Aspects of the EU's Constitutional Treaty

House of Commons European Scrutiny Committee

Fourteenth Report of Session 2004– 05

Volume II

Oral and written evidence

Ordered by the House of Commons to be printed 23 March 2005

HC 38-xiv-II [Incorporating HC 1064-i and ii, Session 2003-04 and HC 132-i, ii, iii and iv, Session 2004-05] Published on 6 April 2005 by authority of the House of Commons London: The Stationery Office Limited £16.50

The European Scrutiny Committee

The European Scrutiny Committee is appointed under Standing Order No.143 to examine European Union documents and— a) to report its opinion on the legal and political importance of each such document and, where it considers appropriate, to report also on the reasons for its opinion and on any matters of principle, policy or law which may be affected; b) to make recommendations for the further consideration of any such document pursuant to Standing Order No. 119 (European Standing Committees); and c) to consider any issue arising upon any such document or group of documents, or related matters. The expression ‘European Union document’ covers — i) any proposal under the Community Treaties for legislation by the Council or the Council acting jointly with the European Parliament; ii) any document which is published for submission to the European Council, the Council or the European Central Bank; iii) any proposal for a common strategy, a joint action or a common position under Title V of the Treaty on European Union which is prepared for submission to the Council or to the European Council; iv) any proposal for a common position, framework decision, decision or a convention under Title VI of the Treaty on European Union which is prepared for submission to the Council; v) any document (not falling within (ii), (iii) or (iv) above) which is published by one Union institution for or with a view to submission to another Union institution and which does not relate exclusively to consideration of any proposal for legislation; vi) any other document relating to European Union matters deposited in the House by a Minister of the Crown. The Committee’s powers are set out in Standing Order No. 143. The scrutiny reserve resolution, passed by the House, provides that Ministers should not give agreement to EU proposals which have not been cleared by the European Scrutiny Committee, or on which, when they have been recommended by the Committee for debate, the House has not yet agreed a resolution. The scrutiny reserve resolution is printed with the House’s Standing Orders, which are available at www.parliament.uk.

Current membership Jimmy Hood MP (Labour, Clydesdale) (Chairman) Richard Bacon MP (Conservative, South Norfolk) Liam Byrne MP (Labour, Birmingham Hodge Hill) William Cash MP (Conservative, Stone) Michael Connarty MP (Labour, Falkirk East) Wayne David MP (Labour, Caerphilly) Jim Dobbin MP (Labour, Heywood and Middleton) Nick Harvey MP (Liberal Democrat, North Devon) David Heathcoat-Amory MP (Conservative, Wells) Sandra Osborne MP (Labour, Ayr) Anne Picking MP (Labour, East Lothian) Angus Robertson MP (SNP, Moray) John Robertson MP (Labour, Glasgow Anniesland) Anthony Steen MP (Conservative, Totnes) Bill Tynan MP (Labour, Hamilton South)

Contacts All correspondence should be addressed to the Clerk of the European Scrutiny Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 3292/5465. The Committee’s email address is [email protected]

Witnesses

Wednesday 15 September 2004 Page

Rt Hon Jack Straw MP, Secretary of State for Foreign and Commonwealth Affairs, Foreign and Commonwealth Office (FCO), and Mr David Frost, Assistant Director, Head of EU Internal Division, Foreign and Commonwealth Office (FCO) Ev 1

Wednesday 17 November 2004

Professor Sir David Edward, Honorary Professor of the School of Law at the University of Edinburgh and Judge of the Court of Justice of the European Communities 1992- 2004, and Professor Eileen Denza CMG, Visiting Professor of Law, University College London Ev 18

Wednesday 8 December 2004

Professor Piet Eeckhout, Herbert Smith Professor of European Law, King’s College London, and Professor Gráinne de Búrca, Professor of European Law, European University Institute, Florence, Italy Ev 34

Wednesday 12 January 2005

Professor Alan Dashwood CBE, Professor of European Law at the University of Cambridge and a Fellow of Sidney Sussex College, and Mr Martin Howe QC, Barrister Ev 57

Tuesday 25 January 2005

Mr Jo Leinen MEP, Chairman, European Parliament’s Constitutional Affairs Committee, Mr Richard Corbett MEP, Co-rapporteur on the Constitutional Treaty, Co-ordinator — PSE, Member of the European Parliament’s Constitutional Affairs Committee, Mr Andrew Duff MEP, Co-ordinator — ALDE, Member of the European Parliament’s Constitutional Affairs Committee, Mr Alexander Stubb MEP, Deputy Co-ordinator — PPE-DE, Member of the European Parliament’s Constitutional Affairs Committee, and Mr György Schöpflin MEP, PPE-DE, Member of the European Parliament's Constitutional Affairs Committee Ev 71

Tuesday 8 February 2005

List of written evidence

Page

1 Rt Hon Jack Straw MP, Secretary of State for Foreign and Commonwealth Affairs, Foreign and Commonwealth Office (FCO) Ev 6 2 Professor Sir David Edward, Honorary Professor of the School of Law at the University of Edinburgh and Judge of the Court of Justice of the European Communities 1992-2004 Ev 10 3 Professor Eileen Denza CMG, Visiting Professor of Law, University College London Ev 12 4 Professor Gráinne de Búrca, Professor of European Law, European University Institute, Florence, Italy Ev 27 5 Professor Piet Eeckhout, Herbert Smith Professor of European Law, King’s College London Ev 30 6 Professor Alan Dashwood CBE, Professor of European Law at the University of Cambridge and a Fellow of Sidney Sussex College Ev 49 7 Martin Howe QC, Barrister Ev 53 8 Professor George Bermann, Jean Monnet Professor of European Union Law and Walter Gellhorn Professor of Law, Columbia University School of Law Ev 90 9 Paul Arthur Ev 90 10 JUSTICE Ev 91 11 The Federal Union Ev 99 12 Fair Trials Abroad Ev 101 13 Damian Chalmers, Reader in European Union Law, London School of Economics Ev 104 14 Professor Jacqueline Dutheil de la Rochère and Anastasia Iliopoulou, University of Paris Ev 106 15 Vote No Ev 110 16 Professor Larry Catá Backer, Professor of Law, Dickinson School of Law, Pennsylvania State University Ev 119 17 Statewatch Ev 122 18 Professor Dr Ingolf Pernice, Managing Director, Walter Hallstein-Institute for European Constitutional Law, Humboldt-Universität zu Berlin Ev 124 19 The Brethren in Britain Ev 126 20 Professor Trevor C Hartley, Professor of Law Emeritus, London School of Economics Ev 128 21 Professor Trevor C Hartley, Professor of Law Emeritus, London School of Economics Ev 129 22 Professor Anthony Arnull, Professor of European Law, University of Birmingham Ev 130 23 The Trades Union Congress (TUC) Ev 134 24 The Confederation of British Industry (CBI) Ev 135

List of unprinted written evidence

Additional papers have been received from the following and have been reported to the House, but, to save printing costs, they have not been printed and copies have been placed in the House of Commons Library, where they may be inspected by Members. Other copies are in the Record Office, House of Lords and are available to the public for inspection. Requests for inspection should be addressed to the Record Office, House of Lords, London SW1. (Tel 020 7219 3074). Hours of inspection are from 9:30am to 5:00pm on Mondays to Fridays.

Memorandum by Andrew Duff MEP Lecture by Professor Sir David Edward, Evidence, proof, fact-finding and the expert witness (delivered 29 April 2004) Article by Professor Alan Dashwood, The EU Constitution is not a blueprint for a federal super-state Supplementary Memorandum from Paul Arthur Paper by Professor Gráinne de Búrca Paper by Professor Bruno de Witte, Professor of European Union Law, European University Institute, Florence, Italy, on The process of ratification and the crisis options: a legal perspective (delivered October 2004) Paper by Professor Anthony Arnull, Director, Institute of European Law, University of Birmingham, on Is Europe to have a constitutional court? (delivered 24 November 2004) Paper by Professor Alan Dashwood, The EU/Member State relationship under the Constitutional Treaty: implications for parliamentary sovereignty (delivered 28 February 2005)

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European Scrutiny Committee: Evidence Ev 1 Oral evidence

Taken before the European Scrutiny Committee

on Wednesday 15 September 2004

Members present:

Mr Jimmy Hood, in the Chair

Mr William Cash Sandra Osborne Mr Michael Connarty Angus Robertson Mr Wayne David Mr Anthony Steen Mr David Heathcoat-Amory Mr Bill Tynan

Witnesses: Rt Hon Jack Straw, a Member of the House, Secretary of State for Foreign and Commonwealth AVairs, and Mr David Frost, Assistant Director, Head of EU Internal, Foreign and Commonwealth OYce, examined.

Q1 Chairman: Foreign Secretary, welcome once domestic law, that has always been the case, as we again to the European Scrutiny Committee. We are know. What we now have is that it is spelt out on the a bit in the hands of the gods today as we do not face of part one of the text. So that is one thing. know if there are going to be Divisions or when there Secondly, we are getting much improved systems for are going to be Divisions. That is outside our decision making. There are many of those, but the control. If that is going to happen, it will happen, but most important one is to make the voting system we welcome you and David to our meeting. I will just much more transparent. It is fundamental, it seems kick oV without too much preamble. Foreign to me, for any kind of democratic government to Secretary, the need to bring Europe closer to its operate for people to understand what is needed to citizens was identified by the Laeken Declaration as make a decision. We know what is needed to make a central objective of the Convention. The a decision in the UK; it is half the votes. Because this Constitutional Treaty appears greatly to increase the is not a federal superstate, where there is not powers of the European Parliament, an institution unanimity which is clear we have had to move to which fewer people are voting for, except in the last qualified majority voting, which means, as it were, a super majority. But the existing Nice system is election year where not enough people voted for it. unbelievably complicated and unless you happen to In what respects has the Constitutional Treaty know that it was got together in a smoke-filled room advanced the Laeken objective? in the small hours of the fourth night of Nice you do Mr Straw: I think it has advanced the Laeken not know what its reason is. What you see here is a objective in a number of ways. First of all, there is a very clear system, which is, I may say, advantageous single document (too long, but nonetheless a single to the UK, which is 55:65 (55% Member States, 65% document) which does set out in a logical way how of population). Then there is the issue of the role of the European Union in the future will work. Before, national parliaments and making all that as you know, you have had to go to essentially four transparent through the subsidiarity protocol. On overlapping treaties and if you really want to know the issue, Mr Hood, of the European Parliament, how it works you have then also got to look at some yes, it does extend co-decision. I do not happen to key aspects of the European Court of Justice case believe that that is against the interests of national law. Now in a logical sequence you can see what the parliaments but I am aware (thank you for letting me aims of the Union are, where its powers come from know about this) that the Danish parliament, I and, as I said in the House last week, critically (as think, has raised some issues about how co-decision Article I-9 makes clear) the powers derive from will work and whether it could undermine the role of Member States and the competences are governed national parliaments. Whatever else people here by the principle of conferral. Then, as you know, may feel about European parliamentarians, they are part two sets out the Charter, part three are the very elected. They are there to do a job. Generally, they detailed Articles but they are all there, and in part do a job on behalf of their Member States and, as colleagues from around the table may know, I four there are various general provisions. And the organised a full day seminar just a week ago for all Treaty includes a provision by which Member States Members of the European Parliament elected from can, if they wish, withdraw altogether from the UK, regardless of party, because there was an membership of the European Union, which again overriding national interest. The message to them underlines that this is a union established by (and they were briefed by oYcials as well as by international treaty from which Member States can ministers) was that they should see the Foreign withdraw if they wish; it is not a federal superstate in OYce and see government departments as a resource any sense of that word. So that is important. On the for them to represent UK interests. So we are happy issue of ECJ jurisdiction now being clear on the face to look at the anxieties of the Danish Parliament and of it, the point about the reference to the primacy of I gather that COSAC are going to do so as well, but European Union law where it may be in conflict with I suspect their worries are unfounded. 9913951001 Page Type [E] 31-03-05 03:19:23 Pag Table: COENEW PPSysB Unit: PAG1

Ev 2 European Scrutiny Committee: Evidence

15 September 2004 Rt Hon Jack Straw MP and Mr David Frost

Q2 Chairman: Well, you have pre-empted my next Q5 Mr Cash: I never said that. question, Foreign Secretary, because I raised it at the Mr Straw: Well, okay, but I can be forgiven for COSAC Chairman’s meeting this week from the thinking that! information we got from our colleagues in the Folketing Committee in the Danish Parliament and Q6 Chairman: Could I just say that I support the frankly it is quite alarming. Here we are talking European Union and I do not want you to about hoping to increase the role of national underestimate how I am concerned about it. I am parliaments within the European Union and then we quite alarmed with what I find out from information find out that the co-decision, which we think is an and the brief that came from the Danish Parliament. extension of the democratic deficit we all talked What is happening here, to us at first sight and we are about years and years ago, is happening where there going to investigate it now hopefully, is that things are something like 115 proposals out of 403 passed are being fast-tracked through between the at first reading agreements, where the agreements Commission and the European Parliament and the were done and set in stone without any involvement Council without us as national parliaments having a whatsoever of the national parliaments. sight of it. I do not want, as a member of the Scrutiny Mr Straw: Sure, but that is where, if I may say so, Committee, to rely on the information coming from the subsidiarity protocol needs to apply because the the Government or the Executive, which this requirement under the subsidiarity protocol (and Committee is supposed to be scrutinising. It is not Mr Frost can correct me where I err; he always does) acceptable. requires that the Commission informs national Mr Straw: Indeed, and that is why we have been so parliaments of all draft laws. Up until now, although active in supporting the subsidiarity arrangement, so there has been a protocol about subsidiarity there that you would not have to rely on the British has been no mechanism. That has meant that in Government for the time that you do. Could I just some systems, including ours, the foreign ministries say that the problem we have with the “fast-track” have taken it on their shoulders to inform national (which is still getting on for a year away, as Mr Frost parliaments. In many countries it does not happen at has kindly reminded me) would arise to an even all and therefore you can get this kind of deal greater degree, not a lesser degree, if the European without it being scrutinised by national parliaments. Parliament was not involved at all. Because then a But if I may say so, Mr Hood, if the European deal could be struck simply between the Commission Parliament had no role and if you had a subsidiarity and the Council, and indeed on those areas where mechanism there is an even higher likelihood of a the co-decision is not involved it is struck. This other deal being struck within the institutions (i.e. by the point is really important and I need to get it on the Council of Ministers alone) and still less chance for record. The governments who are represented there to be an intervention by national parliaments. around the table in the councils of ministers all, without exception, derive their authority from their Q3 Mr Cash: That does not give me complete own national parliaments, every single one of them, confidence in the system if in fact we look at what because this is a democratic Union. So we are national parliaments are. They are people who are representatives of the national governments and gathered together representing constituents and therefore not directly the national parliaments, of voters in general elections. The idea that the course, but our mandate has to be delivered by the European Commission, the European Parliament national parliaments and we always have to take and the Council of Ministers eVectively can come to account of what our national parliaments are going a deal to bypass the will of the electors of this to say and do about the decisions we make. country in relation to many issues (for example, as our Chairman has just indicated) is a complete Q7 Mr Connarty: Could I ask a simple question. At outrage. It should be stopped, should it not? what point in the procedure will this Committee or Mr Straw: Mr Cash, the European institutions can the committee in this forum get notification and be come to a deal, as you describe it, whether or not the able to scrutinise the process? At the moment there European Parliament is itself involved. If we take the are deep concerns that we are not engaged early European Parliament out of the equation altogether enough. Now we have the fast-track process, which you can still have at the moment, although not in the may exclude us altogether. So at what point will we future, an arrangement whereby the Council of actually know what is being discussed? Ministers and the Commission come to a deal and Mr Straw: Well, this is Article 5 of the Protocol: that is then struck. So what you are objecting to is a “Any national parliament or chamber of the way in which the European Union generally Member States may within six weeks from the date operates at the moment rather than to the of transmission of a draft European legislative act involvement of the European Parliament. send to the President of the European Parliament, the Council and Commission a reasoned opinion Q4 Mr Cash: So you can see that what I am saying why it considers the draft in question does not is that it is eVectively an undemocratic system, comply with the principle of subsidiarity.” There bypassing the electorate of this country? was a requirement, I think, earlier in the Article on Mr Straw: No, it is not an undemocratic system. I the European Commission—this is Article 4 of the fully take on board the fact that you do not like the earlier protocol, I think, on information to national European Union and you would wish us to be parliaments: Article I: “Commission consultation withdrawn from it. That is fine. documents, (Green and White Papers and 9913951001 Page Type [O] 31-03-05 03:19:23 Pag Table: COENEW PPSysB Unit: PAG1

European Scrutiny Committee: Evidence Ev 3

15 September 2004 Rt Hon Jack Straw MP and Mr David Frost communications) shall be forwarded directly by the just say, Mr Hood, one of the things which has not Commission to national parliaments upon really been written up is that initially under the publication. The Commission shall also forward the fresh proposals the voting system, which is annual legislative programme as well as any other uncontroversial in the UK, was 50:60, 50% of instrument of legislative planning or policy to Member States and 60% of population and that is national parliaments at the same time as to the now 55:65, and that actually helps a country like the European Parliament and the Council.” UK which from time to time has to organise a blocking minority. Q8 Mr Connarty: Then the question I must ask is, can you give this Committee and thus Parliament a Q12 Mr Heathcoat-Amory: I am extremely alarmed guarantee that we will be notified in time to be able by what I have heard so far, Foreign Secretary. to apply that subsidiarity? Mr Straw: I am trying to be reassuring, Mr Mr Straw: Yes, I think I can. Heathcoat-Amory. Mr Frost: I think one can give that guarantee because Article IV of the earlier Protocol says that Q13 Mr Heathcoat-Amory: Well, you ought to be there has to be a six week gap between transmission concerned too, Foreign Secretary, because you have and the appearance of any proposal on a Council made repeated assertions that national parliaments’ agenda. That is the reason for the six weeks within powers will increase under the Constitution. We which Parliament has to give its opinion. So the now give you an example of where a quarter of Treaty should provide that Parliament will always proposals at the moment involve a short-circuiting Y have su cient time to give its opinion before of national parliaments to an informal agreement anything appears on the Council agenda. That is between the European Parliament and the Council why the two periods are the same. of Ministers and we have shown you that this will increase under the Constitution because co-decision Q9 Mr Connarty: As we know, that timetable can between the Council and the European Parliament collapse and we have found this in the past. I am becomes a normal legislative procedure. So what we looking for some kind of guarantee and therefore have discovered will become a greater problem and what I am asking is that the process will be taken as in answer to that you simply refer us to the seriously by the Executive as obviously the subsidiarity protocol. It is nothing to do with Chairman tells you we take it ourselves. subsidiarity. These proposals do not breach the Mr Straw: May I say that I take it extremely subsidiarity principle, as far as I know, but we are seriously. As you know, I have sought within the being cut out of the established legislative procedure responsibilities of Government not to encroach on and there is nothing in the Constitution that will the prerogatives of Parliament to get on the front repair that damage. So why do you continue with the foot on this issue for a variety of reasons, including assertion that national parliaments will somehow be the fact that I am profoundly committed to in the driving seat? parliamentary democracy, but also from a Mr Straw: Well, first of all, Mr Heathcoat-Amory, governmental point of view I do not happen to think your complaint is about the current situation under that there is a clash or a conflict between good the Constitution. decision making by Government and governments and good scrutiny by Parliament. I think that one Q14 Mr Heathcoat-Amory: No, it is not, it is under helps the other. the Constitution— Mr Straw: Allow me to continue. Your complaint is Q10 Mr Cash: Does scrutiny involve detail? under the current arrangement, but I am very happy Mr Straw: Well, Mr Cash, it might do. It depends to have my oYcial sit down with yours, Mr Hood, obviously on the legal basis for any decision, but if about ways in which we can alert ourselves more the legal basis for a decision is unanimity then for clearly in Brussels to when the fast-track is going to sure if the result of the scrutiny—although the be used to ensure that your Committee is told Article is about scrutinising things on the basis of promptly wherever it is going to be used. The second subsidiarity in terms of the yellow card, the opinion point, Mr Heathcoat-Amory, is that as I read these of the Committee may be based on any other issue. protocols they place a requirement on the It will be based for sure on the merits of the case and Commission to inform national parliaments (and if this Committee is to say, “Look, we think this therefore this Committee) at the same time as the is bad for following reasons, subsidiarity, European Parliament and the Council are informed proportionality, merit,” or all three, then of course of any proposals, the White Paper and so on, at the the Government would take account of that, very same time. So for the first time there is a requirement clearly. We have to make the decisions because that on the Commission to tell all national parliaments is the job of Government. about draft legislation or proposals for it immediately. You are right to say that under these Q11 Mr Cash: What decisions could you make? proposed Protocols the power of a national Mr Straw: Well, as I say, if the legal basis of the draft parliament to wave the yellow card is based on issues legislation was unanimity then we could decide to of subsidiarity, but the right to receive the veto it, in which case end of story. If it is by QMV information is an absolute right not based on then we could decide to vote against it and if we had subsidiarity. So the Commission cannot have a look a blocking minority we could stop it. If I may at a draft law and say, “This one does not raise 9913951001 Page Type [E] 31-03-05 03:19:23 Pag Table: COENEW PPSysB Unit: PAG1

Ev 4 European Scrutiny Committee: Evidence

15 September 2004 Rt Hon Jack Straw MP and Mr David Frost subsidiarity. We are not going to tell national being enshrined in the Treaty and could they be used parliaments. This one does involve subsidiarity and in any way, do you believe, to extend EU we are.” They have to inform the national competences? parliaments of every single piece of legislation. So Mr Straw: Well, with a bit of luck each Member you get it earlier. It is a major improvement on the State is following these principles but I think it is current situation. You get all of it and provided you nevertheless useful to have them set down. I also say are properly resourced and we are giving you proper that they are a beacon for countries wanting to come support, as I hope and believe we will, you will then into the European Union because one of the great be able to raise objections to it on subsidiarity things about the European Union is that it is not just grounds, in which case you invoke that Article in the a customs’ union, economic union, but it is Protocol, or on more general grounds in terms of fundamentally a union of values, European values whether you agree with the merits. So I think it will for which we have all had to fight so hard. be significantly better than under the current Chairman: The Committee is suspended for arrangements. divisions. The Committee was suspended from 2.54 pm to Q15 Mr Heathcoat-Amory: May I just add a 3.47 pm for divisions in the House supplementary, if I may, Chairman, because it is not Chairman: Welcome back to the Scrutiny receipt of information that we want, it is the power Committee. Understandably, the Foreign Secretary, to do something about it. We know this is going on who is obviously always busy with his time, has to be because we have got the figures. It is not the away at four o’clock but to his credit he says that if information we want. We want to be able to there are any burning issues he is prepared to come scrutinise and do something about anything back at some mutually agreed time and that is very objectionable and we are being cut out of the process kind of him. Just remind the Foreign Secretary and and there is nothing in the Constitution which will the Committee what your question was. repair that; indeed, it will get worse because the system will become general. Q18 Angus Robertson: We were talking about Mr Straw: With great respect, that is simply the Articles 2 and 3 of the Constitutional Treaty, the reverse of the case. Scrutiny and subsidiarity values and objectives, and the question was what proposals in this document may not be all that you practical diVerences do these aspirations actually seek but they are a significant advance on the current make and could they be used to extend the EU arrangements, Mr Heathcoat-Amory, and I just competences? come back to my point. First of all, currently there Mr Straw: I think I answered the first part of that, is no obligation whatsoever on the Commission the practical diVerences. On the extension of the EU routinely in every circumstance to tell national competences, my understanding is that they could parliaments the nature of draft legislation on White not because it says in Article I-3(5): “The Union Papers; under this proposal there is. That is a shall pursue its objectives by appropriate means significant improvement. depending on the extent to which the relevant competences are conferred upon it in this Constitution.” Q16 Chairman: Well, it has come to our notice and we are now going to discuss it or semi-discuss it in our own Parliament and in our own Committee and Q19 Mr Wayne David: Foreign Secretary, I would we had it raised in COSAC and it is going to become like to take us on to consideration of the Council and an issue. If it is not discussed at the COSAC how it will function in the future. My understanding conference in November, it certainly will be in the is that what is in the Constitutional Treaty now is following August, I can assure you. that there will be a two and a half year presidency of Mr Straw: Sure, and I would like, if you are happy the European Council but nevertheless there will be about this, to ask my oYcials to talk to your Clerk rotation (as currently exists) for the other Council and his colleagues about how we do ensure that the formulation, as it says, and I was just wondering two protocols together are made fully operational, what the relationship therefore will be between those and on a wider basis than simply “does this oVend individual configurations and the overall structure principles of subsidiarity?” of the two and a half year presidency. It seems to me Chairman: Thank you for that, but it is certainly quite a complicated and potentially contradictory something we are going to come back to. I would like situation. to move on now. Mr Straw: Mr David, as you know, the purpose of having this full-time President is better to co- ordinate the work of Member States in both the Q17 Angus Robertson: Moving on somewhat, European Council and the Council of Ministers. Foreign Secretary, and looking at the Constitutional Although it is two and a half years (this is Article I- Treaty, Articles 2 and 3 refer to the Union’s values 21) it is renewable for one term and the anticipation and objectives and these include a range of diVerent is that in practice it will be five years rather than two values and objectives, including the protection of and a half. As Article I-21(2) says: “The President of minority rights, pluralism, the promotion of peace the European Council shall chair” the European and the fight against social exclusion. I am sure we Council, (that is heads of state and the government disagree with none of that. I would like to ask you foreign ministers) “drive forward its work, ensure its what practical diVerence these aspirations make by preparation and continuity and co-operation with 9913951001 Page Type [O] 31-03-05 03:19:23 Pag Table: COENEW PPSysB Unit: PAG1

European Scrutiny Committee: Evidence Ev 5

15 September 2004 Rt Hon Jack Straw MP and Mr David Frost the President of the Commission, and on the basis of European Council because that does not have any the work in the General AVairs Council . . . facilitate legislative power itself, although obviously it directs cohesion and consensus within the European that legislation should happen. On the detail, I will Council” and “present a report to the European ask Mr Frost to come in but my understanding is Parliament after each of the meetings of the that on legislative acts it has to be a Council of European Council.” Then it says that it cannot hold Ministers which passes the legislation rather than a national mandate. It remains to be seen exactly COREPER on its behalf, although of course it is the how this is going to work out because I think you will case that the more that COREPER or other also be aware that whilst we have agreed politically informal groupings have negotiated the text the less that the presidencies or chairs of the various debate there will be in the room when the text comes functional councils of ministers (as opposed to the to be voted upon. European Council) would be on an eighteen month Mr Frost: That is right. What happens now is that by basis with three Member States for each team and large the cameras are turned on when a vote is presidency. That is going to be done not by the about to happen in the Council and what the Treaty Constitutional Treaty but by a decision of the now provides is that the Council meets in public European Council. So we can modify the when it deliberates and votes and I think once this Constitution comes into force there will have to be a arrangement if it is not properly fitting in. But the discussion about precisely what that means, but idea is that the heads of state and government elect there is a clear extension provided for in the Council a President of the European Council, who in practice over and above what happens now and there is a is likely to be a former member of the European requirement for deliberation to be in public as well Council with that kind of experience, to (as the text as the vote. says) drive forward the work of the Council. Most of the work of the Council consists of actually what we do in the Council itself at its meetings and in the Q21 Mr David: But that deliberation would not preparation for those, particularly in terms of draft extend to COREPER? conclusions. As you will be aware from your Mr Frost: No, because the legislative act happens at previous background, most of the implementation Council level. of what is decided in the European Council is a Mr Straw: I think, if I may say so, it would be a bad matter for the diVerent functional councils, or in idea if it did, because what COREPER is able to do some cases for the council’s representative. So he or in private is to broker deals. she will have to co-ordinate the work of the team presidencies and help to drive those forward, which Q22 Mr David: It would be very interesting to see, will involve quite a lot of negotiation. Who are though, would it not? appointed to this job and what kind of staV support Mr Straw: Well, or boring! they have will be very important, but I am pretty confident it will work out, particularly as we happen to have someone in that position, and I am not in any Q23 Mr Connarty: If something comes as an “A” doubt that it will be better than the current item there is usually not any deliberation? arrangements where I think you are aware of the Mr Straw: Yes, that is true. Bear in mind that this defects. also happens in the House of Commons. There is quite a lot of what in EU parlance are called “A” items which come up at the beginning or end of every day more and more, things we vote on in writing in Q20 Mr Connarty: I was very pleased with the the Lobby on a Wednesday. That is just how it is. reassurances you gave us on the subsidiarity issue and I am sure you and the department will work hard to make that come true. On the meetings of the Q24 Mr Connarty: I think there will be some Council, we were all buoyed up with the idea that the disappointment on the part of the public. Council will meet in public but it says that it will Mr Straw: There might be, but a lot of the “A” items meet in public when “it deliberates and votes on a by definition are uncontroversial almost all round. draft legislative act”. Given the suspicious nature of Our Parliament does not spend its time debating the public and politicians as to whether the EU has things on which we agree. At the start of public a secretive way of working as well as a public way, a business every day a whole stream of things are lot of the decisions may be taken in COREPER or in voted through. As I say, a lot is now done under so- the Article 36 Committee rather than in the called “modernisation” by remote control, where we deliberations of the Council. What assurances can do it by the equivalent of a postal ballot. we have and how will you seek to help us to ensure that in practice there is not a secretive process going Q25 Chairman: The real demand, as I can remember, on and that things are deliberated properly in public in the early years for the Council to meet in public at the Council level? was because of the deals that were going on in secret. Mr Straw: Not just for your benefit, Mr Connarty, Indeed, we suspected that ministers may be telling but for the benefit of the public, the requirement to their own parliaments that they have got this view meet in public in respect of legislative acts applies to and will vote in that way and in the alternative they the functional councils, the agricultural councils, the will negotiate the other way in secret. So that is why home aVairs councils, and does not apply to the the demand came about. 9913951001 Page Type [E] 31-03-05 03:19:23 Pag Table: COENEW PPSysB Unit: PAG1

Ev 6 European Scrutiny Committee: Evidence

15 September 2004 Rt Hon Jack Straw MP and Mr David Frost

Mr Straw: And it is absolutely right. Decision- Q26 Chairman: Well, Foreign Secretary, it is now making bodies, including councils of ministers, nearly four o’clock. It is unfortunate and what cannot be properly accountable unless people are happened today was outside anybody’s control, but seeing what is happening at the point where it is I really appreciate your oVer to come back and we happening. There are other reasons why, when it will go through the rest of our business. If I could comes to negotiation in the room, it is actually suggest that we write to you with the outstanding necessary for it to be done in private because if the questions we have and invite your response and then positions that people are taking and on which they when we re-arrange a meeting we will add a then have to move are the subject of public focus it supplementary to that. would be far more diYcult to get agreement. Mr Straw: Of course. Chairman: Thank you very much.

Written answers by the Rt Hon Jack Straw MP, Secretary of State for Foreign and Commonwealth AVairs, to questions put by the Committee

Enhanced Co-operation

Question 1. It appears that the existing mechanisms for “enhanced co-operation” have never been used. Are the new arrangements under Article I-43 of the treaty an improvement and would they make enhanced co-operation more likely? 1. The existing mechanisms for “enhanced co-operation” have indeed never been used. 2. The Government welcomes the enhanced co-operation provisions set out in Article I-43 and Articles III-322 to III-329 of the new Treaty. These consolidate and simplify the existing provisions, making them clearer and more transparent. Currently the procedures are spread out across diVerent sections of the TEU and TEC, but the new Treaty brings them together. 3. Substantively, the main changes under the Constitution are: — to extend enhanced co-operation to the whole of CFSP. (It already applies to CFSP insofar as it relates to implementing joint actions or common positions.) But it is equally made clear that enhanced co-operation in the CFSP area can only be launched by unanimity (III 325(2)) whereas the current Treaty allows for launch by QMV; — the insertion of a special provision for use of enhanced co-operation in the JHA context, discussed further below; and — a provision enabling groups established under enhanced co-operation to change the voting rules (from unanimity to QMV, or from any legislative procedure to co-decision) for the purposes of those enhanced co-operation activities (III-328). 4. It is, of course, important to ensure that enhanced co-operation is in the Union’s interests, taken as a last resort and remains inclusive and open to all at any stage. Like the current Treaties, the new Treaty provides for this, by setting out in Articles I-43 and Articles III-322 to III-329 clear and strict launching criteria. 5. Subject to these criteria, the Government supports the enhanced co-operation provisions. But these will ensure that an enlarged Europe can be ﬂexible where it needs to be, allowing us or other countries to work closely with a group of countries in areas others do not want to. The provisions are more likely to be used than now, but only time will tell.

Question 2. In cases where a Member State feels compelled to apply the “emergency brake” in the ﬁeld of criminal justice (Articles III-171 and 172), does the fact that this is deemed to authorise enhanced co-operation by other Member States undermine the eVectiveness, of the emergency brake mechanism? Why does this deemed authorisation apply only to criminal justice and not to social policy under Article III-21? 6. The accelerated procedure for launch of enhanced co-operation in III-171 and III-172 does not undermine the emergency brake mechanism. The purpose of the emergency brake in this ﬁeld is to ensure that Member States need not participate in European laws which would aVect fundamental aspects of their criminal justice system. The purpose of the accelerated procedure for launching enhanced co-operation is to ensure that, after it has been concluded through serious political debate, including at the European Council, it is not possible to reach agreement on a law in this area, those who wish to proceed with the law can do so without binding others. It would be illogical to require the full procedures for launch of enhanced co-operation to then come into play, since all aspects of the issue will already have been fully debated. 7. The Government did not consider that a similar provision would be appropriate or necessary for social security issues, since the dynamics of legislation in this area are rather diVerent. It has been proved that it is in practice quite possible to proceed with legislation in this area on the basis of full agreement of all 9913951003 Page Type [O] 31-03-05 03:19:23 Pag Table: COENEW PPSysB Unit: PAG1

European Scrutiny Committee: Evidence Ev 7

Member States. (One basic piece of legislation, Regulation 1408/71, was agreed by unanimity and is similarly updated every year.) Partly this is because the collective gains from legislation in this area depend very much on every Member State participating: the value of provisions which allow easier movement of workers from country to country is dramatically weakened if it does not apply across the EU. So, if it proves impossible to agree on a particular piece of legislation without a Member State pulling the emergency brake, it is right that the pros and cons of enhanced co-operation and its relationship with the single market be fully tested in accordance with the provisions in III-322-329.

Question 3. How eVective are the “emergency brakes” in criminal justice and social policy likely to be? In particular, do they protect vital national interests as eVectively as the principle of unanimity in these areas? If they do, then what is the point of the proposed move to QMV?”

8. The Government believes that the emergency brake is an eVective mechanism to ensure the UK can participate fully in initiatives on criminal law and social security, whilst retaining flexibility not to be involved if the government believes an initiative aVects fundamental aspects of its system. 9. In both cases pulling the emergency brake eVectively protects the interests of the state concerned. This is because in both cases a central part of the procedure is referring the matter to the European Council. Since the European Council acts by unanimity unless it is specifically provided otherwise (I-20)(4)), it is henceforth impossible to proceed unless all States are in agreement. 10. Moreover, in both cases the Member States concerned is the judge of whether a proposed law would “aVect fundamental aspects of its social security system, including its scope, cost or financial structure, or would aVect the financial balance of that system” (III-21) or “fundamental aspects of its criminal justice system (III-171 and 172). The text says that the brake may be pulled “if a Member State considers” that these tests are met, and this judgement cannot be subject to any wider authorisation. 11. The Government considers that as far as social security is concerned the breadth of the test for pulling the brake means that there is no practical diVerence between the new provisions and unanimity. Functionally the same is true for criminal law. The practical diVerence on the latter is that, as far as this Government is concerned, there may well be some limited areas of criminal law on which it would make sense for there to be minimum rules. The advantage of QMV is that it becomes possible to agree reasonably expeditiously on legislation where no Member State including the UK has a problem of principle with the EU so acting, while the emergency brake makes it easy to ensure that the EU does not stray into more controversial areas, and protects our national interests.

Criminal Justice

Question 4. You indicated in the debate on 9 September that it was (“complete and utter nonsense” to suggest that trial by jury and habeas corpus would be “surrendered”. Is this because the Government would apply the “emergency brake” on such measures? What other aspects of criminal procedure are regarded by the government as suYciently fundamental to justify using the emergency brake?

12. HMG would strongly oppose any draft European framework law (although such a proposal would be very unlikely in our view) establishing minimum rules on criminal procedure, that would threaten trial by jury or habeas corpus, particularly given that the rules are required to take into account the diVerent legal traditions and systems of the Member States. In any case the Government believes that trial by jury and habeas corpus are fundamental aspects of our criminal justice system. It would expect to invoke the emergency brake mechanism if these areas were threatened. 13. It is not possible to speculate in detail about measures that might trigger the emergency brake in the future. The Government would have to examine any proposal on its individual merits.

Question 5. In relation to the substantive criminal law, does the Government agree that the scope for Union action appears to be more limited than that which exists under the EU Treaty? In particular, can you conﬁrm that the new Treaty, unlike Articles 29 and 31 (e) of the EU Treaty, does not provide a basis for adopting criminal law measures against “racism and xenophobia”.

14. Yes. Article 172 (1) of the new Treaty sets out an exhaustive list of the types of crimes covered by the Article. The list in Article 31(e) of the EU Treaty is not an exhaustive list. It is indeed the case that racism and xenophobia is not an area of serious cross-border crime identiﬁed in the treaty as falling within the EU’s competence to legislate on minimum rules. Article III-172(1) does include a procedure to bring other laws into this competence, but that can only be done by unanimity. 9913951004 Page Type [E] 31-03-05 03:19:23 Pag Table: COENEW PPSysB Unit: PAG1

Ev 8 European Scrutiny Committee: Evidence

Question 6. Under the provisions of Article III-171 and 172 (which relate, respectively, to criminal procedure and substantive criminal law), the matter concerned must have a “cross-border dimension” before it can be the subject of a Union measure. How practical is such a limitation, and will it be sustained?

15. This is a valuable statement of the intention of the European Union to focus on cross-border issues. We welcome the fact that approximation of criminal procedure will be limited to where it facilitates judicial co-operation in relation to cross-border crime which has significant potential benefits for the tackling of serious-organised crime. Some measures to facilitate cross-border judicial co-operation may involve some changes to our domestic procedures and substantive law. We will of course continue to ensure that the focus of EU action remains on measures that provide clear added value in the fight against serious and organised cross-border crime so that any changes to national laws are clearly proportionate and justified.

The Charter

Question 7. The White Paper states that the Charter will apply to Member States “only when they are implementing Union law”. The Explanation to Article II-51 states that “it follows unambiguously from the case law of the Court of Justice that the requirement to respect fundamental rights defined in a Union context is only binding on Member States when they act in the scope of Union Law”. Acting in the scope of Union law seems wider than “implementing Union law” and suggests that the Charter applies to any situation arising under the law of a Member State which involves an issue of Union law. What do you understand by the expression “implementing Union law” in this context? 16. Article II-51(2) continues to use the term referred to in the White Paper—that the Charter is addressed to Member States “only when they are implementing Union law”. The Charter Explanations do not undermine that position: the Explanations quote expressly from the Karlsson case (C292/97) in which the Court said that “the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on the Member States when they implement Community rules”. The Explanations were improved during the Convention and the IGC, and now additionally refer to the case of Annibaldi. In that case, the Court confirmed that it had no jurisdiction “with regard to national legislation lying outside the scope of Community law”; and that the absence of specific Community rules on the subject matter was conclusive.

Question 8. Article II-52(3) states that the rights in the Charter which correspond to European Convention rights are to be given the same scope and meaning as the latter. On the other hand, the Article adds that this requirement “shall not prevent Union law providing more extensive protection”. Since expanding one right may lead to the diminution of another, how can these two apparently contradictory provisions be reconciled? 17. As indicated in the Charter Explanations, the ﬁrst sentence of Article II-52(3) is intended to ensure the necessary consistency between the Charter and the ECHR by making clear that those Charter rights based on the ECHR have the same meaning and scope of the corresponding ECHR rights, including authorised limitations. The second sentence of Article 11-52(3) simply makes clear what is anyway obvious: that the Union can if it wishes (and where it has the necessary competence) legislate in a way which enhances the rights it gives to its citizens over and above the rights they already have within the ECHR system. The Explanations provide a list of those ECHR-based Charter articles the scope of which goes beyond the corresponding article of the ECHR. But it is clear from the way the Charter has been incorporated into the Constitution that the Charter itself cannot be the basis for granting such more extensive protection: that has to be done in the ordinary way, through the normal legislative procedures.

Question 9. For the purposes of Article II-52(5), can you explain the distinction between those parts of the Charter which contain principles and those which do not? What is meant by saying in that Article that the parts of the Charter which contain principles “shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality”? 18. The Explanations to Article 11-52(5) of the Charter state that “Paragraph 5 clariﬁes the distinction between “rights” and “principles” set out in the Charter. According to that distinction, subjective rights shall be respected, whereas principles shall be observed (Article 51(1)).” 19. The Explanations further explain that the elements of the Charter which contain principles will need implementation by the institutions of the Union before they can be regarded as justiciable: “Principles may be implemented through legislative or executive acts (adopted by the Union in accordance with its powers, and by the Member States only when they implement Union law): accordingly they become signiﬁcant for the Courts only when such acts are interpreted or reviewed. They do not however give rise to direct claims for positive action by the Union’s institutions or Member States’ authorities.” 9913951006 Page Type [O] 31-03-05 03:19:23 Pag Table: COENEW PPSysB Unit: PAG1

European Scrutiny Committee: Evidence Ev 9

Effect of Referendum Votes

Question 10. In the debate on 9 September, you conﬁrmed that, if any Member State failed to ratify the Constitutional Treaty, the existing Treaties would continue to apply (col.890). How eVectively could an EU with 25 or more members operate under the existing treaties? 20. If the Constitutional Treaty is not ratiﬁed the existing treaties would continue to apply but it will be increasingly diYcult for an enlarged EU to continue to operate without the reforms proposed in the Treaty. In particular, it would have to continue with the existing six-monthly Presidency arrangements, rather than have a full-time President of the European Council plus longer-term Team Presidencies. It would have to manage with a separate High Representative for Foreign AVairs and External AVairs Commissioner, rather than merging them for greater eYciency as in the new Constitution. It would have to continue with the existing weighted vote arrangements, which give disproportionate power to smaller Member States, and are less transparent. We would also lose out on vital gains made in areas of QMV. The Treaty introduces QMV as the norm in JHA issues which means that no single member state would be able to block action on issues like cross-border crime, drug traYcking, illegal immigration and terrorism. There would be a far less eVective role for national Parliaments.

Repatriation of Competences

Question 11. In the debate on 9 September you said that the Constitutional Treaty was the first EU Treaty to “include specific proposals for repatriating powers to the Member States” (col.887). The White Paper (para. 13) states that the Constitutional Treaty “will provide a mechanism which, for the first time ever, would allow the EU to stop exercising certain powers, and return these to the Member States.” Can you explain where these specific procedures are to be found, and how they diVer from the right which Member States have always had to propose treaty changes? Does the Government have any proposals for such repatriation? 21. Article IV-7(b) allows the European Council to amend most of Part III of the Treaty, by unanimity, and provided national parliaments agree. The article makes clear that this power cannot be used to extend competence. It could, however, be used to make substantive amendments to Part III which reduce Union competence, or to simply delete specific articles that give the EU the legal power to act in certain areas, thus in practice eliminating the competence. Moreover, I-11(2) explicitly foresees this possibility in respect of shared competences, making it clear that, where the EU has stopped exercising a shared competence, the Member States can act in that area. 22. The new Treaty clearly lays out for the first time the EU’s competences. The Government is content with this. There was no agreement in either the Convention or the IGC for repatriation of specific competences. However, the Government believes it was sensible to include in the Treaty the provision allowing some changes in practice without a full IGC, against the prospect that Member States might wish to return certain powers to national Governments.

ECJ Competence and the CFSP

Question 12. Can Article I-15 be used to establish ECJ competence in respect of the Common Foreign and Security Policy? 23. ECJ jurisdiction over CFSP cannot be established through Article I 15. This is because the EU’s competences in relation to CFSP can only be given eVect by action under Articles I-39 and I-40 and the provisions of Chapter II of Title V, all of which are explicitly excluded from ECJ jurisdiction by Article III-282. 20 October 2004 992907PAG1 Page Type [SE] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

Ev 10 European Scrutiny Committee: Evidence

Wednesday 17 November 2004

Members present:

Mr Jimmy Hood, in the Chair

Mr William Cash Sandra Osborne Mr Wayne David Mr Anthony Steen Jim Dobbin Mr Bill Tynan Mr David Heathcoat-Amory

Memorandum from Professor Sir David Edward, Honorary Professor of the School of Law at the University of Edinburgh

I will conﬁne my evidence to those questions on which I feel that my experience might be of assistance to the Committee.

1. The Practical Consequences of the New References in (Articles 2 and 3) to the Union’s Values and Objectives In a number of cases the European Court of Justice has referred to the objectives set out in the preamble to the EC Treaty, or to the “tasks” or “activities” set out in Part One (Principles), as a guide to interpretation of the Treaty as a whole and of specific articles of it. Thus, the reference to an “ever-closer union” was taken (I believe correctly) as an indication that the underlying (or overarching) intention of the treaty-makers was to promote European integration (the so-called integrationist agenda). More specifically, the references to “abolition of obstacles to freedom of movement” and the “institution of a system ensuring that competition is not distorted” were construed as indicative of an intention to adopt a free-market economic system. The stated objectives of the original Treaties were helpful guides to interpretation because they constituted a reasonably coherent and precise statement of aims and priorities. This may, in part, have been because the Treaties themselves were limited in scope. The eVect of successive Treaties has been to include a growing number of less precise objectives (eg the “flowering of the cultures of the Member States”) which amount to little more than a politically correct wish-list and are of little assistance to the Court as guides to interpretation. Articles 2 and 3 of the Constitutional Treaty are all-embracing, imprecise and give no guidance as to priorities. I doubt whether they would be of much value as a guide to legal interpretation. Whether they would have a useful practical eVect in conditioning public or political attitudes I am not in a position to judge.

