Plenipotentiary powers from the Royal Perogative

The Lisbon Treaty will presumably be signed on 13th December by Gordon Brown and David Miliband under plenipotentiary (absolute) powers granted by the Queen. It appears from evidence by Tony Benn to the House of Commons Public Administration Select Committee on 10th April 2003 that such authority may be granted in writing as a copy of such authority granted to David Davis was provided on that occasion to the Committee, link here. Reading all the evidence from Tony Benn and William Hague from that link it is clear the lines of authority by which Britain might become committed to the terms of the Treaty are far from clear, and the ability of even the Privy Council to prevent the signing is uncertain. The withdrawal of several players with strong legal backgrounds from the process is becoming clear. Tony Blair resigned from all responsibility with indecent haste almost the moment that he had finished agreeing to whatever it was he did agree in secret at the June European European Council meeting. The evidence recently provided to the House of Commons European Scrutiny Committee about the lack of minutes or records of such meetings, linked here, is well worth quickly perusing. The former Attorney General, Lord Goldsmith and one time Lord Chancellor Lord Falconer went at the same time leaving the Baroness Scotland, biography here, with no background in constitutional law and the hapless Jack Straw in their positions. David Miliband in giving evidence to the EU Scrutiny Committee on 18th October, 2007, linked here, seemed to be aware of the potentiqal problems of any UK citizen drafting wording which binds parliament contrary to the 1688 Bill of Rights..... I quote from the Uncorrected record: avid Miliband: The Presidency summed it up at the end of the session yesterday morning; they have not given me a timeline, but it is a commitment, it was in the Presidency Conclusions, and we will get a watertight legal change to the Treaty.

Q168 Mr Hands: I am just surprised that you do not have a word in mind. You mentioned just a moment ago "shall be able" and I have heard other people use the word "may". What is the French word that we are talking about here?

David Miliband: I do not know, what is the French word we are talking about?

Mr Cash: Contribuer.

Mr Clappison: Devoir.

Q169 Mr Hands: Chairman, I do want to come in on this point because I am surprised that you are not able to tell us what the UK suggestion is as to what the translation would be.

David Miliband: What I would say to you is that the first priority was to get agreement that the text had to be changed. The second priority was to make sure there was agreement that the change should ensure, absolutely beyond doubt there, were no obligations on the parliaments. Last week at the FAC I gave a non-lawyer's explanation which is that "shall" could be "shall be able to", but we will wait and see what they suggest. We are absolutely clear that there will be no room for doubt about the ---

Q170 Mr Hands: Should we not be making the suggestion rather than waiting for them to?

David Miliband: Fire away, make a suggestion.

Q171 Chairman: Should you not be making the suggestion?

David Miliband: I made the suggestion last week. I said last week that what we want to encapsulate is the idea that parliaments "shall be able to" make a contribution, but I am not a lawyer so I am not going to say that is the right way of doing it, I want to make sure ---

Q172 Angus Robertson: But you are the Foreign Secretary, what wording was proposed by the UK?

David Miliband: We have not proposed the wording yet. We have got agreement ---

Q173 Mr Hands: Could we ask you to propose "shall be able"?

David Miliband: Only if we think "shall be able" is the most watertight version. If there is a better version then we will put in a better version, and I am waiting for legal advice to make sure that we have got the best possible version of it.

Q174 Mr Steen: Can I give you some legal advice that the word "may" might be right.

Note here that the English language version dated after the 6th November redraft retained the word 'shall' as I reported yesterday, linked here.

I will return to this topic over the coming days.