to have responsibility for ensuring “ compliance” with the
principle that, in the CFSP, Member States “ shall refrain from any action which is contrary
to the interests of the Union or likely to impair its effectiveness as a cohesive force in
international relations.” 208 The Lisbon Treaty would make this a shared responsibility with
the new High Representative. 209 However, neither the Council nor the High Representative
can sanction Member States in any formal way.
94. The general provisions on the CFSP in the main body of the Lisbon Treaty are
supplemented by the two Declarations on the policy which were secured by the UK. These
state that the CFSP will not affect Member States’ exercise of their national foreign policy
200 Article 1 35) of the Lisbon Treaty, amending Article 16 TEU
201 Respectively: Article I- 40; Article I- 16; Article I- 40; and Article I- 40 and III- 301
202 Ev 152
203 Qq 573- 578, referring to Article 16 TEU
204 Q 573
205 Q 571
206 Q 429 [ Professor Hill]; Ev 82 [ Professor Whitman]
207 The role of the ECJ in the CFSP is considered further below.
208 Article 11 TEU
209 Article 1 27) of the Lisbon Treaty, amending Article 11 TEU. The new High Representative position is discussed in
Chapter 5 below.
38 Foreign Policy Aspects of the Lisbon Treaty
rights and responsibilities. 210 The Government acknowledged that, like other Declarations
to EU Treaties, the Declarations on the CFSP are not law. 211 However, the Foreign
Secretary told us that the Declarations are “ worth having because they set out the views of
Heads of State about the way in which CFSP should work.” 212 The Minister for Europe told
us that the Declarations “ will be taken into account in the interpretation and application of
the Treaty itself.” 213 Professor Whitman said that the Declarations were “ reiterations of
principles that have underpinned the common foreign and security policy over time”, 214
while Professor Hill said that the Declarations set out, “ as it were, the default position”. 215
95. At present, the TEU provides for a formal system of differentiated CFSP instruments,
consisting of “ common strategies”, “ joint actions” and “ common positions”. Professor Hill
told us that the system was “ ludicrously elaborate” and “ a nonsense”. 216 The Lisbon Treaty
would effectively allow for the adoption of the same types of instruments, but it would do
away with the formal linguistic differentiation, converting all CFSP acts into simple
“ decisions”. 217 We conclude that the simplification of the nomenclature for Common
Foreign and Security Policy decisions introduced by the Lisbon Treaty represents an
improvement on the current situation.
CFSP decision- making
96. Under the Lisbon Treaty, the European Council— of heads of state or government—
would “ determine the objectives of and define general guidelines for” the CFSP. 218 The
Foreign Affairs Council of Ministers would “ take the decisions necessary for defining and
implementing” the CFSP. 219 Both the European Council and the Council of Ministers
would act by unanimity except where specifically provided otherwise. 220 The roles of the
European Council and Council of Ministers, and the norm of unanimity, would be
unchanged from the current Treaties.
97. The European Commission currently has a so- called “ right of initiative” to refer CFSP
matters to the Council and to make CFSP- related proposals. 221 Under the Lisbon Treaty,
the Commission as a body would lose this right, which would pass to the new High
Representative for Foreign Affairs and Security Policy, who would be Commission Vice-
210 Declarations 13 and 14. We referred to these in Chapter 3 above in the context of the Government’s foreign policy
“ red line”. The full text of the Declarations is at Ev 69.
211 Q 277 [ Mr Murphy]
212 Q 358
213 Ev 20
214 Q 449
215 Q 428
216 Q 428
217 Article 1 28) of the Lisbon Treaty amending Article 12 TEU; Article 1 31) of the Lisbon Treaty, amending Article 14
TEU; Article 1 32) of the Lisbon Treaty, amending Article 15 TEU
218 Article 1 29) of the Lisbon Treaty, amending Article 13 TEU
219 Article 1 29) of the Lisbon Treaty, amending Article 13 TEU
220 Article 1 34) of the Lisbon Treaty, amending Article 23 to become Article 15b TEU; on qualified majority voting, see
paragraphs 100- 105 below.
221 Article 22 TEU
Foreign Policy Aspects of the Lisbon Treaty 39
President. 222 Member States would retain their existing right to submit CFSP proposals.
We conclude that the Commission’s loss of the right to make Common Foreign and
Security Policy proposals is welcome because it represents an important assertion of the
intergovernmental nature of the Common Foreign and Security Policy.
98. Under the Lisbon Treaty, Member States in the Council of Ministers would retain their
existing option of “ constructive abstention” in respect of both unanimous and qualified
majority decisions in the CFSP. Simple abstention cannot block a Council CFSP decision.
However, a Member State planning to abstain may exercise its right to “ constructive
abstention” by making a formal declaration. Having done so, the Member State in question
would be expected to accept that the relevant CFSP decision “ commits the Union”, but it
would not be obliged to apply the decision itself. 223 Under the existing TEU, if the group of
“ constructive abstainers” were to represent one- third of Council votes, the Council would
not adopt the decision in question. 224 Under the Lisbon Treaty, the group of “ constructive
abstainers” needed to block a decision must represent one- third of the Member States,
representing one- third of the EU population. 225
99. Professor Whitman told us that, in practice, QMV is “ not used very much”. 226 Similarly,
Mr Donnelly told us that:
Experience has shown that national ministers prefer, even when majority voting is
theoretically available as a decision- making procedure to proceed by consensus, with
the possibility of majority voting acting essentially as a spur to compromise by
minorities […] It is difficult to believe that a large member state such as the United
Kingdom in particular will often, if ever, find itself bound by majority decisions
which it finds seriously damaging or unacceptable to itself. 227
Discussing this point, Dr Solana used the example of the Council’s ability under the
existing CFSP provisions to appoint EU Special Representatives by qualified majority vote.
Dr Solana said:
Let us suppose that […] the decision can be taken today with no need for unanimity.
That would make things more efficient, but it would be stupid to make such a
nomination with the opposition of, let us say, the United Kingdom […] the
possibility formally exists already, but it is not used. 228
Qualified majority voting
100. Under the Lisbon Treaty, the main passage of the TEU which relates to CFSP voting
would list, as exceptions to the normal unanimity rule, four types of CFSP decision which
222 Article 1 33) of the Lisbon Treaty, amending Article 22 to become Article 15a TEU. The new High Representative
position is considered in Chapter 5 below.
223 Article 23 TEU
224 Article 23 TEU
225 Article 1 34) of the Lisbon Treaty, amending Article 23 TEU to become Article 15b TEU
226 Q 452
227 Ev 145
228 Q 623
40 Fo