2. Whether the Treaty Makes Enhanced Co-operation More Likely The underlying assumption of the Treaties used to be that all Member States must move forward together. By providing for “closer co-operation” (renamed “enhanced co-operation” by the Treaty of Nice), the Treaty on European Union moved away from that assumption. But the existing Treaty remains somewhat vague as to how the provisions for enhanced co-operation are to be invoked and how it is to operate. The Treaty on the Constitution is more speciﬁc both as to the circumstances in which enhanced co-operation can be authorised and as to the criteria that must be met and the procedure to be followed. These changes oVer an alternative to an untidy proliferation of opt-outs. They provide a more transparent and eVective means of ensuring (from a political point of view) that any project for enhanced co-operation would be acceptable to the non-participants and (from a legal point of view) that it would be compatible with the main provisions of Union law, notably as regards the working of the single market. As a corollary, projects for enhanced co-operation could more readily be challenged in the Court of Justice on the grounds that the required criteria had not been met and/or that the correct procedure had not been followed. As to whether this makes enhanced co-operation more likely, the provision of more speciﬁc machinery would give greater certainty that a project could go ahead if it met the criteria. On the other hand, it raises the bar that would have to be cleared before a project for enhanced co-operation could be put into eVect. The “likelihood” of more enhanced co-operation would depend, I think, on other factors. 9929072001 Page Type [O] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

European Scrutiny Committee: Evidence Ev 11

3. How Public Meetings of the Council when Legislating would Work in Practice—in Particular,How Much would be Public What the Treaty requires (Article I-23(5)) is that the Council should meet in public when deliberating and voting on a draft legislative act. It seems clear that this applies only to formal meetings of ministers and not, for example, to meetings of COREPER. I have the impression (but I am not certain) that the expression “draft legislative act” refers to a text which, once the vote has been taken, will pass directly into law, subject only to action on the part of the European Parliament where that is required. Put another way, the provision does not seem to apply to earlier stages of discussion of a Commission proposal, even if this takes place between ministers in Council. It would be useful to clarify this. When a text reaches the final stage of deliberation and vote before it passes into law, much of the negotiation (and horse-trading) has already taken place in COREPER or in other discussions between Member States, the Council Secretariat, the Commission and/or the relevant Committee of the Parliament. In most cases, the general principles underlying the proposed legislation have been agreed long before. There are, of course, cases where important decisions of principle or detail are left to ministers at the final stages of discussion in Council, and these discussions would be public. But there is perhaps a danger that crucial discussions on delicate points would be taken in private beforehand, so that the public meeting would do no more than rubber-stamp a decision that had, to all intents and purposes, already been taken. (This is said to occur in some local authorities as regards, for example, planning permissions.) The real importance of the new provision seems to me to lie in making for greater transparency as regards qualified majority voting and abstention when unanimity is required. The positions taken by ministers—the way they vote (or abstain) and their declared reasons for doing so—would be verifiable both by the media and by national Parliaments. It would be less easy to strike deals by which Member State A supports Member State B on one project on condition of reciprocal support on another, unrelated project. Perhaps even more importantly, it would be possible (admittedly, only after the event) for national Parliaments to hold ministers to account for their conduct of Council business in a way that is not possible at present, at least in most Member States.

4. How the New Council Presidency and the New Foreign Minister would Work, and the Relationship between the European Council Presidency and the Presidency of the Individual Council Formations I do not think I can usefully comment on this question.

5. The Extent to which the UK Government held its Red Lines Same reply.

6. The Effectiveness of the Emergency Brakes in Criminal Justice and Other Matters And

8. The Treaty’s Criminal Justice Provisions I presume that these questions refer essentially to Articles III-170(3) [family law], III-171(3) [minimum rules on mutual recognition], III-172(3) [deﬁnition of criminal oVences and sanctions] and III-175 [the European Public Prosecutor]. I was uneasy about earlier drafts of these sections of the Treaty, and experience of cases under the Brussels Convention leads me to be wary of automatic mutual recognition of judgments in criminal matters. What is regarded as procedurally acceptable in one country may be unacceptable in another, and a glance at the website of Fair Trials Abroad is an indication of what may be involved. It should be stressed that some aspects of British judicial procedure do not command universal admiration in other Member States either. That said, assuming (as I do) that the state of the world makes closer judicial co-operation in civil and criminal matters essential, the new text seems to me to go as far as one could reasonably expect in providing emergency brakes, provided it is read together with Articles II-47-50 (Title VI of the Charter—Justice) and the explanations set out in the accompanying Declaration. (Those provisions of the Charter are essential guarantees of a fair trial, and this illustrates the potential importance of the Charter in the context of the Constitutional Treaty.) I would draw the attention of the Committee to the unique position of Scotland in this context. So far as I know, Scotland is alone in the EU in being a “sub-state entity” with an autonomous judicial system and an autonomous legislature in criminal matters. It would be essential that the UK mechanism for invoking the emergency brakes take account of this. (Comparable problems might arise, though less acutely, in relation to Northern Ireland and Gibraltar.) 9929072001 Page Type [E] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

Ev 12 European Scrutiny Committee: Evidence

7. The Horizontal Clauses in the Charter of Fundamental Rights It is important, from a legal point of view, to distinguish between two quite diVerent situations. The ﬁrst is where a clause in a text such as the Charter is used by a court either as an aid to interpretation of another text or as a criterion for choosing between two or more options to resolve a diYcult point of law. Even before the Human Rights Act, the British courts had begun to refer to international texts such as the ECHR in this way, and there are many examples in the case law of the Court of Justice. That does not mean that the provisions of those texts thereby became self-standing, directly applicable rules of British or EC law. The second situation is where a clause in a document like the Charter becomes a rule of law that can be relied on directly in judicial proceedings as a ground of action or defence, or as the basis for a remedy. I believe the horizontal clauses in the Charter are suYcient to ensure that its provisions cannot be relied on in this way outside the context in which they are expressly stated to apply. It should be recognised, however, that the expression “acts of the Member States when they are implementing Union law” (Article II-52(5)) potentially covers a very wide range of situations and subject matter. “Implementation” of Union law can be legislative, executive or judicial. As regards the allegation that the Charter has been, or will be, sneaked in by the back door by the Court of Justice, it should be remembered that the Charter has already been “addressed” to the institutions of the EU and therefore, amongst others, to the Court. When the Heads of State and Government solemnly adopt a text as a statement of fundamental rights (and responsibilities) and address it to the Court of Justice, the Judges of that Court are entitled to assume that they mean what they say and intend it to be taken into account in the work of the Court. (We did not, in my time, receive many copies of the Beano.) So it is not surprising that the Charter should already have been referred to in judgments of the Court, or in Opinions of the Advocates General, as a guide to interpretation and application of EU law. But that is an example of the ﬁrst situation described above, not the second.

9. The Consequences of Non-Ratification Unless and until the Treaty is ratified by the signatory States, it will not come into force (Article IV-8(2)). Although it has been suggested that steps might be taken to exclude or otherwise penalise a Member State which did not ratify the Treaty, I do not understand on what legal basis this could be done. If the Treaty were not ratified, I would expect the Commission and/or the Council to produce very quickly a less ambitious treaty, not purporting to be a “constitution” and covering the essential corrections and additions to the Treaty of Nice, which could be adopted and ratified without too much argument.

Memorandum from Professor Eileen Denza CMG, visiting Professor of Law, Faculty of Laws, University College London

TREATY ESTABLISHING A CONSTITUTION FOR EUROPE

Clarity of the Structure The draft Treaty emerging from the Intergovernmental Conference makes many improvements of substance and style to the draft presented by the Convention on the Future of Europe. With the emergence of the Protocols and Declarations the shape of the proposed European legal order has taken full shape. The full panoply of texts does however make a mockery of the original mandate to eVect “a simplification of the Treaties with a view to making them clearer and better understood without changing their meaning”. In almost every area it is necessary, in order to understand the law, to read provisions in Part I along with others in Part II or in Part III, and to check the Protocols and Declarations to find whether they make important clarifications or modifications. Hardly any Protocols or Declarations have been withdrawn, consolidated or integrated into the Treaty text. Millions in Europe now familiar with the present legal order, including those in the new Member States, will have to learn not only a new treaty structure and new article numbers but also new names for legal instruments which cannot be properly understood without related earlier instruments which will keep their old names. Because the Convention and the Intergovernmental Conference made many significant changes, there will be argument as to whether new articles in the Constitution represent “codification” or “progressive development”. To take one important example within the scope of the Committee’s enquiry, it is unclear whether the fusion of the separate intergovernmental pillars has succeeded in its declared intention of overcoming the contrast between federal and confederal methods. The implications of continuing the “Community acquis” and extending “the Community way” after the European Community is abolished are uncertain. 9929072002 Page Type [O] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

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Enhanced Co-operation Experience of the provisions on “Closer Co-operation” in the Treaties of Amsterdam and Nice—which form the predecessors to Article I-43 and Articles III-22–329 in the Draft Treaty Establishing a Constitution for Europe—does not suggest that Enhanced Co-operation is likely to be a significant factor in the future progress of the European Union. The original provisions on closer co-operation in the Treaty of Amsterdam gave express authority for Member States to follow the precedent of the Schengen Agreement and Convention while using from the outset (with necessary adaptations) the institutions and procedures of the European Union. At the time of the negotiation of the Treaty of Amsterdam the use of the Schengen method—whereby a small group of States bypassed the deadlock in the Council over lifting internal border controls on people—was regarded as a success. The Schengen arrangements had evolved into a binding legal system, had gradually attracted almost all Member States into their orbit, and were to be incorporated in the Treaty on European Union. The Schengen system had however grown up on a basis entirely outside Union procedures and the eVect of placing cumbersome and complex treaty restrictions on any later similar development was to stop it ever happening. Instead, Member States in areas such as judicial co-operation developed a network of bilateral agreements, deliberately steering clear of any system which might trigger the treaty provisions. Notwithstanding this dismal experience, the Member States after much deliberation at the Intergovernmental Conference added to the Treaty of Nice more extensive and even more labyrinthine provisions on closer co-operation. Again these have never been invoked. The provisions on enhanced co-operation in the draft Constitutional Treaty are an improvement in that they are somewhat less complex. There would be a single set of provisions, although procedure within the common foreign and security policy would be diVerent. It is made clear that the possibility applies only “within the framework of the Union’s non-exclusive competences” (Article I-43(1)). Acts adopted under enhanced co-operation are not regarded as “acquis which has to be accepted by candidates for accession to the Union” (Article I-43(4)). This contrasts with the position taken by the Union in regard to EMU and Schengen. On the other hand, the cumulative hurdles in the way of any possible use remain formidable. It is expressly stated to be “a last resort”. There must be a formal proposal from the Commission and the European Parliament must consent. Article III-328 permits the Council of Ministers within enhanced co-operation to decide by unanimity that it may act by qualified majority, or that it may replace a special legislative procedure by the ordinary legislative procedure. It is highly improbable that these procedural provisions would be invoked, but they are nevertheless undesirable as a matter of principle. It remains unlikely that these provisions would be a practical way forward in any area of Union activity. The political importance attached to them could perhaps be justified if the proposed Constitution for Europe were to remain unchanged for 50 years. But it seems that rolling revision of the Treaties has become a way of life. The provisions on enhanced co-operation may be sharply contrasted with those on permanent structured co-operation which are based on the complex realities of strengthening the common security and defence policy. The Protocol on permanent structured co-operation may well be used as an action plan even if the Treaty fails to enter into force.

Common Foreign and Security Policy The draft Treaty establishing a Constitution fails to address the criticisms made over the past year in regard to the draft provisions on common foreign and security policy and the proposed Minister for Foreign AVairs. The most serious criticism was that in collapsing the three pillar structure of the European Union, the new Constitution fails adequately to safeguard the intergovernmental nature of the common foreign and security policy. The existing safeguards of the intergovernmental nature of the CFSP are partly institutional (central role for the Council, peripheral role for the European Commission and European Parliament, exclusion of the Court of Justice) and these remain intact. In part, however, the safeguards relate to the legal nature of the obligations created, and in particular to exclusion of the European Community form of primacy, exclusion of potential direct eVect and exclusion of potential loss of concurrent national competence. The existing Second Pillar achieves this result by excluding foreign policy—which is a deﬁning characteristic of independent sovereign status—from the Community method. This is particularly apparent in the United Kingdom where the Second and Third Pillar provisions are not given any eVect through the European Communities Act 1972, as amended. In the new Treaty, however, the Preamble expresses the determination of the Member States to continue the work accomplished within the framework of the European Community Treaties and the Treaty on European Union “. . . by ensuring the continuity of the Community acquis” 9929072002 Page Type [E] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

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Article I-1(1) says that the Union shall co-ordinate the policies by which the Member States aim to achieve these objectives, “and shall exercise in the Community way the competences they confer on it.” There are no safeguards for the acquis of the Second or Third Pillars which do not now exercise competences “in the Community way” but under public international law. Article I-1(1) implies that although the European Community would formally disappear and be absorbed by the European Union, it is the “Community way” which will survive and will absorb the “European Union way”. The “European Union way” has developed since 1993 on an intergovernmental basis and under the rules of international law. Article I-11 enumerates categories of Community competence, and spells out for these the implications in terms of European Community case law. Placed separately in the list of competences is paragraph 3, whereby the Member States “shall co-ordinate their economic and employment policies”, and paragraph 4, which says “The Union shall have competence to deﬁne and implement a common foreign and security policy, including the progressive framing of a common defence policy.” The nature of this separate competence is not explained further in Article I-11 or in Article I-15. Article I-10(1), providing that “The Constitution, and law adopted by the Union’s Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States. clearly extends the Community doctrine, which is stronger and more intrusive than the international law doctrine of supremacy, over the common foreign and security policy. Article III-209 as revised by the Intergovernmental Conference does eVect a demarcation between the common foreign and security policy and other competences, emphasising that “. . . the implementation of the policies listed in those articles shall not aVect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union’s competences under this [ie the CFSP] Chapter.” The jurisdiction of the European Court of Justice does not extend to the CFSP, with the exception of the boundary demarcation provision quoted immediately above. CFSP commitments, now forming obligations under public international law, would therefore under the Constitution become quite uncertain in nature, with no prospect of judicial clariﬁcation. The same would be true for international agreements concluded by the Union under CFSP powers (Articles III-225 to III-228). A further wide-ranging constraint on the ultimate independence of Member States to conduct their foreign policies is contained in Article I-39(5) providing that “Before undertaking any action on the international scene or any commitment which could aVect the Union’s interests, each Member State shall consult the others within the European Council or the Council of Ministers.” Given the importance of the independent conduct of foreign policy in determining sovereign status, and the mandate given by the European Council at Laeken to achieve a more precise delimitation of competences between the European Union and Member States, the draft Treaty is inadequate. This particular red line looks pink.

The Minister for Foreign Affairs The proposed Minister for Foreign AVairs is intended to improve consistency and eVectiveness of the Union’s external action. The UK Government’s objective was to ensure that the Minister would be accountable to the Governments of Member States in the Council at least for CFSP matters. Two objections were made to the Convention’s proposal. The first, which links to the concerns expressed in the previous section, was that the title, together with the power to “conduct” the Union’s common foreign and security policy, was inconsistent with the retention of ultimate powers over foreign policy by the Member States. Although “Minister” is a diplomatic title, the responsibilities to be given to the new Minister involve the formation of foreign policy as well as representation, and until now only States have had Ministers for Foreign AVairs. The United Nations and NATO, for example, have Secretaries-General. The title however remains in the Treaty. The second criticism was that “double-hatting” the Minister would lead to institutional confusion and potential conflict. The Constitution would not change the existing position regarding powers to formulate external policies in diVerent areas and to represent the Union abroad. The new Article I-25(1) makes clear that the Commission’s powers to ensure the Union’s external representation would not include the CFSP, so that no new substantive powers in this regard would be conferred on the Commission. The Union Minister for Foreign AVairs would be a Vice-President of the Commission and so bound by Commission collegiate responsibility. He would however be exempt from the requirement to “neither seek nor take instructions from any government or other institution, body, oYce or agency” (Article I-25(7) and so in a position to undermine the independence of the Commission which has been one of its defining 9929072003 Page Type [O] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

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characteristics. He would be required by Article I-27(2) to carry out the common foreign and security policy “as mandated by the Council of Ministers”. If however a proposed action straddles the common commercial policy and the common foreign and security policy, or if a CFSP decision (for example on sanctions) is to be implemented by European regulations or decisions (Article III-224), the Minister for Foreign AVairs will be placed in an impossible position if there is conflict between the Council and the Commission. The Intergovernmental Conference made a few changes to Article 27 which tend to emphasise that the Minister is to be primarily responsible to the European Council and the Council. They do not however address the underlying problem of conflict of loyalties. At a practical level there is everything to be said for close co-operation between Council and Commission on external matters and much to be said for the proposed European External Action Service which is to work “in co-operation with the diplomatic services of the Member States”. The Council and the Commission however have distinct roles and responsibilities. By blurring the distinction, the risk is created that the proposed European Foreign Minister will have the confidence of neither institution. The proposed fusion of institutional roles will be put to the ultimate test on the first occasion when the Council and Commission litigate before the European Court of Justice on some issue of external relations competence.

Defence The UK Government’s position on the Treaty provisions on defence was complex. Most of Article I-40, with the important exception of paragraph 7, is unchanged from the Convention’s draft. In paragraph 2 the statement that the progressive framing of a common Union defence policy “. . .will lead to a common defence, when the European Council, acting unanimously, so decides” remains unchanged. The provision is inconsistent with Article I-15(1) which states that the framing of a common defence policy “might lead to a common defence”. The Government however seem to have accepted that although the word “will” indicates a strong political intent, it remains conditional on a unanimous decision of the European Council. The government strongly supported the European Armaments, Research and Military Capabilities Agency (Article I-40(3) and III-212), and expressed the view that it could and probably would be established under existing Treaty powers. The UK Government were more reserved about the possibility of what is now described as “permanent structured co-operation” (Article I-40(6), Article III-213 and the Protocol on permanent structured co- operation). They saw in the original proposal the diYculty that it might undermine the concept of a European security and defence policy in which the essentials are agreed by unanimity and also the existing and developing military arrangements. On the other hand they also saw opportunities in permitting the Member States with greater military resources to go ahead on their own. The changes made to the Treaty articles, and the drafting of the new Protocol appear to be in line with the Government’s objectives. There would be provision in Article III-213(3) for the addition of late entrants providing that the latecomer States assume the qualifying commitments. There is also provision for suspension and for withdrawal of participating States. The link to defence capabilities is thus made clearer, and the scheme could encourage some Member States to increase their defence spending in order to qualify. “Enhanced co-operation” would not apply to “permanent structured co-operation” thus removing a source of confusion. There is explicit acknowledgment of the special position of the neutral Member States, of the role of NATO “which remains the foundation of the collective defence of its members, and is compatible with the common security and defence policy established within that framework”, and of the importance of the Atlantic Alliance “in accordance with the Berlin Plus arrangements”. As to Article I-40(7) the Government’s position was that it must not prejudice the security guarantee provided by the North Atlantic Treaty and the position of NATO as the basis of the United Kingdom’s territorial defence. ESDP is in their view to remain merely a stronger means of conducting crisis management operations outside Europe in support of the common foreign and security policy. The revised version of Article I-40(7) makes clear that while armed aggression on the territory of a Member State would place other Member States under an obligation to assist it in accordance with the United Nations Charter, this would not alter the position of the neutral States or be inconsistent with NATO commitments. The provision does not replicate the commitment to collective self-defence which forms the core of NATO. A disappointing element of the texts is the draft Protocol on Article I-40(2) which provides for the Union to draw, together with the Western European Union, arrangements for enhanced co-operation between them. In the context of any rational “tidying-up” exercise, the European Union should now be trying to wind up WEU, whose practical utility has come to an end. Generally, however, the Government’s red lines on defence have been constructively held.

Treaty Revision In Part IV of the draft Constitution the Intergovernmental Conference added two new Articles providing for simpliﬁed revision procedure. Under the ﬁrst, the European Council, acting by unanimity, may authorise the Council to act by QMV in an area where unanimity would otherwise be required. The procedure would 9929072003 Page Type [E] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

Ev 16 European Scrutiny Committee: Evidence

not apply to decisions with military or defence implications. The European Council may also authorise a shift from special legislative procedure to ordinary legislative procedure for the adoption of European laws or framework laws. In either of these cases, national parliaments must be informed, and any one parliament may veto the procedure. The consent of the European Parliament would also be required.

The second form of simpliﬁed procedure would permit the European Council, acting unanimously, to amend the provisions of Title III of Part III of the Treaty. The European Parliament, the Commission and the European Central Bank (regarding changes in the monetary area) must be consulted. The decision cannot however come into force unless approved by all the Member States in accordance with their constitutional requirements. The power may not be used to increase the competences attributed to the Union.

The UK Government’s preoccupation here was to safeguard the powers of national parliaments to control treaty revision. Although under both forms of simpliﬁed procedure there would be no constitutional Convention and no intergovernmental conference, each national parliament would retain the power to prevent treaty amendment. The Government’s red line in this area was therefore successfully held.

Criminal Justice

The basic principles in Article I-41 for implementing the area of freedom, security and justice were not changed by the Intergovernmental Conference from the Convention’s draft. The key changes from the existing position would be the total integration of the Third Pillar law-making powers and procedures into the “Community method” and the emphasis on mutual recognition of judicial and extrajudicial decisions. The Third Pillar as originally established by the Treaty of Maastricht had obvious deficiencies. There was uncertainty as to the legal eVect of instruments agreed by the Council, and international conventions failed to achieve the ratification by national parliaments necessary for them to come into force. There was little supervision of implementation at national level and very little judicial or parliamentary accountability. Some of these defects were remedied by the Treaty of Amsterdam, but the revised provisions were given little chance to show their greater eVectiveness. The implications of integrating criminal justice into the Community method, involving a stronger form of primacy, potential direct eVect and loss of national autonomy, are substantial. The United Kingdom Government appear however to have been in favour of the change provided that certain safeguards were achieved. Mutual recognition of orders in the criminal justice field, such as arrest warrants and warrants for search and seizure, was endorsed by the European Council at Tampere in 1999 as central to more eVective enforcement of criminal laws.

The provisions in Article III-160 to III-162 aVord an opportunity to national parliaments to monitor the application of subsidiarity in this context, and to become involved in evaluating implementation (in particular application of mutual recognition) as well as operational co-operation on internal security. What national parliaments make of these opportunities will depend on them, but the highly developed experience within the United Kingdom Parliament and the close co-operation with Government on scrutiny of European matters mean that it is well placed at the outset to make them eVective.

The revised version of Articles III-171 and III-172 does respond to some of the specific concerns expressed by the Scrutiny Committee in its earlier Report on The Convention’s proposals on criminal justice. The power to adopt framework laws on judicial co-operation in criminal matters (Article III-171) is limited to what is necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial co-operation in criminal matters having a cross-border dimension. Where minimum rules are to be established they “shall take into account the diVerences as between the legal traditions and systems of the Member States”. Minimum rules are not to prevent Member States from maintaining or introducing a higher level of protection for individuals. The power to establish minimum rules concerning the definition of criminal oVences and sanctions (Article I-172) is limited to areas of particularly serious cross-border crime, and the areas of crime are specified—although the list may be extended by the Council acting unanimously with the consent of the European Parliament.

In both Article III-171 and III-172 the Intergovernmental Conference added new provisions enabling any Member of the Council who considers that a draft European framework law would aVect fundamental aspects of its criminal justice system to refer the draft to the European Council. At that point the legislative procedure would be suspended. The European Council would have four months to review the draft and could either refer it back to the Council (when the suspension would be terminated) or refer it back to the Commission or the originating Member States with instructions to submit a new draft. These are strong and unprecedented powers and would enable any Member State to block any unacceptable measure in the ﬁeld of criminal justice. There would in the event of deadlock remain the possibility of one third or more of the Member States going ahead with enhanced co-operation—but it is suggested above that the hurdles attached to that procedure make it unlikely that it will often be used. 9929072003 Page Type [O] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

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If the Treaty is not Ratified In strictly legal terms, if all 25 Member States do not ratify the Treaty it cannot enter into force and the existing Treaties and the entire body of European Union law continue unchanged. A Declaration to be attached to the Final Act of Signature of the Treaty establishing the Constitution states that: If two years after the signature of the Treaty establishing the Constitution, four fifths of the Member States have ratified it and one or more Member States have encountered diYculties in proceeding with ratification, the matter will be referred to the European Council. A provision in these terms is also included in Article IV-7 of the Treaty which deals with the “Ordinary Revision Procedure” for amending the Treaty. It is not included in either of the new Articles which set out so-called Simplified Revision Procedures for making specified changes to the Treaty. This Declaration is not in fact necessary to enable the European Council to review the situation if it appears that there will be diYculty in securing the necessary 25 ratifications. In practice rejection by one national parliament or in one of the referendums planned could, and almost certainly would be discussed by the European Council. Following the rejection of the Maastricht Treaty by Danish electors in June 1992, the European Council adopted what was in eVect a separate interpretative treaty. The Edinburgh Decision of December 1992 without making further ratification procedures necessary in Member States where they had already been concluded, clarified certain points of concern to Denmark including the possibility of moves towards a common defence policy. The Decision helped to make possible a second—this time favourable—referendum in Denmark. Following rejection of the Treaty of Nice by Irish electors in June 2001, the European Council at Seville in June 2002 noted a National Declaration by Ireland in which Ireland confirmed that its participation in the European Union’s common foreign and security policy did not prejudice its traditional policy of military neutrality, and said that in the event of Ireland’s ratification of the Treaty of Nice, the Declaration would be associated with its instrument of ratification. The European Council also adopted a Declaration stressing that recent developments did not constitute a decision to move to a common defence and that the Treaty on European Union did not impose binding mutual defence commitments or involve establishment of a European army. These assurances while not changing the Treaty of Nice helped to pave the way for a second favourable referendum in Ireland. It may be recalled that while many initial reactions to the Danish rejection of the Treaty of Maastricht suggested that Denmark would simply be excluded while other Member States went ahead, the first reactions to the Irish rejection of the Treaty of Nice correctly assumed that this would not be legally possible, so that the Irish diYculties were addressed with greater political sensitivity. It was also recalled that the result of the first Danish referendum, together with the very narrow majority in France in favour of the Maastricht Treaty, had been to destabilise or prolong ratification procedures in States where they had not been completed. There is no doubt that a single adverse vote to the Treaty establishing a European Constitution would destabilise ratification procedures, but the extent of destabilisation would depend on the State in question and also on whether there was a limited and clearly identifiable reason for dissent. Those Member States where public opinion is supportive of the Constitution will be likely to press ahead with referendums and parliamentary procedures in the hope of creating a band wagon eVect. Conversely the leaders of the more reluctant States will seek to postpone the moment of decision, hoping to avoid the opprobrium likely to fall on the first dissenter. It is in this context that the proposed Declaration will have its eVect—pointing to a majority of four fifths of the Member States as being a critical mass of support for the Treaty, dissent from which would carry political risks. Finally, it should be observed that while the structural and institutional changes envisaged cannot happen without the entry into force of the Treaty establishing a European Constitution or some alternative form of Treaty revision, some of the elements in the draft Constitution could slip into eVect under existing powers. The provisions describing and identifying competences, for example, which to a large extent (though with important exceptions) are declaratory of the existing legal position, are likely to be cited and relied on increasingly even if the Constitution never comes into force. A second possible example is the proposed European External Action Service. Article III-198(3) of the draft Treaty enables the organisation and functioning of the proposed Service to be established by a European decision of the Council, but a Declaration to be attached to this Article states that preparatory work on formation of the Service will begin as soon as the Treaty is signed. It is moreover likely that the External Action Service could be established on an interim basis under existing Treaty powers. A similar approach was taken by Member States, while awaiting ratification of the Treaties of Amsterdam and of Nice, to establishment of the Political and Security Committee and of Eurojust. Rejection of the Treaty by one or more Member States might therefore mean that a number of the more constructive and less controversial innovations of the Convention came into operation on an interim basis under existing treaty powers. It is however unlikely that the entire Constitution project would now be abandoned. 1 September 2004 9929071001 Page Type [E] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

Ev 18 European Scrutiny Committee: Evidence

Witnesses: Professor Sir David Edward, Honorary Professor of the School of Law at the University of Edinburgh and Judge of the Court of Justice of the European Communities 1992–2004, and Professor Eileen Denza CMG, Visiting Professor of Law, University College London, examined.

Q27 Chairman: Sir David, welcome to the European by thinking, “Is this not more a matter for national Scrutiny Committee. In that welcome I need to law or even for international law?” Perhaps, just to apologise because we are told we are in the hands of pluck an example, “The Union shall be respected for the Whips and there will be a vote called at about its cultural and linguistic diversity and shall ensure 3.45 pm. Please excuse us whilst we go to vote and that Europe’s cultural heritage is safeguarded and interrupt our proceedings. It is particularly pleasing enhanced.” That, I think, would be seen as very for me to have you here today. Sir David, you and I helpful to those trying legally to enhance their status have met on a number of occasions, notably when of minority languages, which is quite actively on you were a judge in the European Court. It is not the agenda. usually a good thing when you say you have appeared before a judge often. As I used to say, there are not many miners appearing before judges unless Q29 Mr David: I wonder if I could ask a question it is bad news, but now there is a judge appearing about enhanced co-operation. There are various before a miner, so I am sure that is good news. Could views on the desirability or otherwise of that. The I kick the session oV by asking our two guests how French and Germans in particular think it should be the new reference to the Union’s values and used more extensively. Do you think that will be the objectives in Articles 2 and 3 of the Constitutional case? Do you see that as being desirable or would Treaty will assist the Court in interpreting EU law. you prefer to see an emphasis on opt-outs rather Professor Sir David Edward: In my written evidence than people coming together on enhanced co- I have tried to indicate the two possibilities here. One operation? is that the court uses the objectives as a point of Professor Sir David Edward: I personally think you reference. The other is that they use the objectives— have to have some system of enhanced co-operation and the same applies to the Charter of Rights—as a in a Union of 25 or more. It is not realistic to suppose basis for creating rights or creating obligations. In that one can insist that all 25, 27, or whatever, move the case of the objectives—and it is not necessarily together at the same speed in every respect. The the same in the Charter of Rights—they can only be significant feature of the new provision on enhanced used in the first way, as a criterion or point of co-operation is that it provides a procedure. It reference by which you choose between the two ensures that everybody has the chance to join, so you alternatives or decide how you are going to interpret cannot have little side deals. The system of opt-outs, a particular provision. In this case, I would be although desirable in some respects, is from a legal surprised if these objectives in general really point of view rather messy because you do not know provided much assistance for the court, because, as precisely who is in this particular discussion or not. I have said, they are so comprehensive and wide- It is clear under the provisions for enhanced co- ranging that really it is possible to find an objective operation that everybody can take part in the which would support almost any proposition you discussion but only those who are signed up to it can chose to select. Therefore I do not personally see the vote. I personally think that the provisions are useful objectives as playing any significant role in the work in that respect. Whether it will lead to greater of the Court. enhanced co-operation or act as a brake on it, I am Professor Denza: I would absolutely agree with that. not very sure. I would see their significance mainly as inspirational Professor Denza: I think I would perhaps be rather and politically helpful to those who are thinking of more negative from the basis of the experience that joining or applying to accede to the Union, but also both at the Conference in Amsterdam and then at Nice as inspiration for those imagining the progress of there was an enormous amount of very sensitive legislation. I think, unless you see the Constitution political bargaining about provisions. Having got as very narrowly, purely a treaty of existing powers these provisions, they simply were not used at all. The and competences and policies, there has to be this result has been wholly disproportionate to the political V kind of introduction—and it is very common in e ort in getting them. I agree, as a matter of law, that treaties as well. So I think it does add value but not in theory this is desirable; the problem is that if all these mainly as an interpretation point of view. procedural safeguards are there the result is that States Professor Sir David Edward: Perhaps I should say either do nothing or simply by-pass them. I am aware that I was speaking entirely about the Court. I do that this has been happening in the criminal justice not think there is any doubt, as Professor Denza field, where States have been doing little deals on the says, that, from the point of view, for example, of side but they simply keep the numbers below the admitting new Member States they would have to critical proportion of the total which would trigger sign up to those objectives as a political matter, and enhanced co-operation. Schengen worked simply that may be a quite diVerent thing. because there is nothing in international law to stop States in a way going ahead as an advance guard. And the Commission were perfectly well aware of what was Q28 Chairman: Are there any other practical eVects going on. They never said to the Schengen states, “This which the aspirational language of Articles 2 and 3 is improper, we are going to take you to the court,” is likely to have? they just desperately tried to get themselves as closely Professor Denza: It might be relevant in the context aware as they could of what was happening. Speaking of subsidiarity. There are a number of objectives as someone who comes to this originally as an which, at first glance, reading these, one might react international lawyer, that, in a way, is how 9929071001 Page Type [O] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

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17 November 2004 Professor Sir David Edward and Professor Eileen Denza CMG international law works: You do not have to all march requirement of unanimity; in another sense, of together; you can have a number of States who actually getting things done and providing a political spearhead, form a critical mass, and that begins to mechanism for resolving the problem, it is probably attract a gravitational pull. That is what happened not bad. with Schengen. That is what is happening with Professor Denza: I agree with that analysis. If the economic monetary union: the gravitational pull may objection is a rather technical one, then unanimity is or may not with experience become almost irresistible. better because that simply forces, at the technical But I think a lot of argument about very tight, level, people really understanding the issues to bang procedurally structural provisions is ultimately on until people really understand your problem and counterproductive because it does not take account of try to find a compromise around it. The diYculty how governments actually behave. about escalating it to political level is that in the nature of things those operating in the stratosphere Q30 Mr Steen: Is it your view that because the do not really understand the minutiae and the whole Commission has so few oYcials—in fact it only has a background of the criminal justice system against few more than the entire staV of the Devon County which the problem has arisen. You may get some Council—this part of your evidence is aVected by the sort of a deal and then the technocrats are simply inability of the Commission to do its job because of instructed that at Council they have to sort it out. Of how small it is? course, if it is suYciently fundamental, there is also Professor Sir David Edward: I doubt it. The size of the the option, for the Council, of sending the whole Commission and the manpower is undoubtedly a thing back to the Commission. That is the other problem, but whether if the Commission had more option if there were a very fundamental opposition people you would avoid enhanced co-operation, as to having this legislation at all. It is very much better opposed to moving together—if that is the tenor of than the earlier text on which the Committee your question—I personally doubt it. Of course, some reported. people say that the Commission would become more interventionist rather than less, and therefore perhaps Q33 Mr Tynan: Would you believe it would be a you would get more enhanced co-operation—or more worthwhile compromise in order to achieve qualified opting out, whichever way you care to look at it. So I majority voting in certain instances? do not think this particular problem—there are many Professor Sir David Edward: It is the best you can others, but not this one—has anything to do with the V get, probably. size of the Commission sta . Professor Denza: I think it depends how committed The Committee was suspended from 2.43 pm to you are to qualified majority voting, which in turn 2.51 pm for a division in the House depends on whether you think the problem with Europe is that there is not enough legislation Q31 Mr Tynan: Good afternoon. One of the new pouring out of its portals. If you think there is much measures we have is the “emergency brake” system. more of a problem of having good legislation which Could you tell me how eVective the emergency leaves everyone happy and enforcing the legislation brakes will be in terms of criminal justice and which you already have, and in this area bringing a social policy. lot of it actually into force, then I do not believe in Professor Sir David Edward: Perhaps it is useful to qualified majority voting at all. I am not committed imagine a situation. You have a proposal in the field to it. of criminal justice which the United Kingdom thinks interferes fundamentally with the criminal justice Q34 Mr Steen: As I understand it—and I do not system in the United Kingdom, so it can then know how up to date my information is—there have operate the emergency brake system. The procedure not been any votes in the Council of Ministers since involves going up to the European Council but the it was established, so that in fact it does not really brake is not absolute. I think it is at that point that matter if there is qualified majority voting. politics would overcome law, so to speak. It would Professor Denza: That is not entirely right. There be important, I think, at that point to negotiate a have been some, but you are right that it is very rare. solution and I would strongly suspect a solution It operates as a threat: a kind of sword of Damocles, would be negotiated. But to say it operates as a total it hangs over the recalcitrant Member. I have brake is clearly not the case. negotiated in the Council, so I know what it feels like. Even when you think the United Kingdom is Q32 Mr Tynan: How would you see it protecting right and everyone else is wrong, you are in a very vital national interests as eVectively as the present exposed and sensitive position and what happens is: system of unanimity? “I am sorry, if you cannot make some sort of Professor Sir David Edward: I think you have to compromise deal, we will push it to a vote.” I decide whether you want to make a trade oV. remember being out in Brussels as legal adviser when Obviously, if one wants to get something done in this there were some qualified majority votes adopted to area and there are constraints—like terrorism and go through the agricultural process and the United money laundering and so on, reasons why you Kingdom invoked the Luxembourg Compromise, would want to get things done and things done and because it was doing so for a collateral reason, eVectively and quickly—if you insist on unanimity which was to do with its budget rebate, the others you might never get there. I think that, in one sense, just pressed ahead, and that created great shock the emergency brake is not as eVective as the waves. Certainly there have been a number, though 9929071001 Page Type [E] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

Ev 20 European Scrutiny Committee: Evidence

17 November 2004 Professor Sir David Edward and Professor Eileen Denza CMG

I do not have statistics with me, but the eVectiveness Professor Sir David Edward: I think it is absolutely of it is the threat rather than actually the Chairman imperative. It is rather diYcult to get people to focus pushing to a vote. There still is a great eVort to get their minds on something that may happen two consensus. years, three years down the line as a hypothesis, but that is what one probably has to do. Q35 Mr Steen: Is there any relevance? I mean, there is an enormous debate about the qualified voting Q39 Mr Tynan: On that basis, could you give an principle, but in reality is it an issue? I understand illustration of a graphic demonstration of the kind of about the sword of Damocles, but if there is qualified issue that would be involved where Scotland might voting there will still be a sword of Damocles. suVer and the way you think it might be possible. Professor Denza: Yes. Professor Sir David Edward: Let us take the 110-day rule. Under Scots criminal law, in principle the period during which a person can be held in Q36 Sandra Osborne: Could I ask you a question detention without going to trial is 110 days. There about Scotland. The emergency brakes apply to are means of overcoming that, but that is the Member States but not to “sub-State entities”—and principle. If a proposal were made which simply I am not sure people in Scotland would like to think ignored that fact, then there could be serious of themselves as a sub-State entity, however. What repercussions. So it would be necessary to ensure protection, if any, is being oVered to Scotland, which that the European Prosecutor’s OYce procedure has its own judicial and criminal justice system but either respected it or that there was some specific is not a Member State? Are there any other sub-State provision enabling it to be overcome. entities in the EU which have legal but not political Chairman: That is an excellent example. jurisdiction and which may be similarly aVected. Professor Sir David Edward: So far as I know, the United Kingdom is unique in having within the V Q40 Mr Cash: I am sure it is a very good example, single State three clearly di erent criminal judicial but might it not also be dealt with by the systems, England and Wales, Scotland and harmonisation of criminal procedures which are Northern Ireland. “Sub-State entities” is now the now going through the treaty and directive system? political science jargon for places like Catalonia, the Indeed, also I think the Nice Treaty made provision Basque Country and so on—that is why I put it in for the European Court to be able to prepare its own quotes. rules of procedure and it would seem to follow from that, that with the overarching jurisdiction of the Q37 Sandra Osborne: It is all right, the Scottish European Court that would filter through in order V National Party are not with us today! to sort out discrepancies between the di ering legal Professor Sir David Edward: The problem is that this systems. I am completely against that, as you might is a unique situation. No other country has a imagine, but I am saying that I think the mechanisms situation where there is a legislature and a for achieving these objectives certainly appear to judiciary totally independent . . . well, not totally be there. independent, but separate from the national Professor Sir David Edward: The mechanisms parliament, and the existing proposal makes no certainly are there by which, if you are legislating, provision for that. Consequently, if you had a you could legislate in such a way as to overcome or proposal which seriously interfered with, for displace the 110-day rule in Scottish procedure. That example, the Scottish system of prosecution—and it is certainly so. But my point is that what is important is very diVerent from the English—if one found that if you are legislating, is that you should be aware that this was simply not going to work in Scotland, then there is a jurisdiction within the European Union there is at the moment no formal mechanism for the which has this as a fundamental human right, that Scottish Parliament to do anything about it. That is you cannot be held in prison for more than a certain why in this context up in Edinburgh there is quite a period without being taken before a judge and tried. lot of eVort being put in to make the Scottish If legislation were put forward which ignored that— Executive and the MSPs aware of the need to act and it is quite possible that it would be—then it early to find out what is going on and make their creates a serious problem for the administration of point of view known. Because I think it will be too justice in Scotland. I gave evidence to a committee in late if a proposal comes forward unless Westminster France which was looking at the prosecution system is prepared to take it up, of course, but it may be too in France, and I explained the 110-day rule, and they late for the Scottish Parliament to intervene. said, “You need not go any further. It would be totally impossible to operate that rule in France.” It seems really surprising to people, but it would not Q38 Mr David: Following on from what you are seem surprising to the Scots if it were abolished. saying, it is incumbent on us here in Westminster to Chairman: Sir David, it would not be surprising to ensure that if there is the early warning mechanism David Hamilton, the Member from Midlothian, if of the treaty enacted then we do have a very close he were here, because I can remember David relationship with the Scottish Parliament and Hamilton being a victim of that same rule during the Executive. miners’ strike. 9929071001 Page Type [O] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

European Scrutiny Committee: Evidence Ev 21

17 November 2004 Professor Sir David Edward and Professor Eileen Denza CMG

Q41 Mr Heathcoat-Amory: Could I turn to the EU European Convention. The diYculty is that it does Charter of Fundamental Rights. When this was not make a clear distinction so as to identify those drawn up, it was of course not legally binding and we elements in the Charter which are to be regarded were assured as such by the Government. It is now, purely as principles and not to confer any rights at though, to be included in the Constitution itself and all. as such it will have primacy over the laws of Member States under Article 5 of the Constitution. However, certain safeguards have apparently been built in, in Q45 Mr Heathcoat-Amory: So “Equality between particular the explanations which purport to explain men and women must be ensured in all areas” is that or limit the application of the charter are not to be a right or a principle? That is Article 11-23. in the Constitution itself but are appended to it. Professor Sir David Edward: If I remember rightly, The courts are to have “due regard” to the that is one that is both. This is in the commentary on explanations—and that phrase appears in the Article 52: “In some cases an article of the Charter preamble to the Charter. What weight do you attach may contain both elements of a right and of a to those words “due regard”? What do they add to principle; eg, Articles 23, 33 and 34.” Article 33 is the fact that explanations exist anyway? Will they family and professional life and 34 is social security mandate the Court to pay particular attention or can and social assistance. they be ignored in certain cases? Professor Sir David Edward: It is the distinction Q46 Mr Heathcoat-Amory: So equality between men between “have due regard to” and “shall be bound and women can be either a right or a principle by” or “shall interpret in terms of the explanations.” depending on the circumstances. That does not seem “Due regard” I think means first of all, you shall to advance the case at all. This whole Constitution is look at the explanations, and you shall look at them supposed to bring clarity and finality and certainty seriously but you are not bound by them if your to who does what and what our rights are. interpretation of the principal text in a given Everything you have said recently rather disappoints situation leads you to a diVerent conclusion. me. We are in a fog here about what our rights are and what our principles are. Q42 Mr Heathcoat-Amory: As a limit on the Professor Sir David Edward: I am not going to expansion of the powers of the Court, you would suggest that this is a simple document. therefore not put very much weight on those words. Mr Heathcoat-Amory: No. Would that be right? Professor Sir David Edward: In French it is “shall Q47 Mr Tynan: Obviously I am not a legal person. take duly into consideration” actually. It is perhaps Article II-52(3) states that the rights in the Charter even slightly weaker than in English. No, I do not which correspond to European Convention rights say that you do not pay attention to it, but let me are to be given the same scope and meaning as the give you an example. Explanations distinguish at the latter. end between rights and principles. They enumerate Professor Sir David Edward: Yes. certain rights and say “These are rights” and then they say “There are also principles, for example . . . ” but they do not say exhaustively which of the Q48 Mr Tynan: On the other hand, the Article adds provisions of the Charter are rights and which are that this requirement “shall not prevent Union law principles. Clearly the court would there pay due providing more extensive protection.” How can a regard to the terms of the explanation in saying, Charter right have both the same meaning and be “Well, this gives certain examples of principles, and more extensive than the same right under the this is like the ones they have identified as EHCR? principles” but— Professor Sir David Edward: It is slightly diYcult for us to understand this because we have no charter of Q43 Mr Heathcoat-Amory: Is it clear to you which rights in a written constitution, but the German are the rights and which are the principles in the constitution contains rights and these in some Charter as drafted? respects go further than the provisions of the Professor Sir David Edward: It is not clear to me European Convention, so it is perfectly possible for which are the principles. Indeed, the explanation a Member State to give greater protection. The point tells us that in one case—and I cannot remember about the European Convention is that that is which—something is both a right and a principle. minimum protection. As I understand it, as I would interpret it, what this means is you are not to go below the level of protection provided by the Q44 Mr Heathcoat-Amory: That is a rather serious European Convention but you may go beyond it. observation you have made because they are to be interpreted in diVerent ways under Article II-52. They are treated quite diVerently in that article and Q49 Mr Tynan: What would be the position if the yet you have just told me that the distinction is Union were to favour, say, Article 8 rights over those largely meaningless. under Article 10? Would this favouring of the Article Professor Sir David Edward: I do not say the 8 rights have to be read down so as to comply distinction is meaningless because if you look at the with European Convention on Human Rights explanation in relation to Article 52, it does jurisprudence or would the ECJ say that this was a enumerate which are the rights that come from the case providing more extensive protection? 9929071001 Page Type [E] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

Ev 22 European Scrutiny Committee: Evidence

17 November 2004 Professor Sir David Edward and Professor Eileen Denza CMG

Professor Sir David Edward: Article 8 is not one regarded as a constitutional court, and I think there which corresponds to a European Convention on will be a greater level of deference and perhaps Human Rights right. Article 8 is new, the protection greater reluctance to challenge on issues of primacy of data—although there is a directive on protection and supremacy in particular. of data. In fact the explanation explains it. Article 10 is based on the European Convention, so you could not go below the European Convention in Article 10 Q52 Mr Heathcoat-Amory: I am aware that a and you could not use 8 to go below it. number of national constitutional courts do not accept the unrestricted primacy of the Court, but the Constitution in Article 5 asserts without any Q50 Chairman: I think, Sir David, Mr Tynan has qualification that the Constitution and the laws asked the question about European Convention on emanating from it shall have primacy over the laws Human Rights. of Member States. Is it not rather diYcult, if we all Professor Sir David Edward: I am sorry. agree to that, to hold a simultaneous doctrine Professor Denza: You really have these conflicts against that, that actually that is not true and that in within the European Convention. One of the extremis a national court should prevail? Surely this analyses of the Charter recently published goes unresolved tension, a kind of standoV of have the under the title “The European Constitution: Convention, will be decided on the terms of the Bringing Europe Close to its Lawyers.” Union if this Constitution is enacted voluntarily by Mr Cash: I saw an interesting article referred to in the Civil Contingencies Bill which I have just been the Member States. debating downstairs, and it says that in the latest Professor Denza: The very last words you said I issue of Public Law Keith Ewing has an essay think were very important. If there has been a entitled “The Futility of the Human Rights Act nationally endorsed acceptance of this primacy— 1998” which goes pretty close to the question of the endorsed by all the national parliaments through European Convention. I am worried about the their national constitutions and in a great many impact on habeas corpus, for example. cases by referendums—then I think this political Y Chairman: That is a problem for Mr Heathcoat- balance does tip to the centre. I think it is di cult Amory to ask his next question. perhaps to say it categorically changes it. It does not purport to change it, but I think under the surface there is a sea shift, if you like, in the centre of gravity. Q51 Mr Heathcoat-Amory: Could we develop ideas about the jurisdiction of the European Court of Justice, which some people are already referring Q53 Mr Heathcoat-Amory: You would not agree to as “the real Supreme Court” under this with the Government that all we are doing here is Constitution. Under Article 274 of part 3 of the simply restating case law in the European Court of Constitution the Court has powers to rule on the Justice. You think we are going beyond that now interpretation of the Constitution and therefore and doing something much more important which the allocation of competences. Some of us find the will give a greater status to the European Court’s allocation of competences very vague, using words primacy. like “shared competences” and it is not clear what Professor Denza: Yes. The other limb of why I have the powers of the Union will be over things like reservations about what the Government say is that employment law and economic co-ordination or they imply that the primacy has been accepted law foreign and defence policy. Professor Denza, you before the UK joined. Although that is true for the have given evidence elsewhere about this. Do you First Pillar, it was certainly not true for the have any observations about how the powers of the intergovernmental aspects, which have never been Court shift under the proposed Constitution and in part of UK law. They are not a part of the European particular in these areas like foreign policy that do Communities Act. So, as soon as there is a Bill, these not immediately fit into the shared or exclusive parts will not be separated and, simply a matter of competences laid down in the Constitution. In an international law, this will bring it to the fore. area of, of course, the Court, with its supreme powers, will finally decide without any appeal. Am I Equally, it is very likely that there will have to be correct on that? litigation before the German Constitutional Court. Professor Denza: It might not be entirely without The Court made a number of qualifications in the challenge on the question of who has the ultimate Brunner case, which was about the Maastricht fiat on questions of the division of powers. At the Treaty, saying that it was very important that moment you really have a situation where the Court foreign policy remained intergovernmental and it takes the view that they are the ultimate arbiter and was not brought within this international a number of constitutional courts have stated that community procedure, and I think they will be their mandate comes from their own constitutions, asked, and possibly a number of other courts, as to and, as long as the nation states remain independent whether that remains true when the strong version of sovereign states—and I am a little bit concerned that primacy—which is usually shorthanded by the case some changes might call that into question—I do not name of Koster v Ennal—goes right across the Third think that position will be changed by anything on Pillar, which is beyond argument, on the text of the the face of the Constitution. That said, I agree that Constitution, but also to the Second Pillar, where the Court will inevitably tend not only to regard you still have left a lot of argument, because the itself as a constitutional court but to be generally situation is left unclear by the Constitution. You 9929071001 Page Type [O] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

European Scrutiny Committee: Evidence Ev 23

17 November 2004 Professor Sir David Edward and Professor Eileen Denza CMG have the Government saying that it will remain Prime Minister some months ago, pointing out that intergovernmental but it is extremely diYcult to the Lords’ committee said that this question of deduce that from the actual wording of the text. division of competences was a completely new feature, it was a fundamental change, contrary to what he was saying, and that it was not just a Q54 Mr Heathcoat-Amory: So we have that awful drafting exercise because there was a revocation and combination of uncertainty plus an assumed a re-application of all the treaties, laws and rulings of primacy of the European Court of Justice—the the Court of Justice, and a re-application of all those worst of all worlds. under review primacy, which is contained in Article Professor Denza: That is my fear. 1-5(a) I think it is. The question I put to you is the Professor Sir David Edward: I do not wholly agree one which I put to Jack Straw in the House of with what Professor Denza has said. For me, the Commons on 9 September, when I asked him if he word “primacy” means nothing unless it is read in agreed that the eVect of Article 1-5(a), which states the context of the European Court’s case law. I have that the Constitution shall have primacy over the argued with people who were at the Convention: Constitutions and laws of the Member States, had “Why did you not say that, where there is a conflict the eVect of imposing the Constitution over our own between a rule of Union law and a rule of national constitution and, indeed, our Parliament, to which law, the law of the Union shall be applied to the he replied, “Yes, of course it does.” extent necessary and the rule of national law shall Chairman: He gave you the answer there, Sir David! not be applied?” I have been told it sounded much nicer to say “primacy”. But that is what I understand Q55 Mr Cash: It is a preamble with a lot of meat in it to mean: it simply means that you cannot have two it, I may say so. incompatible rules applied at the same time. There Professor Sir David Edward: The other way of are two points. First of all, the Court of Justice has looking at it is: “The law adopted by the institutions already had an enormous amount of experience of of the Union, in exercising the competences saying what are the competences of the Union. conferred on it, shall have primacy . . .” The first There have been many cases on competences, point about this document is that for the first time it common commercial policy and so on. So it is not a clearly goes into the question of conferred new function for the Court of Justice to be competences—which is new. Part of the criticism of determining that, and, indeed, it is a characteristic of the Court of Justice in the early days was that it was that kind of court that it has to do that. Where the inferred competences, particularly in the line of the document says you shall have power to do this, that common commercial policy, so this is an attempt to or the other and not to do something else, then delineate competences. somebody has to decide whether in the specific case you have the power or not, and that is given to the Court. It is not my personal experience that the Q56 Mr Cash: They are pretty extensive Court has tended to enlarge the competences of the competences, are they not? Union. On the contrary, while I was there I would Professor Sir David Edward: Certainly. That is a have said that the Court was rather cautious about matter for Member State choice. that. But, apart from that, as far as the German Mr Heathcoat-Amory: But they are not clear either. Constitutional Court is concerned, the decision of That is the point we have been making earlier: they the German Constitutional Court in relation to the are not clear. They are shared or they are— Maastricht Treaty was specifically in the context of Chairman: I am sure we are not going to have any the Maastricht Treaty. If Germany ratifies this barracking of our witnesses. Constitution and therefore adopts it, the Mr Cash: Certainly not. Constitutional Court’s position will, I think, be that that has become part of the constitutional law of Q57 Chairman: Carry on, Sir David. Germany. Of course the Constitutional Court has Professor Sir David Edward: And then you said: said, “We reserve the right to say, that is not what we “shall have primacy over the constitutional law of signed up to,” but I am not sure that is a tenable the Member States.” The last text does not include position, because if every Member State ultimately the word “Constitution” of the Member States; it reserved the right to say, “We did not sign up to simply says “shall have primacy over the . . . law of that,” then the reciprocity of the Treaty disappears, the Member States.” and the whole notion of primacy of course is based on the idea of reciprocity. Q58 Mr Cash: That is the point I put to Jack Straw Mr Cash: It seems to me—and I have argued this for and he said it still had the same eVect. some time—that eVectively what is going on is the Professor Sir David Edward: If I may say so, it must subsuming by the use of the internal parliamentary do so, because the reciprocity of treaties cannot processes in each of the Member States, of a higher depend on whether Member State A says, “I can’t order which then becomes the ultimate jurisdiction. fulfil that obligation because it is in my constitution” The Komptenz-Kompetenz issue, that you and and Member State B has no written constitution and Professor Denza have just described in relation to says, “Well, I can do it”, or Member State C has a the Brunner case, has that eVect. Indeed, you have written constitution which does not include that probably read—in fact I think I can see it on your provision. Reciprocity of Member State obligations desk—some part of the Lords’ scrutiny committee cannot allow for a situation—and this is a basic assessment of the issue of primacy, which I put to the principle of international law—where a Member 9929071001 Page Type [E] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

Ev 24 European Scrutiny Committee: Evidence

17 November 2004 Professor Sir David Edward and Professor Eileen Denza CMG

State signs up to an obligation and then says, “Yes, and it is operating almost exclusively in chambers: but actually I had my ﬁngers crossed behind my back even in the biggest cases, very, very rarely will all of because my constitution says I cannot do that.” the judges sit together—will tend to abstain from Mr Cash: That is unthinkable. insisting on a single method of implementation.

Q59 Mr David: You will be pleased to know I am not Q62 Mr Cash: Is that not really quite an a lawyer but it seems to me that there is a basic extraordinary proposition, though? Because the diVerence between the way the European Court of whole point of the Court is to make a decision at the Human Rights has traditionally functioned, dealing end of the procedure through the jurisdiction at with human rights issues by definition, whereas the which there will be one law applying in relation to all ECJ has been primarily concerned about economic those who are under its jurisdiction. It is a pretty issues. It seems to me that a fundamental diVerence extraordinary idea that there could be some picking is now taking shape and the European Court of and choosing as to the manner and extent to which Justice will, for the first time, be dealing with human in diVering States there would be a diVerent kind of rights issues and Member States have a wide variety, law. I may not like that, but it makes more as we have noted earlier, of policies and principles uncertainty and not less. underlining their social issues. I am told that the Professor Sir David Edward: We had plenty of cases. European Court of Human Rights, when dealing Let me take gambling. Restrictions on the operation with this contradiction, has developed the doctrine of gambling is a restriction in certain cases on the of the “margin of appreciation”. Do you see a freedom of Ladbrokes, for example, to provide similar sort of thing happening in the European services in other Member States because certain Court of Justice, because for the first time it will be Member States say you cannot have any lottery dealing with those kinds of issues? other than the State lottery. What the Court has Professor Sir David Edward: First of all, this will not said, within limits, is, “Yes, it is up to Member States be the first time, if you look at some of the cases on to decide what they are going to do about asylum, the rights of third country nationals, the gambling.” expulsion of members of families and so on. Even when I was there, the court was dealing with those Q63 Mr Cash: Would this apply to euthanasia, or, kinds of issues—and that goes back some time, so it more particularly, the abortion question? is not totally new. But I am fairly sure that “margin Professor Sir David Edward: That is the existing of appreciation” was an expression used by the situation. There was the case about abortion. In Luxembourg Court before it was used by the Ireland, the issue was could you prevent people Strasbourg Court. acquiring the information that abortion was Chairman: The Committee stands suspended and we available in Britain although it was not available in will reconvene as soon as we have a quorum back in Ireland. the room. The Committee was suspended from 3.31 pm to Q64 Mr Cash: That is because of their constitution 3.38 pm for a division in the House though as well. Professor Sir David Edward: Yes. But there have Q60 Mr David: I was asking about this so-called been plenty of cases in which the Court has said, doctrine of “margin of appreciation” and you made “No, you are at liberty to maintain a particular type the point that it started life, as it were, in the of public administration or rule which other European Court of Justice. Member States do not have.” Professor Sir David Edward: Yes, in British law, we have tended to use the word “discretion”: “Is this Q65 Mr Cash: Can we keep our Parliament? within the discretion of the local authority or is it Professor Sir David Edward: I do not understand mandatory on the local authority?” That is, in a way, what the point of that question is. what it means: “Do you have an opportunity to do Chairman: Sir David, we have been trying to something this way or that way or must you do it in understand it for a few years. a particular way?” That is what the expression Mr David: It was a rhetorical question. “margin of appreciation” means. But it has acquired a new resonance in the context of the Strasbourg Q66 Mr Heathcoat-Amory: The more we have gone jurisprudence, because Strasbourg tended for a on, the less clear I am about the primacy provision or period to say, “You must do things this way,” and the meaning of the Charter, the distinction between then recoiled a bit from that and said, “No, within rights and principles, or the extent of the Court’s certain areas you are free to do things your way.” jurisdiction. Could I turn to foreign policy, hoping That is what “margin of appreciation” means in that we do have some clarity here because this goes Strasbourg speak, rather than “discretion”. to the very heart of what the Member States’ powers are there to do. Professor Denza, you have given Q61 Mr David: What do you imagine would be the evidence about this and I know you have a certain method of operation with the European Court of number of concerns here. Could I ask you in Justice? particular about whether the obligations in Article Professor Sir David Edward: My hunch—and it can 15-2 to abide by the foreign common policy, in a only be a hunch—is that the European Court of spirit of loyalty and mutual solidarity and so on, Justice—because there are now 25 Member States might come under the jurisdiction of the Court—in 9929071001 Page Type [O] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

European Scrutiny Committee: Evidence Ev 25

17 November 2004 Professor Sir David Edward and Professor Eileen Denza CMG other words, might be enforceable—in addition to longer be possible to sue in its own national court. the overall assertion in Article 5(a) that this shall You cannot sue the Union either before the have primacy over the laws of Member States. European Court of Justice, so you have taken this Professor Denza: Broadly the solution for the Court whole, very important, physically damaging area with the Common Foreign Security Policy is to completely outside any form of compulsory exclude it almost totally, even though there are some jurisdiction. In the meantime, for the aspirants to the uncertainties. There is a little bit of confusion about European Union and the rest of the world, we are the question of agreements drawn up under what are singing the praises of the settlement of disputes. This now Union powers. The Court, if you like, has a is extremely important and I think there is a remit to guard the boundary. This is part of the dichotomy there which I am unhappy with. institutional aspect of intergovernmentalism which has been preserved, and it is, I think, part of the United Kingdom Government’s position that the Q68 Mr Heathcoat-Amory: It seems to be extremely Court will never be able to correct them on such dangerous. We are going to be conducting a partial questions as primacy or the enforcement of the duty autonomous national foreign policy and partly of loyal co-operation. Personally, I think this is through the Common Foreign Security Policy, and entirely wrong on both counts. I would tend to have the legal position and the enforcement powers and had a system of competences which separated out the legal liabilities are, as you described, highly Common Foreign Security Policy, put it on a clearer uncertain. basis—at the moment it is completely undefined— Professor Denza: Yes. but then left that to the European Court who are extremely suited to distinguishing clearly between Q69 Mr Heathcoat-Amory: This seems to be driving questions of interpretation of international a dagger right through this Constitution, which is agreements and questions of interpretation of the supposed to bring clarity to the issue. Are you not European Community Treaties. worried as a lawyer? Professor Denza: That is what I feel, coming at it as Q67 Mr Heathcoat-Amory: Is it not very dangerous an international lawyer, because of how you define to have uncertainties in this area? The Constitution, sovereign state. This is almost lesson one in above all, is supposed to give clarity. We heard from international law: the definition of a foreign state. Sir David earlier that at least it does divide up the One of the key four elements—the others being competences clearly. You are telling me that it does obvious: population, territory and internal not bring clarity to this area. maintenance of order—is independence in the Professor Denza: I think they are important. We can conduct of foreign policy. That is what you see when certainly both agree that there are important areas the Soviet Union disintegrates, all the network of where, if anything, it adds to uncertainty and it new treaties, new embassies, new foreign relations. seems to me that certainly applies to the Common Conversely, when you have an integration, as you Foreign and Security Policy. At the moment, the did, say, with East/West Germany and the two Second Pillar—I think it is a pity it keeps it out of the Yemens, then they fuse and have one foreign policy. Court but at least its nature is public international To leave this even partially uncertain in the law, which is binding international law—is not Constitution essentially given the remit of bringing subject to the strongest form of primacy and clarity, I regard as a very important reason for being particularly does not involve the possible loss of unhappy. national competence. That is safeguarded at the moment by the Second Pillar structure. You have Q70 Mr Heathcoat-Amory: Would you therefore say integrated the whole thing, leaving Foreign and that we will no longer have an intergovernmental Security Policy embedded within the list of system of deciding common foreign policy? That competence which may not be entirely defined to seems to be a summary of the position—contrary, of everyone’s satisfaction, but the people who dealt course to the assurances we have been given. with exclusive competence, shared competence and Professor Denza: I would not go quite so far as that. supporting competence broadly know that. In the I would say the situation is uncertain and confusing. middle, without any demarcation, you have the Instead of being resolved and clarified by the Court, Common Foreign and Security Policy. Does this, it will be a matter of academic comment. For a long taken as a whole, mean that there are all the time I used to say that our guarantee of continued competences and you would have to guess where the intergovernmentalism was that Peter Hain said that Common Foreign Security Policy lies? Or have you that would be the position. I did not think that was simply left it out on a limb and your only defence is wholly legally . . . to say the European Court cannot get at it? Linked to the absence of jurisdiction of the European Court, there is a big external problem with giving the Union Q71 Chairman: Professor Denza, in your legal personality. One of the consequences is that on memorandum you talk about the underlying foreign policy matters if action was taken by the problem of conflict of loyalties for the new Minister Union—and of course actual action in Macedonia, of Foreign AVairs with his dual role as a Bosnia, the Congo is actually beginning to be representative of the Council and a member of the taken—a Member State may be able to shelter, if Commission. Could you explain and give examples you like, behind the corporate veil and it may no of the possible practical eVects of such a conflict? 9929071001 Page Type [E] 31-03-05 03:20:58 Pag Table: COENEW PPSysB Unit: PAG1

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17 November 2004 Professor Sir David Edward and Professor Eileen Denza CMG

Professor Denza: Most obviously the conflict would Professor Denza: Perhaps that is a little outside my come to a head when you had a case, usually on a remit. matter of external relations, before the European Court and the Council and the Commission were Q74 Mr Steen: You keep saying it is dangerous. litigating. Take the World Trade Organisation’s What is the danger? agreement which is in enormous negotiation: the Professor Denza: The danger is ultimately having a Commission were arguing that they had exclusive structure which is rather unrecognisable in terms of competence to sign it on their own and that Member the wider international community. For a long time States could no longer sign it with them, and they Europe has said that its legal order sui generis. I have were pushed aside. That had to be resolved. You always seen it as a particularly well-developed and have provisions in the new Constitution that say that highly integrated form of international law with the loyalty of the Foreign Minister is somehow special characteristics, but I think it has always been accepted because he takes instructions from the nearer and nearer this dividing line—and of course Council. It seems to me that will undermine his you have tensions both ways: you certainly have, as position, not only legally but politically, in the Mr Cash says, a push to integration but you also College of Commissioners. The British Government have certain aspects clarified, such as the conferral of ultimately were after a system whereby he would be power as well. That, in a sense, was always there but accountable, as Javier Solana now is, to the Council it is politically helpful to have it spelt out. If you were but, he would, in a sense sit in the Commission, listen teaching this subject, as I do, to post-graduate and there would be better integration. I am certainly students of foreign relations and you were to take in favour of integration, and you might have a them through the definition of sovereign state, it has greater degree of integration of functions of the been for a number of years a little bit diYcult to Council and the Commission. At the moment you explain away things like exclusive competence and have no integration of functions; you simply have the common commercial policy—one said that was a the unfortunate Foreign Minister with a foot in both rather small aspect of foreign relations, generally— camps. I think it is a problem of a separation of but, I think, taking this structure and saying that we powers, as well as perhaps a presentational problem, retain complete independence, there is no possibility because international organisations generally do not of it somehow being held that Common Foreign and have foreign ministers; States have foreign ministers. Security Policy is in fact a shared competence, so That is a political problem. that, when the Union acts, Member States lose the Q72 Mr Cash: Would you tend to agree—and I am power of further action. It seems to me that that not trying to be provocative, not as regards you but structure has become not only sui generis but as regards the problem—that really what is going on basically very unsatisfactory. is that there has been a desire to move to political Professor Sir David Edward: I do not want to union, and through Maastricht, Amsterdam and prolong this discussion, because I am not an expert Nice there have been shifts but recognition, as the on it, but I do not feel the same dangers as Professor arguments have become more diYcult within each Denza. Of course there will be some uncertainties in Member State or some of the Member States, that this field. Just to take an example, this is a foreign somehow they have to come up with a solution to the and security policy: part of the shared competence is problem, hence you are actively and unreservedly an area of freedom, security and justice—and supporting the Union’s Common Foreign and internal security is also external security. It is not, in Security Policy and the spirit of law and mutual my opinion, possible in a document of this sort to solidarity on the one hand, but actually not become so exhaustively definitional that you can matching it with the strictly legal and institutional define every possibility. If one believes that there is a arrangements that go with it. So you have a balance necessity to move towards a more co-ordinated between the political aspirations on the one hand, system of foreign policy than there has been in the which they presume to prevail at the end of the day, past, and one wants—and this is an assumption—to and the legal position being uncertain and get away from the three pillar structure of confusing. Do you not think this is highly Maastricht, then it seems to me that this is not a bad dangerous, particularly as when one considers the way of doing it. But, certainly, to an international contraction of global matters these days and the lawyer it presents diYculties. diYculties that can come from that? Chairman: Sir David, Professor Denza, thank you Professor Denza: Yes, I agree, I think there is a very much. It presents the same diYculties to the dichotomy between the position in law and the politicians of course. Could I, first of all, apologise question of enforcement. for the inconvenience of the two interruptions, but they were outside our control, and thank you both Q73 Mr Cash: Do you think the nation state would immensely for giving evidence. I am sure your be well advised to clarify this matter by saying no to evidence will be of immense value to us when we are this constitution? preparing our report. Thank you very much. 994506PAG1 Page Type [SO] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

European Scrutiny Committee: Evidence Ev 27

Wednesday 8 December 2004

Members present:

Mr Jimmy Hood, in the Chair

Mr Richard Bacon Nick Harvey Mr William Cash Mr David Heathcoat-Amory Mr Michael Connarty Sandra Osborne Mr Wayne David Angus Robertson Jim Dobbin Mr Bill Tynan

Written evidence submitted by Gra´inne de Bu´rca, Professor of European Union law at the European University Institute, Florence

1. The Practical Consequences of the New References (in Articles 2 and 3) to the Union’s Values and Objectives The existing EC treaty (TEC) does not list the “values” of the Community, but Article 6 of the Treaty on European Union (TEU) declares that the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. In terms of objectives, Articles 2 and 3 TEU list the task and objectives of the EU and Articles 2–4 of the EC treaty list the tasks and activities (but not the objectives) of the EC. Under the constitutional treaty, Article I-2 lists the Union’s values, and Article I-3 lists its objectives. The new values (which are added to those currently mentioned as (principles in Article 6 TEU) include respect for human dignity, equality, and the rights of persons belonging to minorities. Reference is also made in a more general way to “a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” The newly added objectives include the promotion of “peace, its values and the well-being of its peoples”, also “a highly competitive social market economy, aiming at full employment and social progress”, “scientific and technological advance”, “social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child”, and “territorial cohesion”. The need to “respect its rich cultural and linguistic diversity” and to “ensure that Europe’s cultural heritage is safeguarded” are also mentioned. In international relations, the new objectives include contributing to “the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty”, protection of “the rights of the child”, and to contribute to the “strict observance and the development of international law, including respect for the principles of the United Nations Charter” (re the latter, Article 11 of the TEU had previously stipulated only that the EU would act in accordance with the principles of the UN Charter, whereas the new objective is phrased in more mandatory and stronger terms). In terms of the practical consequences of the expanded list of the Union’s values in Article I-2, and of its objectives in Article I-3 , two possibilities come to mind. The first concerns the role of the Union legislature, and the second the role of the Court of Justice. As far as lawmaking is concerned, the values and objectives could, without conferring new powers, influence the kind of policies which the institutions choose to promote. The new provisions could give impetus to the Commission (or Member States, where they are empowered under the constitution to make proposals) to propose legislation which is diVerent in nature and orientation from the kind of measures it might otherwise have felt legitimately able to propose. To give an example, protection of the rights of the child is quite a novel aspect of the new values and objectives, since there is no mention of children anywhere in the current EC or EU treaties; meaning that existing legal powers (which will be contained in part III of the constitutional treaty, if enacted) in fields such as citizenship, consumer protection, education etc, could more legitimately be aimed strongly at the protection of children in the future. More significantly, perhaps, the combination of the new values and objectives might have the eVect of conferring a new kind of power on the EU. This is because of the eVect of Article I-18 of the constitutional treaty (which is a slightly amended version of the current Article 308 EC). Article I-18 states that if action by the EU should prove necessary, within the framework of its policies in part III of the constitution, and the necessary powers have not been provided, the Council acting unanimously on a proposal from the Commission and after consulting the Parliament shall adopt appropriate measures. This provision— sometimes called the “implied powers” or “residual powers” clause, but now called the flexibility clause under the new constitution—means that if the EU has an objective but has not been given the necessary powers, the Council can confer the necessary powers to act on the EU. The only limit is that the action should be envisaged within the framework of the policies in part III, which includes all of the EU’s policies. The way in which Articles 2 and 3 of the new constitution together with Article 18 might have the eVect of 9945062001 Page Type [E] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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creating potentially new or expanded powers is that “promoting the values of the Union” will become an objective of the Union according to Article 3. Since amongst the values listed in Article 2 is the promotion of respect for human rights, this suggests that the Union’s competence to adopt legislation under its residual powers/ﬂexibility clause to promote and protect human rights may be clearer and less contestable under the new constitution than at present. At present, the protection of human rights is not an express objective of the EC or EU, and so it is rather unclear whether Article 308 EC could be used for this purpose (eg as an implicit/unstated objective). By the same token, Article 18 of the constitution taken together with Article 3 suggests that the EU under the new constitution could be empowered to adopt legislation to promote solidarity between generations, to promote social justice etc (which, once again, are not currently express objectives of the EC/EU), provided that unanimous political will exists.

As far as the Court of Justice is concerned, the listing of values and objectives may inﬂuence the Court in its interpretation of other parts of the constitutional treaty, or of legislation and other secondary measures. When there is a contested interpretation of an EU law, the ECJ has occasionally drawn on the preamble to the treaty for support; but the express listing of values is likely to provide a stronger source of interpretative guidance/inspiration of this kind. While it could not easily be claimed that the ECJ would in the future be required to change or adapt a particular interpretation in a given case, given the ﬂuid and multifaceted nature of judicial interpretation, the Court would certainly be given an incentive or opportunity, where it is inclined to do so, to read and interpret legislative and other measures in the light of the new values, and indeed of the new objectives.

6. The Effectiveness of the Emergency Brakes in Criminal Justice and Other Matters

The new emergency brake provisions introduce a “Luxembourg veto” kind of element into the area of criminal procedure, the definition of criminal oVences, and social security for migrant workers, since they allow a Member State to plead “fundamental aspects of its criminal justice system” or “fundamental aspects of its social security system” in order to suspend the ordinary (co-decision) legislative procedure outline in Article III-396 of the constitution. However, the emergency brake provisions are not in themselves a full power of veto, since they do not necessarily enable a Member State to block the proposed legislation in a definitive way. However, in the criminal justice field they enable a state which is adamantly opposed to a particular proposal ultimately to avoid the application of such legislation in its territory, by pushing the other states towards use of the “enhanced co-operation” provisions. The emergency brake provisions enable a State to have the legislative procedure suspended, and to have the draft legislation referred to the European Council. A time limit is imposed on the European Council’s consideration of the draft, so that if it has not acted after four months, it must either refer the proposed legislation back to the Council (which has the eVect of ending the suspension of the ordinary legislative procedure and allowing the co-decision procedure to continue) or it must request the Commission or the group of Member States which proposed the legislation to submit a new draft. In either of these two cases, therefore, the normal legislative procedure will continue and the Member State which expressed its concerns will be bound by any measure which is eventually adopted, assuming that suYcient agreement can be reached on the new draft.

Provision is also made for the situation where the European Council fails to pursue either of these two routes after four months has passed, or where no agreement is reached after 12 months following the new submitted draft. In either of these situations, where the legislation concerns criminal justice, a de-facto-veto- through-deadlock is prevented by allowing the Member States—where at least one third of the states wishes to do so—to move ahead by the use of enhanced co-operation. Authorisation for enhanced co-operation— which would otherwise have to be obtained under Article III-419 by a qualified majority of the Council on a proposal from the Commission with the assent of the European Parliament—is deemed to have been given. In the social security field under Article III-136, there is no provision which would encourage or facilitate the use of enhanced co-operation—perhaps this omission was because this is seen as a policy field which might not satisfy the substantive conditions for enhanced co-operation under Article III-416, including the requirement that neither the internal market nor social, economic and territorial cohesion should be undermined by its operation—but it would be open to the relevant group of Member States to seek to initiate the enhanced co-operation procedure under the normal mechanism provided for in Article III-419 and see whether authorisation would be granted. Otherwise, presumably if after 12 months no agreement has been reached on the newly submitted social security draft legislation, the ordinary legislative procedure would continue, and the objecting member state would either be outvoted if part of a suYciently small minority, or might succeed in blocking the legislation if part of a suYciently large minority.

A number of commentators have suggested that the emergency brake procedure is unlikely to be used often, because of its complexity. This is probably true, although the very existence of the possibility of the procedure may well have something of the eVect that the “shadow of the Luxembourg veto” had for years, ie inducing caution and compromise into the operation of the “ordinary legislative procedure” in these ﬁelds, so as to avoid the risk of any Member State pulling the brake. 9945062001 Page Type [O] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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7. The Effect of the “Horizontal”Clauses which Govern the Application of the Charter of Fundamental Rights Article II-111(1) [formerly Article 51(1) of the Charter] indicates that the Charter is addressed to the institutions and bodies of the EU, and to the Member States only when they are implementing Union law. Given that the “explanatory notes” to the Charter which were prepared by the legal service to the Convention have been given constitutional status both in Article II-112(7) and in Declaration no 12, the meaning of the phrase “implementing Union law’ will in all probability be wider than its literal wording suggests, and more in line with the existing case law of the Court of Justice on the circumstances in which member States are bound to observe fundamental human rights under EU law. In other words, the Charter applies to member States when they are acting “within the scope of EU law”, including when they are derogating from EU law (and recent cases such as Carpenter and Akrich involving UK immigration law suggest that this is not narrowly construed by the ECJ) and is not limited only to when they are actually implementing an EU measure. The explanatory notes also indicate something which is not made explicit in the language of the Charter but which is an established part of EC law and jurisprudence, ie that in its application to the Member States, the Charter provisions also apply to local and regional authorities within states. Mention of the principle of subsidiarity is also made in Article II-111(1), although its meaning is not easy to discern, other than as an invocation of the spirit of that principle (ie that the EU should be careful not to take action to pursue goals which can be better achieved by the member States acting alone) in any case where the Charter is considered to impose positive obligations on the EU to act using its competences under the constitutional treaty. [note that many provisions of the ECHR—some of which correspond to provisions of the EU Charter—have been held by the ECtHR to confer positive obligations on States to take action, and according to Article II-112(3) provisions of the Charter which correspond to provisions of the ECHR are to have “the same” meaning and scope] Article II-111 goes on to specify that the EU and the Member States shall “respect the rights, observe the principles and promote the application thereof in accordance with their respective powers”. This obligation to “promote” the application of the rights and principles in the Charter forms a kind of counter-balance to the more negative phrasing of paragraph 2, and arguably establishes a tension between this positive obligation to promote the Charter provisions and the strong statement that the Charter confers no new powers on the EU and does not modify the powers and tasks set out in the rest of the constitutional text. How that tension will be resolved in the practice of the institutions (including the ECJ) remains to be seen and can only be the subject of speculation for now. Article II-112(1), which draws on the jurisprudence both of the ECHR and of the ECJ, contains a general “derogation” clause, indicating the nature of the restrictions on Charter rights which will be acceptable. Any limitation on the exercise of rights and freedoms contained in the Charter must be “provided for by law” (echoing the familiar “prescibed by law” requirement of the ECHR) and must respect the essence of those rights and freedoms. Limitations must meet the requirements of proportionality and must be “necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others”. Article II-112(2) then addresses the question of overlap between existing provisions of EC law and the new provisions of the Charter, providing that rights recognised by the Charter which are “based on” the EC or EU Treaties “shall be exercised under the conditions and within the limits defined by those Treaties”. This seems intended to avoid any potential diVerences in the interpretation of similarly worded provisions of the Charter and of the EC/EU treaties, although the phrase “based on” is perhaps somewhat ambiguous. The explanatory notes however take a fairly clear view on this, saying that rights recognised in the Charter which were “already expressly guaranteed” in the EC and are now found in other Parts of the Constitution (the obvious example of citizenship rights is given) remain subject to the conditions and limits applying to the EU law on which they are based. The tricky relationship between the ECHR, other international human rights instruments, national constitutional provisions and the new Charter is addressed in Articles II-112(3) and II-113. Article 112(3) relates specifically to the ECHR and is evidently intended to promote harmony between the “corresponding” rights of the European Convention and those of the Charter (and the explanatory notes set out a list of the rights in the two texts which can be said to be corresponding; as well as indicating when there are diVerences in the scope of the respective limiting clauses in each of the two), while at the same time not preventing the EU from developing more extensive protection than is provided for under the Convention. This provision does not address more specifically the question of the relationship between the two European Courts, the ECtHR in Strasbourg and the ECJ in Luxembourg, although it seems likely to be intended to promote a degree of deference on the part of the ECJ to the ECtHR in relation to the interpretation of the meaning of the various rights and of the limitations on those rights. The explanatory notes declare that the EU legislator “in laying down limitations to those rights, must comply with the same standards as are fixed by the detailed limitation arrangements laid down in the ECHR” but “without thereby adversely aVecting the autonomy of Community and that of the Court of Justice”, but it also indicates that the meaning of the rights are determined in part by the ECtHR (and obviously in part by the ECJ). [I have already commented, in the previous written material submitted to the European Scrutiny Committee, on paragraphs 4 and 5 of Article II-112, previous Article 52(4) and (5) of the Charter] 9945062001 Page Type [E] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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Article II-113 of the Constitution is a more general “non-regression” clause—that the Charter cannot be used as a reason or excuse for lowering standards which are required under national or international law— which is similar in ways to that in Article 53 of the ECHR, but Art II-113 refers not only to the ECHR but also to national constitutions and international agreements. The general wording of this provision seems to preserve the existing tension between the autonomy of the EU/EC legal order on the one hand, and the claims of Member States to the authority of their fundamental constitutional provisions on the other, without pointing in the direction of the supremacy/primacy of either over the other within their respective spheres of authority. Finally, Article II-114 (formerly Art 54 of the Charter) contains a clause modelled on Article 17 of the ECHR, which provides that no provision of the Charter shall imply the right to engage in any activity aimed at the destruction or excessive limitation of any of the rights contained therein. In the ECHR context the parallel provision has been used a number of time in cases involving so-called “hate speech”, so that those seeking to use the right to freedom of expression in order to undermine the dignity or equal worth of others were not entitled to invoke the right for that purpose.

Memorandum from Professor Piet Eeckhout, Director, Centre of European Law, King’s College London; associate member, Matrix Chambers

Opening Statement The comments below are based on my general expertise as an academic working in the ﬁeld of EU law, and on my experience working in the European Court of Justice with Advocate General Jacobs (1994–98). I have not been personally involved in the drafting of the Constitutional Treaty, but have closely followed the drafting process. The Centre of European Law at King’s College puts the current EU constitutionalisation process at the heart of its activities, inter alia by organising various serious of academic lectures. This memorandum oVers some concise comments on the questions subject to the inquiry. I am extremely grateful for the research assistance by Ms Christina Eckes, PhD student at the Centre of European Law.

1. The Practical Consequences of the New References (in Articles 2 and 3) to the Union’s Values and Objectives 1. The references in Articles I-2 and I-3 to, respectively, the values and objectives of the Union correspond to existing provisions in the EC Treaty (Articles 2 and 3) and in the EU Treaty (Articles 2 and 6). The values in Article I-2 appear particularly significant for future accessions, since Article I-1(2) requires that applicant States respect those values. They are equally binding on current Member States, and can be enforced through the suspensions-of-rights procedure in Article I-59 (which corresponds to Article 7 EU Treaty). The wording of Article I-2 diVers somewhat from Article 6 EU Treaty in the sense that certain values are new, at least in terms of express identification. None of the additions appear disputed, and it is therefore doubtful whether the new provision diVers much from the current law. 2. The Union’s objectives listed in Article I-3 also largely correspond to existing provisions on the EU’s objectives, which can be found in the Treaty provisions identified above, but also in others. Article I-3 makes an attempt to reformulate the essential objectives of the current and future EU. It may also be noted that it is not the only provision doing so. In the area of external action, for example, the EU’s objectives are set out in more detail in Article III-292(2). 3. The practical consequences of these new references can be predicted only within the parameters of current EU law and politics. The Court of Justice has occasionally referred to the values and objectives of the EU, but I cannot recall many cases where such references were vital to the Court’s reasoning. One could mention the very early judgments on the core constitutional principles of direct eVect (Van Gend en Loos)1 and primacy (Costa v Enel),2 as well as judgments on remedies before the Court (Les Verts3 and Chernobyl).4 In other, more frequent, cases the Court may use in particular the objectives of the EU as a tool of interpretation. This is in accordance with standard methods of international treaty interpretation, which require interpretation in the light of a treaty’s object and purpose. 4. Within the scope of this memorandum it is not possible to discuss the potential relevance of each and every objective of the EU as listed in Article I-3, or indeed in any other provisions. Let me perhaps give one specific example. Article I-3(4) provides that the Union “shall contribute to . . . the strict observance and the development of international law, including respect for the principles of the United Nations Charter”. This provision may become relevant in the debate about the legal eVects, in EU law, of international law

1 Case 26/62 [1963] ECR 1. 2 Case 6/64 [1964] ECR 585. 3 Case 294/83 Parti Ecologiste “Les Verts” v EP [1986] ECR 1339. 4 Case C-70/88 EP v Council [1990] ECR I-2041. 9945062002 Page Type [O] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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(in particular international agreements concluded by the EU). At present the Court of Justice does not recognise the direct eVect of the law of the World Trade Organisation (Portugal v Council).5 That case-law is not however completely settled yet, and the above provision will no doubt be referred to by those arguing for direct eVect of WTO law. Such arguments may inﬂuence the Court of Justice. 5. The objectives of the EU seem to have little relevance for the Member States. They are clearly not a basis for reviewing the legality of any acts adopted by a Member State.

2. Whether the Treaty makes “Enhanced Co-operation”More Likely 6. The evolution of treaty provisions on “enhanced co-operation” has hitherto been confined to EU constitutional politics, where there has been a long-standing debate about the core and the periphery, concentric circles, variable geometry, and coalitions of the willing. Those provisions have not as yet had any tangible eVect on the EU’s practice, as they have never been used. The new provisions on enhanced co- operation modify and expand the existing provisions, clearly with a view to making such co-operation feasible in practice. In the light of the current scope of EU competences and of the EU’s expanding membership the actual application of enhanced co-operation does indeed appear more likely. One should in this respect highlight the link with the emergency brakes (see question 6). Where those brakes are used by a Member State, recourse to enhanced co-operation, which in some cases becomes semi-automatic if the European Council proves unable to break the deadlock, seems a generally convenient resolution of the political crisis. It may well be often used in such circumstances. 7. I am none the less of the view that enhanced co-operation is subject to significant, inherent limitations. It is for example less likely to be used in social, fiscal, and economic policy areas, where there will generally be competitiveness concerns: the Member States exploring enhanced co-operation may in the end be concerned that the standards which they would like to set aVect the competitiveness of their companies in the internal market. In some contexts there may be free-rider issues: non-participating Member States may also benefit from policies developed under enhanced co-operation. And enhanced co-operation is clearly diYcult to realise where there is a strong institutional dimension to a particular policy.

3. How Public Meetings of the Council when Legislating would Work in Practice—In Particular,How Much would be Public 8. According to Article I-24(6) the “Council shall meet in public when it deliberates and votes on a draft legislative act”. This provision builds on previous attempts to increase transparency, which can only be welcomed. How this will work in practice does not appear to be too diYcult to predict. The formal, oYcial sessions of the Council are clearly identiﬁable. Those sessions will be split up in a legislative and a non- legislative session. Members of the public may be given physical access to the public deliberation, even if I am not certain that the buildings and rooms currently used oVer adequate facilities. It is however relatively straightforward to broadcast the public deliberation, even on the internet. 9. The requirement of public deliberation does not however appear to extend to the preparatory work by the Coreper or to the informal contacts and negotiations between delegations. Whenever the Council wishes to deliberate away from the public eye it will simply need to avoid having a formal meeting. It seems diYcult to scrutinise such practices.

4. How the New Council Presidency and New Foreign Minister would Work, and the Relationship between the European Council Presidency and the Presidency of Individual Council Formations 10. This question refers to some of the most significant institutional modifications which the Constitution for Europe seeks to introduce. There seem to me to be two general tendencies. The first is that, in the absence of any consensus for modifying the so-called “institutional balance” in the direction of strengthening the position of one or two political institutions to the detriment of others, the Constitutional Treaty moves further along the path of strengthening each institution. This, of course, may well be a zero-sum game, or, worse, a recipe for interinstitutional conflict. The second tendency, which is new, is to personalise (and thereby further politicise) the institutions. To some extent this second direction is aimed at avoiding or overcoming the above-mentioned interinstitutional conflict. The creation of the position of a Union Minister for Foreign AVairs (UMFA) can be read in this way. 11. It is very diYcult to predict the eVects of this personalisation and politicisation. These phenomena may well give rise to greater media attention (see for example the recent appointment of the new Commission). Whether this will be the kind of media focus which brings the EU closer to its citizens is another matter. It may also lead to greater disenchantment and loss of legitimacy. 12. The creation of the double-hatted UMFA appears to attract most criticism. Most commentators seem to be of the view that this person’s divided loyalty will be very diYcult to manage and will itself lead to more interinstitutional strife as the Council and the Commission will seek to turn the minister into their agent.

5 Case C-149/96 Portugal v Council [1999] ECR I-8395. 9945062002 Page Type [E] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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13. I do not share such criticism. I think it is essential to lift the institutional veil. In the current EU there are, in the sphere of foreign policy and external relations, two parallel administrations, which have developed an unhealthy antagonism. The Council administration is said to be intergovernmental, the Commission’s administration supranational. Yet the Council’s administration in this area, headed by the CFSP Special Representative, has clearly developed into something beyond a mere secretariat of the Member States. It is wholly inevitable that a central administration with policy input needs to define the common interest, and operate from that platform, in order to be eVective. The Council Secretariat has clearly moved in that direction. Of course the national administrations have greater weight in the CFSP than they have in first-pillar external policies. But the function of the central administration is similar, whether it is called Council Secretariat, or Commission, or indeed External Action Service, as projected in the Constitutional Treaty. That is why the merger of these parallel administrations is a good idea. 14. It does not follow that in CFSP matters the Union Minister will become more supranational than the current High Representative: the unanimity rule prevents that. Even if the Commission were able to “embed” the Union Minister in its own political vision and conceptions, the Minister will still need to have the Council on board, under unanimous decision-making. The Minister will not be able to move too much ahead of the pack, in particular as he or she will be accountable to the Council. Nor is there a great risk that the Minister will infect what are now supranational external policies (in the fields of trade, development co- operation, etc) with intergovernmentalism. I cannot see incentives for doing that. As a politician the Minister will be judged on his or her political successes, and it is clearly more straightforward to achieve such successes within the supranational mode of decision-making than within the intergovernmental mode. There are further legal constraints which prevent the moving around of policies (see Article III-308). 15. The relationship between the Union Minister and the President of the European Council may be somewhat more diYcult, because the latter will also, at his or her level, ensure the external representation of the EU. As the European Council is very active in foreign policy, there is clearly scope for some tension. Those who hold these positions will need to co-ordinate closely. The same goes for the relationship between the European Council President and the rotating Council presidencies. Here, however, the co-ordination is institutionalised, as it is devolved to the General AVairs Council (see Article I-24(2)). The rotating Council presidencies may well become much less significant, in political terms, than the current Council presidencies, and move in the direction of a pure chairing function. 16. This personalisation of the institutions’ chairs and presidencies may contribute to more eVective decision-making. Those who will find themselves in these positions will need to realise that in the consensus- based EU system of checks and balances all institutions need to co-operate, and that they need to take on a mediating role in order to be eVective.

5. The Extent to which the UK Government Held its Red Lines over QMV Relating to Treaty Changes,Taxation,Social Security,Defence,Criminal Procedural Law, the System of own Resources and the Common Foreign and Security Policy 17. In the policy fields in question either straightforward unanimity or some other system ensuring an eVective veto power have been maintained. 18. Treaty changes are governed by Articles IV-443 to IV-445. The first concerns the ordinary revision procedure, where unanimity is required as each Member State must ratify amendments in accordance with its constitutional requirements. Articles IV-444 and IV-445 introduce simplified revision procedures, but unanimity is not abandoned. 19. In the field of taxation Article III-171 maintains unanimity, and the general provision on internal market harmonisation (Article III-172) excludes “fiscal provisions”. 20. In the area of social security Article III-136, regarding social security issues connected with the free movement of workers, introduces QMV, where the EC Treaty currently provides for unanimity. However, paragraph 2 contains the so-called emergency brake. It permits any member of the Council to refer the matter to the European Council, which decides by consensus. The move to QMV is in any event of limited relevance, because there has been a regulation on social security of migrant workers since 1971 (Regulation 1408/71). More important is that Article III-210, in the section on social policy, maintains the unanimity requirement for “social security and social protection of workers”. 21. In the fields of CFSP and CSDP (foreign policy and defence) Article III-300 maintains the voting system as agreed in Nice: a rule of unanimity with very limited exceptions. It introduces one new opportunity for QMV, namely where the decision is adopted on a proposal from the Union Minister for Foreign AVairs following a specific request from the European Council (Article III-300(2)(b)). There is in any event a right of opposition for any member of the Council, on the ground of vital and stated reasons of national policy. 22. As regards criminal procedure Article III-270 does introduce QMV, but again the emergency brake may be pulled (see paragraph 3 of the provision). 23. With respect to the Union’s own resources Article I-54 maintains the unanimity rule, as well as the requirement for approval in accordance with constitutional requirements. 9945062002 Page Type [O] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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24. The emergency brake system seems to me equivalent to unanimity. Critics might argue that there is a greater political cost to pulling that brake, compared to a straightforward unanimity rule. I do not ﬁnd such criticism persuasive. In many areas the issues of unanimity and the opposition from one or two Member States to certain policies are in any event politicised. Where the emergency brake system permits semi- automatic use of enhanced co-operation (such as in Article III-270) the political cost of maintaining opposition may in fact be reduced, as the opposing Member State may refer to the opportunity for others to go ahead without it.

6. The Effectiveness of the Emergency Brakes in Criminal Justice and Other Matters 25. See comments in paragraph 24. To illustrate this, an editorial in Common Market Law Review, the leading EU law journal, characterised this as “game, set and match for Mr Blair”.6

7. The Effect of the “Horizontal”Clauses which Govern the Application of the Charter of Fundamental Rights 26. This questions raises many legally complex issues, which cannot be examined in any depth within the scope of this memorandum. I will limit my comments to three points, ie the scope of the provisions of the Charter, their relationship with the ECHR, and the distinction between rights and principles. 27. Article II-111 defines the scope of the Charter, clarifying in particular that the Member States are bound “only when implementing Union law”. The provision also emphasises that the Charter does not extend the scope of application or the powers of the EU. The language has been strengthened by the Convention on the Future of Europe. The Charter, it is always said, is primarily binding on the EU institutions. 28. The phrase “only when implementing Union law” is however diYcult to interpret. The question is essentially: when is there a suYcient link between national law, or the facts of a particular case, and EU law, so as to trigger the application of the Charter? The explanations attached to the Charter clarify that the drafters sought to confirm the existing case-law of the European Court of Justice. In that sense Article III- 111 contains nothing new. It may even serve to constrain the Court of Justice, which under the present Treaties has a free hand to develop the relevant principles. As the limited scope of the Charter was such an intense topic of debate, both in the Charter Convention and in the Convention on the Future of Europe, a Court of Justice faithful to this legislative history may become more reticent in cases involving national laws or practices. But even if that is the case, the Charter will clearly to some extent bind the Member States. As they are, in most policy areas, the primary agents for implementing and applying EU law, that is unavoidable. Again, however, the position is very much the same if the Charter is not adopted. I am not convinced that the adoption of the Charter will have much eVect in the way of encouraging the Court of Justice to become more proactive in the human rights field. There is movement in that direction any way, for reasons which are more profound than the sole existence of the Charter. 29. There has been much debate about the relationship between the Charter and the ECHR. It is clear that the drafters have taken every care to ensure that the application of the Charter does not conflict with the ECHR. In practice, of course, the question is whether the courts applying the Charter and the ECHR are prevented from delivering conflicting rulings. Judicial conflicts are very diYcult to rule out and avoid, even with the strongest constitutional language. It is none the less clear to me that the European Court of Justice has for more than a decade attempted to be as faithful to the case-law of the European Court of Human Rights as possible. 30. At technical and procedural levels matters will become more complex once the EU joins the ECHR, as is provided in Article I-9(2). The ECHR will thereby become an international agreement binding on the EU. The ECHR provisions will then have a double legal basis in the EU legal order: the ECHR accession agreement and the Charter. It is not clear what practical consequences this will have, but one suspects that they will be limited. However, I am rather critical of the fact that the Constitution in Article I-9 defines three distinct sources for the protection of fundamental rights: the Charter, the ECHR as such, once joined, and the constitutional traditions of the Member States. In politics it is useful to emphasise a point in diVerent ways; in law this is less useful. 31. The third point I would like to address is the distinction between rights and principles. The Convention on the Future of Europe inserted a paragraph 5 into Article II-112, according to which “[t]he provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, oYces and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality”. 32. The distinction between rights and principles is not straightforward. The substantive Charter provisions were clearly not drafted with that distinction in mind, as the term principle is hardly ever used. The only other reference to the distinction is in Article II-111(1), which urges the Charter’s addressees to

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“respect the rights, observe the principles and promote the application” of the Charter. The explanations attached to the Charter, which are an oYcial interpretative tool even if they do not as such have the status of law, do give some examples of what are principles. They are however very limited, and there will no doubt be a lot of debate about classiﬁcation. 33. I am not however convinced that the distinction is crucial for the application of the Charter. Article II-112(5) limits the powers of the courts to apply the Charter where principles rather than rights are involved: it is only where principles are implemented by legislative or executive action that they are judicially cognisable. But the Charter is in any event binding on the Member States only when implementing Union law. The bottom line seems to be that a principle in the Charter cannot be relied upon before a court unless it is that very principle which is implemented by EU legislative or executive action. It is doubtful whether, in the absence of this provision, there would be many other cases in which one could rely on these principles.

8. The Treaty’s Criminal Justice Provisions (Following up the Committee’s Report of July 2003 on The Convention’s Proposals on Criminal Justice, HC 63-xxvi, 2002–03) 34. Time has not permitted suYcient study of this issue, and as my expertise in the criminal law ﬁeld is limited I would rather refrain from commenting upon this question (but see also questions 5 and 6).

9. What the Consequences would be if the Treaty is not Ratified 35. This is again a question which could be analysed at great length, and which raises many complex legal and political issues. The following comments are confined to some of the legal issues. 36. There is already a lot of reflection about how the Constitutional Treaty could be rescued, or how much of it could be rescued, in the event of one or more Member States’ failure to ratify. It is clear that the Treaty can enter into force only when ratified by all current EU Member States. There are some who argue that Article IV-447, on ratification and entry into force, provides some room for manoeuvre, but even if it did there is the requirement in Article 48 EU Treaty for ratification of Treaty revisions by all Member States. It is therefore clear that any scenario involving partial ratification requires a new negotiation between the Member States who wish to go ahead with the Constitutional Treaty and those who do not wish to take part. 37. It is also clear that the new EU, established by the Constitutional Treaty, and the current EU cannot as such co-exist. The reason is that there are simply too many modifications to the institutional structure to allow for parallel application of the existing treaties and the new treaty. The solution of a ratification crisis cannot therefore be that some Member States apply the Constitutional Treaty, and others remain within the current EU and apply the current Treaties. 38. If the ratification process fails, attempts could be made to realise some of the innovations of the Constitutional Treaty without modification of the current Treaties. The bulk of the innovations and modifications, however, do require Treaty amendment (most institutional innovations; QMV; making the Charter binding; integrating the pillars; etc). There could of course be an attempt to draft a more limited Treaty revision, or to revise the Constitutional Treaty in ways which take into account the reasons for rejection by the Member State(s) in question. There is also the possibility to realise some of the innovations by incorporating them in an accession treaty. 39. It is in any event very diYcult to predict the outcome of the political debate. On the whole this seems to me a question of politics rather than law.

Witnesses: Professor Piet Eeckhout, Professor of European Law, Kings College London, and Professor Gra´inne de Bu´rca, Professor of European Law, European University Institute, Florence, examined.

Q75 Chairman: Can I welcome Professor Eeckhout or opportunity to, for example, the Commission and Professor de Bu´rca to the European Scrutiny initiating legislation to re-orient legislation in rather Committee. It is nice to have you here for what is a new direction which it might have had more going to be a very interesting session. As you will diYculty doing before these values were enunciated, ﬁnd from the questions, the Committee are really and I gave the example of children’s rights. The keen on looking into this. How will the new protection of the rights of the child is very much up reference to the Union’s values and objectives in at the front in the values and objectives that are listed Articles 2 and 3 of the Constitutional Treaty assist in the treaty, and I can imagine that legislation the Court in interpreting EU law? promoting consumer protection could be directly Professor de Bu´rca: I think I suggested in my oriented towards children in a way that might have evidence that the references might work in two seemed odd or there might have been questions diVerent ways in relation on the one hand to the about subsidiarity under the existing treaties, but the legislative institutions and on the other hand to the emphasis on some of these new values and objectives Court. As far as the legislative institutions are would allow for legislation to be more directly concerned, I think the listing of values and objectives oriented towards the pursuit of one of these is something that could inﬂuence or give an impetus objectives that was not previously listed as an EU 9945061001 Page Type [O] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca goal. I suppose this is a little bit more radical and it is proposal or their interpretation in the case of the possible that the listing of objectives might indirectly Court they can. Sometimes they are looking for create a new kind of power for the EU and that support to justify a particular conclusion, so on that would be through linking the objectives and values I think the objectives and values could be relevant. in Articles 2 and 3 with what is called the flexibility clause in Article 18 of the treaty. The flexibility clause is the one that allows the EU, where it has Q78 Mr Connarty: Turning to the Charter, the UK been given an objective but not the necessary powers did make a number of amendments during the to achieve that objective, to confer powers on itself drafting of the words in the Charter. In Article II-51 to pursue that objective. The promotion and it states that the Charter will apply to Member States protection of human rights as a value of the EU in “only when they are implementing Union law”. The Article 2 is made an objective in Article 3, and so if Explanation to Article II-51 states that “the you link that with Article 18 it is possible to say that requirement to respect fundamental rights defined in the EU now can confer on itself by unanimous a Union context is only binding on Member States decision of the Council the power to promote human when they act in the scope of Union law”. This seems rights, something that has always been contested wider than just “implementing Union law” and under the existing residual powers, I suppose, of the suggests that the Charter applies to any situation EC Treaty. Do you want me to say a little bit about involving an issue of Union law. What do you the Court? understand by the expressions “implementing Union law” and “within the scope of Union law” in this context? Q76 Chairman: I would like to hear Professor Professor de Bu´rca: On that I would say that if I Eeckhout’s comments, but if you want to come back were simply interpreting the words literally, please do. “implementing Union law” has a narrower meaning Professor Eeckhout: I would definitely largely agree than “within the scope of Union law”. with that analysis in terms of the eVect of the values “Implementing Union law” seems to imply enacting and objectives on the case law of the European a Union policy into domestic law. If the literal Court of Justice. I think we can only try to see how meaning were to be taken as the intended meaning that might work on the basis of how in the past the by those who drafted the Charter that would be a Court of Justice has taken into account the values change. It would be a restriction of the current and objectives of the EC and, of course, the treaty situation of the position of fundamental rights language has changed over the course of the years according to the European Court of Justice, which through the various treaty amendments, but I do not raises the question: was that intended to be a change? really see in the case of the European Court of What is interesting is that the Explanatory Justice a terribly great emphasis on the objectives as Memorandum interprets it as not being a change but they are stated in quite a general way in the opening simply using language taken out of a European provisions. Also, the current treaty on the European Court of Justice judgment, but if it is read in the Union lists the objectives of the EU and the EC context of the judgment it was taken from it is clear Treaty lists the objectives of the Community. It is that it was meant to be “within the scope of Union clearly a tool which can be used in the interpretation law”, which is considerably broader than of the powers of the EU as it may have been in the “implementing Union law”. It includes where a state past. I can also think of a couple of cases where one is derogating from Union law, in other words, where could say that the values underlying European it deliberately does not intend to implement it, and integration were central to the Court’s reasoning in also other situations. There have been some recent quite an important way, particularly in cases on immigration cases involving the UK which were remedies where the European Court in the past has neither derogations nor implementations but where a couple of times created a remedy for the European the Court found that this could aVect EC law in its Parliament, for example, referring to respect for the application in a case involving Community services, rule of law as underlying European integration, for example, and said that therefore they were bound which the constitution also confirms. One can also by the requirements of fundamental rights, see that many of the objectives which are listed here including the Convention. My sense is that the fact are already to some extent present in the current that that is how the Explanatory Memorandum treaty. reads the clause, plus the fact that there is a very important Article towards the end of the Q77 Chairman: Are there any other practical eVects Constitutional Treaty which says that the acquis of which the aspirational language of Articles 2 and 3 the Court of Justice, the way in which the Court of is likely to have? Justice has ruled on and interpreted EU law in the Professor de Bu´rca: I would not wish to add to what past, is to apply mutatis mutandis to comparable Professor Eeckhout has said other than this. There provisions (not identical but comparable is nothing mandatory about them, if you want to put provisions), means that it would incorporate that it like that, in relation either to the legislative or to case law very clearly and make it applicable to the the judicial organs. In other words, they do not Charter. My guess is that it would be the broader, necessitate any change in the way the Commission not the narrower, meaning if this comes into eVect. drafts legislation or the way the Court interprets it, Professor Eeckhout: Again I fully agree with what but they allow for that if those institutions are so Professor de Bu´rca has said. I have followed this inclined. If they want to redirect the thrust of their particular issue quite closely (and she has as well) 9945061001 Page Type [E] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca through the debates in the Convention which Q80 Mr Heathcoat-Amory: Surely not? drafted the Charter, and at the time it was clear that Professor de Bu´rca: What it is loaded with I do not the intention was not (or at least it did not seem to know. One of the purposes of a constitution is to me) to narrow the case law of the European Court of clarify and limit powers but there are many other Justice but simply to codify it in some way. Of purposes. I think this whole Constitution exercise is course, the expression “within the scope of Union one which is serving many diVerent masters and law” as you find it in the Explanatory Memorandum mistresses. For example, the UK placed a lot of also leaves many questions unanswered as to when a emphasis on the fact that it was a consolidatory particular set of facts comes within the scope of Constitution which was not introducing a lot of European Union law. It is a very important question innovation. Obviously, there are some new elements with which I think the European Court has already but the emphasis was on consolidation and been struggling for some time. If anything, I would simplification. You cannot simplify without be inclined to say that if the Constitution is adopted radically changing a system that is as complex and and comes into force it will be very clear to the Court intricate as this, so if the idea is to incorporate and that this was a very delicate issue in the negotiations codify the existing body it could not be clear because and that there was a lot of emphasis on trying to it is very complex and even lawyers cannot agree on limit the scope of the Charter in terms of its the meaning of things, let alone explain them to the application to the Member States. This I think may ordinary person. That fundamental tension is not have some eVect on the Court’s case law in that area. resolved by the Constitution. I think in some aspects It is also fair to say that over the last couple of years it simplifies it a little if, for example, the listing of we have indeed seen a couple of cases where the categories and competences at least gives you a list V Court has gone quite far in giving eVect to human of five di erent types, even if we do not understand rights in the context of cases which did not fit so exactly what they are until we look at Part 3, but neatly into the old categories of case law. nonetheless you broadly get a sense of it. Similarly, the Charter on its face is clarifying because it gives you a list of certain rights. It is then made very Q79 Mr Heathcoat-Amory: Is it not the purpose of a complex by the horizontal clauses and the reason for constitution to clarify the limits of the powers of the that is that the horizontal clauses were designed to institutions of the European Union? What you seem maintain as much of the status quo as possible and to be telling us, both of you, is that there is no clarity the status quo is very complicated. Yes, maybe you here and that there is a contradiction, a text that are right, but if you do not want a Constitution that appears to limit with an Explanation which then changes things radically then I cannot see an again widens it. Is this not a fundamental criticism alternative other than to maintain some of the of the Constitution, that anyone reading this will get complexity that characterises the EU. no clear idea at all about what the Court is likely to do in future? What do you make of a constitution Q81 Mr Cash: Professor Eeckhout, you made the like that, and are there other examples in the text? point just now in passing, but it seemed rather an Professor Eeckhout: I would definitely agree. I important point, that you thought that the would also personally say that in the choice of words Constitution clarified the issue of primacy. Could I of “implementing Union law” in the context of ask you a simple question? Do you take the view that Article II-51, if the intention was to qualify the the European Constitution will take precedence over existing case law—that perhaps “within the scope of the laws of the United Kingdom Parliament and if Union law” was a better formulation. On that the Constitution comes into eVect the European particular point I would agree. Whether that means Court of Justice will disapply any enactment which that one could criticise the entire Constitution for has been passed by the UK Parliament and is not creating more clarity I am less certain about. To expressly inconsistent with EU law? some extent I find it quite useful that the Professor Eeckhout: Here again I would say that the Constitution as a written text agreed by all the Constitution clarifies in the sense of codifying the Member States does try to codify the important bits case law of the European Court of Justice, which in of EU Constitutional law as they have been this area, of course, dates from 1964, the first case, developed by the European Court of Justice, like the Costa v ENEL, where the Court aYrmed the principle of primacy and the protection of primacy or the supremacy of EU law. I know there fundamental rights. Also, there is much to be gained are diVerent views on that but I see the Constitution by having at least an express catalogue of what the merely as expressly confirming that principle which fundamental rights are in the context of the has been there for a very long time and which has European Union rather than what we have at been applied. The European Court of Justice present, simply leaving it to the Court of Justice in technically cannot disapply national legislation, an any case which comes along to discover as it were the act of parliament, because it can only interpret EU fundamental rights in the common law of the law, but it has clarified to national courts that if there Member States or the national instruments which is a conflict between a provision of EU law and a have been signed. I would therefore not agree with provision of national law, of whatever order, the the general characterisation that in all respects the national court is obliged to disapply, in a bad Constitution does not create more clarity. English term, the national legislation and I gather Professor de Bu´rca: I think it is an interesting that the Constitution will be interpreted as simply question but it is obviously a loaded question. confirming that. 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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca is, I think, where you see the limit to that principle, Parliament”, might make a court more likely to say, is that it is a principle which only works within the “Okay, we will disapply it”. On the other hand, the scope of Union law and I think we come back to the Foreign Secretary does not speak for Parliament and same point as the Charter—and it is a rather diYcult therefore a court might decide to follow the later act point because what is the scope of Union law?— of Parliament. I think that question is one that is because it is very much emphasised also in the more appropriately addressed to the role of provision Article I-5 that primacy applies within the domestic courts than the European Court. limits of the powers of the European Union. It is only in so far as the Union acts within the limits of its Q84 Mr Cash: So it is not really quite as clear as powers that any law which it produces prevails over Professor Eeckhout may have suggested in his domestic law, but that is clearly the principle. passing remarks? Professor de Bu´rca: I think I would agree with him Q82 Mr Cash: If I may follow that up, the fact as far as the European Court of Justice is concerned. remains that under the I-5 principle, which is set out, The European Court of Justice would certainly say, it now says (and there were some amendments, as “This violates EC Law. You as the domestic court you recall, before the final text) that the laws of the ought to disapply or set aside the conflicting national Constitution will take precedence over the laws of law”, but I do not know that a national court would the Member States, and the interpretation which is necessarily agree. It depends on the stage that the being placed on that by our Foreign Secretary is that courts have reached in this jurisdiction as to whether that would include any Acts of Parliament which they feel honour bound to respect the Constitution were passed by the United Kingdom Parliament as Jack Straw would have to or whether they feel itself. The fact remains that the issue of primacy is a that that is still not quite what the intention of central question for the United Kingdom Parliament is under the Constitution. Parliament and you have not quite answered my Professor Eeckhout: In any event the authority for question, which is, if there were to be an expressly the UK courts to apply the constitutional treaty will unambiguous, inconsistent enactment subsequent to be an Act of Parliament so, to the extent that there the European Communities Act 1972 after the is agreement that the constitutional treaty within the Constitution has gone through, do you not think UK domestic context does not in any way amend the that the Court under I-5 would be likely, if not sovereignty of Parliament compared to the current bound, to say that such an enactment can now be position, then I think it is agreed that nothing struck down by the European Court? After all, so changes and then courts are likely to give eVect to the long as it is within the conferring of competences, it Act of Parliament which overrides the act which is then an issue which falls to the European Court approves of the constitutional treaty, as would be under other provisions and the Treaty as well. the same with the European Communities Act. Professor de Bu´rca: Just to add to what Professor Eeckhout has said, there are two things about that Q85 Mr Cash: Including striking down the question. One is that it assumes that the European Constitution itself? Court can directly strike down a domestic Act, Professor Eeckhout: It would be giving no eVect to which it cannot do— the Constitution in the United Kingdom by virtue of the primacy of Parliament. Q83 Mr Cash: At the moment. Chairman: Thank you for clearing that matter up Professor de Bu´rca: There is nothing in this for us! Constitution that gives it power to do so either. The powers of the Court that are set out do not include a Q86 Angus Robertson: Professor Eeckhout, in your direct power of review of domestic law. The question article on the EU Charter and the Federal Question would be more appropriate directed to what the you have argued that “the concept of European British courts, the English, Welsh and Scottish citizenship is likely to pull the Charter in the courts, will do following that because until now the direction of an ever-expanding field of application, answer many people would have given to your and to turn it into a Charter not merely directed question would be that probably, even if a statute towards the EU institutions but containing rights on of the British Parliament was in deliberate which European citizens can more generally rely”. contravention of European Community law, the Why do you think the concept of EU citizenship will European Court of Justice would have said, “That ultimately prove more important in defining the violates EC Law, that should be disapplied”. I do scope of the Charter than the horizontal clauses? not think it would have had a problem in saying that Professor Eeckhout: Can I just add that in the article despite the direct conflict, but a domestic court I also identified another principle which I think might well have justified it, saying, “We must apply could constrain the eVect of the Charter, which is the the law of Parliament and not this because within the principle of conferral, which the Constitution also way in which this supremacy principle is understood very much confirms, and I think it was one of the in the 1972 Act we must follow the Act of Parliament starting points of the constitutional process to try to which is very explicit”. Now I think the question will clarify and limit EU competences. In a sense I see in be, “What would a court do in this jurisdiction in terms of the case law of the Court of Justice two that case?”, and I think you can say that the fact that kinds of legal principle having a potential eVect on the Foreign Secretary has said, “We intend by this the case law of the court which is aVecting Constitution to allow for the overriding of Acts of fundamental rights. As we have got EU citizenship 9945061001 Page Type [E] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca the reason I refer to that is that that is of course a to try to say that the Court of Justice cannot directly concept which is already in the treaties and is already enforce rights which were intended to require further given eVect to by the European Court it is one of the action before they crystallised, and economic and primary rights of a European Union citizen to reside social rights are very often seen in that category. In freely in and to move freely to other Member States, other words, the right to health does not mean and so we have cases concerning free movement anything in itself because it calls into question so coming before the Court, where I think there will many complex distributive questions until there is indeed be pressure to bring in the fundamental rights further implementation of that guarantee. What the issue and to some extent I think we have already seen Charter says—in what was Article 52(5), it is now that in the case law. There is a case which came from Article 112(5)—is those provisions of the Charter the UK, Carpenter, decided a couple of years ago, which contain principles will not be judiciably about the right to family life in the context of an cognisable until they are implemented in some Act immigration issue. The wife of a UK citizen came of a Member State or of the EU. I would find it from the Philippines and was not a legal resident but extremely diYcult going through the Charter to because she was the wife of someone providing know which of the provisions will be treated as services in another Member State the Court felt that principles and which will be treated as rights, there was a fundamental right issue, namely, the although I have a sense of what the aim was of right to family life, which it could not look into. That putting that provision in. I can take some examples, is my personal perception of what kinds of factors like environmental protection or consumer exercise an influence on the Court of Justice’s case protection, which are phrased in an extremely weak law with respect to fundamental rights. I do not way in the Charter and say, “Clearly those could not think the Constitution as such really moves it in give rise to any justiciable rights without further either direction. If anything, again, the fact that so implementation”. I find it more diYcult with some of much emphasis has been put on this debate about the others, even the examples given in the in which cases Member States are bound Explanatory Memorandum like the rights of the by fundamental rights, namely, only when elderly and so on. I can imagine circumstances in implementing EU law, might make the Court a bit which interpreting a piece of secondary legislation careful about not going too far in that respect. that was not intended to implement the rights of the elderly but nonetheless is relevant to it. The idea that Q87 Mr Heathcoat-Amory: Could I continue with the right of the elderly to respect and so on—I the issue of the horizontal clauses? We are constantly cannot remember the language—could be used in told that the EU law will eVectively limit and closely judicial proceedings to say that should influence the define the Charter rights and their application. interpretation of another piece of legislation. I do Professor de Bu´rca, you have written that you think not find the distinction helpful and I do not find it they may have some eVect but in time will be clear as between rights and principles, although I can overridden by other considerations. Certainly I as a see what was broadly intended by it. I think it will layman cannot make head nor tail of, for instance, give rise to complex litigation and to a lot of debate. the distinction between rights and principles. Perhaps you can throw some light on that. In general terms is this simply window dressing to satisfy Q88 Mr Heathcoat-Amory: It was intended to make politicians and will they in any sense constrain what the whole thing palatable and from what you are is obviously a highly activist court in this area? saying, it is just a smoke screen. The rights of the Professor De Bu´rca: I would be tempted to say yes, elderly are described as a principle, but in fact is an they are just window-dressing, but I do not think enforceable right if the EU legislates in this area. that would be quite fair. I would say that there is a This seems to me to be a highly regressive move, we certain amount of satisfying or mollifying of the are simply confusing the issue and of course the British and the Irish contingent within the Charter Court will then do what it likes. working-group, undoubtedly because that was the Professor De Bu´rca: I think it is really confusing. I real crux issue during that working-group on the do not think it is entirely a smoke screen because if Charter. Certain members of the working-group the Court is acting responsibly, in the same way that would not agree to the Charter being incorporated in Professor Eeckhout suggested, it will know that that the constitutional text unless some distinctions were distinction was intended to demarcate certain rights introduced between the language of rights and as insuYciently sharply crystallised in international principles. I think I tried to explain in my written and domestic law to give rise directly to judicial evidence that distinction was seen as corresponding application without some implementing measure. broadly to what people see as more programmatic To my mind it is a guide that is not a very clear one. rights requiring positive action on social It is an indication of something which the Court expenditure, which are usually grouped under the should take into account without saying rights name “economic and social rights” and rights which A,B,C,D and E are principles and rights and F,G mainly require restraint from interference by the and H are enforceable rights. In the end it does not State, which we usually refer to as “civil and political give a sharp clarification, it gives an indication, a rights”. The problem is even that distinction is a very signpost of the kinds of concerns the Court of Justice hazy one in international human rights law and in should have when rights are invoked before it. It domestic human rights law, but I think the idea was should be very careful about directly applying rights certainly, on the part of those arguing for this clause, which are expressed in a way that does not seem to 9945061001 Page Type [O] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca have any clearly understood content, but that is Charter which is that something like a commitment, something which requires further implementation at its broadest, to democracy, the Rule of Law or the before it can have an agreed content. protection of human rights, but in a slightly more elaborate version expressed in the objectives of the Q89 Mr David: I think it is fairly clear what you are Treaty and the values in the Charter, over time might explaining there. Also, can you explain to us how emerge through a debate in each country over the what you have just said squares with the statement meaning of the Constitution itself. you have made in one of your articles, that the Charter expresses “ . . . the clear values of Europe Q91 Mr Tynan: Professor De Bu´rca, you argued that . . . ”? It does not seem to me that clear and as the Charter may strengthen the political legitimacy straightforward as your answer just suggested. of the EU. Can you explain your reasons for this Secondly, I wonder if you can explain to us what you view when many of the Charter rights fall outside the mean by this phrase “constitutional patriotism”? It scope of EU law, even as defined by the seems quite an all-embracing and significant term Constitutional Treaty? Bearing in mind that the ECJ which I have not come across before. judges interpreting the Charter could be said to lack Professor De Bu´rca: On the first one—you can both legitimacy and the social and political support correct me if I am wrong—I would be surprised if I enjoyed by the US Supreme Court and the German said that the Charter expresses “the clear values”, Constitutional Court? maybe I have forgotten what I wrote. Professor De Bu´rca: Firstly, one thing I want to say, which hopefully will not complicate matters further, Q90 Chairman: The “shared values” of Europe? but I suspect it will—it is not that I see my role as Professor De Bu´rca: Okay. Certainly, I think the complicating things, it is a complicated system—is it Charter expresses values that those who signed the is true that many of the rights contained in the Charter and who drafted it wanted to express as Charter fall outside the scope of EU law in so far as shared values, the values which are contained in the the legislative power and political power of the European Convention and in the European social institutions or the adjudicating power of the Court charter. These are all texts which all of the States is concerned. But, currently there is a provision have long signed and many of them have similar existing in the Treaty of the European Union which provisions in their Constitution. The fact that people is justicable in procedural terms and allows for the can agree on values does not necessarily mean that institutions to respond to a serious violation of in conflict situations they can agree on the outcome human rights by any Member State regardless of the of that particular dispute, that is the nature of life as area, whether it falls inside or outside the scope of we all know it. Broadly speaking, I do think yes, EU law. This was in part a response to what was there was a high degree of consensus behind the known as the Jo¨rg Haider aVair in Austria, when the actual drafting of the Charter itself. I have never rise of the extreme right gave rise to a sense on the heard a seriously strong sense of opposition part of the EU that it should be able to respond to a expressed to it other than in the sense that it may give serious violation of fundamental rights in a Member too much power to a particular institution, like the State. Most recently, Members of the European Court of Justice, for example. As an expression of Parliament have begun to try to invoke this in values, I have not heard anyone say: “This is relation to Italy because of the concentration of ludicrous”, apart from maybe the right to a paid media power in the hands a certain powerful vacation, which comes from the International political figure in Italy. I think for all that the EU’s Labour Organisation. In any case there are some competence is limited, the EU has clearly staked a provisions which have been criticised, but it is more claim in extreme situations to be able to interest itself that they are trivial rather than objectionable in politically in the human rights system in any area of value terms. I would maintain that yes, it does social and political life of a Member State. There was express common values in so far as we can agree on clear political agreement to that and I think that is those. The other point was about “constitutional something which has to be taken into account patriotism”. “Constitutional patriotism” is not my alongside the Charter and the express powers of law- phrase, it is the phrase of a German philosopher making and the judicial powers of the Court. Your called Ju¨rgen Habermas. It is an interesting idea, but other question was about in what sense can the it is an idea that it is possible in a Europe that is very Charter be said to strengthen political legitimacy. culturally, nationally and territorially diverse to There are many diVerent factors that aVect the lack create a sense of loyalty to political principles and of legitimacy of the EU, especially social legitimacy. values which do not require any commitment to a One of them has been expressed quite often as “its common culture or to ethnic, linguistic or other pre- emphasis on the market” in that it enshrines and political categories like that, the sort of social constitutionalises market freedoms, pursuing a kind communities that people strongly belong to which of neo-liberal agenda. Economic and Monitory are expressed by nationhood and common language Union restrains the power of States to pursue certain and so on. It is possible to imagine a thin sense of kinds of social welfare policies or even economic what he calls “constitutional patriotism”, that is policies domestically. This emphasis of the EU on thick enough to support a constitutional document the market is one of the factors that has been cited which is more than just a Treaty, through the idea of often as a reason why citizens would not identify commitment to these common principles. In that with it and would not see it as a protector of their sense it links with the question you asked about the welfare. In that sense, the Charter, when it was 9945061001 Page Type [E] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca drafted, was explicitly drafted as a kind of counter- some way aVect, if not control, the system that balance when the European Council in Cologne governs their lives. I would say that is where political asked for the Charter to be drafted, to show that the legitimacy resides ultimately. EU does concern itself with other aspects of social life, with public welfare and so on and that it is not simply a Charter for businessmen. Obviously it Q97 Mr Bacon: What do you think about the shared raises a whole series of other legitimacy questions values of Europe? which you have pointed to, but in the sense of what Professor De Bu´rca: I think the shared values of ordinary citizens who are not interested in legal Europe include a commitment to democracy. For intricacies would think about, the idea that there is example, democracy and the rule of law are a Bill of Rights which protects their rights at all fundamental elements of a system that ensures self- levels of government, including at the EU level, in government. Beyond that, in the more substantive my view would be more inclined to endear them to sense of the shared values, there are fundamental this level of government than for example, being told rights and the various rights contained in the that abortion is a market service, a commercial Charter. That is a very important commitment, and service, under EC law. This was one of the most the hope is that in a system where people are criticised aspects of the Court of Justice’s case law, involved in governing themselves, those are the that even fundamental social issues like the choice to fundamental values they would express. terminate a pregnancy are considered as market values because the only language the EU has is the Q98 Mr Bacon: When you referred to the shared language of the market, the only way it can conceive values of Europe and the Charter being a potential of citizens is as consumers and the only way it can vehicle for, and an expression of “constitutional conceive of rights is as commercial services. In that patriotism”—and I have only got the quote from sense I think the Charter does redress that particular your book that you wrote and contributed to on the aspect of the legitimacy deficit. EU Charter—were you simply quoting Habermas or were you agreeing with him? Q92 Mr Tynan: Your view is that the Charter will Professor De Bu´rca: I am trying to figure out how strengthen the human face, if you like, of the this constitutes evidence on the Constitution, but I European Union? will come around to that. Professor De Bu´rca: Yes. That is a much nicer way of putting it. Q99 Mr Bacon: I thought it was directly related to it Q93 Mr Tynan: And because of that there will be because, as far as I understand it, the whole concept closer identification as regards the people of the of a Verfassungspatriotismus is very much a German European Union at the present time because, as I one because after certain events in the middle of the say, it is not just the market forces, it is about doing century they decided they probably could not have a job for the people it is representing? the traditional nationalism and patriotism that most Professor De Bu´rca: I think that is right. The Charter nation states have had. When I was in Germany in is more likely to appeal to the ordinary person than September, I found a rather unwilling audience for to know that there is a Stability and Growth Pact or the idea that that nation perhaps needed just a that there are rules contained in the Maastricht soupçon more nationalism. It is a message they find Treaty relating to some other aspect of Economic very diYcult, to this day, for obvious reasons. and Monetary Union. Therefore, I understand the whole concept of “constitutional patriotism” to be very much a Q94 Mr Tynan: Do you think we will get that German one and not one that necessarily has message across to the people in the European application more widely, but he and possibly you Union? appear to be saying it does. I am merely asking you Professor De Bu´rca: It depends on how well the job are you merely quoting Habermas or is it also your is done. view that the Charter is a potential vehicle for “constitutional patriotism”? Q95 Mr Bacon: When we were in Brussels with the Professor De Bu´rca: A bit of both, in the sense that European Commission, they all looked at us in Habermas’s views on “constitutional patriotism” astonishment—and they were the ones cooking this have been picked up and are very much a part of the stuV up—and said: “It is your job to get it across”, academic discourse on Europeanisation and as if it was nothing to do with them. I will pass on globalisation. More generally on the idea of because that was not my question. My question is, constitutional patriotism outside the context of the Professor De Bu´rca, where do you think political nation state—which has been the shared political legitimacy comes from? community for centuries—how one would create Professor De Bu´rca: Political legitimacy in general? some sense of community beyond the nation state is diYcult to imagine. Particularly within market- Q96 Mr Bacon: Yes. Where does it come from? based systems as the EU was when it began, and as Professor De Bu´rca: I suppose political legitimacy in the WTO and various other systems seem now to be, the modern democratic systems lies in the fact of it is very diYcult to see how they can ever engage the self-government, the idea that government is citizen in a way that could lead to a political accountable and ultimately people themselves can in Community. 9945061001 Page Type [O] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca

Q100 Mr Bacon: Nonetheless, there are universal Orthodox or Catholic position. If I could go to your values which everyone can subscribe to? more general point which is how could this appeal to Professor De Bu´rca: I doubt whether they could be the ordinary person? I think it can because in the called universal at present, but there is a set of values written evidence I submitted, I suggested that one of which could perhaps be universalised. It is a Kantian the values that is now expressed in the Treaty is a notion in many ways, but there are values which very strong commitment to respect for international could be treated as universal and certainly if you institutions and for the United Nation’s Charter. I take a regional context like Europe—and think that was very explicitly put in to distinguish Habermas’s “constitutional patriotism” has been Europe from the United States and to try to express debated very actively in the EU context—it is quite a very clear stance on Europe’s international possible to imagine that if there is suYcient public identity. I believe that Europe’s international role engagement with the whole process of and identity is something that can appeal much more Europeanisation, that some sense of commitment to to people who were very engaged with the issue of these values—not replacing the nation state but the Iraq war, who were very engaged with issues of supplementing the nation state with a wider hegemony and multi-polarity versus uni-polarity community in which a degree of political solidarity and who would be interested in the idea of Europe can exist between states, although not ever the kind being a counter-voice to some other powers on the of solidarity that exists between local communities world stage. I think these things can be translated or even regional or national communities, but a and there are some values expressed in the Treaty diVerent kind of solidarity. I find it a very appealing which I think even in your constituencies you might idea in normative terms, but I guess it is harder to see be able to get across. it arising at present given how divided Europe is in many respects. Q103 Mr Heathcoat-Amory: Article II-52(3) states that the rights in the Charter which correspond to Q101 Mr Bacon: Is it not why we don’t need to have European Convention Rights should be given the stuV that bears no relation to folk in any of our same scope and meaning as the latter, exemption constituencies and never will. Let me give you an rights. On the other hand, the Article adds that this example, this Committee met Professor Rocco requirement “ . . . shall not prevent Union law Buttiglione when he was a Europe Minister in Italy. providing more extensive protection . . .”. Since I remember he told us—and I wrote it down—that expanding one right might lead to the reduction of Europe had these shared values and he described another, how would you reconcile these two three things: Greek philosophy, Roman law and apparently contradictory provisions? Christian morality. Certainly in terms of his Professor Eeckhout: I think the two principles can Christian morality he was no diVerent from Jean and must be reconciled in the sense that the Monnet or Robert Schuman or any of the founding European Convention on Human rights is generally fathers, indeed, I think he thought that he believed regarded to establish a minimum standard of in what were regarded as the orthodox teachings of fundamental rights protection. In any event, the the Catholic Church. I happen to disagree with him, European Union within the context of the policies but that is beside the point from the point of view of which it develops on the basis of the constitution this argument. So far outside the pale of the would be able to go further on the condition that this mainstream of European values did he find himself, does not conflict with any other European and despite this, that he was considered ineligible to Convention rights. If that was to be the case, because become a commissioner. What kind of basis is that the Convention, within every right which is listed, for shared values, and do you seriously think that the establishes a minimum standard of protection, then Charter both heralding and concretising a shift in that is the standard from which one cannot derogate, the limited underpinning of the EU polity is going to also not on the basis of promoting another right play very well in the United Kingdom or anywhere which is in the convention, I think that would be the else? formal way of looking at it. If you look into human Professor De Bu´rca: I suppose I disagree with you rights law in practice and before the courts, things about that. One person does not articulate the often become more complicated, but that is the shared values of Europe, so Buttiglione’s view does nature of fundamental rights. I can see how the two not necessary constitute those. That is not expressed provisions can be very well reconciled; I cannot in the Charter or the Constitution. really see a problem. Professor De Bu´rca: I was going to give an example Q102 Mr Bacon: There is explicitly no reference to of an area, I think Professor Eeckhout mentioned Christian morality in it and that was a source of huge the Carpenter case, which was one on I guess you contention. would call it the right to family reunification or at Professor De Bu´rca: Exactly, but it is not there and least that is the way it has been interpreted in the that may be the case. It may be more understandable European context. This was where the European why somebody who would express a fairly strong Union went further than the level of protection view of a particular religious nature would be which the Convention gives. For example, the right considered ineligible for a post which is committed of somebody who is married to a non-national, in to precisely the opposite values, for example a the case of Carpenter a non-EU national, to have commitment to non-discrimination on the grounds that person with them even where they have of sexual orientation does not fit well with an breached national immigration law and where their 9945061001 Page Type [E] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca right to remain together as a family is more binding on ECJ, it refers simply to the meaning and important than the particular provision of national scope of the rights and does not refer to the courts at law, especially if it is a fairly technical provision, all. That room for manoeuvre is left to the European rather than a serious violation of public order. In the Court of Justice. Convention context as long as the family can be together, if they can be together in another country Q105 Mr Heathcoat-Amory: The meaning and scope then there is not necessarily a right to remain, but in of the rights shall not necessarily be the same as the EU context because there is a fundamental right those in the ECJ? for EU citizens to move and work within Europe— Professor De Bu´rca: I think you would have to have a part of the integration of migrant workers identical situations. Whenever I try to think of this provisions—the Court of Justice went further and in practice I think the only way you could argue that cited a case of the European Court of Human rights, there has been a violation of that provision is if you and went a bit further in its own Ruling in terms of had identical situations. It is always possible to say: the right of this particular man to have his wife with “It is necessary in a democratic society”, but in this him, even though she had technically violated particular case the facts are slightly diVerent and, immigration law. Your other question was if you say therefore, you cannot say that the level of protection greater protection can be given to that right, what if is necessarily lower because you have a diVerent that happens to reduce another right? That is a factual context. Unless—and it might happen— problem of human rights law in general, in other identical cases are brought before the courts, which words, even within the Convention system, once you has been done occasionally, like in the Irish abortion protect a certain right, freedom of expression may cases where in the end it was the Strasbourg Court restrict another right. There is a balancing in that that exercised jurisdiction and not the European sense and it simply adds a new element to that Court of Justice. The two Courts are very careful to balancing process. co-ordinate and apparently they informally collaborate and talk to each other without making Q104 Mr Heathcoat-Amory: You cite perhaps the formal references; they are very careful not to obvious example the clash between Article 8, on the interfere with each others judgments. Obviously respect for private life and Article 10, the freedom of there will be far more room for overlap if and when expression. I suppose the question I am asking you the Charter comes into eVect, so it will be interesting is if the Union was to favour the Article 8 right in a to see how they co-ordinate. particular situation over the Article 10 right, would this favouring of the Article 8 rights have to be read Q106 Chairman: What do you think would be the down so as to comply with ECJ jurisprudence or Charter’s significance if the Constitutional Treaty would the ECJ simply say it was a case of providing was not adopted? more extensive protection? Professor De Bu´rca: I think this has been in some of Professor De Bu´rca: I can imagine in a particular the evidence you have already received already. case if the EU wanted to give a stronger protection There was a declaration by the Commission, to privacy than to expression in the context of a Parliament and the Council at the time that they particular conflict, if it was a direct conflict with a would treat the Charter as binding upon them. Of case of the European Convention on Human Rights, course they have every right to do that and nobody it would be diYcult to justify that but not impossible on the whole objects to the idea of the Institutions because there are a whole series of cases. I think one binding themselves by this since it does not empower of the things the Explanatory Memorandum to the them at all, but supposedly it could act as a Charter does is it indicates cases where although the restriction. I have argued that—and it is debatable— rights are comparable, the justifiable restrictions are it could re-orient, as I said at the beginning, the diVerent because of the particular EU context. If the nature of their powers but on the other hand, the reason for giving higher protection to the right to Charter says that it does not modify the powers or privacy was because of something fundamental to tasks of the Union in any way. Certainly those three the EU, like the example I gave on mobility of institutions, already every proposal the Commission migrant workers or something, then I can imagine drafts supposedly has to consider its compatibility that would be a justification for the ECJ giving a with the Charter, just as the Human Rights diVerent interpretation. They would not necessarily Committee here does in relation to the Convention see it as a conflict because what it means by less on Human Rights so it is in the practice of the extensive or more extensive is very ambiguous. I can institutions already. On the whole, the Court of imagine giving a diVerent interpretation to the right Justice has not made serious reference to it, except in in that context, even though freedom of expression passing where parties have argued it. On the other in that context would be more narrowly read hand, the Court makes reference to all the rights therefore. This is speculative, the point is we do not contained in it—most of them anyway—via the know how the Court of Justice would do it. I can European Convention. I do not think it would make imagine however that that could give a justification, a lot of diVerence to be honest. Certainly, it makes a because while the Court of Justice has always very strong legal statement if the Constitution is tracked the Strasbourg case law and has always adopted and the Charter is in Part 2, but even if it is looked to it, it has never treated it as binding and the not, my guess would be that the Court, which has language is very careful in the Charter. It does not refrained from citing the Charter so far because it say that the Strasbourg Courts’ judgments are was waiting—this is my understanding from talking 9945061001 Page Type [O] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca to some of the justices—to see what was decided Court which chooses to be conservative in the sense politically, they do not feel it appropriate to cite the of cautious is equally being activist in a diVerent Charter in the meantime, but if the Constitution fails direction. Activism works in diVerent ways because for whatever reason there is enough consensus judicial interpretation is always a very open matter around the Charter that I can imagine it coming into and it is very indeterminate. Let us take some of eVect de facto. things that we have been discussing: how would we Professor Eeckhout: If the Constitution does not know what the intention behind a particular clause enter into force and the Charter is not made binding was? For example, even if we take the rights versus in any event, the Court needs to stick to the existing principles issue we were talking about, you could say principles, which are that the Court itself can define the intention of the UK, Ireland, and I think the which fundamental rights are protected under EU Netherlands, was to try to limit the justicability of law as general principles of EC law on the basis of economic and social rights, but do we know that for international human rights instruments and the sure about the others who signed it, how do we constitutional provisions common to the Member attribute intent to these? They may have been raising States. I think the Court would look at the Charter a fairly rough smoke screen to try to ensure the as some kind of expression—not necessarily even Charter was adopted without too much hindrance to mentioning it—of agreed fundamental rights and the enforcement of some of its provisions. I find it might take up some of those rights and build those very diYcult to know whether a court being active or rights into its case law. Of course the Courts are very inactive is something that aVects its legitimacy much aware of the existence of the Charter. I think positively or negatively. It is important that a court in the end the position may be very comparable in always takes basic legal principles of interpretation relation to what you have if the Constitution does into account and everyone can agree when a enter into force in terms of fundamental rights particular interpretation is really way outside the protection. text, but when it comes to provisions that are reasonably capable of being interpreted in diVerent ways, then choices are ones which express particular Q107 Mr Heathcoat-Amory: Can I turn to the preferences and values and it is quite diYcult, given impartiality of the Court more explicitly, Professor how many diVerent sorts of values are expressed in De Bu´rca, you and many others have described the the Constitution, to say which way the Court should activism of this Court in its judgments which tend to or should not go. In the area of justice and home make it an engine of European integration and to aVairs or anyone where the Court is too zealous in promote European Union powers. How is this promoting the legislative powers of the Union is a reconciled with its duty to administer impartially matter for criticism. Or where the Court is too human rights, and in particular the Constitution, zealous in being creative with provisions and going when it goes into questions quite inadvertently of beyond a shared understanding in comparative law V justice and home a airs legislation? Do you think jurisprudence it is potentially open to criticism. On there is a danger of a hidden agenda here which will the other hand, there are those who say that the role undermine its status and impartiality? of a Court is also to interact with the legislator and Professor De Bu´rca: I think I would qualify the first not simply passively to apply legislation, but also to thing you said, which is that my view about the interpret it creatively in response to changing Court and its character in terms of activism or in- circumstances. activism is that it is a Court that has always been, what I would call sensitive to the particular political context. It has periods of great activism of the kind Q108 Mr Heathcoat-Amory: There is a specific you describe, very clearly promoting certain values clause in the Constitution, in 18(3), that sets out the and periods when it has been criticised for not being various institutions of the Union, the Commission, suYciently activist, especially on fundamental rights the Council and the European Court and then says: in cases involving same sex issues, sexual orientation “The Institutions shall practise full mutual co- questions and immigration questions. It is very operation”. What do you make of a judge on a court diYcult and also, since the Court is a constantly who may be sitting in judgment over something changing body, it has expanded enormously in size which is about the powers of a Member State or an and I think it is going to be very diYcult to attribute individual in a Member State as against the Union a single kind of motivation to the Court or a single and here the instruction is to practise full mutual co- stance. In recent years it has been much more operation with the other EU institution? Do you not diYcult to characterise it. Some of its judgments are think that that is a very odd statement to put into a surprisingly cautious where it might easily have Constitution when they are trying to protect the reached a diVerent conclusion. Some of them remain impartiality of a Court? reasonably activist and it is true, as Professor Professor De Bu´rca: It is a very ambiguous phrase, Eeckhout mentioned, that some of the citizenship although it is true the Court itself has used the case law has been, what I would consider, the most language of sincere co-operation, but only in activist in moving ahead and expanding law in areas reference to its relationship with national courts. It where it is not obvious that is what the legislative text has seen itself as being under a duty to co-operate means and so on. Yes, the question of judicial with national courts and they are under a duty to co- activism is always one that raises questions about the operate with it in terms of being given assistance if legitimacy of a Court. The other point is, and I think references are made and so on. It is true that mutual it is very convincing when I have heard it said, a sincere co-operation would be a very strange phrase 9945061001 Page Type [E] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca to use in terms of the relationship of a court to the rules, is it the voters—to go back to your point about political institution because under the separation of basic legal rules and the need to interact with powers principle, the court is supposed to be the legislature—or, as I would prefer, basic ensuring the political institutions observe the limits constitutional principles which are based upon the of their powers whereas, on the whole it is not for the democratic decision-making of the voters in a political institutions to ensure that the court general election irrespective of what the European observes the limits of its powers. Community prescribes. In a general election if voters of a particular country decide that they want to have Q109 Mr Heathcoat-Amory: Can I ask you if Irish laws which are expressly inconsistent provisions of Courts are mandated to practise full mutual co- the Constitution or indeed the existing Treaties, the operation with the Irish Government when they are question is who rules? I say the voters, but you and sitting in judgment over a human rights issue? the establishment of the European system will say Professor De Bu´rca: No. that ultimately, as the Constitution prescribes, it has to be the European Court of Justice. I do not see that Q110 Mr Bacon: Can you name a single court in the as a democratic system at all, do you? world that is obliged to operate in the spirit of full Professor De Bu´rca: That would not be my view; in mutual co-operation with the Executive of which it a sense my view is beside the point. My view would is part of the same polity? be that the European Court of Justice within its Professor De Bu´rca: It is interesting, on the one particular institutional powers and conﬁguration hand, your question seems to suggest that you are has seen that as its role. It has seen its role being to afraid that the court might be too activist, and then promote the eVectiveness of EC law. In my view a on the other hand, you assume that the court will court in Britain has the right to decide for itself interpret this very ambiguous phrase as imposing a whether in the court’s own interpretation of its duty on it to co-operate sincerely with the constitutional system and where its position is institutions. My sense would be that the European within that and the way in which the constitution or Court of Justice is independent enough to fully the EC Treaties have been given eVect by British safeguard its independence which it has done over constitutional law to decide within that whether they the years. There is no sense in which the Court has are under a duty to disapply an Act of Parliament or treated itself as being subject to either national to give eVect to an Act of Parliament which expressly political control or European political control and contradicts EU law. In my view, I did not answer the maybe that is one of the criticisms that people have question on primacy earlier, the provision on often asked who watches the watchdog. My sense is primacy does not change the existing situation which that it is unlikely the court would treat that as in any is that national constitutional courts, without way compromising its judicial independence. anyone saying they violated EC law, simply pose a challenge to the Court of Justice in saying: “Our Q111 Mr Bacon: Could you answer my question? loyalty is to our Constitution and in so far as our Professor De Bu´rca: Could you repeat your Constitution mandates we are a part of the question? European system then we will give eVect to EC laws” but if there is a clash and the clash is in an area over Q112 Mr Bacon: Could you name any court in the which we have jurisdiction within our jurisdictional world, apart from the European Court of Justice, system, then Kompetenz-Kompetenz does not lie that is subject to this type of provision? with the European Court of Justice. That question Professor De Bu´rca: I am not suYciently familiar has never been expressly addressed by British courts with the comparative judicial provisions that exist. and in my view it is an open question how they might deal with it. Q113 Mr Cash: I could oVer you a number of examples and most of them are pretty authoritarian, but that is a problem which I think this European Q114 Mr Cash: That is the danger, and it is because Constitution and the whole of this political system of what Jack Straw has conceded to me on 9 which is being created represents. I very much agree September, for your record, with respect to the with the sentiment behind what Mr Bacon said. The question of the Article 1(5) point, who rules okay, question which I am going to ask on this issue goes the Constitution or the Constitution of the Member to the heart of what you said in your leading text States including the enacting of legislation by our book, which is that the ECJ is generally perceived to Parliament. Yes, it is possible that Parliament could have pursued a vigorous policy of legal integration over-ride that at the moment, but the real question— over the years and in particular in the earlier decades and you described it in a sense as an open question of the Community’s history, and the role and just now—is that the current convention, which is primary concern of the Court is to enhance the that the European Court will not disapply legislation eVectiveness of Community law and to promote its by voluntary advocation by an enactment such as integration into national legal systems. I would say the Constitution, could be construed as a signal to that is a cuckoo in the nest and it goes back to my the European Court that it itself could disapply earlier question about the disapplication of national because the individual Member State—and it could laws where they are expressly and unambiguously be the German Constitution for example—has inconsistent with the Treaties, the rulings of the eVectively been over-ridden by Article 1(5) and I can Court and the laws of the acquis, in other words who see them taking that view, can you not? 9945061001 Page Type [O] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca

Professor De Bu´rca: I cannot because the provisions Member State than you might find in the decision of for the Constitution are very explicit about the the Court in Strasbourg, but I think it is speculation. powers of the Court and they do not include the I think the Carpenter case was a good example, but power to set aside a national law. They have very it is speculation to try to see what that would be in explicit powers about setting aside Union laws and another context. I worked for a number of years reviewing Union laws. Their only power is either to myself in the European Court of Justice and clearly declare a state in violation of the Treaty under there are always a few judges there who are not so the enforcement procedure brought by the keen on turning the Court of Justice into a human Commission—which does not aVect national law— rights’ court and who would be very careful to try to or to send a reference back to a national court. stick to the Strasbourg case law and authority. They Ultimately, it remains with the national court and would not want to interfere too much in the way in the national parliament to decide what you do. The which, within a particular Member State, the European Court of Justice can do nothing, and I do balance between public policy and fundamental not think the Constitution will change that at all, if rights is decided. a state decides it wants to expressly countermand, violate or challenge a provision of EU law. Q116 Mr Connarty: If I could turn to a completely Professor Eeckhout: Could I add to something to V that. If you look at things from a very basic di erent area. The new Constitution will basically perspective, the Constitutional Treaty, like any collapse the three pillars which means we will all other Treaty, is a form of international law which become used to dealing with the EU’s powers. It will under international law is binding on the states mean that Framework laws will fall under the same which have signed it. What we have achieved in the enforcement regime as presently applies to all context of European Union law is simply a better European Council Directives. Is there a risk that this way of ensuring that every Member State does will lead to excessive rigidity and too much power comply with the international obligations to which for the Commission in the transposition of measures it has committed itself by virtue of the fact that the in the criminal justice field? There is always a European Court of Justice has confirmed this concern of parliamentarians about the power of the principle and the national courts have accepted that Commission. that in general is a principle which they will uphold. Professor Eeckhout: I must confess, as you may have Again, the Constitution does not in any way change seen in my memorandum, I have not discussed the that. It is a matter for the unwritten Constitution of question at any length at all on the Criminal Justice the United Kingdom and for the courts interpreting Provisions because I ran out of time in preparation that Constitution to decide precisely what eVect and for this meeting and it is not an area with which I am under what circumstances European law does that. very confident. Of course it is clear that the third pillar is now fully integrated into the first pillar, so you have a more significant role for the European Q115 Jim Dobbin: If I could I ask Professor Commission in proposing legislation which is the Eeckhout a question: the European Court of Human sort of standard role, as we see it for the Commission Rights has developed a doctrine of the “margin of in other fields. I think in order to be able to develop appreciation” when dealing with moral and social a policy in that area, as the Constitution clearly issues even where there is wide divergence between envisages and as apparently the Member States can contracting states. In your view, will there be room see happening, one needs a body, such as the for a similar doctrine to be developed by the Commission, as a common institution, and of course European Court of Justice in considering the to have a parliament, as a supra-national institution, Charter or is the Court likely to press for uniformity? to try to define some kind of common interest on the Professor Eeckhout: If we go by the current case law basis of the diVerent interests of the Member States on Human Rights and on the fundamental rights and to be more involved. That is really necessary if developed by the European Court of Justice, they one wants to advance policy in that area, which is a have fully agreed with the “margin of appreciation” political choice. which the Strasbourg Court recognises. For Professor De Bu´rca: It might be worth saying that example, a fundamental right which has come up that area of justice and home aVairs is a very quite frequently in an economic context is the right controversial area, but I do not think the record of to property which can be limited on public policy last few years has been very salutary either, the kinds grounds and the European Court fully accepts that. of provisions which have been debated and adopted. Also, there is a horizontal provision which It is hard to know whether greater power to the recognises—it is in the current numbering Article II- Commission to propose legislation will change the II2 that there can be limitations to the exercise of the situation all that much. On the positive side, as diVerent rights which are contained in the Charter, Professor Eeckhout, says, the collapsing of the and I would think that fits the “margin of pillars, as far as the previous third pillar is appreciation” which the European Court of Human concerned, would give a stronger role to both the Rights also recognises. Of course that does not European Court of Justice and to the European exclude, as we have been discussing before, that in Parliament which slightly increases the democratic the future there may be circumstances where the controls over that particular area. Certainly I would European Court of Justice might go a little further not think that the previous system was one which than the Strasbourg Court has gone and might, in a gave the citizen or many people great cause for particular context, leave less of a margin to a confidence in the kinds of proposals which were 9945061001 Page Type [E] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca adopted. In fact it has been a big growth area in are non-derogable within the German Constitution recent years and it has suggested that an area which and provisions on European competition law do not is dominated by governments, especially in the post prevail over them. The principle of supremacy or 9/11 era, has not given the citizen great comfort. primacy does not have that scope. This is an area of Kompetenz-Kompetenz in which we can specify that” and I think that is still a tenable position. I Q117 Mr Heathcoat-Amory: Could I raise the would be surprised if the German Constitutional Kompetenz-Kompetenz question? We have already Court would be prepared to overlook its basic touched on Article 1(5)—the so-called primacy clause—it seems to me that at present there is a source of authority which is from the German stand-oV, an agreement that neither side in this will Constitution and that very clearly specifies that assert their full rights, that is to say the national certain parts of the Constitutional law are courts, constitutional courts, parliaments or the fundamental. I do not think the German ECJ, but Article 1(5), which gives a pretty Constitutional Court is going to say the fact that EU unqualified primacy not just to law from the law, within its proper scope of competence, has Constitution, but to the Constitution itself with all primacy means that it will have primacy over a its obligations in it, does seem to me to tip it pretty fundamental part of the German Constitution. decisively in favour of Union primacy. How does this square with, for instance, the position of the German Constitutional Court after Maastricht Q118 Mr Heathcoat-Amory: If I may put to you that which quite clearly and explicitly reserved certain the Constitution contains within it obligations for powers for itself? If I simply read this without Member States, for instance, to behave unreservedly knowledge of that, and if this is voluntarily signed up in a spirit of loyalty and mutual solidarity and so on to by all the Member States, I cannot see how that in the field of foreign aVairs and despite the fact that German convention or doctrine can survive. Again, some clauses were taken away from ECJ, those is it not very dangerous to do something which tips solidarity clauses appear to be justiciable. If a a delicate compromise very much in favour of Member State was to do something clearly in exclusive centralised Union powers? defiance of the other Member States in this field, that Professor De Bu´rca: I agree with you that it would clause would be invoked, would it not, to undermine be very dangerous if that were how it were to be or indeed to render illegal any national action. That interpreted, but if I were part of the Court, I would is apparently what it says and surely a court should be looking at that together with the provision which be entitled to refer to this rather than its case law if, says the previous interpretations of the Court of after all this, they are the instructions from the Justice on EU law and jurisprudence are to Member States in a signed Constitution. continue—I cannot remember the exact phrasing, it Professor De Bu´rca: I think the fact that it opens a is Article 438—and those shall remain mutatis choice for a national court means that a national mutandis the source of interpretation of Union law. court is faced then with the question of whether its In a sense, this provision on primacy is supposed to duty stems from its own Constitution, which was codify the existing principle of supremacy. It is true adopted under a very diVerent sort of procedure, or that it says the constitution, but the existing under this new Constitution. If it sees a direct principle of supremacy is very much that EU law conflict between something under the solidarity takes primacy over national law within the proper clause—I find it hard to imagine all of this—and if area of action of the EU. That leaves two questions the Court of Justice declared something that a open which I think does not change the position for particular state had done to violate the solidarity the German Constitution Court. The first question clause, a national court would feel itself compelled is, is the EU acting properly within it competence? You would have to check and see that the provisions to follow that ruling of ECJ and not something have been followed properly, that it is acting within fundamental in its own Constitution. From my the scope of competence that is conferred and so on, point of view surely that must be an open question, and that it has not misinterpreted, for example with I do not think it is closed or decided by this the Tobacco Advertising Directive, and really Constitution, though I can imagine a national court extended into health powers that did not exist, but which is Europe-orientated taking from Article 6 that should remain in the area of internal market. So that it could be that. But I can equally imagine the that is the first thing, is it a proper exercise of Union German Constitutional Court continuing with competence? Secondly, that does not really exactly the reasoning in Rune. determine anything about the kind of national law Mr Heathcoat-Amory: The national court might that EU law has primacy over. It has primacy in so follow the national parliament, but the ECJ would far as they are operating in the same sphere but, declare the country in breach of the Constitution there is a big discussion about what they call and its obligations and therefore, infraction diagonal conflicts, which is that a provision of procedures would follow, limitless fines would have European law in a particular policy field does not to be paid and so there would be a major crisis. take primacy over every single national law, it Surely the ECJ takes its instructions from the text, depends on whether it is within the scope of that law but I can find no qualification. You have said it flows and this is known as the idea of pre-emption. For from case law. The British Government tabled an example, the German Constitution Court can say: amendment to try and make the text more closely to “No, this is an area of the fundamental rights which follow case law and limit it to a specific legal conflict 9945061001 Page Type [O] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca in specific cases. That was not allowed, it was over- goes back to the primacy of the United Kingdom ridden and the text stands in this very bald and Parliament in legislating on behalf of the British unqualified manner in which we see it. people. Chairman: Can I say as a way of explanation to our Q119 Mr Cash: Following on from what Mr witnesses that often people think when they come Heathcoat-Amory is saying, Professor Denza said in into these sessions it is for questions and answers. oral evidence—you may or may not have read it— We usually have a mixture of questions, answers, that if the Constitution is adopted, the ECJ will discussions and debates and I am sure we are all “inevitably tend not only to regard itself as a enjoying the experience today, but it is my job as constitutional court”, which I say is in the Treaty Chairman to bring the evidence session to a close anyway, “but to be generally regarded as a and make sure that all the questions we hopefully constitutional court and I think there will be a wanted answered have been answered. I am going to greater level of deference and perhaps greater allow to Mr Connarty to ask one last question which reluctance to challenge on issues of primacy”. The he says is going to clarify this whole area. reason that we, as a scrutiny committee, are so engaged in this subject is for a very simple reason, it Q122 Mr Connarty: In your interpretation, are you goes to the question of who rules, how do you rule saying that if the British people vote for this and is it the voters or is it the Courts? It is a Constitution, they are voting to give the primacy and supremely important question and your answers, if rulings in law to the courts in Europe and not the I may say so, so far have rather left the door open courts in the UK? because I do not think you quite know what the Professor De Bu´rca: No, I am not saying that. answer is. You rather inclined to the view that I expressed, and which David Heathcoat-Amory expressed, that it would be sensible for the European Q123 Mr Connarty: Can you clarify because that Court to have regard to what it was that the national seems to be Mr Cash’s interpretation. legislator ultimately decided. I think that is still very Professor De Bu´rca: No, I am not saying that. My much an open question and the more we go round question to Mr Cash was a rhetorical one that if he this mulberry bush the more confusing it is to the interprets the Constitution as saying it gives the general public. I must say it would be extremely European Court the power to over-ride national helpful if we could have a more clear and pristine courts, then surely if the British people vote for that, view from such great authorities as the two of you. then that is right because that is what they are voting Professor De Bu´rca: I am not sure I know what you for, and he seems to believe in the right of voters to want a clear and pristine view of. determine what happens. I do not believe that is Mr Cash: I want to know “Who rules okay”? Is it the what the Constitution says, but unfortunately it voter or the European Court? seems that I am not helpful to you on this because I do not believe the Constitution determines that Q120 Chairman: In order to know who rules the UK, question, I think it leaves it open in the way that it he wants to know “Who rules okay”. has been open until now. Professor De Bu´rca: If you want me to give you a Professor Eeckhout: I would fully support that. I serious answer, one answer would be, what if there think if the Constitution is approved, that means is a referendum here and what if the voters vote for that all the Member States and the people voting in the Constitution, then which vote counts in your favour of it approve of the fact that the European view—the vote for the national parliament or the Court of Justice is the ultimate judicial authority to vote for the Constitution? determine what European Union law is and means. Then, it is for Member States to implement it and it Q121 Mr Cash: You have asked me a question and is still open to national courts if they think that their I will answer it. I will say that if the referendum says national constitutional provisions do not allow them that we are in favour of the Constitution, then that to give eVect to that and to do so in the courts, and would be a very powerful gearing lever to the it is open for Parliament. What I wanted to add is European Court and indeed the national courts to that I do not know of any examples in the last 30 say, “The British people have spoken in the years or more where the United Kingdom referendum, therefore the European Court rules Parliament has expressly legislated in conflict with okay”. European Union law. I think there have been cases Professor De Bu´rca: I am speculating, but if, in where legislation or provisions have been set aside voting for the Constitution, the British people are by the courts, establishing that they are in conflict, saying, “Yes, the European Court rules okay”, then but I do not think there have been any examples of your view seems to be that the European Court express legislation and of course if that were to be should rule okay because it has been voted. adopted, we would face a new position. Mr Cash: That is a perfectly reasonable argument, Chairman: Can I to bring this evidence session to a but the crucial question is whether in fact the views close and thank our two guests very much for of the British Parliament, as expressed through an coming along today. I can say that it is quite an Act of Parliament, should rule okay or whether experience coming before our Committee because, every single thing, rather like in the case of as you have probably found out today, we have a Switzerland for example, could or should be referred range of expertise and generally helpfully people to referenda. This is a fundamental question which within our Committee which we always say 9945061001 Page Type [E] 31-03-05 03:22:35 Pag Table: COENEW PPSysB Unit: PAG1

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8 December 2004 Professor Piet Eeckhout and Professor Gra´ inne de Bu´ rca strengthens the work that we do and that is so and impress us as you have today. Sometimes it feels important. When we have the opportunity to speak a little bit exceptional when they also enlighten us to two distinguished witnesses as we have had today, and I feel that your evidence to the Committee today we take full advantage of it. I can tell you that it is both impressed and enlightened us. I would like to not unusual for witnesses to come to this Committee thank you both very much. 9945771001 Page Type [SO] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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Wednesday 12 January 2005

Members present:

Mr Richard Bacon Angus Robertson Mr William Cash John Robertson Mr Michael Connarty Mr Anthony Steen Nick Harvey Mr Bill Tynan Mr David Heathcoat-Amory

In the absence of the Chairman, Mr Michael Connarty was called to the Chair

Memorandum submitted by Professor Alan Dashwood I shall deal in order with the aspects of the Treaty Establishing a Constitution for Europe (hereinafter, “TC”) on which evidence has been invited, except for the issues referred to under points 7 and 8, which relate to matters I have not yet had an opportunity to study in detail. Articles of the TC are numbered in accordance with the text in Document No. CIG 86/04.

1. The Practical Consequences of the New References (in Articles 2 and 3) to the Union’s Values and Objectives Article I-2 and I-3 are part of the deﬁnition of the European Union, which is provided by Title I of Part One of the TC. They help to establish what may be described as the Union’s “moral identity”.

Values It is not entirely correct to describe as “new” the reference in Article I-2 to the Union’s values. The first sentence of the Article reproduces the wording of the present Article 6(1) of the Treaty on European Union (hereinafter, “TEU”), with additional mention of “the rights of persons belonging to minorities”. This is an important addition, given that that members of minority communities in some of the new Member States of the Union have been subject to discrimination in recent times. The rights to be respected are not collective rights but those of individuals belonging to minority communities. The second sentence, which (apart from its opening words) does not figure in the TEU, defines the kind of society the Union aspires to be. The matters referred to could be described as corollaries of the values mentioned in the first sentence—for instance, liberty and democracy cannot be realised without pluralism and tolerance, the rule of law without justice would be a travesty, and non-discrimination is a central feature of respect for human rights. The inclusion in the second sentence of a reference to “solidarity” underlines the special importance the Constitutional Treaty attaches to this notion—to be understood here, since it is unqualified, as having the wide connotation of the acknowledgement of a degree of responsibility for the welfare of others. The catalogue of values serves exactly the same practical purposes in the Constitutional Treaty as it does in the TEU. In the first place, the upholding of the stated values is a condition that any candidate for membership of the Union must fulfil (Article I-57 TC; Article 49 TEU). Secondly, there is machinery to enable action to be taken, within the institutional framework of the Union, in order to forestall a threatened breach, or to deal with an actual breach, of those values (Article I-58 TC; Article 2 TEU). By spelling out the implications of the Union’s foundational values, the second sentence of Article I-2 reinforces that machinery.

Objectives The statement of objectives in Article I-3 is not without precedent, either. It incorporates and develops the description of the Community’s “task” in Article 2 EC, and the statement of the objectives of the Union in Article 2 TEU. The main diVerence is found in the greater emphasis that is placed on social objectives, more particularly in paragraph (3) of the Article, but this is balanced by continuing commitment to “an internal market where competition is free and undistorted” and to price stability. Paragraph (5) makes the point that the various objectives are to be pursued “by appropriate means, depending on the extent to which the relevant competences are conferred upon [the Union] in the Constitution”. This looks ahead to the principle of conferral, which governs the limits of Union competences, and is defined in Article I-9 (1) of the TC. In view of the scope of the objectives identified in Article I-3, it is useful to be reminded that the Union may act in pursuance of any of those objectives only in so far as it is authorised to do so, by a provision of the TC that constitutes the legal basis for the action in question. Article I-3 is not itself a legal basis for specific action. 9945772001 Page Type [E] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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2. Whether the Treaty makes “Enhanced Co-operation”More Likely The availability of the enhanced co-operation procedure is extended by the TC to the ﬁeld of the common foreign and security policy (hereinafter, “the CFSP”). However, in practice I do not expect the procedure to be used much in that ﬁeld. Member States, which do not wish to be bound by a CFSP decision, but are willing to allow its adoption, already have the more attractive option of “constructive abstention”. Moreover, action taken by way of enhanced co-operation in a CFSP matter would be seriously weakened through the non- participation of the United Kingdom, or of any other of the large Member States, and the possibility of this happening seems, accordingly, remote. As for other policy areas, in my opinion any increased recourse to enhanced co-operation is more likely to be the result of the enlargement of the Union to 25 Member States, than of the TC itself.

3. How Public Meetings of the Council when Legislating would Work in Practice—In Particular,How Much would be Public I am not, of course, privy to discussions which, I suppose, must be taking place within the Council, as to how the envisaged split between law-making activity and policy-making activity will be organised. However, in the light of my former experience as a Director of the Council’s Legal Service, I would expect it to be along these lines. When a legislative proposal is first submitted by the Commission, there will be a public Council debate, in which the measure is introduced by the competent Commissioner and Ministers give their initial reactions. It is obviously desirable that such reactions be co-ordinated as far as possible. Detailed negotiations will take place, as under present arrangements, within the competent Council working parties and COREPER. It will then, as now, be a matter for the political judgment of the Presidency and of COREPER as to whether, at a given moment, a further debate by Ministers would move matters forward; the TC seems to require that such debates be public. To be consistent with the spirit of Article I-23 (5) TC, the meeting at which the Presidency compromise in its final form is debated and agreed in substance, must take place at Council, not COREPER, level; in the co-decision procedure, that would apply at both first and second readings, and following any conciliation. However, I can see no objection to maintaining the A-point procedure for the purpose of formally adopting a text after it has been tidied up by the lawyer-linguists. The Council agenda could, for instance, be divided into three parts: Part A for the public adoption, without debate, of the A-point list; Part B for public debates on legislative acts; and Part C for policy discussions, where the Council would eVectively be behaving like a Cabinet. Some Councils, notably External Relations, would normally have only a Part C agenda.

4. How the New Council Presidency and New Foreign Minister would Work, and the Relationship Between the European Council Presidency and the Presidency of Individual Council Formations I share the widely held view that the present system, under which the Presidency of the European Council and of all Council bodies, down to the humblest working party, is held for six months by Member States in rotation, is unsuitable for a Union of 25 Member States. If the opportunity to exercise the functions of the Presidency can occur only once every 12 to 13 years, the educative value of the experience would have been dissipated before a country’s next turn came round, facing Ministers and their civil servants with an excessively steep learning curve. As regards the European Council, the more Member States there are, the harder the President’s task of facilitating cohesion and consensus. To take a concrete example: the preparation for a European Council customarily entails a visit by the President to the capitals of all the Member States in the fortnight or so before a meeting. Under the existing arrangements, that round of visits—which are not courtesy calls, but often involve substantive discussions—has to be combined with all the other responsibilities that fall on the shoulders of a person holding the oYce of Prime Minister. The job has become one, to which a person, who also has to act as his/her country’s Head of Government, cannot be expected to give all the attention it requires. The European Council ﬁlls a gap in the institutional system of the Union, as it was originally conceived. The democratic leaders of the Member States acting collectively are, in my view, the right body to set the political agenda of the Union, while leaving it to the Union’s other political institutions to implement the programme in accordance with their respective powers. However, the European Council can only perform that role adequately, if its business is strongly directed, and not by a Presidency which, under the existing system of six-monthly rotation, is inevitably driven by particular national concerns. The establishment of a Presidency for a term of two and a half years, renewable once, will help to ensure continuity in the development of Union policies. It is also one of the elements of the TC that will enhance the legitimacy of the system, by strengthening the link with the political processes of the Member States. The role of the President of the European Council will be: to “chair it and drive forward its work”; to “ensure proper preparation and continuity” (this in co-operation with the Commission President, and on the basis of the work of the General AVairs Council); and to “endeavour to facilitate cohesion and consensus within the European Council”. The European Council President would have been better placed to fulﬁl that 9945772001 Page Type [O] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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role, if the oYce had been combined with the Presidency of the General AVairs Council; as things are, formal provision will have to be made under the Council’s rules of procedure to enable him/her to attend meetings of the General AVairs Council, and perhaps those of all Council formations, ex oYcio. In addition, a senior member of the President’s staV should be involved in the work of COREPER, as the preparatory body with a general oversight of Council business. I have been critical of the “double-hatting” of the new Foreign Minister, since it seemed to me that it would be very hard for one and the same person loyally to prepare and execute Council policies on external relations, while remaining true to his/her role as a Commission Vice-President bound by the discipline of collegiality. It is not the case that there is one sphere of external relations for which the Commission has exclusive responsibility (trade, development aid, etc.) and another sphere for which responsibility is vested exclusively in the Council (the CFSP). Decision-making on trade, aid and the other external relations matters currently governed by the EC Treaty are powers of the Council, while the Commission has its customary role of initiating and implementing Council decisions. International agreements relating to such matters are negotiated by the Commission, but it must first obtain authorisation from the Council, and it is bound by the negotiating directives the Council issues. Moreover, power to conclude international agreements under the EC Treaty belongs to the Council in almost all cases. Which side would the Foreign Minister take in disputes of the kind that have frequently arisen between the Council and the Commission, over issues such as whether the Community is exclusively competent in the matters to which a given agreement relates, or what is the correct legal basis in the Treaty for concluding an agreement? I am now more confident that “double-hatting” will be workable, thanks to an amendment to the Article of the TC defining the role of the Foreign Minister (Article I-28), which I understand was made at the insistence of HMG. The Foreign Minister’s duty of collegiality as a Commission Vice-President, pursuant to paragraph (3) of the Article, has been qualified by the phrase, “to the extent that this is consistent with paragraphs 2 and 3”. Paragraph (2) of Article I-28 relates to the conduct by the Foreign Minister of the CFSP, as mandated by the Council, and paragraph (3) to his/her chairing of the Foreign AVairs Council. I infer from the phrase which has been added to paragraph (3) that, when presiding over the Foreign AVairs Council, the Foreign Minister will not be bound by the Commission’s view on issues such as the exclusivity or non-exclusivity of Union competence, or the choice of legal basis for an envisaged agreement. In other words, at the definitive stage of the decision-making process on both CFSP matters and the other aspects of external relations, the Foreign Minister will be wearing his/her Council hat.

5. The Extent to which the UK Government Held its Red Lines over QMV Relating to Treaty Changes,Taxation,Social Security,Defence,Criminal Procedural Law, the System of Own Resources and the CFSP

6. The Effectiveness of the Emergency Brakes in Criminal Justice and Other Matters I take those issues together.

Treaty changes In the version of the TC that was finally agreed, three diVerent procedures have been laid down for the revision of the Treaty. The “ordinary revision procedure” in Article IV-7 includes provisions formalising the preparatory role of a Convention constituted in a similar way to the Convention on the Future of Europe, but otherwise corresponds to the procedure which is presently prescribed by Article 48 TEU. Any amendments will have to be agreed by common accord of an Intergovernmental Conference and subsequently ratified by the Member States. Article IV-7a establishes a “simplified revision procedure”, which is to apply in cases where it is proposed to introduce QMV in place of the unanimity rule, or to introduce the ordinary legislative procedure in place of a special legislative procedure. The decision is to be taken by the European Council, acting by unanimity after obtaining the consent of the European Parliament. National Parliaments must be notified of any such initiative taken by the European Council; and if, within six months of being so notified, a single Parliament expresses its opposition, the decision may not be adopted. Article IV-7b lays down a further “simplified revision procedure”, applicable only in respect of the provisions of Title III of Part III of the Treaty, which relate to the internal policies of the Union. Once again, the decision is for the European Council, acting unanimously, though here the European Parliament only has to be consulted. The decision of the European Council can only come into force once it has been approved by the Member States in accordance with their respective national requirements. Those arrangements appear to me preserve any “red lines” designed to safeguard the prerogatives of Parliament with respect to treaty changes completely satisfactorily. 9945772001 Page Type [E] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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Taxation The ﬁnal version of Article III-62 preserves the existing rule of unanimity. The draft provisions which would have created some leeway for acting by QMV on tax matters have been deleted. So, another “red line” held.

Social security and criminal procedural law Article III-21 provides for the adoption of European laws or European framework laws on the aspects of social security policy there referred to. In principle, therefore, the ordinary legislative procedure will apply, allowing the Council to act by QMV. However, it would be open to a Member State to invoke the “emergency break” mechanism, if it considered that a proposal “would aVect fundamental aspects of its social security system, including its scope, cost or ﬁnancial structure or would aVect the ﬁnancial balance of that system”. In such a case, the co-decision procedure would be suspended automatically and the matter referred to the European Council. The suspension would only be terminated, if a positive decision were taken to refer the draft back to the Council; and for the purposes of such a decision, the European Council would act by its default mode, which is consensus. A similar emergency break can be applied under Article III-171 (3) and Article III-172 (3) in the areas, respectively, of criminal procedure or substantive criminal law, where a Member State considers that a draft European framework law “would aVect fundamental aspects of its criminal justice system”. In these cases, too, red lines appear to have been held, though by the indirect means of the emergency brake mechanism. Because of the requirement of consensus in order to restart the legislative process, the particular form of the mechanism, which is prescribed by the TC here and also with respect to criminal justice, seems to me to provide a perfectly adequate means of safeguarding important national interests.

Own resources In the ﬁnal version of Article I-53, the danger that arrangements relating to the UK’s “budget rebate” could be adopted by QMV as an implementing measure, has been avoided. Paragraph (3) of the Article provides for the adoption of “basic” legislation on own resources in the form of a European law of the Council, adopted by unanimity, after consulting the European Parliament. Under paragraph (4) there is power to adopt implementing measures only in so far as this is provided for in the basic legislation. The United Kingdom has thus preserved its veto over any possible rebate system.

CFSP The only new instance of QMV for which the TC provides is where the Council acts on a proposal presented by the Foreign Minister “following a speciﬁc request to him or her by the European Council”. Such a request would have to made by the European Council acting under its default mode of consensus. This represents a return to the pre-Naples version of the text now found in Article III-201 (2) (b) of the TC. The UK’s red line is preserved, since the Foreign Minister is unable to act on his/her own initiative. The speciﬁc subject-matter of the proposal must have been consented to by all the members of the European Council.

9. What the Consequences would be if the Treaty is not Ratified? The consequence in law is clear. The existing Treaties remain in force unless and until they have been amended in accordance with the procedure laid down by Article 48 TEU. If more than, say, three of the Member States were unable to ratify the TC, and especially if a large Member State were included in this group, it seems likely, as a matter of practical politics, that the Union would soldier on under its present “functional” constitution, though probably with greater recourse to enhanced co-operation. However, if only one or two Member States failed to ratify (eg the UK and one of the small Member States), there would be very strong pressure from the governments of the other 23 Member States to go forward with the new Constitution. It is possible that a compromise formula might be found (as was done with respect to Denmark in order to secure the eventual ratiﬁcation of the Maastricht Treaty by that country), but this could not entail altering the text of the Treaty itself, since it is inconceivable that the other Member States would be willing to re-run the process of ratiﬁcation. In all likelihood, the only practical option for the Member States unable to ratify the TC would be to withdraw from the Union and negotiate some kind of associate status. 9945772002 Page Type [O] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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Memorandum of Evidence by Martin Howe QC

1. The Practical Consequences of the New References (in Articles 2 and 3) to the Union’s Values and Objectives

The Committee will be well aware that the Court of Justice of the European Communities (“ECJ”) attaches great weight to the general objects and purposes of a treaty when interpreting either the provisions of the treaty itself, or subordinate instruments such as regulations and directives made under powers conferred by the treaty. The classic and possibly most striking example of this approach is the 1963 case of Van Gend en Loos in which the ECJ relied upon a passage in the preamble of the Rome Treaty to establish its fundamental doctrines of the autonomous status and direct eVect of Community law: “This Treaty is more than an agreement which merely creates mutual obligations between the contracting states. This view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples . . . the Community constitutes a new legal order in international law for whose benefit the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the Member States but also their nationals.” [emphasis added].

The Committee’s question as I understand it relates principally to the changes between the text of Arts I-2 and I-3 agreed by the Constitution, and the text agreed by the summit (IGC) in July 2004. For convenience I reproduce with this evidence Annex 2 to document CIG 81/04, which contains the changes to Art I-2, recites Art III-3,7 and adds a Declaration to the Final Act.

Annex 2

THE UNION’S VALUES RIGHTS OF PERSONS BELONGING TO MINORITIES Article I-2 EQUALITY BETWEEN WOMEN AND MEN The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article III-2 In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.

Declaration for Incorporation in the Final Act Re Article III-2 The Conference agrees that, in its general eVorts to eliminate inequalities between men and women, the Union will aim in its diVerent policies to combat all kinds of domestic violence. The Member States should take all necessary measures to prevent and punish these criminal acts and to support and protect the victims.

The words added (shown in boldface in Annex 2 from CIG 81/04) will influence the interpretation by EU bodies, most importantly the ECJ and the Commission, of the Constitution itself, and of framework decisions, laws and regulations. Most obviously, these general provisions will inter-act with and influence the interpretation and application of the Charter of Fundamental Rights in Part II of the Constitution. The general nature of the principles expressed makes it almost impossible to foresee all the ramifications of the inclusion of these words, but two specific points may be made.

The ﬁrst point is that (equality between women and men( is not the same as non-discrimination. The two concepts are distinct, and in some circumstances may be opposed to each other, as in the case of so-called (positive discrimination( if quotas or other measures are used to encourage or favour members of one sex over the other in order to achieve a perceived advantage of greater equality of outcome. The present position under Community law, at least as regards (positive discrimination( in the case of applicants for employment, is that the ECJ has held that national laws providing for positive discrimination in favour of the under- represented sex, as distinct from compensation for disadvantages suVered by that sex, are contrary to the Equal Treatment Directive.8

7 Based on the existing text of Art 3(2) EC. 8 Case C-407/98 Abrahamsson, Anderson and Fogelqvist (6 July 2000): “Article 2(1) and (4) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, and Article 141(4) EC, preclude national legislation under which a candidate for a public post who belongs to the under-represented sex and possesses suYcient qualiﬁcations for that post must be chosen in preference to a candidate of the opposite sex who would otherwise have been appointed . . .” 9945772002 Page Type [E] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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The inclusion of the principle of equality between women and men in the fundamental values common to the member states, may lead to the consequence that the weight given to this principle by the ECJ and EU institutions will increase vis a vis the non-discrimination principle. Accordingly it might lead to reversal or at least revision of the existing ECJ case law on the subject in favour of permitting positive discrimination more widely than at present. The second point arises from the Declaration relating to domestic violence. The Declaration (1) states that Union policies will be directed to combat domestic violence, and (2) enjoins the member states to take all necessary measures to prevent and punish such acts and support victims. Laudable as such sentiments are, this Declaration raises the question of what relevant policy areas are within EU competence and why the Union should be enjoining member states to take action on matters which on the face of it are entirely internal and within member state competence. This Declaration is one of a number of indications that the Constitution will convert the EU into a fully ﬂedged federal structure in which, despite what it claimed for Art I-9(2) on the principle of conferral of competences, in eVect all internal member state matters will become subject to limits deﬁned at the EU level.

6. The Effectiveness of the Emergency Brakes in Criminal Justice and Other Matters Articles III-171 and 172 on criminal judicial co-operation and on harmonisation of substantive criminal law have had “emergency brakes” inserted (CIG 81/04 pp 34, 35) when a member state thinks that a measure would “aVect fundamental aspects of its criminal justice system”. If the “brake” is invoked, the measure is referred back to the European Council which in general acts by unanimity. Within four months it must either refer the draft back to the Council of Ministers and it will proceed, or invite the Commission to submit a new draft. Arts III-171(4) and III-172(4) state that if no action has by then been taken by the European Council, then a third of the member states can establish “enhanced co-operation”. The implication of these clauses is probably that the measure then fails to proceed as an EU measure and can only be proceeded with under enhanced co-operation, although it would have been better if this had been spelt out explicitly. The insertion of these “brakes” however reflects the acceptance of the general rule that measures in these important and sensitive areas will be taken by qualified majority vote. This reflects a major change from the present position under Title VI of TEU under which measures in this field need to be taken by unanimity.9 Further, it should be recalled that the general rules on QMV are to be altered to make the imposition of disputed measures on a dissenting minority of member states significantly easier than under the present Nice Treaty rules.10 By their very nature, the “emergency brake” provisions will only be invoked in exceptional circumstances deemed to be of suYcient political importance. Thus, undesirable measures of significant importance but not of such great importance as to justify invocation of the “emergency brake” procedure will, it is to be expected, be passed through. Further, if the brake is invoked it may not be eVective in all circumstances. The wording of new Art III-171(3) and 172(3) is (where a member of the Council considers that a draft European frameworklaw...wouldaVect fundamental aspects of its criminal justice system . . .” On the face of it, this means that the assessment of the question, ie of whether or not the measure aVects fundamental aspects of its criminal justice system, is a matter for the member state concerned. However, it is conceivable that the ECJ might impose a requirement of reasonableness or proportionality on the member state’s assessment of this question. If the ECJ were to adopt such a view, or even if there were to be a perceived risk that it might do so, that would further inhibit the use of the “emergency brake” procedure.

7. The Effect of the “Horizontal”Clauses which Govern the Application of the Charter of Fundamental Rights The IGC has inserted a new paragraph, Art II-52(7), to the eVect that the Charter (Part II of the Constitution) should be interpreted “with due regard” to the Explanations originally prepared by the Convention which prepared the Charter and were updated by the Presidium of the Constitutional Convention (CIG 85/04 p 17). It is likely that this insertion will have little eVect on the way the Explanations are employed by the ECJ as it is left free as before to take account of the Explanations to the extent that it wishes. The “horizontal” clauses (Arts II-51 to 54) serve to regulate the ﬁeld of application of the preceding clauses of the Charter itself. Art 52(1) restricts the application of the Charter to (1) the institutions of the Union itself, and (2) to the member states “only when they are applying Union law.”

9 Art 34(2) EU. 10 Measures may be passed under QMV if (1) they are supported by 55% of the member states (2) who represent 65% of the population of the Union (CIG 85/04 p 7). Whilst this represents an increased threshold as compared with the draft Treaty (Art I-24, 50% of member states representing 60% of population), it still represents a very substantial relaxation of the current rules under Nice which require over 72% of the weighted Council votes in favour, with a “double lock” of 62% of the population of the Union. There is a signiﬁcantly increased risk of unwelcome measures being imposed on the UK by QMV under the new system. 9945772003 Page Type [O] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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There is a tension between this apparent restriction, and a number of provisions within the Charter (eg II-2 outlawing the death penalty, II-3 on eugenic practices, cloning and biology, and II-24 on the right of children to have contact with their parents) which go to the heart of member states’ powers. This suggests that the “horizontal” clauses have been added as a kind of cap to attempt to restrict the ﬁeld of application of an underlying document which was not drafted with any such restriction in mind. How will this tension be resolved? The experience of the USA, where the Bill of Rights was framed to apply to the organs of the federal government but was judicially expanded to apply to the States, presents a salutary warning.

The scope of application of Union law is already wide and will be further expanded by the Constitution. Existing EC law (which will become Union law) means that the Charter will have immediate direct eVect on such areas as free movement of workers and many aspects of employment law, and on asylum (because of the minimum standards Directive). Criminal law will become increasingly the subject of Union law under the constitution, as will family law having cross border implications under Art III-170(3). Further, under existing ECJ jurisprudence it is likely that the Charter will be applicable to member states not only when they are actually applying Union law but also when they are seeking to take advantage of an exception or derogation from the scope of a generally applicable principle or rule.

Art II-52(5) states that: “5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by Institutions and bodies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.”

The perceived purpose of this clause is to make “principles” not judicially cognisable until they are implemented by legislative acts. It is far from clear that it achieves such a purpose, especially at member state level. If, for example, a Union directive or framework decision is passed, then it would be interpreted in the light of such “principles” and the obligations imposed on member states by it would be governed or at least inﬂuenced by those “principles” accordingly. The legality of the conduct of a member state, whether of commission or omission, would accordingly be regulated by those “principles”.

A key question is how one identiﬁes those provisions of the Charter which contain (principles( as referred to by Art II-52(5). Unfortunately the Explanations, if they are taken into account, do not provide much of an answer. The Explanations under Art 52 state: “For illustration, examples for principles recognised in the Charter include eg Articles 25 [rights of elderly], 26 [rights of persons with disabilities] and 37 [protection of environment]. In some cases, an Article of the Charter may contain both elements of a right and of a principle, eg, Articles 23 [equality between men and women], 33 [family and professional life] and 34 [social security].” (Text in square brackets has been inserted by me for clarity and does not form part of the text of the Explanations.)

This Explanation does not make it easy to determine what in the Charter are mere “principles” and what are directly enforceable individual rights, especially since the word (rights( is used in some of the Articles stated to contain only principles. Therefore this question will need to be determined on a case by case basis, ultimately by the ECJ. However, the broad nature of the Articles said to contain both a right and a principle, such as a right to social security, suggests that the application of this clause will be restricted to those cases where the aspirations within the Charter are intrinsically too general to be converted into justiciable individual rights; the corollary of this clause is that everything not in this very general sphere is indeed intended to be a judicially enforceable right.

There are other respects in which the Explanations will probably widen and reinforce the judicial enforceability of the Charter. For example, the Explanation relating to Art II-1 (right to dignity) states that “none of the rights in this Charter may be used to harm the dignity of another person, and that the dignity of the human person is part of the substance of the rights laid down in this Charter. It must therefore be respected, even where a right is restricted.” This suggests that the right to dignity in Art II-1 has an overriding eVect and that it applies even where there are exceptions to or restrictions of other more speciﬁc rights.

On Art II-28 on collective bargaining and strike action, the Explanations state that the article is based on Art 6 of the European Social Charter which provides for such action in general terms. Although the Explanations state that collective action “comes under national laws and practices” it is not clear that this imposes any limitation on the basic right conferred by Art II-28 and it would be for the ECJ to decide whether or not any limitation imposed by national law on the basic right (eg in emergency services) was compatible with the essence of the right, applying the horizontal clause in Art II-51(1) that “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms.” This suggests that eg any restrictions on the right to strike, and the UK’s opt-out on the Working Time Directive, will be justiciable by the ECJ who may decide whether or not these derogations “respect the essence” of the rights in the Charter. 9945772004 Page Type [E] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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9. What the Consequences would be if the Treaty is not Ratified During the drafting of the Constitution, both the President of the Convention M Giscard d’Estaing and the Commission became worried about the question: what would happen if the Constitution were adopted by a majority of member states, but one or more dissenting countries were to refuse to ratify? Since a number of countries are to hold referenda regardless of what happens in the United Kingdom, this is a realistic outcome. M Giscard has said,11 “If a State does not ratify the text, then it cannot participate in the future system. But it is more probable that an individual country is unable to accept certain points from the Constitution. In this case we will follow the example of the Monetary Union which means a universal framework for everybody but also the possibility to abstain for some.” The European Commission also investigated ideas designed to pressurise such countries by trying to force them out of full membership of the EU into some form of associate membership as an alternative to ratifying the Constitution. The Commission came up with the idea that governments of the member states would make a “solemn declaration” of their intention to remain part of the EU before the new Constitution entered into force.12 By making such a solemn declaration governments would be binding their countries politically to the new Constitution, so, the Commission hoped, forcing their populations or parliaments to back them. The logic of this is that each government would have to resubmit its proposals if it lost a referendum. These ideas were not carried forward into the adopted text of the Constitution because of their impracticality. The fundamental legal position is that the existing Treaties need to be amended, or repealed and replaced, in order for the new Constitution to come into force, and this process unambiguously requires the consent, in accordance with their own constitutional requirements, of each and every member state. A political commitment to ratify or even a “solemn” political declaration would have no legal force. The position of a member state which refused to ratify would be extremely strong. It would be in a position either to kill the whole Constitution or to insist on terms satisfactory to itself as regards its own future relationship with the EU as a condition of assenting to the repeal of the existing treaties of Rome and Maastricht so that the Constitution could come into force. M Giscard however floated a more radical idea to overcome this problem. “We have to abrogate the (EU) treaties that exist. If a country says that is does not like the new treaty, there’s no existing structure for them to cling to, they cannot seek refuge in the old agreement ... you can maintain an economic role, but you can no longer be in this political system.”13 This suggests that the majority of member states who wanted the new Constitution would simply tear up the existing Treaties of Rome and Maastricht and then sign up to the new Constitution as a new agreement between themselves. This radical idea presents a number of serious problems. First, it would be a flagrant breach of international law and a violation of the Treaty rights of the dissenting minority State or States. Secondly, the new entity could not legally acquire the institutions, property or funds of the existing EC and EU (including the funds of the ECB), which would continue to belong to all existing Member States. Perhaps this problem could be overcome by blatantly stealing the property and funds of the old EC and EU if they are located on the territory of non-dissenting member states, in breach of international law. Thirdly, the new entity would not succeed automatically to the international agreements of the old EC and EU. Any such agreements would need to be re-negotiated with the international counter-parties who might impose additional terms as a condition of renewing the agreement with the new EU, or might refuse consent altogether. Fourthly, scrapping the existing EC Treaty would also scrap the euro. The euro of the new entity would legally be a new and diVerent currency from the euro of the old EC. Commercial and banking laws of the member states would need to be amended to substitute the new euro for the old euro, and to validate existing contracts expressed in old euros. It would not be possible to impose such changes on either the dissenting Member States or on third countries, leading to chaos in international currency and trading transactions. And there would be a fifth problem which would present even more practical diYculties. The existing EC and EU Treaties are heavily embedded in the internal constitutional and legal orders of the Member States, in many cases being explicitly referred to in national constitutions. Obtaining the necessary constitutional ratifications and consents to the repudiation of these Treaties would be a major task, far greater than securing ratification of the Constitution which provides for consensual replacement of and succession to the existing Treaties. What if the majority of States who adopted the Constitution were actually to embark on this course? There would need to be a round of ratifications of the repudiation of the existing Treaties, including further referenda in some countries as required by their constitutions. And what if this course of action failed to achieve ratification in one or more of the non-dissenting majority countries? Would those countries in turn then be considered dissidents to be expelled from the EU as well?

11 Der Spiegel, 21 October 2002. 12 Communication from the Commission, forwarded by Mr Barnier and Mr Vitorino, members of the Convention: “For the European Union Peace, Freedom, Solidarity—Communication from the Commission on the institutional architecture” 05–12–02 CONV 448/02. 13 Financial Times, “Tax harmony is on EU agenda,” 11 November 2002; similar ideas were repeated in an interview in Le Figaro 22 January 2003. 9945772004 Page Type [O] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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This series of legal, moral, constitutional and practical diYculties means that the idea of tearing up the existing EC and EU Treaties in order to bludgeon a dissenting minority of Member States who fail to ratify is a non-starter in the real world. Instead of any such dire consequences, Art IV-8(2) simply provides that the treaty establishing the Constitution shall enter into force after all States have deposited their instruments of ratification. There is also a Declaration which states that if, two years after signature, four fifths of the member states have ratified it but one or more have “encountered diYculties in proceeding with ratification”, then the matter will be referred to the European Council. However, the European Council then has no power to take any steps against member states who have refused or failed to ratify. It is of course possible that a political solution would be sought in which a majority of member states proceeded forward with the Constitution but the dissenting states were outside its provisions. Constructing such an arrangement would require considerable thought as to how the institutional arrangements would operate to the satisfaction of all parties. However, the non-ratifying states would be in a very strong position to secure terms satisfactory to them because their consent would be vital to allowing any form of Consitution-type arrangement to go forward in place of the existing Treaties of Rome and Maastricht.

Witnesses: Professor Alan Dashwood CBE, Professor of European Law at the University of Cambridge and a Fellow of Sidney Sussex College, and Mr Martin Howe QC, Barrister, examined.

Q124 Mr Connarty: Can I welcome both of you, special machinery which allows action to be taken Martin and Alan, to the Committee. Thank you for against a Member State which is guilty of significant giving up the time to be here. We may be joined by breaches of those values. So, taken together, I think other members of the Committee as we progress. they perform really quite a useful function. Can I start oV as Chairman and go straight into the question and answer session. When he came and Q125 Mr Connarty: Thank you. Martin, would you gave evidence to this Committee, Sir David Edward like to comment on that? described the new reference to the Union’s values Mr Howe: I think these words do have some legal and objectives in Articles 2 and 3 of the eVect because although these very general Constitutional Treaty as “little more than a statements are too general, if you like, to bind the politically correct wish-list” that will be of “little Court in the decisions which it reaches, we can see in assistance to the Court as guides to interpretation”. the past the Court reaching out to things like Do you agree with this? I will let both of you have a preambles and general statements to justify go at that one. decisions it wishes to take and these words— Professor Dashwood: I do not entirely agree with particularly non-discrimination, rights of David Edward’s assessment. It seems to me that the minorities, and equality between men and women— Article on values and the Article on objectives which were the words inserted at the final IGC stage, together perform some quite useful functions. First will provide a basis in eVect for the Court to justify of all, they give a clearer idea than I think we can decisions that it wants to come to, perhaps for derive from the existing Treaty about what I perhaps broader reasons. As I highlighted in my written rather pompously called the “moral identity” of the evidence on this point, there may be some shift of Union, the kind of political entity that it purports to emphasis in contexts where the concept of equality be; and that, to me at least, is quite an attractive and the concept of non-discrimination are in conflict feature. It is part of the definition of the Union, so it towards the concept of equality. has that quite useful function. It defines the Union as an entity which supports fundamental rights and Q126 Mr Heathcoat-Amory: Can I turn to the freedoms, including for members of unpopular primacy clause in Article I-6. Am I right that at minorities. It is based on democratic pluralism. It present the case law of the European Court of Justice has an open market with free competition but at the asserts a pretty general primacy for European law same time a strong commitment to social solidarity, but this has never been accepted unconditionally by and a commitment to multi-lateralism in Member States and in particular the constitutional international relations. I think all of that gives a courts have always reserved significant powers to more rounded picture of the Union than we could themselves to decide in particular the Kompetenz- have derived from the existing Treaties. So it has that Kompetenz question in Germany, that is the power useful function. It will provide only a very rough of the Union to decide its own powers? Am I right in guide to the Court of Justice in interpreting the suspecting that the new unconditional primacy substantive provisions of the Treaty. It may perhaps clause might upset this stand-oV in favour of the be a little more useful to the Community legislator European Union? In other words, if all the countries in determining the thrust of future legislation, and of of the Union voluntarily sign up to a Constitution course it does have two very practical functions. which asserts the primacy of the Constitution and First of all, this is the identification of the Union’s everything that flows from it, would this not disturb fundamental values. It is part of the conditionality of the present working convention between these two becoming a member of the Union that a state should concepts? subscribe to those values and be willing to propagate Mr Howe: I believe it will shift it. It is correct that the them. They are also the values that have to be upheld European Court has enunciated consistently a by Member States, and which are protected by doctrine of primacy of European Community law 9945771001 Page Type [E] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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12 January 2005 Professor Alan Dashwood CBE and Mr Martin Howe QC over national law and specifically over national domestic court said a diVerent thing, and conflicts constitutional laws, but as far as I am aware almost between legal systems cannot be resolved by legal all national courts that have considered this same argument, they can only be resolved by asking which point have asserted the supremacy of their national system has the eVective power to enforce its rulings constitutional orders within their own court in the context concerned, and these conflicts can systems. The German constitutional court did that have undesirable side eVects. in the Manfred Brunner case. The Italian Professor Dashwood: I do not take entirely the same constitutional court ruled to similar eVect. The view as Mr Howe. As a matter of European French Conseil d’Etat I think did also. The one Community law, it has been clear ever since the early decision I am aware of that goes slightly the other 1960s that Community law has primacy over the law way is the Belgian Supreme Court decision. Perhaps of the Member States—that was in the famous Costa they are more integrationist than other Member v ENEL case—in the sense that, if confronted with a States. It may well be that one of the eVects of conflict between an applicable provision of including an explicit primacy clause into the Community law and a provision of national law, the Constitution is to pressurise national constitutional national judge was required to refrain from applying courts to accept that there has been a fundamental the conflicting national provision and required to shift of sovereignty away from the their own give the full intended eVect to the Community domestic legal orders to the international legal provision. The Court’s approach to this has been order. rather subtle. In a fairly recent case called IN.CO.CE the question was asked whether national legislation Q127 Mr Heathcoat-Amory: So you would not that was incompatible with a Community provision accept the constant reassurances that we get from was null and void, a nullity, and the Court said no to ministers that this simply reproduces the status quo that. So the eVect is not, as it were, to disable and does not augment a shift? national legislatures, but the possible primacy Mr Howe: I believe it does represent a shift. I think it conflict is resolved by a rule which requires the is important, as I see it, to analyse it in two questions. national judge to disapply, as we rather horribly say Question one is: is there a shift of fundamental in “Eurospeak”, the conflicting national provision sovereignty when the question is being considered by and give eVect to the Community provision. That the European institutions such as the European doctrine applies to law at all levels in the Member Court, Commission and other bodies? The other States, including constitutional law. The Court question is: is there a shift of fundamental decided that back in 1970 or 1971 in the sovereignty as viewed by the courts’ domestic legal Internationale Handelsgesellschaft case. So the systems? On the first question I rather think that position in Community law is perfectly clear, and turning the existing Treaties into a Constitution will indeed was perfectly clear at the time when the UK result in the European Court going further than it joined the European Communities, as they then has already gone and in due time saying were. That is not necessarily the view which national fundamental sovereignty has shifted to this greater legal orders take of the relationship. Mr Howe entity. I think the extent to which the courts within mentioned some of the cases where the highest the national legal systems go along the same road courts of some of the Member States have insisted and recognise the same doctrine will vary from that their primary loyalty is to their national country to country. Probably our courts will be constitution, and that they have taken the position more resistant because of the doctrine of supremacy of principle that they could not give eVect to a of Parliament than others but even here provision of Community law, where this would fundamental common law doctrines are subject to constitute a breach of the national constitution. In broader political climate over time. slightly technical language, the Community legal Mr Connarty: I was going to ask Professor order and the national legal orders function as co- Dashwood if he wanted to add anything. ordinate systems. One is not subordinate to the other. They each are self-referential, but we have this Q128 Mr Heathcoat-Amory: I very much wanted to rule of primacy which makes it possible to resolve hear Professor Dashwood. In cases of dispute about conflicts in practice. My view is that simply by the interpretation of this clause am I right in writing down the principle of primacy you do not thinking that the European Court of Justice is to alter that fundamental relationship. That that was that extent the supreme court? the intention of the Inter-Governmental Conference Mr Howe: Indeed, although you would get to a point seems clear from the declaration which says that this where you could have a conflict between legal provision is to be applied consistently with the case systems, a conflict between “grundnorms”. Under law of the Court of Justice. There may of course be the Metric Martyrs case, the Thoburn case ([2003] a question—but this I think is a question not of QB151, Divisional Court), the latest expression of Union law but of national constitutional law—what opinion by our courts, Lord Justice Laws said that diVerence does it make to the constitutions of the doctrine of primacy, even if it was correct as a diVerent Member States if a given Member State has matter of interpretation of the Community Treaty, assented to a constitutional treaty including an could not oust the doctrine of supremacy of express provision of this kind. Would it make it Parliament within our own legal system, so you more diYcult for the Bundesverfassungsgericht,the could get a conflict between legal systems in which German constitutional court, to overrule a the European courts said one thing on this point, our provision of Community law that it considered to be 9945771001 Page Type [O] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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12 January 2005 Professor Alan Dashwood CBE and Mr Martin Howe QC incompatible with the German basic law? That is a Q131 Mr Cash: And could express it question for German constitutional law, and I do unambiguously. not know the answer to it. Would it make a Professor Dashwood:—and it was expressed diVerence to the judges in this country? The fact is, unambiguously. That situation would enable us, curiously perhaps because of our doctrine of the finally after all these years, to give a clear answer to sovereignty of Parliament (I remember back in the your question about whether the constitution of the early 1970s people were very concerned about how UK is the same as we always thought it was, which the United Kingdom would be able to function is that the Queen in Parliament is sovereign and no within the European Community given the nature of Parliament can bind its successors; or whether our constitution), we are one of the Member States perhaps the basic norm has changed in the United where the courts have never had the slightest Kingdom, and the judges would accept that diYculty in ensuring that Community law is given Parliament, our supreme constitutional authority, primacy where this was necessary, without by agreeing to become part of the European Union, apparently violating the fundamental principles of had bound itself not to act incompatibly with the Constitution. A clear case where this happened European Union legislation during membership of was the famous Factortame proceedings. It was very the Union. Whether there has been a shift of basic clear at the time when the Merchant Shipping Act norm or not with an unwritten constitution like we 1988 was enacted that this was intended to create a have, you can only wait and see how the judges new shipping register and that only fishing vessels would react to that Act of Parliament. controlled by UK nationals would be able to be Mr Cash: I am not waiting for that. entered on the register. That was the clear intention, but once the Court of Justice had ruled that this was incompatible with the principle of freedom of Q132 Mr Connarty: Before Mr Howe comes in, can establishment, the ruling was accepted by the House I just clarify for the record, you seem to be saying of Lords and this Act of Parliament was disapplied that the position of primacy and your analysis was established in 1970–71 by a ruling then and that was to the extent that was necessary. So up to now our in fact what we signed up to when we joined the courts have never had any diYculty in giving eVect European Union. to the primacy of Community law. Would this be Professor Dashwood: Most certainly. The principle changed in the future? I rather doubt it, but we will was first recognised in 1964 and then further clarified have to simply wait and see what they do. in 1970–71. Mr Howe: I am in a large measure of agreement with Q129 Mr Bacon: I would like to ask both Professor Professor Dashwood on this issue and on the Dashwood and Mr Howe about what Professor question of where does fundamental legal authority Dashwood called the “fundamental principles” of lie, under our system at the end of the day it lies the Constitution and, Professor, your conviction where the judges say it lies and because the doctrine that you could have our courts observing primacy of supremacy of Parliament is itself a common law without infringing this. Could each of you say where doctrine there is no Act of Parliament or formal you think fundamental legal authority in the United constitution from which it stems. The Factortame Kingdom lies at the moment. I think my answer is case itself represented a substantial modification to the Queen in Parliament but I would like to know the doctrine of the supremacy of Parliament as it was what your answer is. And if and when this traditionally understood, because as traditionally Constitution is through and ratified by all Member understood no earlier Act of Parliament could States and takes eVect, where then would override a later Act, a later Act always prevailed fundamental legal authority in the United Kingdom over an earlier Act. The modification to that lie? Perhaps Professor Dashwood, you could go first. doctrine made by the Factortame case was that the Professor Dashwood: I think I would agree with you 1972 European Communities Act in eVect overrode on this. Within the United Kingdom, under the later inconsistent Acts but so far the judges have constitution of the UK, fundamental legal authority always said that Parliament, by express words which lies with the Queen in Parliament. Our courts either repealed or overrode the 1972 Act explicitly, disapply incompatible national legislation, could override this doctrine, so we have the including Acts of Parliament where these conflict traditional doctrine but it is modified. But, as our with Community law, because that is what judges express the position today, the fundamental Parliament has told them to do in the European legal authority still lies with the Queen in Communities Act. Parliament. The next question is what will happen if the Constitution is passed. One point I would like to make is that the answer to the question could in part Q130 Mr Bacon: And after this Constitution goes depend on the terms of the Act by which the through? Constitution is given eVect in the United Kingdom. Professor Dashwood: The position will be the same. It is constitutionally possible to have an Act of The situation where this issue would finally be put to Parliament that will transfer fundamental the test would be if Parliament enacted legislation sovereignty to another body and that is conclusively which said something like “notwithstanding sections demonstrated by the fact that the Parliament of 2 and 3 of the European Communities Act . . .”, and Scotland and the Parliament of England each passed then laid down a provision that was incompatible an Act, the Act of Union, which had the eVect of with some aspect of Community law— abolishing themselves as separate bodies and 9945771001 Page Type [E] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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12 January 2005 Professor Alan Dashwood CBE and Mr Martin Howe QC transferring their sovereignty to the Parliament of courts, as Professor Arnull says, might make the United Kingdom, which was a new body, and national courts even less willing to disapply EU law therefore the answer to the question where does on national constitutional grounds? So is it not fundamental legal sovereignty lie if the constitution merely an abundance of caution but also necessary is ratified and enacted depends in part on the terms to retain the assumptions on which people declare of the Act which Parliament passes to enable that the primacy rule has not changed the ratification and in part on how the judges interpret constitutional arrangements for this country to it. The point I made earlier is that in my view what bring into new legislation when it is enacted a clear the judges say this decade is not necessarily the same statement that this does not alter the status quo, and as what they say next decade on fundamental points that the judges would be required to give eVect (on like this. the McCarthy principle enunciated by Lord Professor Dashwood: Could I just add a word. Denning) to a clear statement so where an Act says “notwithstanding the European Communities Act . . .” and then legislates accordingly, that that Q133 Mr Connarty: I am going to take one more would be given eVect and the judges would be under question on this issue but if you think there is an obligation to give eVect to that new law? something you need to add? Professor Dashwood: I simply wanted to say—and I think Martin and I agree on this—that the issue is Q134 Mr Connarty: I think we have got that. really one for national law. The Constitutional Martin, would you like to have a go at this question? Treaty itself does not purport to subordinate the Mr Howe: The answer as far as the legal issues are constitutions of the Member States to itself. The concerned is certainly it would be possible to insert Member States do not derive either their identity or in the Act, giving eVect to the constitution in the their powers from the Constitution. The United Kingdom, a clause which explicitly preserved Constitution is an agreement between the Member the fundamental doctrine of supremacy of States establishing the European Union and Parliament and Parliament’s right to repeal the Act conferring certain powers on the Union. if it so chose. If that were done, that would prevent Mr Connarty: I will take one more question on doubts and would put beyond judicial drift— primacy. Mr Cash? Mr Cash: If I may say Chairman, as we all recognise, everything turns on the question of what we are now Q135 Mr Cash:—That is the point discussing in terms of the cascade downwards of any Mr Howe: —the problem of where fundamental subsequent changes in our constitutional status. I sovereignty lies. would just open with that and say, as Martin Howe and I have written somewhat extensively about this Q136 Mr Connarty: Professor Dashwood, would (myself in a purely political capacity with some you agree with that? constitutional input), the significance of what Alan Professor Dashwood: I suppose I do. Dashwood and Martin Howe have just agreed is Mr Cash: Reluctantly, Professor! largely borne out by what Professor Arnull and Professor Denza have both said in previous evidence. Q137 Mr Connarty: On the basis that Mr Cash Mr Connarty: Do not give evidence, just ask the wants to achieve a particular aim and he is asking question, Mr Cash. you if we did this would it achieve that aim. I think Mr Cash: I appreciate that, Chairman, but in order that is what is being said. He is not asking you to comprehend the question I think it is also whether we should do it or not. important to set the background. Professor Dashwood: I am not certain that it would Mr Connarty: We have all read the background. achieve that aim. In practice the matter might never Mr Cash: Professor Dashwood’s approach is that we be put to the test, because it seems likely to me that may have to wait and see how the judges react and the judges will try very hard to avoid finding the question I would like to put is simply this, in line themselves in a situation where they have to make a with my Sovereignty of Parliament Bill which clear choice between applying relevant Community includes the phraseology “notwithstanding the law and applying an explicitly contradictory statute. European Communities Act . . .” to eVectively As I say, in 30 years we have not had an instance require the judges to give eVect to any subsequent where a court has had any diYculty at all in giving clearly and unambiguously expressed provision full eVect to European Community law without which is inconsistent with the 1972 Act for this appearing to challenge the sovereignty of reason: this Constitution in terms of the conferral of Parliament. However, were a clause of the kind that powers that you have just mentioned surely also Mr Cash suggests to be included in the Act that carries with it the assumption that if part of the ratifies the Constitutional Treaty or in any other Act conferred powers is a change in the nature of the of Parliament, I think it would still be a relationship (because, after all, if this Constitution is constitutional question whether the European to mean anything it is that it should be interpreted Communities Act, as a condition of our membership by the Court because that is one of the functions of the European Union, during membership conferred on the Court to interpret this requires Parliament to accept a limitation on its Constitutional Treaty) then surely it follows that powers. That seems to me to be a possible there would be at least be the possibility that the interpretation of the constitutional situation, and I 9945771001 Page Type [O] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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12 January 2005 Professor Alan Dashwood CBE and Mr Martin Howe QC would not guarantee that the courts would not take field because of the existing scope of Union law. that view even if confronted with Mr Cash’s Union law includes a number of provisions which wording. are in the existing Treaty of Rome and will be Mr Cash: I think that would contradict what you imported into the Constitution which themselves are said earlier about the supremacy of Parliament but very broad, like free movement of workers, freedom we could spend a lot of time on that. of establishment, and so forth. Those are recognised Mr Connarty: I think the point is consistent with in the existing jurisprudence in the European Court what I have heard—that the courts will decide what as fundamental rights of individuals. It seems to me the courts interpret eventually should a case come they can then easily and without too much before them. Can we move on to another topic, the intellectual distortion import the provisions of the Charter of Fundamental Rights. Mr Tynan? Charter and attach them to those rights. We now have a system where we have existing Directives on asylum and it is therefore easy for the European Q138 Mr Tynan: Obviously there is the opportunity V for some conflict and some tension as regards the Court to say now that the Charter has legal e ect interpretation of the Constitution but could I direct under the Constitution the existing, vaguely defined a question to Mr Howe in particular. In your written rights conferred by this Directive on asylum seekers evidence you refer to the experience of the US as now import all the provisions of the Charter, and regards the Bill of Rights as a “salutary warning” there are a large number of other similar gateways against the centralisation of powers and dangers which could be used. posed by the Charter, but is it not the case that the Bill of Rights only acquired general eVect Q140 Mr Tynan: If we refer to a previous session and throughout the US as a result of the 14th responses that were given, we did say that there Amendment of the US constitution? would be an interpretation of and by the courts in Mr Howe: That is correct. The 14th Amendment was this country as regards whether it be the Queen in the amendment to the constitution passed after the Parliament or whether it be the Constitution and it Civil War and in eVect it was imposed by the would depend on the wording of the Constitution to victorious North on the defeated southern states and a degree and what was finally agreed as regards how it contains two important provisions, one the equal that would be imported into UK law. Would that protection clause and the other the due process not be the case? clause that each state shall confer on every citizen the Mr Howe: Well, yes, I suppose you could envisage equal protection of the laws. I think it is quite an Act of Parliament which gave eVect to the interesting to see how this provision was then used to constitution and perhaps contained some explicit import substantive obligations on the states because provisions restricting the ambit of the Charter. One although the 14th Amendment explicitly binds the could envisage that. In the absence of such explicit States of the Union, it does so only in particular provisions restricting the ambit of the Charter, the respects—in respect of equality and in procedural general provision (which is now section 3, subsection respects in giving due process if you take someone’s 1 of the European Communities Act 1972) would rights away. Then we saw a process by which the apply which is that the English courts—I am sorry United States’ Supreme Court interpreted this the courts of the United Kingdom, I apologise— provision, particularly the due process clause, to Mr Tynan: It is because of the Scottish accent! import not merely procedural but substantive rights in a way which is intellectually very hard to justify Q141 Mr Connarty: We are very tolerant about this. but was politically driven by the politics of the time Mr Howe: I apologise. That the courts of the United and would now be regarded as a right-wing attempt Kingdom in applying Community law give eVect to to prevent the states from engaging in excessive the principles laid down by the European Court of economic regulation of free market activities and Justice. So short of an explicit Act of Parliament that interference with private property. It was the first would raise the fundamental sovereignty issue that field in which the Supreme Court moved forward. we have been discussing, in general our courts would My view is that there are similar gateways under follow decisions of the European Court regarding which the Charter of Fundamental Rights can be the scope of the Charter and the scope of its expanded so as to bind the Member States. It would application to the Member States. not be that precise gateway because there is no equivalent here of the 14th Amendment. Q142 Mr Tynan: Is that just your opinion or do you think that would be open to discussion, debate and Q139 Mr Tynan: Could you then explain why you interpretation? think the ECJ may be able judicially to apply the Mr Howe: I would have thought everyone would Charter to nation states of the EU when the US agree with that last point. I think the question of how Supreme Court was unable to impose the Bill of widely the European Court will interpret the Charter Rights on the states in the absence of a formal is open to debate but on the question of if it constitutional amendment? interprets it in a particular way will our courts follow Mr Howe: First of all, the Charter explicitly starts it, I would have thought it is clear-cut. oV by imposing itself on the Member States when they are applying Union law. So there is an explicit Q143 John Robertson: Professor Dashwood, application of the Charter to the Member States Professor Piet Eeckhout has argued that “the within that field and it is in fact already a very broad concept of European citizenship is likely to pull the 9945771001 Page Type [E] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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12 January 2005 Professor Alan Dashwood CBE and Mr Martin Howe QC

Charter in the direction of an ever-expanding field of Mr Howe: Possibly two points. One is that the application, and to turn it into a Charter not merely Charter contains a number of provisions which seem directed towards the EU institutions but containing to have no relevance to any existing powers of the rights on which European citizens can more European Union but relate, if you like, explicitly to generally rely.” Do you share the view that the the core functions of the Member States such as concept of EU citizenship will ultimately prove more rights of children, for example, and that does make important in defining the scope of the Charter than it rather a puzzle as to why a Charter of Rights which the horizontal clauses? is primarily focused on reining in the European Professor Dashwood: The notion of European Union and subjecting its institutions to a regime of citizenship does let in consideration of fundamental rights should contain such provisions and, of course, rights, when aspects of the right of citizenship are in the problem with it containing those provisions is issue. What I would question is whether this was that they can be used as interpretive aids to likely to happen to a greater extent, or in a way that expanding the scope of Union powers in future, both was more damaging to national sovereignty, because at a legal level and at a political level. A second point of the Charter, than it would under the existing case raised is one of legitimacy and contrasting the law of the Court of Justice, where the Court draws political legitimacy of the European Court in taking on the European Convention and the constitutional these decisions with national constitutional courts, traditions of the Member States in formulating the and of course the fundamental problem with kind of rights that have now been written out in the fundamental rights is that you end up, however you Charter itself. So it may be that human rights will dress it up, with courts and judges taking decisions loom large in the development of the concept of which contain a large element of political decision citizenship, but I really doubt whether the inclusion rather than pure legal logic. Many of my colleagues of the Charter in the Constitution will make much in the legal provision, who seem to think it is best if the world is run by lawyers and judges think this is a diVerence. good thing, but of course it does create a severe problem of conflict if you have a conflict between the Q144 Angus Robertson: In a previous session we democratically elected legislature or government discussed with other eminent witnesses the issue of and judges on an issue that is essentially political, constitutional patriotism and one of the witnesses, and although the United States’ Supreme Court is Professor de Bu`rca, suggested to us that the Charter obviously deeply embedded in their constitution, may serve to strengthen the political legitimacy of and in that sense has legitimacy, it is by no means the EU. On the other hand, many of the Charter universally accepted in the United States that a rights clearly fall outside the scope of EU law and the number of the doctrines that it has developed of an ECJ judges interpreting the Charter lack both essentially political nature, based on very vague popular legitimacy and the broad social and political wording of the constitution, are legitimate or it is support that one see in the US Supreme Court and properly restricting itself to its judicial role by the German constitutional court. Do you share engaging in such activities. If you have a court which Professor de Bu`rca’s view? has less grounding in historical and political legitimacy but engages in that kind of expansive Professor Dashwood: I have always felt less interpretation or adventurous interpretation, then I enthusiastic than a lot of my academic colleagues do think the problem of political legitimacy becomes about fundamental rights as a way of arousing even greater. enthusiasm for the European Union, if only because they are rights which are not reserved for nationals of the Member States but by definition apply to Q146 Mr Heathcoat-Amory: I want to explore the everybody. So I am not sure that I agree with possible conflict between the two Charters on Professor de Bu`rca that the Charter is going to be a Human Rights that we are going to have. We already good way of arousing constitutional patriotism. But have the European Convention on Human Rights, I am quite attracted by that notion as a way of which is now part of our domestic law, and we are helping people to feel a bit more enthusiastic about going to have a separate legally binding membership of the European Union. I think that the Fundamental Charter of Human Rights. The Constitutional Treaty from that point of view is a Constitution attempts to reconcile them by saying step in the right direction. I think it is a better text for that when these two Conventions have similar rights what I call the well-intentioned general reader, who they are to be given the same scope and meaning, wants to find out something about the way in which which I understand. However, the Constitution also the Union is fundamentally organised. It is still quite says that this should not prevent Union law a tough read, but Part I of the Treaty does, I think, providing more extensive protection. I cannot paint a much clearer picture of the essential nature reconcile those two statements. Perhaps our of the Union than a person who was not an expert witnesses can enlighten me. would be able to derive from the existing texts, and Mr Howe: The Charter of Fundamental Rights of that may be a first step towards attracting a bit of the European Union in part contains Articles which constitutional patriotism. are linked to corresponding Articles in the European Convention on Human Rights, and if one looks at the explanations which have somewhat of the semi- Q145 Mr Connarty: Martin, did you want to formal status under the Charter the linkage is made comment? explicit. There are other parts of the Charter which 9945771001 Page Type [O] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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12 January 2005 Professor Alan Dashwood CBE and Mr Martin Howe QC have no direct correspondence in the European Q150 Mr Connarty: Mr Howe, is that the way Convention on Human Rights, primarily those constitutions should proceed? Is that a question you relating to economic rights such as the right of can answer? collective action and the chapter on solidarity. It is Mr Howe: Perhaps it is a question of it is not the way possible, I suppose, in the contexts where the constitutions should proceed but perhaps a lot of Articles do correspond that the way you interpret them do, in that vague phrases are not unknown in the provision saying the Union may confer more constitutions of every kind and variety, and I think extensive rights is to say that you have to draw a from a lawyer’s point of view the problem with circle, which is the rights conferred by the European vague phrases is that they give the courts and Convention on Human Rights, and you then have to everyone else a lot of scope for interpretation which draw a circle of the corresponding rights conferred is perhaps not wise that they should have. by the Charter which is either the same size or larger in some respect, and that may be what that provision Q151 Mr Heathcoat-Amory: This is rather is aimed at. I think in practice there is another point important. On the Convention on the Future of relating to possible conflict between the EU Charter Europe on which I sat our instructions were to bring and the European Convention which is to do with clarity and indeed it was constantly emphasised in which courts engage in the exercise of interpreting the Convention that the “who does what” question and applying these rights. One would expect the was finally to be settled and therefore the escalator European Court of Justice (or the Court of Justice of upwards to ever-greater power was going to stop. the European Union under the Constitution) to give Both our witnesses in their various ways are now greater weight to considerations such as the interests saying that this did not succeed in the Constitution. of the Union when it comes to conflicts with private Would that be fair? rights as compared with the Strasbourg Court. Professor Dashwood: I do not think I want to admit quite to that. Any vagueness in the Charter of Q147 Mr Connarty: Professor Dashwood, do you Fundamental Rights is unsurprising, because it is no greater than you would find in any similar text on wish to oVer an opinion? fundamental rights. But I think there are elements of Professor Dashwood: Only a very brief one, the Constitution where there is greater clarity. I Chairman. This kind of provision is commonly think, for instance, the categories of competence do found in international treaties. The ILO make some things clearer which are not clear under Conventions, for example, set minimum standards the existing treaties; for example, that the powers of and the members of the ILO are entitled to go the Union are normally shared with the Member further in providing a greater degree of protection States and only very exceptionally exclusive. If you than the Convention requires. Of course, in the know a lot about Community law you could have world of fundamental rights there is a balancing that worked that out, but it is very useful that it should always has to be done. A familiar example would be be stated on the face of the Constitution. that you have to balance the right of privacy against Mr Connarty: Can we move on? the right of free speech. It could be that the balance Mr Howe: Just on that very important point, it is a V which is struck in the future Union di ers a little bit point that perhaps goes beyond the Charter itself. from the balance which is struck by the Strasbourg Reading this Constitution I cannot see any Court under the Convention. But I do not see this as indication that the escalator is stopping, still less any a serious problem, and it is one which I expect the indication that it is possible to turn the escalator’s courts would work out between themselves over direction back in any significant respect. Although time. there are certain provisions relating to national parliaments they are not very substantial in terms of Q148 Mr Heathcoat-Amory: Can I ask on that the role they give to national parliaments. specific point, that would then surely breach the Mr Connarty: Thank you. Moving on to look at the requirement that the rights are to be equivalent? In jurisdiction of the European Court of Justice, Mr a Constitution which is supposed to bring clarity to Cash, I believe you had a question. the citizen about their future rights and about the workings of these institutions, it seems to create a Q152 Mr Cash: Article I-18(3) of the Treaty requires great deal of confusion. Professor, what you are the Union institutions, the Commission et cetera, saying is we will have to hope that future judges will including the Court itself, to “practise mutual muddle along in some way to get a solution we can sincere co-operation”. We are often told that the all live with. Is this really the way to proceed Constitution is eVectively a consolidation but of constitutionally? course this provision does not appear in the existing Professor Dashwood: It is certainly the way that Treaties, as many other things do not either, but that most constitutions do proceed, including the is by the bye. So are you aware of any court in a constitution of the United States. liberal democracy at all which is obliged to carry out its functions in mutual and sincere co-operation with the executive, that is the government? Q149 Mr Connarty: Not so much a rhetorical Professor Dashwood: This is a piece of clumsy question, almost a cry of despair! drafting. The principle of mutual sincere co- Professor Dashwood: I am sorry, I cannot do better operation is one which makes perfectly good sense as than that. between the political institutions of the Union. For 9945771001 Page Type [E] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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12 January 2005 Professor Alan Dashwood CBE and Mr Martin Howe QC instance, there was an occasion that I was involved this emphatically is not in the existing Treaties in when I was working for the Council’s Legal anyway. Do you have any thoughts about that Service, where the European Parliament, which had because it is a thing that worries me and I am given to be consulted on a piece of legislation which was to believe it worries the Prime Minister hence the being adopted, failed to give its opinion in time. The reason why he decided to give a referendum? legislation had to come into force before the end of Professor Dashwood: You are still referring to the calendar year, and the Council therefore went practising mutual sincere co-operation? ahead without having received an opinion from the Parliament and adopted the legislation. The validity Q154 Mr Cash: But I am saying that in the context of this was then challenged in the Court of Justice, of revocation and reapplication of those laws, and the Court took the view that the Parliament had including acquis communitaire, with primacy slotted no right to object to this flouting of its prerogatives on top (which has to be conducted through the because it had failed to comply with the duty of loyal interpretation of the courts) that this puts a co-operation between institutions. That is the completely new spin onto the question of principle to which it was intended to give eVect here. fundamental change. I agree that better drafting would have made an Professor Dashwood: With respect, I do not agree exception in the case of the Court of Justice, but I do that it does put a new spin on this matter. The not for a moment believe that the Court will principle of mutual sincere co-operation is part of interpret this as meaning that it has to give some the existing acquis. It is a principle that applies kind of preference to the other institutions of the between the institutions, though the Court has Union in the course of litigation. certainly never applied that principle to itself. And, Mr Howe: From the point of view of tradition where of course the principle of primacy is part of the we have clear separation between courts and acquis, and the Constitutional Treaty provides for executive and legislature, it is worrying. It should the jurisprudential acquis to be carried over into the not have been put in here and have included the new constitutional order. I agree that it is a piece of Court of Justice within the institutions to which it clumsy drafting, but I really have no concern at all applies. I am slightly more worried about the way that the Court of Justice is going to read this little the Court will approach this because the one has sentence as meaning that somehow in the future it is seen consistently in its judgments, although it has going to have to be kinder to the political institutions never accepted that it is its job to give decisions of the Union than it has been in the past, or that it which favour the Commission or the Parliament or must somehow co-operate actively with the political the Council of Ministers or do their bidding, that it institutions. It seems to me that Article III-220 accepts a sort of duty to further the whole process of which you cite is the guarantee, because the Court is integration under the treaties, and my concern is that required to uphold the law, and the law has to be this wording would strengthen that particular applied by the Court of Justice in an objective, tendency and the Court would regard itself as under equal way. a duty to co-operate in terms of finding alternative Mr Howe: The point referred to is quite an solutions under the Treaty that allow the whole important legal point, although it is not that process to go forward further and faster. apparent in the general debate on this subject, which is that the European Union as established by this Q153 Mr Cash: Could I therefore simply ask this Constitution will in fact be a completely new legal question of both our witnesses. We know that under body. It is not the same as the existing European Article 220—and this relates back to the point I was Union or the existing European Community, and making on the earlier provision on which I indeed Article IV- 438 states: “The European Union commented—the Court of Justice “shall ensure that established by this Treaty shall be the successor to in the interpretation and application of this Treaty the European Union established by the Treaty on the law is observed”. We know that under Article 1 the European Union and to the European (5) the law is specifically referred to, which includes Community.” In principle because it is a new body the Constitution for this purpose, in relation to the one could argue that is another reason perhaps why manner in which the question of primacy is to be the primacy question is open to being looked at all interpreted. The European Court is given that over again. function. The question when we get on to the revocation arrangements in the transitional Q155 Mr Cash: That is the point. provisions at the end of the treaty is that all these Mr Howe: Certainly I do not think the position on treaties will have to be revoked and the acquis primacy will be any weaker than under the existing communautaire, the whole shooting match in other acquis but there is a possible argument that it is words, the whole bundle, is going to have to be stronger because it is a new body, it is a new Union, revoked and then reapplied under the new and it has got fundamental legal sovereignty, at least arrangements for primacy. Now, in that context, in its own eyes and in the eyes of the Court. surely where the Court is to practise mutual sincere corporation it raises really a rather important Q156 Mr Bacon: I notice Professor Dashwood and question as to what its role will be in the context of Mr Howe were disagreeing. Professor, you were primacy in those arrangements related to the shaking your head earlier when Mr Howe was revocation and reapplication of the law. It is not a speaking. I would just like to know if it is not really straight consolidation and we know for example that going to make any diVerence and you are absolutely 9945771001 Page Type [O] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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12 January 2005 Professor Alan Dashwood CBE and Mr Martin Howe QC sure that it is not going to mean that the Court has a Constitution that is going to have primacy over the to be kinder to EU institutions during litigation than laws of Member States so how can he dismiss it in to other litigants, as it were, what on earth was the this way? point of putting this clause in because it was not Professor Dashwood: Imprecise drafting is there in the old Treaty, was it? What was it put in regrettable when it is not deliberate, but I do have no for? doubt that the Court will interpret that sentence as Professor Dashwood: The reason it was put in was to not referring to itself. It is not something which came recognise a principle which is important as between out of the blue. It is a sentence which simply the political institutions in the kind of case of which expresses a principle that already applies under the I gave an example. existing constitutional order. Mr Connarty: The Commission versus Parliament Mr Connarty: I think we have a clear position. We or the Council versus Parliament. have had two views and obviously that is why we are taking evidence. We must obviously assess the Q157 Mr Bacon: You mean that it is intended weight we give to these views. Mr Harvey, you have specifically to exclude the Court? a question. Professor Dashwood: That is the way the principle has been developed. I must say, when I read it, I read Q162 Nick Harvey: The European Court of Human it as simply a transcription of that principle. Of Rights when ruling on the ECHR has developed a course it has never applied to the Court in case doctrine of “margin of appreciation” when dealing law to date, but it is recognised by the Court as one with moral and social issues where there is a wide of the important organising principles of the divergence between diVerent states that are signed constitutional order. up to the Convention. What do you think will be the Mr Connarty: Can I just follow up a point, although approach of the ECJ towards the Charter? It is said it says in the way the question was phrased “requires to have shown political sensitivity previously on the the Union institutions, including the Court”, does it issue of abortion. On the other hand its form book actually say “including the Court” in reference to normally is that it is very keen to promote legal that in the Constitution? integration. How do you think it will develop in dealing with the Charter? Will it follow a similar Q158 Mr Bacon: “Each institution” is what it says. margin of appreciation? Professor Dashwood: You have a list of institutions Mr Howe: I think in practice it will have to start oV and then the next paragraph, paragraph 2, in the first by doing it. The European Court of Justice has a sentence talks about the institutions acting within very similar doctrine to margin of appreciation the limits of their powers. which goes under a diVerent name, the “doctrine of proportionality”. For example, when considering Q159 Mr Bacon: It says “Each institution”. It is not whether or not a measure which may interfere with a question of clumsy drafting, it is pretty clear on its trade between Member States is justified or not, it face is it not? asks whether it is proportionate to the aim to be Professor Dashwood: It says: “Each institution shall achieved. I think that conveys a very similar notion act within the limits of the powers . . .” and then of Member States having a certain margin of there is a separate sentence which says that the discretion. The Strasbourg Court refers to this as the institutions “shall practise mutual sincere co- “margin of appreciation” so although the labels may V operation”. I have no doubt that the Court will be slightly di erent the theory, the doctrine being interpret that sentence as meaning the other applied is likely to be similar, but of course what we institutions— have seen with the European Court of Justice over time is that it makes the margin available to Member State progressively narrower. For example, in the Q160 Mr Connarty: And not itself field of tax harmonisation Treaty articles which have Professor Dashwood: Not itself. been there 50 years are now being interpreted in a much more restrictive way regarding the scope of the Q161 Mr Heathcoat-Amory: Can I make a point. I powers of Member States to arrange their tax am very surprised by this comment that it really does systems in a particular way than they were not matter and it was almost an oversight of no originally, so I would expect to see there would be particular significance. Actually that clause was margins of appreciation recognised but as time goes changed. It used to refer to “full mutual co- on they will get narrower and narrower. operation”; it is now “mutual and sincere co- Professor Dashwood: I think I agree with the first operation”. So a great deal of thought has gone into half of that but not with the second half. The Court’s that and when I and others tabled amendments to approach to this kind of balancing exercise diVers in try and get these sorts of things changed we were told diVerent parts of the constitutional order. I think that our amendments were of no consequence. This certainly at this time of day you would expect it to is a deliberate instruction, after consideration, to the leave very little margin of appreciation to the existing institutions to behave in a certain way. To Member States in the field of tax harmonisation be fair to Mr Howe, this is an entirely new whereas in the field of human rights you would institution, the new Union. Would Professor expect the margin to remain very much what it has Dashwood still maintain that this is all only sloppy been up to now, in the way in which the Court has and really does not matter? This is an instruction in developed its doctrine of fundamental rights derived 9945771001 Page Type [E] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

Ev 66 European Scrutiny Committee: Evidence

12 January 2005 Professor Alan Dashwood CBE and Mr Martin Howe QC from the European Convention and the another area in which that will apply. That, of constitutional traditions of Member States. I do not course, could be mitigated if, as we are always being expect the Court’s general approach to change. promised, the quality of Union legislation improves Mr Connarty: We will move on to the consequences in the future. of the collapse of pillars. Q166 John Robertson: We have seen in other areas Q163 Angus Robertson: Will the application of the how the Commission can be inflexible and if they get V principle of direct e ect to what are now Framework involved in the criminal justice field could we see that Decisions cause problems? Will it not make it even same inflexibility and rigidity? more important that the drafting of such Professor Dashwood: I suppose it is possible. instruments is more precise and intelligible in the Mr Howe: I think there are really two distinct issues legal systems of all Member States? here. One is the direct eVect issue and the other Mr Howe: Yes. It was originally thought that V is Commission involvement. One possible Directives had no direct e ect, that they were consequence of direct eVect is not so much rigidity instructions to the Member States and they could be but that it produces a fertile field for lawyers because enforced therefore by direct action but they did not it expands the scope for litigants, say, in the criminal confer enforcement rights on citizens. The European V justice field to argue that this law cannot apply to me Court then devised the doctrine of “direct e ect of because it is breaching my rights under this or that Directives” by saying although they would not be framework law. On Commission involvement I binding as between citizens, they would bind the think that is linked also with the question of the state, so if you have an action between the state and expansion of qualified majority voting powers in the the individual, the individual is entitled to say, “The criminal justice harmonisation field, and one would state is acting in breach of the Directive and therefore expect that we would have more laws in therefore I rely on this right in these proceedings.” this very sensitive area that we might not like. There One of the conditions laid down by the European V Y is the emergency break as a fall-back ultimately, but Court for direct e ect is that it identifies su ciently that may not be that easy to invoke routinely. precisely the content of the right being conferred. Obviously an eVect of bringing the fields of criminal and civil justice in particular within the first pillar (or Q167 Mr Connarty: Thank you. Moving on to collapse of the third pillar into the first pillar) will be foreign and security policy. We note that most that potentially Directives, or Framework Decisions foreign and security policy is excluded by Article III- rather under the new terminology, will be relied 282 but it does not extend to Article I-15 (I-16 CTE) upon in the same way as Directives are under the which provides: “Member States shall actively and current law. unreservedly support the Union’s foreign and security policy in a spirit of loyalty and mutual Q164 Mr Connarty: Professor Dashwood, do you solidarity”, et cetera. Is there anything in Article I- wish to oVer an opinion? 15 of the Constitutional Treaty which is excluded by Professor Dashwood: I think it is true that the case virtue of that Article III-282 or would the Court be law on the direct eVect of Directives will be applied able to review whether a Member State had in fact to Framework laws including in the area that was “actively and unreservedly supported” the common formerly covered by the third pillar. I think the foreign and security policy or was conducting itself second pillar is a diVerent issue. I do not know if you “in a spirit of loyalty and mutual solidarity” with want me to go into that. this policy? In other words, do you think the Court could become involved in making such a judgment? Q165 John Robertson: The ‘collapse’ of the three Mr Howe: There is on the face of it a bit of an pillars will mean that Framework laws fall under the anomaly here. May I make a very procedural point same enforcement regime as presently applies to the about the Article numbers. My written evidence uses EC Directives. Is there a risk that this will lead to the Article numbers from the IGC text and the excessive rigidity and too much power for the question you asked me used the Article numbers Commission in the transposition of measures in the from the IGC text— criminal justice field? Professor Dashwood: I do not think this is a problem Q168 Mr Connarty: I have used the ones that were for criminal justice any more than for any other area supplied by the Clerk to the Committee. V of Union law. The case law on the direct e ect of Mr Howe: Under the final signed Treaty text the Directives is complex and not easy to explain. I have Articles have changed slightly and it is Article III- to explain it to students every year and I find that 376 which is the one relating to the Court of Justice quite a job. However, in my study of the of the European Union. Constitutional Treaty this is not an issue that has struck me as a serious one. I do not think that it is a problem of rigidity, it is really more an issue of Q169 Mr Connarty: I think we have worked out that uncertainty. The direct eVect of Directives leads to a there are two sets of figures here, one from the measure of uncertainty because the legal advisers to previous constitution clauses and the other one in individuals to whom Directives apply may find it brackets being the up-to-date one, with no diYcult to decide whether they are directly bound by explanation being entered by the Clerk as to why the terms of the Directive or not, and we will have there are two sets of figures! 9945771001 Page Type [O] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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12 January 2005 Professor Alan Dashwood CBE and Mr Martin Howe QC

Mr Howe: Moving on to the substance of it, there is explanation as to why these ambiguities remain an anomaly in that Article III-376 ( using its new because they are certainly not due to oversight numbering) excludes the jurisdiction of the Court of because these precse points were made during the Justice from applying to Articles I-40 and 41 which proceedings when this clause was drawn up? are the overall provisions in Part I relating to the common foreign and security policy, and also Q173 Mr Cash: Precisely. Chapter 2 of Title 5 of Part III, which are the longer Professor Dashwood: That is not a rhetorical bits of the CFSP, but there is no exclusion to the question? Court of Justice applying it to Article I-16, which is Mr Cash: No: the one containing the solidarity clause. One view of it is simply to say it is a drafting anomaly and it is intended that the Court shall have no jurisdiction Q174 Mr Heathcoat-Amory: It is partly rhetorical over the common foreign and security policy, full but you are invited to make some observations on it. stop. Another possible interpretation, I suppose, is It is a serious point. We are told this brings clarity to say it was intentional that of all of the provisions and certainty to the division of powers. Everything of the CFSP which have not been excluded from its we have heard this afternoon undermines this and I jurisdiction the solidarity clause is the one that is wonder if there is an explanation for this. Is it there, and therefore although the Court does not deliberate and due to the view that judges in future have substantive jurisdiction over the content of the may have more sense than politicians or is there policy it is intended that it shall have some another explanation which has occurred to our enforcement powers over backsliding Member witnesses? States which do not back the policies which have Professor Dashwood: I hope not quite everything has been adopted. Which of these interpretations is given the impression that the Constitution is an correct will be for the judges of the European Court impenetrable muddle. It is certainly not the view that to decide if the Constitution is ratified. I take of it. I am perfectly satisfied with the explanation that I have given, that the issue of co- Q170 Mr Connarty: Do you think it would be a wild operation is covered by the exclusion that applies to example of a European Union policy that was not Article I-40. So I do not think it is an issue that will for invading Iraq and a country like the United cause legal problems in the future. Kingdom who decided to go ahead and do so? Mr Howe: That might be an example. I think on Iraq Q175 Mr Connarty: But on the fundamental there was no common policy. question I was asking about whether the Court would be able to become involved in interpreting Q171 Mr Connarty: I am saying if there was. whether a country had or had not breached that Mr Howe: If there was a common policy that had clause I-16, there presumably could be a situation in been adopted and then a country departed from it, which they may want to become involved in then these judicial questions can depend upon the assessing and interpreting that, should an alleged political context in which they are decided as to what breach be referred to them? outcome the Court reaches. Professor Dashwood: The fact that Article I-16 is not mentioned in Article III-376 means that the issue could be raised in a court, but I am confident that it Q172 Mr Connarty: Professor Dashwood? would be resolved in the way that I am suggesting Professor Dashwood: The solidarity clause in Article because of the relationship with Article 1-40. I-16 is developed in Article I-40, particularly paragraph 5, which has a much more muscular requirement about consultation. Article I-40 is one Q176 Mr Connarty: Martin, do you have a view? of the provisions which is expressly excluded by Mr Howe: I agree that is an argument in favour of Article III-76 and that is why, if I had to argue this the anomaly interpretation rather than the point in the Court of Justice, if the issue had been intentional exclusion interpretation. I think that the raised about the United Kingdom or some other point raised by Mr Heathcoat-Amory goes back into Member State failing to actively and unreservedly the drafting history of the Convention and it is support the Union’s common foreign and security possibly a point in which the dreaded Travaux policy, I would feel fairly confident in arguing that Preparatoires might have to be looked at in aid of the exclusion with respect to Article I-40 prevented interpreting the provisions of the final Treaty. My that issue from being raised in judicial proceedings. experience of going and looking at the Travaux But, as Mr Howe said, that is an issue which would Preparatoires to interpret the Treaties is that they are ultimately have to be resolved by the Court of often not very helpful either way because an Justice. amendment may have not been made either because Mr Heathcoat-Amory: Could I ask you a question I it was thought to be unnecessary or because it was asked you earlier in a diVerent way as another thought that they did not want that eVect to be made example. Why should the future conduct of British on the Treaty. I am not sure I can take it much foreign policy and whether or not it is subjected to further than saying it would depend on the ruling of judicial review by the European Court all be left to the court at the end of the day, and certainly a court the vagaries of a future court case rather than made would be free, on this drafting, to rule the way the explicit in a Constitution that we are now being judges felt they wanted to rule on a respectable invited to sign up to? Do either of you have an argument on which they could go either way. 9945771001 Page Type [E] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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12 January 2005 Professor Alan Dashwood CBE and Mr Martin Howe QC

Q177 Mr Cash: What Professor Dashwood has said there is an implied doctrine of external competence and what we have been discussing in relation to the of the Union which is linked to its internal powers, ambiguities and the possibility that the courts could this clause, by making it an exclusive competence, get involved in this, which I think is understood and framing it very, very broadly so that this country between both our witnesses as a real possibility, as an individual country would not be entitled to really reinforces my determination, if I can put it conclude treaties which may aVect common rules or that way, to have a Sovereignty of Parliament Bill alter their scope, would in my view deprive us, enacted so as to remove doubt and indeed as part of combined with the eVect of the Common Foreign the process, which I assume to take place with the Policy which in principle covers all foreign aVairs, of Government majority, of the implementation of this the great majority of our traditional treaty-making Treaty through an Act of Parliament, so we have no powers. doubt as far as the British Parliament is concerned it Mr Cash: Big stuV. will preserve its right and prerogative for our foreign policy to be made in accordance with our national interests. You are arguing, Martin Howe, that under Q178 Mr Connarty: It is a view. the Constitutional Treaty “foreign policy would Mr Howe: It is my view. become fully supranational”—I happen to agree— and that the Member States would be deprived of Q179 Mr Connarty: When we asked the question on “most of their present treaty-making powers”. For the change to the energy clause and whether it was the sake of the Committee and the evidence we have to protect our ability to enter into treaties with other to seek to elucidate, what are your reasons for countries, we were told at the Despatch Box that is coming to this conclusion, given that unanimity has what we have done. You are saying you do not think been retained for virtually all measures to be that is correct, and I am sure Ministers will read that. adopted under the CFSP, and bearing in mind that Mr Howe: I am sorry, I would need to look at the the ECJ’s jurisdiction, subject to what we have just energy clause. been discussing, has on the face of it in certain cases been excluded from most or all areas of foreign policy? Q180 Mr Connarty: It did not seem to infer there Mr Howe: My reasons for saying that are, first would not be an ability to make treaties with other of all, the question of supranational versus countries on energy, and when we asked the intergovernmental is not the same as the question of Ministers on this they said at the Despatch Box we unanimity or non-unanimity. You can have had not lost these powers. I am saying that I am sure unanimity within fields, indeed fields of exclusive they will look at your analysis and interpretation Community competence, but it still does not prevent and think about it. those from being supranational. The exclusion of the Professor Dashwood: Could I add a word on that? In jurisdiction of the European Court over the foreign my opinion, Article 13(2) gives expression to the policy field, I agree, is a feature which makes it, if existing case law of the Court of Justice. There is one you like, less supranational than other fields of the element in the provision which I think is Treaty, but there are important respects in which unsatisfactory and that is the word “necessary”—“It under this Constitution its supranational character is necessary to enable the Union to exercise its is inherent. Most importantly, I think, we have the internal competence.” That is a word which the figure of the Minister of Foreign AVairs and the Court of Justice has used itself but has gone on to European External Action Service—the Minister of make clear it is thinking of a situation where the course being linked in through his dual membership exercise of internal competence and external of the Commission—so you have a supranational competence are inextricably linked, so it is a rather diplomatic service in eVect, you have a narrow sense of “necessary”, and that qualification supranational figure, the Minister, presiding over does not come through the language of Article 13(2). meetings of the Council of Ministers on foreign Again, I would be surprised if that provision were policy. Although it is the case that, if you like interpreted by the Court otherwise than in because of the expansion of the Common Policy accordance with its existing case law. Can I just add over the field of foreign policy, major decisions of one point about what was being said a few minutes principle are taken by unanimity, there is ago in relation to Article 1-16(2), what the courts nonetheless a one way eVect under which the field is would make of that provision. If we are talking progressively covered by common policies which are about national courts rather than the Court of successively adopted. The other reason why I felt our Justice, they could only become involved if independent treaty-making powers would be paragraph (2) were regarded as having direct eVect, substantially reduced is the linkage to internal and it seems to me highly unlikely it would be so competence. Under Article I-13(2), “the Union shall regarded because it simply is too broad in its also have exclusive competence for the conclusion of language to be justiciable. It is exactly the kind of an international agreement when its conclusion is provision which in the past the Court of Justice has provided for in a legislative act of the Union or is regarded as not being one on which claims could be necessary to enable the Union to exercise its internal based before national courts. So I am perfectly competence or insofar as its conclusion may aVect confident that the only court which might common rules or alter their scope.” Although under conceivably be called on to interpret Article I-16 the current case law of the European Court of Justice would be the Court of Justice itself. 9945771001 Page Type [O] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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12 January 2005 Professor Alan Dashwood CBE and Mr Martin Howe QC

Mr Steen: Will you forgive me because I was not and Maastricht are embedded in the internal here at the start of the proceedings. I represent a constitutional orders of a number of Member States, constituency in the South West, and I think if my them amending their own constitutions to allow that constituents had listened to this discussion if they to be done. It would cause severe problems were not fixedly pro-European at the outset they regarding the transfer of assets from the institutions would be totally mystified and anti-European by the of the old bodies to the new bodies, because under end, because of the somewhat Alice-in-Wonderland the Constitution of course that is achieved by picture this is for the lawyers. The ordinary person in provisions in Part IV with the consent of every state the street wants to know the answer to one question, which has an ownership interest in the existing which is this, if in a referendum, assuming there will institutions. So I do not think that is on. This is be a referendum, they choose to vote against this advancing slightly beyond legality into the realms of Constitution, and Britain, or any other country, politics, but it would result then presumably in a decided they do not want anything more to do with renegotiation, and one would then look at the extent the EU Constitution, what would happen to that to which an inner group of states might bring in country? Would it have to abandon the Treaty of certain provisions of the Constitution—either Rome, abandon the EU and become an associate of flexible co-operation under the existing treaties or by the EU? Or would the whole Constitution collapse? separate parallel treaties, or a settlement under In my constituency on the one hand I have an which the dissenting state or states would allow the enthusiastic Lib Dem group who are passionate core to go ahead with something similar to the about the Constitution and believe it is just a bit of Constitution but with provisions which allowed mumbo-jumbo and for the lawyers, and if they have them to have a slightly diVerent arrangement—and listened to the first hour of this discussion on the obviously the range of possibilities which would BBC would come to the conclusion it is all arise in that context is very wide indeed. wonderful and will have a great future for Britain. On the other hand, I have the Leader of UKIP Q184 Mr Connarty: Thank you. Professor? standing against me at the general election who is Professor Dashwood: Once again, I am afraid, I do going to say this is a sinister plot, it is a dreadful not entirely agree, although I do to some extent. It is occasion and the sooner we are out the better. What obviously true that the existing treaties can only be will actually happen to Britain if it says no? What amended by common accord of all the Member will happen to Britain if it says no to the States. If, say, the United Kingdom and one or two Constitution? What will happen if two or three other small Member States were to vote no, there would be countries say no, not such big countries but smaller? tremendous pressure from the Member States which These are the questions, having had the preamble for had voted yes for the dissenting Member States to the last hour and a half which they will have listened come back on board. Experience suggests it might be to with interest, they want answered. possible to buy oV—that sounds unkind—the Mr Connarty: Particularly if only a few countries smaller Member States, in one way or another, as vote against. has happened in the past with Denmark and Ireland. However, and this is not a legal point, it seems to me Q181 Mr Steen: Small countries, big countries, what to be inconceivable that the referendum could be re- happens? run in this country. We would then be faced with the Mr Howe: I will avoid the political aspects of the situation where, say, 22 or 23 Member States had question. ratified the new Constitution, in some cases perhaps after a very diYcult campaign, and they would I Q182 Mr Steen: Party political. think—and it is impossible in answering this Mr Howe: This is an issue I addressed in my written question to stay within the realm of law—find it evidence in some depth, and my own view is quite politically very diYcult to go back to their clear, that legally and practically if one country says electorates and say, “Let’s try again with something no, and that country cannot be persuaded to re-vote else”. There would be a negotiation, but it is a and change its mind, then the Constitution is dead. negotiation which I think would be likely in practice to result in the United Kingdom being made a fairly V Q183 Mr Steen: However small the country? generous o er of some form of association with the Mr Howe: However small the country, legally and European Union. I think it is very unlikely, but I am practically. The smaller the country the more guessing here as much as Mr Howe is guessing, that pressure can be brought to bear on them to make negotiation would be politically possible, politically them re-vote in the right way, of course. Although acceptable, to the other Member States. There Mr Giscard has, before the signing of the Treaty, would be a core of Member States pushing very hard made a number of statements to the eVect, “If people indeed for the adoption of the Constitution. We don’t like it, we will just throw them out and go would have some friends, but the Six plus Spain and ahead and bring in the Constitution amongst a core Portugal plus Greece and the great majority of the group of states”, I think that is legally and new Member States would be pressing for the practically impossible for a number of reasons. It adoption of the Constitution. would require an act of gross illegality, contrary to the existing treaties, which require for their repeal Q185 Mr Connarty: It seems the diVerence is that the unanimous consent of all states. That in turn Martin is saying that if several Member States would mean, since the existing Treaties of Rome rejected this, on the basis it has to be adopted 9945771001 Page Type [E] 31-03-05 03:39:12 Pag Table: COENEW PPSysB Unit: PAG1

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12 January 2005 Professor Alan Dashwood CBE and Mr Martin Howe QC unanimously, this Treaty is dead, but you are saying, Q187 Mr Cash: On the basis of my previous “No, this Treaty will live in some form if two or three question, if all the treaties have been revoked Member States, even including the UK, voted under this Constitution, including the acquis against it”. communautaire, and then this new Constitution Professor Dashwood: I think that is likely. creates a de novo situation in that sense, I think the diYculties which both of you have described do Q186 Mr Connarty: I think as politicians we can all become rather acute, because you have the situation then speculate on the arrangements which will be where you have a completely new treaty on the one made in the political sphere. hand with all those characteristics, and yet those Professor Dashwood: There is one other legal point. who were left out—on your argument, Professor I think it would be extremely unwise for a UK Dashwood—would be left with the existing treaties Government to rely on the fact that the existing but, question mark, would they have been revoked Treaty cannot be amended without its agreement as well in their application to those who are left and therefore refuse to negotiate seriously about a behind? way of accommodating the strong wish of a core of Professor Dashwood: I hope the United Kingdom Member States to implement the Constitutional would behave sensibly in that situation. Treaty. At the extreme, if a UK Government was Mr Cash: That is a very wise comment. taking that line, it would be legally possible for the Mr Connarty: We will leave the question of what is existing Member States to denounce the existing sensible to the politicians. There are a number of treaties—they could do this in international law— politicians here with probably more views on what and start again on the basis of the Constitutional that should be than there are numbers of members. Treaty. It would not be easy but it would be easier to Can I thank Martin Howe and Professor Alan do than it would have been, for example, if Denmark Dashwood for an excellent session and also for their had failed to ratify the Maastricht Treaty because we written contributions. It has been most helpful to the have ready-made a Constitutional Treaty which is Committee and will, I am sure, feature prominently designed entirely to replace the existing ones. in our ﬁnal report to the House. 994577PAG2 Page Type [SO] 31-03-05 03:44:41 Pag Table: COENEW PPSysB Unit: PAG2

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Tuesday 25 January 2005

Members present:

Mr William Cash Angus Robertson Mr Michael Connarty Mr Anthony Steen Mr Wayne David Mr Bill Tynan Sandra Osborne

In the absence of the Chairman, Mr Michael Connarty was called to the Chair

Witnesses: Mr Jo Leinen, a Member of the European Parliament, Chairman—PSE, Mr Richard Corbett,a Member of the European Parliament, Co-rapporteur on the Constitutional Treaty, Co-ordinator—PSE, Mr Andrew DuV, a Member of the European Parliament, Co-ordinator—ALDE, Mr Alexander Stubb,a Member of the European Parliament, Deputy Co-ordinator—PPE-DE and Mr Gyo¨rgy Scho¨pﬂin,aMember of the European Parliament, PPE-DE, European Parliament’s Constitutional AVairs Committee, examined.

Q188 Mr Connarty: Can I welcome our colleagues independent nation” and “This is the end of freedom from the Constitutional AVairs Committee of the and democracy as we know it”. This is, of course, as European Parliament and also welcome some of our you see a wide range of opinions that we get in the colleagues from the Slovenian Parliament, who are debate and we will have that in the next 18 months here to observe the operation of a public evidence on the ratification in the 25 countries. Just to answer session. I believe, Mr Leinen, there is a wish to make your remark about the composition of our a statement. I do not know whether every one of delegation. The European Parliament is defining its your delegation wishes to make a statement? delegations according to the well known d’Hondt Mr Leinen: No. If you want I will say a few words system and this delegation of five members is two and then we will go into the debate. from PPE, the biggest group, two from PSE and one from the Liberals. In our debate in the Committee Q189 Mr Connarty: You wish to speak on behalf of we said every group in the Parliament will have the your Committee? Before starting, can I say to you chance to participate. We may have 10 or 11 more we have had a letter from one of your Committee— missions, but it is not a habit in any way in the who is not here—saying he believes—and it is Mr Parliament that if you have voted you compose your Alistair who believes—he represent a diVerent view delegation out of majority and minority, you from the members who are here. When we ask compose it out of political groups, so others will be questions of the Committee can I suggest that you part of the delegation on other occasions. might deal with his concern in trying to give us a view Mr Connarty: That is helpful, thank you for your of the breadth of opinion in your Committee about opening statement. As you know, we are involved as anything we ask rather than the individual opinions a Committee in taking evidence from a number of of the members who are here. That takes care of the sources on the Constitution, sometimes in detail and concern he had. sometimes in the generality of its impact. We are Mr Leinen: Chairman, and indeed colleagues, many going to stick to that format, and I am sure your thanks for the invitation. We are delighted to be evidence will be very helpful to us in our report to the here. It is our first visit as European Parliament to United Kingdom Parliament. our colleagues in the national parliaments, and we will have some 10 or 12 more visits mainly to the Q190 Angus Robertson: We are looking at nine countries where there will be a referendum on the particular aspects of the Treaty and the first aspect new treaty. Our delegation is composed of Mr Stubb which we are keen to find out a little bit more about from Finland, Mr DuV from Britain, myself from is the subject of the Council of Ministers meeting in Germany, Mr Corbett from Britain and Mr public: the idea of transparency and openness, Scho¨pflin from Hungary. In a vote on 12 January, meeting in public as an important decision-making and an overwhelming majority recommending the body so the public can see what goes on, also debate ratification of this new treaty, our analysis came to in this Committee too. To what extent do you think the conclusion that there is not one single step back that there would be genuine discussion in public in compared with the existing Treaty of Nice but there the Council when legislating and is there a risk of are many steps forward for a European Union that much of the real discussion taking place in Coreper, is more transparent, more democratic and more and being referred upwards to the European eYcient. Some steps are more ambitious, some Council, or simply carrying on in the corridors when others are less ambitious. Our vote was 500 in favour one is not under the gaze of the public or journalists and 137 against. This morning coming to this place who might want to cover such meetings? Are there I looked into a paper that is distributed in Brussels, any loopholes in the Treaty text that we should be New Europe, and there was an article by an watching out for? There are two questions there: honourable member, Roger Helmer. Roger Helmer firstly, the issue of the eVect of transparency in the was expressing his feelings which the 137 might share Council of Ministers and, secondly, are there any and I would like to quote two phrases: “This is the loopholes in the Treaty text to watch out for in this Constitution that makes the end of Britain as an context? 9945773001 Page Type [E] 31-03-05 03:44:41 Pag Table: COENEW PPSysB Unit: PAG2

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25 January 2005 Mr Jo Leinen, Mr Richard Corbett, Mr Andrew Duff, Mr Alexander Stubb and Mr Gyo¨ rgy Scho¨ pﬂin

Mr Leinen: Mr Stubb worked in the Council before Mr Connarty: Do any other members want to coming to the Parliament, he might answer your contribute? question. Mr Steen: First of all, welcome. I do not know Mr Stubb: I have had 10 years as a civil servant, whether you are aware but several months ago this within the realm of the Council. I have two main Committee had a short debate about whether we points. The first one is that it is possible already for should meet in public here. I am glad to say the the Council to meet in public; that decision was Conservatives carried the day and they agreed that taken in Seville in 2001. The second point is the we should meet, against the minority, the Labour European Parliament was pushing for a so-called Party were in the majority . . . “legislative council”, a clear second chamber, if you Mr Connarty: Mr Steen, I am not sure we are here to will, which then would have always met in open, but discuss that in this Committee. perhaps one should never under-estimate the Mr Steen: I thought you would like to know about capacity of Member States to want to keep some this because it reflects very much on what you are parts of the negotiations behind closed doors. It saying. Having agreed we should meet in public, the would be very optimistic to say that everything Leader of the House of Commons said we should would move directly from Coreper to the European meet in public but that was about six months ago. There is no appetite for meeting in public because of Council, there is of course the Council in between. the complexity of the matters we are discussing. I do There is a general tendency in Council meetings to not think it is a case of wanting to keep our try to keep so called “heavy business” a little bit deliberations behind closed doors but it is because of outside the meetings. What has happened, a factor the problems of the amount of papers we go through after the Seville decision, is that many of the main and all the rules and regulations and directives. I am decisions are now taken over lunches and in those wondering whether you feel that meeting in public lunches even civil servants are kept outside the will require an enormous education of the public to room. But I do think the new treaty does give a understand what you are about, just as there is an glimmer of hope and basically, especially if enormous problem in this country with the public parliamentarians or anyone who wants to see the understanding what we are doing here, mind you Council legislate in public, it forces it to do so more they have not had the opportunity yet but if they did often. I do think that areas related to justice and come they would not understand. home aVairs and, of course, pure foreign policy, Mr Connarty: I presume that is in reference to the which are not necessarily purely legislative, in the Council meeting in public? future will still remain within closed doors. I do find this very unfortunate because—the last point I want Q191 Mr Steen: Yes. to make—many times in the Council I have seen Mr Leinen: All of our committees are public. We ministers have tapped each other on the back and have meetings only on some decision points on the said “Wonderful compromise”, five minutes later agenda that are not public. The European they have gone in front of their national press and Parliament is public, the media are there and the said: “Sorry, cannot do anything about it, the EU interested public are there. I think the Council have decided over our head”. a double function: it is an executive and it is a V Mr Du : Good afternoon everyone. Can I legislator. This publicity is only meant for the supplement that. I think that it is a very important Council as a legislator—when they vote legislation, step forward for democracy. The drafting of the laws that apply to all the 450 million citizens, I think clause is quite clear that it must be the deliberations the citizens have a right to know how they voted in and the decisions, in other words the voting and the that meeting—not when the Council are deliberating discussions which formulate the decisions. Of about other matters, as a body that is the executive course, there will be private discussions, that is of the European Union, then they stay like every necessary, there is a negotiation. It is a thing which government in the meeting room, not in public. we, you and the European Parliament have been pushing for, for a very long time. It will greatly Q192 Mr Connarty: Can I ask an additional facilitate the scrutiny from national parliaments of question on that. How much diVerence will public the performance of their ministers in Brussels. There meetings of the Council make to the actual is an extraordinary transformation from a minister legislative process and relationships? For example, who is a member of the executive here, when he flies do you think a transcript will have to be produced of to Brussels he becomes a legislator, and it is those meetings with everything that is said in that important that he performs and speaks in public. public meeting being available to the public? This will see that this happens. I think if there is a Mr Corbett: That will be a matter for the Council. I pitfall it is that the European Council of the Prime expect they may well wish to because if the meeting Ministers and Presidents will become even more is in public there may be other people, such as closeted and secretive. If I can oVer you a friendly journalists, making their own transcript, and they word of advice, if it was me here scrutinising what is would rather have an oYcial transcript which is going on, I would try to get the Prime Minister to agreed and is an accurate reflection of what speak to you before meetings of the European everybody says but that is for the future. The key Council and afterwards, as is the practice in Finland thing, I think, is in terms of public perceptions, that and I know elsewhere. legislation, as a matter of principle, should be 9945773001 Page Type [O] 31-03-05 03:44:41 Pag Table: COENEW PPSysB Unit: PAG2

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25 January 2005 Mr Jo Leinen, Mr Richard Corbett, Mr Andrew Duff, Mr Alexander Stubb and Mr Gyo¨ rgy Scho¨ pflin adopted in public, seeing here how your convention which drafted the Charter. I think that representative voted, but also just to give people an the British, despite much controversy, have idea. For instance, we all have an idea of what the improved the clarity of the legal certainty as far as UN Security Council looks like because we have the Charter is concerned. What will happen in seen it on television, we know how they sit, we know practice depends upon the courts and we have all that it is representative of the states around the table, sorts of courts in 25 Member States who could do they sometimes vote and so on. None of us has seen diVerent things, but we have the Supreme Court in that on television from the Council. The Council, the ECJ, which is in the process of developing great which is the least known of the EU institutions in the expertise in the field of fundamental rights, very wider public, despite being the most powerful, will sophisticated, in close conferral with the Strasbourg become better known. Court. I am sanguine about the prospects. I think it will assist the institutions but, above all, the citizen. Q193 Mr Connarty: Can we turn to another question. The Charter of Fundamental Rights is Q194 Sandra Osborne: In relation to clarity and the available and there is a debate about whether putting role of the courts, we have received evidence during the Charter of Fundamental Rights into this treaty our inquiry from several witnesses who I do not will change its relevance and will change its powers. think would agree with your interpretation. They We have been given the explanation that the Charter submit that the impact of the treaty has interfered in will apply when Member States “. . . act in the scope a number of areas and most comprehensively so in ofUnionlaw...”andthewideinterpretationwhich respect of the interpretation and application of the could be given to this on the basis of Article II-88. Charter of Fundamental Rights, therefore much will How firmly based is your Committee’s claim— depend on interpretation by the European Court of which I believe you have made—that the Justice. Is it satisfactory, do you feel, for citizens to incorporation in the Charter will not result in the be asked to make a decision in the treaty when the extension of EU competence, especially in social and impact of important parts of the treaty are unclear? economic matters? Do you accept that is the case? V Mr Leinen: I think in the Articles of the Charter itself Mr Du : If you are asking me if I am in favour of a there is a double security, it is not an extension of EU referendum or not, I have to be quite honest with competences but really being obliged only in the you, I am not. We are where we are. I agree with you scope of matters which are in the competence of the that decisions are very sophisticated and complex EU and only to public acts that are coming from the and, to be honest, as well, I think I would have EU. So it is not applying to acts that are coming preferred the Westminster Parliament to have from the Members States or from regional or local shouldered responsibility for the decision. authorities. I think there is a double security already in the Articles of the Charter but Mr DuV as a Q195 Sandra Osborne: That is interesting. member of that Convention knows more. Mr DuV: I think that might be slightly oV the issue Mr DuV: I was, and indeed rapporteur for the of the fundamental rights. Parliament on the Charter. The purpose of the Sandra Osborne: It is not unanimous in your Charter is to safeguard the citizen from an abuse of Committee. the great power that is now exercised in Brussels by Mr Cash: On the specific question, on the Article the EU authorities. It is important that it is seen in II-111 it is stated in the explanation that “the the context of the whole Constitution, the principle requirement to respect fundamental rights defined in of subsidiarity, the principle of respecting the the Union context is only binding when they act in domestic dispositions of all the Member States, the the scope of Union law”. We have taken evidence conferral of competences, which is clearer I hope, if from Professor De Bu¨rca and Professor Eeckhout, et not completely simplified at least an awful lot clearer cetera, and the question I would like to focus on is than it is under the present treaty. The Charter, of the application of this with respect to the question of course, will change the performance of the courts. At the right to strike, which is, to say the least, a pretty present, a plaintiV—and there have been several important question and much fought in English law plaintiVs who waived the Charter, as it were, to because there is not a right to strike in English law as substantiate their plea without success because the it happens, people think there is but there is not. Court has said: “This is very interesting but it is What it says here is that Article II-11-88 asserts that voluntary, it is a political code of conduct, it is not workers have, in accordance with Union law and mandatory.” As soon as the Constitution is in force national laws and practices, the right to take it will become binding upon the EU itself, which is collective action to defend their interest including important, and the agents of the EU, including strike action. Now the same implication arises in Member States, regional and local authorities and Article II-30 in relation to unfair dismissal which things like Europol, who are charged to carry out the speaks of the right to protest against unjustified law and policy that flow from the decisions of the dismissal, in accordance with Union law and EU. In theory, the scope of the Charter, therefore, is national laws and practice. The question really is quite strictly limited and quite clearly defined, I this, is it not clear from the practical implications of think more clearly defined in the horizontal clauses the problem which I have identified that in the which have emerged from the IGC than we context of what the judges say in the European succeeded in the convention or indeed in the first Court with regard to the legislation in a given 9945773001 Page Type [E] 31-03-05 03:44:41 Pag Table: COENEW PPSysB Unit: PAG2

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25 January 2005 Mr Jo Leinen, Mr Richard Corbett, Mr Andrew Duff, Mr Alexander Stubb and Mr Gyo¨ rgy Scho¨ pﬂin

Member State, take the United Kingdom which at influenced by their background but as a matter of the moment does not have a right to strike, that law there is no doubt that the members of the Court clearly if it is laid down in the Constitution that these of Justice have to be above all that. matters are to be determined in accordance with Mr Corbett: They are judges not politicians. Union law and within the scope of Union law, that our laws will be changed here in this Parliament, to Q199 Mr Cash: In our Constitutional Reform Bill, confer the kind of right to strike and the kind of which I am interested in at the moment, we have a protection against unjustified dismissal which is guarantee of continued judicial independence on scattered throughout all our employment acts and, which I have got a lot to say on hopefully next week. quite frankly, will be a highly contentious issue? Mr DuV: Can I add a supplement to Mr Cash. I have read your Bill with great interest. On the article in the Charter that you referred to, it says also that the Q196 Mr Connarty: I think there have been a lot of Charter does not extend the field of application of points made there on which you do or do you not Union law. Then in Article III-210 subparagraph 6, agree with Mr Cash. Will they be changed by this which concerns social and employment policy, it Charter? says “This Article shall not apply to pay, the right of Mr Corbett: Without wanting to enter into debate association, the right to strike . . .” so I think you about whether under our domestic law there is a can slumber comfortably. right to strike or not, which I think is a matter of controversy rather than accepted fact, how would it be aVected by this wording in the Charter? Firstly, a Q200 Mr Cash: I think they have written it quite well. lot of those clauses that you emphasised were added V at the behest of those governments that wanted to Mr Du : No. minimise the scope for the Charter to be interpreted in a way that could interfere with national Q201 Mr Cash: Not you, I am saying “they”. V provisions, so those clauses are added as a Mr Du : In drafting, we were inspired by the protection. What it does mean, and this is generally necessity to be able to confront Mr Cash at a meeting true from the Charter, but perhaps especially in of the Scrutiny Committee. these cases, is that the Court of Justice could be called upon to overturn European legislation which Q202 Mr Connarty: All of that eVort, Mr Cash, was sought to restrict, if ever it were to adopt such not for nothing! Can I come back to the point made legislation, the right to strike, that could be by Sandra Osborne. We had evidence last week and, overturned. It is a protection of national provisions, some quite conflicting evidence and opinion from whatever they were. On the fact which was alluded Professor Dashwood and Martin Howe QC, about to by the previous questioner that ultimately this can what was really meant by Article I-6 about Union be a matter of judgment of the European Court of law which says “The Constitution and law adopted Justice, one big diVerence between the EU system by an institution of the Union in exercising under this Constitution and indeed as it is now, with competences conferred on it shall have primacy over the US Supreme Court, which is often the the law of the Member States”. It does seem in the comparison made, is that in the US the Supreme question asked by Sandra Osborne is it really Court judges are appointed by the federal satisfactory for citizens to be asked to make a institutions. In our case, our European Court of decision on a treaty when the impact of the Justice, the members are not appointed by the important parts of the treaty is unclear, In the Commission or the Parliament or with their evidence we were given, I think they agreed the involvement, but by the Member States themselves. courts would decide how to interpret what was given If there is any possible bias in the line taken by the primacy, whether it was a legislation of the nations Court, it is more likely to be protective of States’ or whether it was the legislation of the European Union, That is where there is still some serious rights and national interests perhaps than is the case doubt. They seem to come to the conclusion that of the US Supreme Court. I think it was a British when the courts make that decision then you will President of the Court of Justice who once said: know. Does your Committee think it is right to make “The Court never makes a political judgment but it that decision, when there is so much uncertainty, sometimes has to remind politicians of what they when we will not know what the courts will decide have agreed”. until they decide it and whether they will make decisions, in fact, on economic and other matters? Q197 Mr Cash: Except to say that certainly the oath At this moment, your Committee says it is safe from that the justices take emphatically takes them the interference of the EU. outside the political arena of their own Member Mr Leinen: From the very beginning of the State. European construction—the Common Market and Mr Corbett: They are judges, of course. the Treaty of Rome—it was the principle that in so far as competence has been transferred to the Union, legislation in that field has primacy over national Q198 Mr Cash: Exactly. You are making a more law. That is a characteristic of the Community general point, and I think maybe you are right in a method expressed from the very first treaty till certain sense that there is a tendency for people to be today, so it is nothing new. It is now written because 9945773001 Page Type [O] 31-03-05 03:44:41 Pag Table: COENEW PPSysB Unit: PAG2

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25 January 2005 Mr Jo Leinen, Mr Richard Corbett, Mr Andrew Duff, Mr Alexander Stubb and Mr Gyo¨ rgy Scho¨ pflin you have a basic treaty and you write it down but the separate issue. If we were to legislate inconsistently principle was applied from the beginning. The courts and clearly against what the law prescribed by come in on cases of conflict where you need Europe stated at that time, then our later enactment interpretation and hopefully it is not too often that would be something which our courts would have to you need interpretation because things are clear give eVect to. I will leave it at that. There is a serious when they are ruled. You have this complexity of problem about the constitutional relationship life, that there are cases where you refer to a court, a and jurisprudence understood in Europe and third power to interpret, and, of course, the understood here in the United Kingdom, although I European Court of Justice is part of the system and fear we are being taken further down a route which their judgments are accepted so far by all the I would not like, but I will not enlarge on that. members. I do not know any case where members have not accepted what the Court of Justice has Q203 Mr Connarty: I think there is a question there, stated. I do not know whether this treaty makes and it is in fact are Mr Cash’s fears justified? things unclear, the eVort was to make it clearer. You Mr Corbett: I have got the transcript of what have in the new competence order quite clearly what Professor Dashwood said and I think he might not is the exclusive competence of the Union and you have put it quite the same way as you did. will discover it is not very much, it is tariVs, trade, Mr Cash: He did, he agreed with me. monetary union, fishery, marine and biological. Then you have the big bag of shared competences Q204 Mr Connarty: I think Martin Howe might where the Union mostly makes framework goals and have had a diVerent view. I said in my comments that the Member States or others are filling it by their they did disagree about the question. own legislation. I think in a multi-layer system, as we Mr DuV: Just on the primacy issue, the Simmenthal have it, of course, you have this bag of shared case of 1978 expressly addresses the issue of competences where you always struggle—is it too constitutional primacy. Mr Cash is perfectly correct much, is it not enough—both sides have to look on to say this has not always been accepted without it and I think the Constitution is improving this demur by constitutional courts in all Member States, situation dramatically. The principle of subsidiarity but despite their anxieties and reserves, they have was strengthened, the national parliaments get a say always performed loyally to sustain the integrity of in the whole process. This early warning system is a the acquis and the strength and force of the corpus weapon, I would say, where the national parliaments of EU law. I would include in that the British courts, come in EU legislation and the competence order in the 30 years or whatever it is we have been in the makes it clearer than it was before. I think we have EU there has not been a single case where the issue improved the situation and not worsened it. of primacy of EU law is contested in an English Mr Cash: Chairman, on a point there, I think you court or I think a Scottish court. introduced this subject and the primacy issue particularly, and I would not want to trespass on Q205 Mr Cash: We have not had a notwithstanding your having opened that up without it being enactment yet. followed through. Mr DuV: No, that is right and, also, you have not Mr Connarty: I thought you had missed it. Please, had the principle of the primacy codified as it will be Mr Cash, if you have a point. in this Constitution. Mr Cash: I will try to summarise the position. We have taken evidence from some very eminent Q206 Mr Cash: That is exactly the point. European lawyers including Alan Dashwood last Mr DuV: I am not seeking to say that this is not a week, who I am sure you know. On the question of significant step forward. primacy, with great respect, Mr Leinen—and this is not a criticism—it is a very complex and rather Q207 Mr Connarty: Mr Corbett, do you want to opaque question. Under the Costa case in 1964 the comment? European Court declared that they had superior Mr Corbett: On the issue of primacy of European jurisdiction over laws and over constitutions. Now law, which is so fundamental to the whole system, that has been disputed by a number of Member may I ask what would be the point of jointly agreeing States. We have a special problem here in this common laws in a particular field, like the country, and I would say it was a special advantage environment across Europe, if everyone is then free which I am addressing amendments to the to ignore them?. That is the whole point of having Constitutional Reform Bill next week, because if we common legislation, that we are all bound by the pass an enactment—and, for example, to give it a same set of rules that we enacted with our practical tinge, it could be on this question of right neighbours through the European Union. to strike—if, for example, despite what you said we Mr Leinen: Exactly. The Union is under the rule of were to end up with a change in our law, let us put it law that is applying then to all the members. I will no higher than that, whichever way it goes, it would still stick to my statement that the Constitution is be open, under our Constitution, for Parliament on not adding something new, it is codifying something behalf of the voters in a general election to pass that has been accepted for years. a subsequent enactment after the European Mr Cash: With great respect, Mr Leinen, it is not. Communities Act, ie next week, I would say, also, Mr Connarty: I think Mr Leinen had not finished after the European Constitution but that is a speaking. 9945773001 Page Type [E] 31-03-05 03:44:41 Pag Table: COENEW PPSysB Unit: PAG2

Ev 76 European Scrutiny Committee: Evidence

25 January 2005 Mr Jo Leinen, Mr Richard Corbett, Mr Andrew Duff, Mr Alexander Stubb and Mr Gyo¨ rgy Scho¨ pﬂin

Q208 Mr Cash: I beg his pardon, and yours. impossible and I think there has to be some space Mr Leinen: I have to repeat what Andrew DuV and given to interpretation by any judiciary that we are Richard Corbett have been explaining. Since Britain looking at, I think that is the case here. has been a member, in no case has it refused to Mr Cash: One last point, Chairman, if we have a accept a judgment of the European Court of Justice. “no” vote in the referendum which rejects the The rule is accepted as a characteristic of this Union. Constitution and then there is the obligation, as It would be really new if a Member State was to start there will be, on that government to legislate, you are to argue about this basic principle: if you have a going to be faced with a interesting example of what common law made by the Council of Ministers, I have been saying. sometimes on unanimity agreeing to it and then they Mr Connarty: I think that is more a comment than a go home and say: “We are not applying it” then, of question. Mr Steen, I believe you have a question. course, you have another European Union, it would Mr Steen: Absolutely. This is something I have been no longer be the same one. This Article is just majoring on, really on behalf of myself and my qualifying what has been done since the beginning. party, and it is rather like an Agatha Christie, which Mr Stubb: Can I make two quick points. The first you may be familiar with, we do not know where the point is on implementation, I am happy to say that culprit is and we do not know whether there is a the United Kingdom is always number one or culprit. This is the question: what do you think the number two in implementing legislation. consequences would be if the United Kingdom, and Mr DuV: It is not actually. only the United Kingdom, refused to ratify the Mr Stubb: It is very close, one, two or three. The Constitutional Treaty by way of a referendum? By second point is when it comes to interpreting the way of a background, I want to explain from a primacy of law, of course, we must remember that it strictly legal point of view the consequences of the is a little bit to interpret unless no law has been UK not ratifying the treaty seem to be clear, and that legislated in a particular area. Of course, we must is that all Member States have to ratify the new remember that not all areas are covered by the treaty and if one Member States does not ratify the European Union, their natural primacy of national new treaty, then the existing treaties remain in force. law stands. That seems to be what the position is. However, we have had a considerable number of diVerent views from witnesses as to what might happen. Professor V Q209 Mr Cash: I thought Mr Du very fairly Hartley takes one view, he suggests that if the described the issue as it will be presented to the Constitutional Treaty was rejected by the United United Kingdom Parliament and what he said Kingdom or another Member State everything will speaks for itself. But as regards Mr Leinen’s be open for negotiation, whereas Professor comment there is a change, with great respect, Dashwood by contrast writes—and I quote—“If because under clause 4 of the final provisions, the only one or two Member States failed to ratify . . . transitional arrangements at the end of the treaty, there would be very strong pressure from the what it says in eVect is that all the treaties and the governments of the other 23 Member States to go entire acquis are repealed and revoked and then are forward with the new Constitution. It is possible that substituted by a successor, which is the European a compromise formula might be found (as was done Union, which contains this provision, which my with respect to Denmark in order to secure the colleague referred to, which is Article I-6, which eventual ratification of the Maastricht Treaty by gives primacy and the right of the European Court that country), but this could not entail altering the to interpret. So combining all that together, as I put text of the Treaty itself since it is inconceivable that it to the Prime Minister the other day, you get a the other Member States would be willing to re-run fundamental change. That is really all I am saying. the process of ratification. In all likelihood . . .” and Mr DuV: No, not a fundamental change. this the punchline “. . . the only practical option for the Member States unable to ratify the Constitution would be to withdraw from the Union and negotiate Q210 Mr Cash: You say that, I say it is. some kind of associate status”. Bearing in mind we Mr Scho¨pflin: If I might add a brief point, and also have a referendum here for the public by October thank the Committee for hearing me out. It seems to 2006, and the Conservative Party is committed to me that what we have been discussing is a narrowly campaign for a “no” vote, as does the UKIP party, focused problem. It may arise but the possibility of and one or two others, although the Liberal it arising is not very high. It seems to me the great Democrats and the Labour Party are going to bulk of the Constitution is not all that contentious. campaign for a “yes” vote, the answers to these The Constitution as a symbolic entity maybe questions are terribly important for the public. contentious but the actual provisions will mostly be self-operating, I suppose self-enforcing. There will always, however, be complex cases and I think it is Q211 Mr Connarty: I think this will go down in this we are talking about; I do not think there are history alongside the West Lothian question as the going to be that many. In a sense I have a feeling that Totnes question, Mr Steen’s constituency, but it is the discussion we have been having is speculative. It one that I think is very fundamental. is very interesting, but I am not sure it will happen Mr Stubb: I guess my first reaction, I thought you that way. We know that no legal system in the world would never ask! I have a three-part answer. The first can make provision for every contingency, it is just one is that I think politically this is not about a 9945773001 Page Type [O] 31-03-05 03:44:41 Pag Table: COENEW PPSysB Unit: PAG2

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25 January 2005 Mr Jo Leinen, Mr Richard Corbett, Mr Andrew Duff, Mr Alexander Stubb and Mr Gyo¨ rgy Scho¨ pflin referendum for the UK on whether you are going to phrases with which you are very familiar, derive accept the Constitution or not, it is about whether from membership of the European Union. Secondly, you are going to be Members of the European Union I think there would be a loss of status as the United or not. I think that is really the fundamental States’ best friend in Europe because part of that question. I do not think a “no” of one, two or three relationship is about what the United Kingdom is Member States will stop this Constitution entering capable of achieving in Brussels which has been into force. I believe firmly that there has been too quite considerable. One should confront the much political energy, and frankly this Treaty is too possibility, also, that the United Kingdom will, by good to be rejected, and going back only to Nice. opting out, lose its attractiveness as a focal point of The second point is, of course, if you want the inward investment. I think it will have economic United Kingdom to exit the European Union you consequences, I am not an economist, but I read might have to approve this treaty and pass it on and enough of the papers to be able to say this with use at least former Article 49—I do not remember confidence. I would add, perhaps as a footnote, I which article it is now—which allows a Member think highly ironically “opting out of Brussels” will State to exit the European Union. The third point I not mean the end of EU regulations. Look at what want to make is this is not a treaty like the has happened to Norway, it sits in the antechamber, Maastricht Treaty or like the Nice or Amsterdam half way out, barely in and has to take on board Treaty where you can opt out from something, practically everything in the acquis which the because essentially that was what Denmark did, it existing Member States do without much of a voice. opted out of the euro, it opted out of a common The United Kingdom’s relationship in practically defence, and it opted out of Schengen, this is not every field which is already governed by Union really that, so you cannot opt out of the institutional regulation means that EU standards will still prevail. structure which we have established. The UK Then there is a problem which I think has made cannot go along with a diVerent system of Brussels highly unpopular, certainly at the level of number of commissioners, number of European popular discussion, it is the over-regulation. But, I parliamentarians or weighting on votes. The final would add that the over-regulation from which this point I want to make, and looking at the British country suVers and suVers acutely, I would say, is debate and speaking perhaps as a Nordic, I think it the work of Whitehall, not of Brussels. I am talking would be extremely unfortunate, both for the United about “gold plating” and I think that is a UK Kingdom and, indeed, for the European Union, if problem. The United Kingdom has created its own the UK voted against this new treaty and at the same acquis communitaire, which no other country has, it time had to leave the European Union. I think that is a unique problem. would change the course of history and in that sense Mr Leinen: If I just tell you what the Treaty is saying I do think this is one of the most fundamental votes on your question. The Treaty is saying in Article 443 the UK has ever had. “If, two years after the signature of the Treaty Mr Scho¨pflin: I would like to associate myself very amending this Treaty, four fifths of the Member much with what my colleague, Alexander Stubb, has States have ratified it and one or more Member Y just said. Perhaps I should add that I come from one States have encountered di culties in proceeding of the two countries that has already ratified. with ratification, the matter shall be referred to the Hungary ratified the Constitution before Christmas, European Council”. What is this article telling us? If Lithuania was the other one; I think Slovenia is the it would be automatically the case that one country next. We do not have a problem with it. I really do says “no” and the thing is dead, we did not need that see this as a historic turning point for the United provision in the treaty. It is not the end if one Kingdom. I should add I lived here for many years, country says “no”, it is referred to European Council I am halfway to being an insider. The decisions taken dealing with the crisis and looking for a solution. We in the next 18 months to two years I think will be had that already, it is nothing new. I can hardly irreversible and will aVect the future of the United imagine if 23 or 24 countries have ratified, it is politically unreal that one country could ask to start Kingdom profoundly. Integration will not stop if the again from the beginning, the negotiation of the Constitution is vetoed, I think it will in any case treaty or could even block it. There will then be opt accelerate because there are a number of British outs or a second chance. features built into the Constitution that the existing Member States do not want necessarily. What I have always found diYcult to communicate is that most Q212 Mr Connarty: Can I ask specifically, you of the existing states of the European Union want to referred to Article IV-443, paragraph 4. If this treaty merge their sovereignty, they want to press ahead is not ratified, how can that power be imposed? You with this process, quite unlike the United Kingdom, are asking to implement something in the treaty and I fully accept majority opinion in the UK staying if it is not ratified it cannot be implemented. out, which is not inconceivable but I think we should Mr DuV: You are absolutely correct. A crisis compromise. It will be a loss of authority and meeting of the European Council is seldom an influence in Europe, I think it will mean that Britain answer to anything very much. If I can just return will become a smaller state in Europe. Part of the briefly to your question, it depends on the authority of the global reach that the United circumstances of a Member State, the size of the Kingdom has at the moment, the seat at the top Member State and the size of the majority. One can table, punching above your weight, all of these see circumstances in which a certain Member State 9945773001 Page Type [E] 31-03-05 03:44:41 Pag Table: COENEW PPSysB Unit: PAG2

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25 January 2005 Mr Jo Leinen, Mr Richard Corbett, Mr Andrew Duff, Mr Alexander Stubb and Mr Gyo¨ rgy Scho¨ pflin might be asked to think again as we did with the Irish the end of the day is this business of democracy and the Danish. If France, however, were to decide which is so fundamental. All the arguments I have to reject— heard from you, if I may say, pale into insignificance Mr Corbett:—and they themselves wanted to. compared with the question of if voters decide in a Mr DuV: Yes, and they themselves wanted to. If general election that they have decided they want to France decided to reject the vote, that would be the be governed by certain laws, and they happen to be end of the Constitution. inconsistent with the European acquis and happen to be inconsistent with the treaties, do you not agree that they should have the right to be able to say that Q213 Mr Cash: Why? and not to be accused of wanting to be somehow or Mr DuV: Because France is an important and central other anti-European? player in the scheme of things. Unfortunately, Mr Leinen: May I come in again. The first item is Britain has become so marginalised that if Britain pure speculation. I would say whether a big country were to reject, the Conservative Party would not find or a small country is saying “no”, it is the same partners in the 24 that were willing to renegotiate. situation, one country has not ratified and the The 24 feel that they have made suYcient European Council has to deal with the question. I concessions already to the UK in the Convention would not qualify Malta against Poland, or France and the IGC so the only thing that could happen against Britain. It is a problem, a crisis, and we have would be an IGC to change Article 48 of the existing to find solutions to come out of that crisis. In my Treaty which says that all Member States have to opinion it is very unlikely that the big job which has agree on any treaty reform and all Member States been done over the years, with the Convention and have to ratify to say that the thing could be brought the IGC to negotiate this treaty, that you could into force before it had been ratified by all Member restart the negotiation of a new treaty, for me that is States. It would pose, then, of course, a great the most unlikely thing that is happening. You will political problem for us again in this country, we find some solution to deal with the country. What would have to decide, probably through a further Mr Cash is arguing for, and we have that in the referendum, but the choice would be starker and I Parliament from all the Euro-sceptics, is whether think the decision would be more sensible. you have democracy only on a national level or whether you have the same quality of democracy in the Union. The elections to the European Q214 Mr Connarty: Does Mr Stubb want to come Parliament by theory of democracy have the same back with a comment? legitimacy as the elections to a national parliament. Mr Stubb: Briefly. Andrew is always so diplomatic. We are elected in a direct way from all people in the V Mr Du : Am I? countries. Westminster is elected to the national Mr Stubb: Yes. On this one you are. I think there are level. In Germany I would say we have 16 regional three options. One; the UK votes against and then parliaments, they are elected as legislators to their it has to reconsider its membership of the European regional level. In Germany a Bavarian has never Union. Two, France or Poland vote against, then we ratified the German Constitution. This is something are going to have to re-negotiate the treaty. Three, I mention in the Parliament, in this world there is one of the smaller Member States votes against and nothing that is not existing. Bavaria has never we make them vote again. ratified the German Constitution, in 1948, but it is Mr Scho¨pflin: This is purely speculative. nevertheless part of Germany. A French colleague Mr Cash: Could I say—it is too big a subject to go was saying Quebec has never ratified the Canadian into in a short session—the crucial issue which lies at Constitution as part of Canada. the heart of British objections— Mr Connarty: Mr Cash, if you could put that as a Q216 Mr Connarty: We understand the point. question. You are always telling us. Mr Leinen: Sorry, I was getting carried away. My Mr Cash: Chairman, I cannot ask them to comment point is you deny that democracy could exist with on what the position of the British people is because V the same quality on a Union level that you have they are themselves coming from di erent countries. chosen to be part of and that democracy could only Mr Connarty: We are taking evidence on the V exist on the national level that you are used to European Parliament’s Constitutional A airs working. That is something, of course, one accepts Committee view on the Constitution. or not accepts and this argument is coming from all Euro-sceptics who have the national dimension as Q215 Mr Cash: I am saying, if I may, the crucial the only dimension of democracy, but in the world question is one of democracy and accountability. I of the 21st century where things are moving forward, think that is where a lot of these problems turn into the world gets so small. other questions such as low growth, high unemployment, over-regulation, fraud, et cetera. Q217 Mr Steen: Maybe you are going backwards. The issue which I would ask you to consider is— Mr Leinen: I think the European Union is the first those of us who take this particular view and it model. You could see that the African Union being happens to be in the Conservative Party but there created a year and a half ago is a copy of what we are are others throughout the country, by a large doing and in Latin America and Asia they will try to percentage on recent opinion polls—our concern at do the same, 10 or 20 years later. I think we have to 9945773001 Page Type [O] 31-03-05 03:44:41 Pag Table: COENEW PPSysB Unit: PAG2

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25 January 2005 Mr Jo Leinen, Mr Richard Corbett, Mr Andrew Duff, Mr Alexander Stubb and Mr Gyo¨ rgy Scho¨ pflin get used in the modern world and the world of Mr Scho¨pflin: If Scotland and Wales consistently tomorrow sharing sovereignty, nobody is losing it chose to opt out of the United Kingdom you would but you are exercising it in a shared way. This say “yes” on the principle of consistency. principle, okay, you have to accept it, if it is not Mr Connarty: Mr Cash? accepted, you have a problem that is true. Mr Cash: I do not think the Chairman is expecting me to engage in a dialogue on the basis of rhetorical Q218 Sandra Osborne: I accept it is possible for questions. democracy to exist at a European level and, indeed, Mr Connarty: I am hearing a voice from Mr it does through the MEPs, and I totally accept that. Robertson saying “yes”. The concern about democracy and accountability is not only the preserve of the Conservative Party, some of us in general terms do have concerns about Q220 Angus Robertson: It is democracy. that when it comes to the European Union, even Mr Corbett: To the question: do we all agree about some of us who regard ourselves as pro-Europe. The the referendum being a good or a bad thing? The fact is in Britain there is a problem of public European Parliament has not said anything on this perception about democracy and about either way. It is up to each Member State to decide accountability to Europe. There is a distance, what is best in the view of its own Constitution and physical as well as psychological, about that its own traditions. We are not going to tell Member democracy and accountability, which is one of the States how best to ratify. Similarly, we have not reasons I think a referendum has been put forward. taken a position on what should happen if a Member I will be interested to hear if it is a general view that State does not ratify, we were speculating as a referendum is not a good idea. That is one of the individuals and there are lots of scenarios that one ways we feel the British people can feel they have had can imagine but I will not try to repeat them, suYce their say. We must make the argument and turn that to say that the UK would be in a rather weak round, raise consciousness about what Europe does. negotiating position whatever solution was chosen. I understood that one of the motivations behind the On multi-level democracy, I think we all agree that new Constitution was to try to bring democracy powers, responsibilities, competences in our job closer to the people. How do you think that could be should be exercised at the smallest level possible, the done given—and I do not say the UK is typical but European institutions are inevitably more distant it is certainly the case and I think we can all admit from people than national or local institutions and it—the turnouts at European elections, given the that is an argument not to do things at European general cynicism among the public about Europe, level if you can perfectly well deal with them at how is that going to be achieved within the Treaty? national and local level. But in that there are things Mr Scho¨pflin: Perhaps I might say something and also try to answer Mr Cash’s question. It seems to which we want to and benefit from addressing jointly me that the general idea of bringing politics closer to with our neighbouring countries at EU level, we the citizens is one I am sure we are all agreed on. This want to make that level operate in as democratic a is problematic throughout the democratic world. It way as possible. I think if you compare the EU to is not easy, as society and the world becomes more any other international structure—the World Bank, complex, and I think as people are becoming less the IMF, the OECD, the WTO, you name it—it is civically committed, the problem is in a way the most democratic structure that we have managed increasing exponentially. I would say that even what to build above the level of the nation state. With the we are doing today has the potential, a little bit, to Constitution no legislation can be enacted without bring the whole problem closer to the citizens, the the double scrutiny of both the Council and the more discussion there is, the better it is. What European Parliament, the elected governments of worries me about the United Kingdom is the quality the Member States and the directly elected MEPs, a of the debate is not all that good. The quality of the double quality control, if you like, a double check academic debate and, in fact, the political debate is and balance, now we have a number of Czechs and sophisticated but at the popular level it is appalling. Slovaks in the Union we need checks and balances It is highly prejudiced, indeed the way in which, let as well! That is something we should be quite proud us say, France and Germany are described - of. As to the question of what level do you address fortunately Hungary never gets mentioned—in the an issue, we have an onus after all. The onus is that British press would be racist in other contexts. I the EU can only deal with the subject if it is in the think it is appalling, it creates ways of seeing the treaty in the first place, if it has competence, and world I find deeply distasteful. In answer to Mr even then decisions involve the elected Member Cash’s question I think if a particular part of an States’ governments in the Council who need a entity consistently, over a period of time, wishes to pretty heavy majority to agree anything and even say “no” then the democratic answer is that then they are legally obliged to respect the principle particular entity should be allowed to leave. After all of subsidiarity and proportionality. There are a lot this was the Velvet divorce in Czechoslovakia. I of safeguards against over-centralisation and really turn the question back to you: would you keeping things at the lowest level of government but accept that for Scotland and Wales? if and when we do decide to do things at the European level, we have started to build a pretty Q219 Angus Robertson: Yes. democratic structure that we should be proud of. 9945773001 Page Type [E] 31-03-05 03:44:41 Pag Table: COENEW PPSysB Unit: PAG2

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25 January 2005 Mr Jo Leinen, Mr Richard Corbett, Mr Andrew Duff, Mr Alexander Stubb and Mr Gyo¨ rgy Scho¨ pﬂin

Mr DuV: To return to Sandra Osborne’s question common? It is not the Common Market, let us say, about democratic malaise, you were talking about, there is even competition, you could have a dispute of course, it not exclusively to the European of dislocation from one country to the other. I think Parliament. In Britain turn-out shot up in this last what brings us together is this 2000 years of year by 14% in the East of England, which I have the civilisation are certain values of how we live privilege of representing. It is not all my own work. together, how we operate together, how we have a I think the answer to your question concerns the solidarity with each other, how we have freedom and quality of policy which flows out of the EU. democracy, you can read them out. I think it is very Certainly we were driven in the convention to nice that the first and second article is giving an idea question why were we doing this diYcult thing and why we are doing the European Union, what is the it was because we wanted to create a situation where definition of it, and it is the soul of Europe. This is a policy outcomes could be more eVective in their guidance of what we try to do as Europeans and I formulation or consultative, more representative of think it is a wonderful thing to communicate with the common interest, but also more eYcient in their our people because they get an idea right from the implementation. There are a huge number of north of Scotland to the north of the Baltic and from reforms which have been incorporated which will do Greece up to the north of Sweden that we try to be that. The primary virtue of the Constitution is that it a Union. strengthens the capacity of the EU to act eVectively Mr DuV: Certainly we trod over these clauses with abroad and at home. It will permit us to stand on our great attention and every phrase, every word is there own two feet in world aVairs and, without opening for a purpose. The order is important because they up a whole debate about foreign and security policy, do establish a certain hierarchy and, of course, it is I think that will be very, very popular with the important to define with great accuracy our values British people. Although I am opposed to plebiscites and principles because we can expel or suspend the in principle on these matters, certainly I, and my membership rights of a state which breaches them. I party, will fight extremely hard to see that we have a think that you are quite correct, if I may say so, to positive outcome and we will be arguing on these bring our attention to these clauses. I would say they grounds. are more than guidelines, with respect. I think they Mr Stubb: Two quick points. One is a direct answer define absolutely the purpose of Europe and they are to Mr Cash’s question on democracy. I firmly not only of relevance to the citizen and a code for the believe that you should have democracy on a institutions, but of great interest to those who are European, national and regional level. Your direct seeking to decide whether they wish to apply to join question was what if someone who has elected a us and there appear, despite our thoughts, to be national representative is displeased by a piece of many other countries that wish to apply to join us. legislation which comes from the European level. Well, in the Constitution you have an answer to that. We have an early warning system whereby national Q222 Mr Connarty: I have one more question myself parliaments can lift up a yellow card and say “As a which I find very intriguing. We are talking about a matter of fact, Europe has gone or the Commission Constitution that has not yet been ratified, yet there has gone beyond its premises, beyond the principle is a power under IV-443 to bring forward new of subsidiarity”. In that sense, I think this treaty is a provisions. I notice in paragraph 8 of the European step forward. The second point is we talked earlier Parliament Resolution Statement it announces its about transparency and the possibility for the public intention of using the new right of initiative to hear what we are saying. I have been informed by conferred upon it by the Constitution under Article three text messages that the audio system on the net IV-443 to propose improvements to the is not working! Constitution. We are asking people to vote on ratifying something which you have given notice you may wish to change, which does seem to me to be a Q221 Jim Dobbin: Apologies for not being here at hostage to fortune. the beginning but I think I have missed a very Mr Corbett: That came into the resolution by means stimulating debate here. My question is on the of an amendment on the floor of the House which Union’s values and objectives in Articles I-2 and I- was adopted by an overwhelming majority after 3 and some of those objectives are the bases of the discussions among groups to meet the concerns European Union’s foundation. Can you just of those who were saying: “Well, once this highlight one or two of them? Also, I want you to say Constitution is approved, it is set in stone and it can something about those objectives which are not in never ever be changed again” which is not true, of the existing treaty and what impact they might have course. It has the same amendment procedure as the had. Examples are the promotion of peace and the current treaties, the current Constitution, if you like, well being of the Union’s people, the promotion of in that it will need eventually the ratification of every social progress and fair trade, those areas. Member State, though the lead up to such a change Mr Leinen: I would say they are guidelines for Union is improved, in our view, because there would policies. In a way the values are conditions for normally have to be a convention meeting in public membership. The applicant state should fulfil those which, as with the last convention, will have values and it is, let us say, the soul of Europe. The representatives of every national parliament, (both market is not really bringing people together. From from the government and opposition parties), of Poland to Portugal, what do the people have in every national government and of European 9945773001 Page Type [O] 31-03-05 03:44:41 Pag Table: COENEW PPSysB Unit: PAG2

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25 January 2005 Mr Jo Leinen, Mr Richard Corbett, Mr Andrew Duff, Mr Alexander Stubb and Mr Gyo¨ rgy Scho¨ pﬂin

Parliament, deliberating in public beforehand, policies can change. Five years is 20 Internet before an IGC concludes the change. Interestingly, generations. The world changes in five years’ time the new Constitution also gives us in the European sometimes completely and then you find something Parliament the right to put forward proposals and written down, accepted by ratification of all states, suggestions to change, and we wished to draw and it is no more adjusted to reality. I would say if attention to that. Obviously, like the current treaties, we need some more improvement it will be on the in due course there will be further occasions to sit Part 3, on the various policies that we have. It will down and say: “Can we improve things here and can not be on Part 1, on our values, our objectives, on we improve things there?” We are showing that as our institutions, on the double majority the democratically elected parliament, the only directly elected institution amongst the institutions, Q224 Angus Robertson: Competences? we will play a part in that and we wanted to Mr Leinen: Yes. There is everything there. I cannot highlight that. V say much more on that. Mr Du : If I could put on record the fact that I and Mr Corbett: It is a lasting settlement on those points. my Liberal group opposed the amendment that you Mr DuV: We do not need any more competences. drew attention to. I think you are correct in implying Mr Leinen: It is more the streamlining of policies that it is premature to speculate on future provisions and decision making. when we have not even got the thing in place. Also, I think that we need to imbue a sense of settlement that we are not always every five years having IGCs Q225 Mr Connarty: We seem to have an echo of the and conventions, and picking the thing up by the same point that in these major items there is a sense roots, that the thing where we have formulated very of settlement, I agree with Mr Robertson that would well, and I hope will come into force, enjoys a certain help the people I represent and others that this durable quality. But, of course, there are things in it Parliament represents to get a sense of a grounding which some of us do not like and that was quite clear of what is the new European agreement. in the convention, which was a consensual eVort, we Mr Corbett: I agree and I do not want to give the did not all agree with everything. Some examples: impression, when I initially answered your question, the reform of the Council Presidency; the election of I thought there would be an avalanche of changes. I the Commission’s President is an example of am just saying in due course there might be small something; the emergency break clauses. There are ones. several things, and if we had six hours of this Mr Connarty: Can I thank you, Mr Cash, for being interesting afternoon then we could go into those very tolerant. We have got through a lot of business. but, frankly, I think that is for five years, seven years, I know you have many issues you want to raise, and once we have the Constitution in force, when we if you have any others, please feel free. have practised it, when we see what it is like, and we Mr Cash: Just this one main point. In Mens ancient will have made mistakes. Economic, social and law there is what I think is a remarkable and very political circumstances change requiring fresh wise statement which is that justice is to be found in formulations and procedures. the interstices of procedure. It might sound rather grandiose to say that but in practice many of the things here one would not disagree with because it Q223 Angus Robertson: Can I reinforce that point to states unequivocally a lot of things which some an extent. If you draw a comparison with the people might regard as motherhood and apple pie. situation in the United States where the number of The question is how does it work in practice? What times their Constitution has been amended is the are the mechanics for the delivery of democracy? type of thing where in a primary school in America What are the mechanics for the delivery of most kids can name the major amendments to the accountability? To what extent is subsidiarity, which US Constitution. Can I share a concern that if there has never been implemented, capable of being put is a view that there will be a whole load of changes into eVect in a proper fashion? Frankly, on the necessary in the short term, perhaps one of the question that Mr Stubb raised about the cards, the problems Europe is going through at the present question in a nutshell is this: if any one Member time is this constant sense of reinvention. The fact is State happens to take exception to something, he the public, which we all agree is disconnected from does not have the right to be able to say no under this it, finds it extraordinarily diYcult to understand how arrangement, it is down to a proportion of national it all works. Just when you get a settlement to say: parliaments, not just one. What I am trying to drive “This may or may not, because some of us have some at in a nutshell is that although I understand the concerns about it” and “This is the settled way objectives, and anybody who had any sense of forward which already one is talking about constitutional propriety or sense of history would changing”, how on earth can the public keep up with know that the European Union in itself grew out of this constant change? the last world war and many people have thought it Mr Leinen: You are completely right, and I think ought to be perpetuated and to develop to the point that the first and the second part of this new treaty of this Constitution, the Bill of which is going to is really a consolidated version of what we want and be published tomorrow, the fact remains that it will have continuity for a longer time. Part of the ultimately the objection of some of us is that it is not new treaty is Part 3, the acquis communautaire, so properly democratic and it is not intended to be, it is that is all the policies, and you know yourself how not properly accountable and not intended to be, 9945773001 Page Type [E] 31-03-05 03:44:41 Pag Table: COENEW PPSysB Unit: PAG2

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25 January 2005 Mr Jo Leinen, Mr Richard Corbett, Mr Andrew Duff, Mr Alexander Stubb and Mr Gyo¨ rgy Scho¨ pflin and that is the fundamental objection. I could ask Mr Scho¨pflin: I thought Mr Cash made a quite you for your opinion about that but I thought that I amazing assertion that the Constitution is not would put that on the record. democratic and not accountable. It is as if by implication he is saying either he has a monopoly on the definitions of democracy and accountability or Q226 Mr Connarty: As the Chairman, I do intend maybe the United Kingdom does. It seems to me asking our witnesses to give us their opinion, if they that there are diVerent ways of structuring wish to give an opinion on that, because I do not think statements should be hanging in our minutes democracy. The United Kingdom is in many ways a very democratic country but democracy exists, also, like that as if it is somehow given credibility. V Mr Stubb: A direct answer to Mr Cash on two elsewhere. It is finding the di erent discourses of points. It depends completely on the issue and it democracy—I am sorry to use language like that in depends on the decision making procedure whether this august place—and finding a compromise among a Member State indeed has the possibility to block them which is in a sense what this Constitution is V the particular decision. Point number two, if you saying, that the various di erent strands of look at the history of qualified majority voting, the democracy that we have built in Europe produce United Kingdom has always got in on top. It does something better than the sum total. If the United not matter what the issue, the UK has been in many Kingdom does not wish to be a part of that, well it cases, for example, champion of the internal market is a pity, but I think the United Kingdom does have where decisions are based on qualified majority a contribution to make and certainly the proposition voting and it has always benefited the UK. Now, that less democracy, less accountability, less unfortunately, the UK Government put down five transparency once you cross the 40 kilometres to or six red lines and unfortunately got those five or six Calais, I find really rather bizarre, I am sorry. lines which remain in unanimity. I do hope that the Mr DuV: I agree strongly with my colleagues, as you next time we change the treaty something will would expect. I would just like to ask Mr Cash what happen but you cannot categorically, I believe, say he thinks of Article 45— that there is no possibility to stop the decision in the EU, of course there is, it just depends on the decision making procedure and the issue at stake, but usually Q227 Mr Connarty: Let us not do that. the UK wins the case anyway. Mr DuV:—on the principle of democratic equality, Mr Corbett: Mr Cash said that the Constitution is 46 on the principle of representative democracy, 47 not intended to be democratic, which I think is an on the principle of participatory democracy. All of astonishing statement to make. That was much of these are brand new, they have not existed before in the focus of the whole debate about it, how to any previous treaty. They are an unprecedented improve democratic accountability at the EU level. formulation of the profoundly democratic character Y You might say it is insu cient and, we can all have and parliamentary character of the EU. our views on that, but to say that was not even the intention is a remarkable statement, of course that was the intention. In looking at it we have to say Q228 Mr Connarty: Can I ask, Mr Leinen, as the “How does it compare it to the current Constitution, chairman of the committee, do you wish to say a few the current treaties, de facto the Constitution of the words before we finish? EU as it is now? Does it improve things from a Mr Leinen: Yes. We thank you for the questions and democratic accountability point of view or not?” I hope this exchange of ideas has been constructive The answer can only be “yes”, maybe it could have and useful. We are dealing with these questions day improved them more but the answer is “yes”, it increases the role of double scrutiny, as I said, at the by day. You have heard from various countries the Council and the European Parliament and it view on this new treaty. A few months ago an improves the role of national parliaments. The American, Jeremy Rifkin, wrote a book about the yellow card, frankly, I think is a minor part of that European Union and he gave it the title The because that concerns only subsidiarity and I think European Dream. It is amazing looking from the subsidiarity is very adequately protected at the outside at the EU how much admiration is given to moment by the requirement for legislation to have the fact that 25 countries and 25 populations the approval of a very high majority of national voluntarily share sovereignty and do things ministers, members of national governments together. It is admired around the world more and accountable to their national parliaments, in the more and therefore I would say our scepticism is a Council. It will be very unusual to find a little bit too narrow and should look more at what is Commission proposal which does not respect achieved. When the founding fathers had the idea of subsidiarity. Where I think the real improvement is peace, okay, the young generation may in the area of for national parliaments is in receiving all the globalisation look for security and jobs and quality documents directly with suYcient time to help shape of life, and I think together we are doing better in the your country’s position before the minister goes oV globalised world than everybody on their own. In to the Council and not hear about it afterwards. You this sense, I think the Constitution brings us a step have that period to sit down and help shape your forward and we welcome very much when the British country’s position before the Council meets, that is people can find something positive in this common the real improvement for national parliaments. eVort. I thank you very much for inviting us. 9945773001 Page Type [O] 31-03-05 03:44:41 Pag Table: COENEW PPSysB Unit: PAG2

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25 January 2005 Mr Jo Leinen, Mr Richard Corbett, Mr Andrew Duff, Mr Alexander Stubb and Mr Gyo¨ rgy Scho¨ pﬂin

Mr Connarty: Can I thank you and recognise the fact the European Constitution. Before ﬁnishing, can I that we have here a delegation from Finland in the recognise that we have received also a written North to Hungary in the South and East of the submission from Brenden Barber, General Secretary European Union to our own Kingdom and of the TUC, to our deliberations. In fact it is very Germany. In fact we have a delegation which comes interesting to read how closely he focuses on the from the Internet age with someone who was born in impact of the Charter of Rights for the people he the same year as my son to a Member who was represents in the trade unions of the United actually even born a decade before I was. We have a Kingdom. Can I thank everyone for their broad interest and clearly a focused interest also on participation. 994577PAG3 Page Type [SE] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

Ev 84 European Scrutiny Committee: Evidence

Tuesday 8 February 2005

Members present:

Mr Jimmy Hood, in the Chair

Mr Richard Bacon Mr David Heathcoat-Amory Mr William Cash Angus Robertson Mr Michael Connarty Mr Anthony Steen Mr Wayne David Mr Bill Tynan Jim Dobbin

Witnesses: Rt Hon Jack Straw, a Member of the House, Secretary of State for Foreign and Commonwealth AVairs, and Mr David Frost, Assistant Director, EU Internal Division, examined.

Q229 Chairman: Foreign Secretary, welcome again European law, which is that the balance of opinion to the European Scrutiny Committee. Several of our was that, if there was a contest of competing witnesses have suggested that ratification by jurisdictions after the Constitution had gone national parliaments of the principle of the primacy through, because of Article I-6, the advice we of EU law in Article I-6 of the Constitutional Treaty received was that the UK judges would have to may lead to greater deference on the part of national decide as to which way they would go if an Act of courts. Can you give us any assurance that the Parliament, for example, like my Supremacy of existing principles by which the UK courts recognise Parliament Bill, notwithstanding the European the legislative sovereignty of the Westminster Communities Act 1972, was clear and unambiguous. Parliament will not be altered by this provision? Do you not agree that it is most unsatisfactory for Mr Straw: Yes, I can. I think your Committee will us to be in a position of uncertainty in this arena of be familiar with what Lord Denning, then Master of competing jurisdictions? Would you not agree that the Rolls, said in McCarthy v Smith: “If the time this Bill that we are going to consider tomorrow should come when our Parliament deliberately should be amended to ensure that if Parliament passes an Act with the intention of repudiating the passes an Act of Parliament clearly inconsistent with Treaty or any provision of it or with the intention of the European Communities Act or anything flowing acting inconsistently with it—it says so in express from it, including the Constitution itself, the UK terms—I should have thought it would be the duty courts must give eVect to that Act and, if not, why of our courts to follow the statute in our not? Parliament.” That much is clear. Other Mr Straw: On what happens at the committee or consequences would follow in those circumstances, report stage, I am always open to looking at the which arise from our signature on the Vienna merits of particular amendments. That has been my Convention on the Law of Treaty, Article 27, which consistent practice. If there are amendments put says that you have to respect the international down, including from you, we will look at them. You obligations into which you have entered. There always have to look at amendments in terms of would be a serious problem. In terms of primacy qua their detailed wording. In terms of what the primacy, I can give you that clear undertaking. We Constitutional Treaty does in this area, it is are clear that the statement about primacy and the eVectively a statement of the status quo. There is this declaration are no more than a statement of the declaration in respect of Article I-6: “The status quo and it is not just the status quo in respect Conference notes that Article I-6 reflects existing of European Treaty obligations but eVectively of case law in the Court of Justice of the European any treaty obligations, particularly those which are Communities and in the court of first instance.” incorporated into domestic law. It would be impossible to run an international system and have treaties unless where people entered into treaties Q231 Mr Cash: That is dreadful, is it not, because they were binding on a number of signatories as long they say under Costa that they take precedence. as they were there. The British Parliament in any Mr Straw: The issue of primacy has been part of our event has the final say because it is up to the British obligations of membership since we joined. If you Parliament as the sovereign authority in this country look at the competing texts of the yes and no to decide whether or not we should remain a member campaigns back in 1975, you will see that there was or a signatory to a particular treaty. exactly the same argument. It went before the British people and it has not changed. If we joined the European Union in respect of those obligations to Q230 Mr Cash: As you know, there is this problem which we voluntarily have signed up, which give the of competing assertions of jurisdiction by the EU competence, we have to accept those obligations European Court on the one hand and, as you quite as interpreted by the European Court of Justice. On rightly point out, McCarthy’s case and indeed this issue of competing competences, the European Metric Martyrs in which Lord Justice Law said Court of Justice— much the same thing. There is a problem, is there not, and it came up in the evidence that we received from the expert witnesses on the interpretation of Q232 Mr Cash: Competing jurisdictions. 9945773002 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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8 February 2005 Rt Hon Jack Straw MP and Mr David Frost

Mr Straw: And jurisdictions. It is the same thing. potential scope of the Charter before we agreed to it The European Court of Justice itself has been very being included within the text of the Constitutional careful not to engage in a gratuitous argument with Treaty. We do not think the phrases are diVerent in national jurisdictions. I could cite the Annibaldi case practice. We also believe that the ECJ will look at and the Karlsson case. They are alive to the fact that each case on its merits. Again, I quote from the they have a very specific, limited job. On the issue of Annibaldi and the Karlsson cases. In the Annibaldi Kompetenz-kompetenz which runs round some case which is cited, by the way, in explanations to Members of the Committee sometimes rather like a Article II-111 the European Court of Justice refused hare, I had a very lengthy discussion with a former, to give a ruling on fundamental rights points because very senior member of the German Constitutional the matter fell outside EU law and they said it was Court in Karlsruhe about this issue. Happily, he for Member States. I do not think there will be a spoke perfect English so we had a very good problem. This is a statement of existing rights and it discussion over dinner one night about this. He was quite emphatically, as Article II-111 makes clear, explaining the issue but I came away from it thinking does not extend the field of EU law beyond the that, even for them, they do not see it as a practical powers of EU law or establish any new power or task problem in terms of their relationship with the for the EU or modify powers and tasks defined in the European Union. I know of your anxieties, Mr Constitution. Lord Goldsmith also said that he was Cash. I know where you are coming from. You do unaware of any other human rights statement where not like the European Union; you do not like the fact the legislator has oVered so full and careful that currently there is law as explained by the ECJ elaboration of its meaning. We went to very about primacy in respect of treaty obligations and considerable lengths. One of the last things that I those which flow from it. To reassure you— agreed before we gave our assent to the whole document was to beef up the acknowledgement in Q233 Mr Cash: Very diYcult, I would say. the text of the status of the explanations, because we Mr Straw: This Constitutional Treaty does not wanted to make it clear. make any diVerence and the issue of primacy arises fundamentally from Article 27 of the Vienna Q237 Angus Robertson: If this is the case, if so much Convention on the Law of Treaties. work has gone in to make sure that there is not ambiguity, why is the wording not exactly the same Q234 Mr Cash: We can break our treaties by statute. and why do so many eminent academics feel that Lord Diplock made that abundantly clear in a there is this gap? House of Lords case. Mr Straw: I cannot answer the latter question except Mr Straw: The British Parliament as I was taught at to say that academic life would not be academic life school—this has not changed—can do anything it unless there were diVering opinions and long may wants, but there are consequences in the real world. that continue. Our judgment is that it does not make any diVerence between implementing Union law and Q235 Mr Cash: Fortunately. being within the scope of Union law. Because the Mr Straw: Politics and government are about words are diVerent you could argue that the meaning responsibility. If we pass a law which is plainly and is diVerent. Sometimes you get diVerent words used expressly inconsistent with treaty obligations, we and their meaning comes down to the same thing. I will then be in breach of those treaty obligations. think that would be the case here. The consequences are likely to be political and financial, more than legal, but they may also be legal Q238 Mr David: I want to talk about the in other jurisdictions in which we voluntarily have implementations in the extremely unlikely scenario accepted the authority. Do not worry on this one. that the United Kingdom should vote no and other Member States have already voted yes. Do you think Q236 Angus Robertson: Can I move on to the that we would be in a situation whereby Member Charter of Fundamental Rights? Article II-111 States would try and put some kind of political states that the Charter will apply to Member States pressure on the United Kingdom to have some kind only when they are implementing Union law, whilst of associate status to the European Union or would the explanation to this Article uses the wider you stick by what you said originally in your letter expression, to “act in the scope of Union law” and a of 20 October, that the Treaty would simply be number of our experts, eminent professors, have terminated and that would be the end of the matter? said that they believe the European Court of Justice Mr Straw: For the Treaty to come into force there will take the view that this wider formulation will need to be 25 positive ratifications. If there were not, prevail. In view of the diVerence, how firmly based is it would not come into force. Such things happen in the government’s view that incorporation of the respect of other treaties. It always takes a long time. Charter will not result in the extension of EU We saw that recently in respect of Kyoto which took competence? some years before it had suYcient numbers to ratify Mr Straw: We are as firm as we can be. You may it, although in that case it did not require unanimity have seen the Attorney General’s speech that he of all the signatories; or, for example, in respect of made on 25 June where he described the Charter of the Nice Treaty where Ireland failed to ratify. Rights as a brake, not an accelerator. Peter Secondly, the European Council will meet and Goldsmith took intense interest, as did I, in ensuring decide what to do. The only certain thing is that we that we had nailed down safeguards in respect of the would be in an era of quite profound uncertainty for 9945773002 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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8 February 2005 Rt Hon Jack Straw MP and Mr David Frost the British government’s relationship with the stop the train but it would keep going. I wonder European Union if we were in a situation where 24 what you feel about the French saying no. Would had said yes and we had said no. I cannot predict that kill it dead? what the reaction would be, except we would be in Mr Straw: I am not talking about any other a weaker position than we are now. This is a Treaty particular country saying no. The legal position is which is very much in Britain’s interests. If you go the same whichever country says no. It must be. We round Europe to see what people said at the time the are all pari passu as Member States around the table. Treaty was agreed, they said it was a victory for The political consequences would be broadly the Britain. That was said repeatedly in one country same. There would be a serious problem, not to say after another, or words to that eVect. I set out in a crisis, inside the European Union. People know September 2003 what were our key concerns and key what they are going to get with this document. That demands before we would sign up to it and it was a is a matter of debate. It will be further debated very public negotiating position which had its own tomorrow, no doubt, when it goes on the floor of the risks, but it nailed us to the floor and we have House and at committee and report stages and then delivered on all of those. We have changes to make very publicly. I am confident both about making the the EU better managed and I have yet to see a single public argument and about winning the public argument explaining in rational terms why there is argument. In the end, I have one vote of 30 million objection to slimming down the size of the so it is for the British people to decide. We have Commission, to having a voting system which produced a greater certainty for the British people. reduces the disproportionate weight of the small If we make a decision where we are the only ones countries and makes the weight of votes who are rejecting it, we are making a decision for proportionate to people’s population which, by isolation and where we would be negotiating from definition, helps a country like the United Kingdom. weakness, not from strength. It is risky and Having a full time president of the European uncertain. It is not in Britain’s interests. Council to act on behalf of Member States and particularly having a really eVective mechanism for Q240 Mr Cash: If there was a no vote, as I put to the involving national parliaments and the British Prime Minister the other day at Prime Minister’s Parliament—how is that against our national question time, which would be an expression of the interest? It cannot be and yet these are some of the national interest which you have been harping on things to which some people in this place object. You about just now in a big way, would you not agree can have an argument about the extension of QMV. that it would be absolutely essential following such Although the substantive extension of QMV is very a no vote to repeal the Bill, if you have managed to limited, overall we got a good deal because of the get it through the House of Commons and the House strength of our negotiating position. We had the of Lords by then? After all, if the national interest British Parliament behind us and we had been very has been reflected by the no vote, it would not make open in the way we had obtained public backing for any sense at all to keep that Treaty enshrined in an our position; and also, because we had a veto at that Act of Parliament for all the reasons that we stage. To try and renegotiate the treaties with the discussed in our previous discussion about the reverse position would be very diYcult. It would be competing competences. a very risky enterprise. I cannot see it as in Britain’s Mr Straw: Frankly, I think it would be a waste of interests, given the fact that more and more the EU is parliamentary time to do that. working for Britains’s interests and becoming as we would wish it. Q241 Mr Cash: It could be done in a day. Mr Straw: The Bill makes it very clear that our Q239 Mr Steen: Welcome back to the Committee. ratification does not come into force until there has Until recently we did not see Foreign Secretaries but been a referendum and that is conclusive. it is very nice that we see so much of you now and thank you for your answers. We have had a lot of Q242 Mr Cash: You have not answered my evidence from academics and you rightly said that question. Would you not agree that you should they all have diVerent views. I would like to test you repeal the Act as well? on one or two of the views put forward. The first Mr Straw: It would be a complete waste of view put forward by a group of MEPs was that if parliamentary time. Britain said no in the referendum it would be a period of great uncertainty, although they thought it Q243 Mr Cash: You really think so? likely that the other 24 countries would go ahead Mr Straw: Yes, I do. and we would just be on the sidelines. A much Mr Cash: I am astonished by that. stronger view expressed by some of the professors and others was that if France, probably Poland and Q244 Mr Heathcoat-Amory: You have frequently Spain said no in the referendum that would kill the said that the EU Charter of Fundamental Rights whole Constitution dead; but if we said no, as we are creates no new rights; it simplify codifies what exists already very much on the outside of the EU, which and indeed the commentary you have just published is somewhat diVerent from what you were saying, does say that in terms. It says that the Treaty makes what we said was gloriously unimportant. The rest clear that the Charter contains rights which already of the EU would go on and we would be struggling exist and whose detail is defined elsewhere. To take behind in the coach at the back of the train, trying to one example, Article 13 of the Charter, Part II, says 9945773002 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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8 February 2005 Rt Hon Jack Straw MP and Mr David Frost that scientific research shall be free of constraint. It Personally, I think it is a good thing that where is obviously important in the EU legislation in this proposals are being put forward—for example, over area. The scientist wants freedom against attempts conditionality of research provisions—by the to constrain him on animal rights grounds or European Union they are subject to being measured whatever. Interestingly, your commentary against against that right because there are some people that Article says that it has no equivalent in the around, as we know, who have a particular view current Treaties or in other parts of the about constraining some research—for example, Constitutional Treaty and also does not exist in a stem cell research. I would not wish ever to be party separate European Convention on Human Rights. to that kind of constraint and I am delighted that Therefore, that is a new right. Why are you saying what has been a longstanding right for British that it does not create new rights when your scientists and British arts researchers is now being commentary admits that it does? reflected in a codification in the Charter. It is a Mr Straw: What it then says is that the right is protection for our scientific endeavour. produced primarily for the rights to freedom of thought and expression, exercised having regard to Article 1 to 61 of the Constitutional Treaty and may Q248 Mr Heathcoat-Amory: It is very unsatisfactory be subject to limitations authorised by Article 10 of that you have not been able to tell me where that the ECHR. With luck, the freedom from constraint right exists already. You have waZed on about for arts and scientific research is in practice a right freedom of expression. This is not the issue. This is which is exercised by anybody across Europe at the an unconditional right to freedom of research which moment and so is the respect for academic freedom. some of us are alarmed about because we believe If that is going to be the basis of the argument that that should be balanced against other rights. between those like you who want a no vote and those Mr Straw: Lord Goldsmith has said it does not like me who want a yes vote, I am very happy to join create any new rights. with you. Q249 Jim Dobbin: My question is about the scope of Q245 Mr Heathcoat-Amory: I am sorry; that will not interpretation of rights and principles, Article II- do. It is nothing about respecting scientific freedom. 112, which is contained in paragraph 3. It states that It is a right that says scientific research shall be free Charter rights which correspond to European of constraint. That is unconditional. This is an Convention rights are to be given the scope and important, new right. You say there are no new meaning as the latter, but that this “shall not prevent rights in the Charter. Your commentary agrees that Union law providing more extensive protection.” this does not exist in the existing European How can the Union provide more extensive Convention and does not exist elsewhere in the protection to one right without restricting another— Treaty. This is a new right. Why are you saying that for example, in the case of privacy under Article 8 the Charter creates no new rights? and freedom of expression under Article 10? Will Mr Straw: It is a declaration of rights that already this provision undermine the balance which the exist. Those rights certainly already exist and they Strasbourg court has achieved between conflicting would exist here and elsewhere across Europe. rights? Mr Straw: As you will be aware, this issue of Q246 Mr Heathcoat-Amory: Can you tell me where potential conflict between the European Convention they exist? of Human Rights—if you like, the Strasbourg Mr Straw: In practice, they exist. rights—and the Charter was very much in the minds of the drafters of the Charter and for that reason Q247 Mr Heathcoat-Amory: Rights do not exist in there are horizontal Articles which tie the Charter practice unless they are written down. provisions to their sources, especially to the ECHR. Mr Straw: We in this country had a whole series of On II-66, that corresponds to Article 5 of the ECHR rights to freedom of speech, to freedom of and II-99, the right to vote, corresponds to Article I- association, to freedom from arbitrary arrest, which 10 of the Constitutional Treaty. were not codified for a very long time but they were Mr Frost: What Article 112(3) is trying to do is to say still rights which existed. They did not begin to be that where a right is mentioned in the Charter and in codified until British lawyers drafted the European the Convention you define the Charter right in terms Convention of Human Rights. Even then, there was of the Convention. I am not a lawyer but I a decision made in this country not to incorporate understand the provision that provides for the EU to that codification of rights into British law until we provide more extensive protection where it wants is passed the Human Rights Act in 1998, but it did not something that is common to certain other human mean that we had to wait until 1998 until there was rights instruments, and also in the ECHR. a right to freedom of speech and association in this country any more than we have to wait until this before there is a right of freedom from constraint of Q250 Mr Tynan: We have had a number of experts academic and scientific research. On your point here and there seems to be a disagreement as regards about animal welfare, there are other rights and their interpretation of the Treaty and your own. duties which any court has to take into account. Any Evidence given during our inquiry indicates that the rights which are in this text can only be exercised impact of the Treaty is unclear in a number of areas where they deal with EU law and powers. and particularly so in respect of the interpretation 9945773002 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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8 February 2005 Rt Hon Jack Straw MP and Mr David Frost and application of the Charter of Fundamental Q252 Mr Tynan: There is a feeling that if you hire a Rights. Are you saying that is not the case? You are QC and you do not get the answer you are looking saying there is no ambiguity at all there? for you hire another one. The danger is that the Mr Straw: I am aware of the diVering views that you general public are going to be asked to endorse the have been oVered and I have seen a short summary Treaty. If there are issues that experts declare are of those. Some experts are more relaxed about the unclear, would you think it fair for the public to be eVect of the Charter than others. I can only oVer you asked to make a decision, on support or otherwise, the negotiating history in respect of the Charter and on the basis of the Treaty not being as clear as it our own best opinion but also draw your attention should be? to the text of the Charter. It spells out in these Mr Straw: I do not think these things are unclear. horizontal articles—for example, in the new We have pinned them down. That is the point of the numbering, II-111—that the Charter does not horizontal articles. It will not stop some people extend the theme of EU law beyond the powers of arguing that in any event they dislike the Charter. If the EU or establish any new powers or tasks for the you read what is in the horizontal articles, words do EU or modify powers and tasks defined in the mean what they say. Everybody knew what was Constitution. I understand that people are interested being said around the room. Everybody knew what in this because, unlike any other European country, we were deciding when I got agreement to pinning we are less familiar with declaratory statements of down the status of the explanations and I do not rights which are formally codified than are they. think there will be a problem. People have already That was why it took such a long while for a British been trying to say, “This is going to be a problem. drafted codification, which was the European 1951 That is going to be a problem. The Charter will lead to the end of civilisation as we know it.” May battle Convention, to become incorporated into British be joined. I do not happen to think it will and I law. There were anxieties on both sides about what happen to believe that it is in Britain’s interests. The that would mean but we are now getting on for five closer we get to the referendum, the more British years since the Human Rights Act came into force people will come round to that point of view. the interpretations by our courts have not been unexpected. It seems to me to have been very sensible for our courts to be able to interpret the Q253 Mr Connarty: These answers strengthen my European Convention but also, as Parliament itself opinion that we are going in the right direction in decided in 1998, for other legislation to be measured this venture. Moving to some of the technical against the human rights legislation. We have got questions that people ask about the policies that used to that. The Charter is of less significance in were made that the Council would meet in public but many ways than the European Convention of only when deliberating. The concern people have Human Rights because in respect of fundamental that it may push some of the real negotiations oV the human rights it is simply a repetition of what is in the Table. At your last appearance before us you made European Convention. I genuinely do not think clear that if the Council delegated most of the there will be a problem. I understand the anxieties detailed negotiations to COREPER these but it is because of those anxieties that we worked so negotiations would remain closed to the public, hard to get these horizontal articles in and we simply because they did not take place in the Council worked hard and successfully to have proper itself. Have you given any thought to how to ensure recognition made in the text of the Treaty for the that there is genuine discussion during the public explanations. meetings of the Council? Mr Straw: The honest truth is that I have not given as much thought to this as perhaps I should have Q251 Mr Tynan: You reject the idea that much done. It is partly because of my own experience in would depend on the interpretation of the European the last four years where there is very little by way of Court of Justice as regards where there is a belief by formal legislation that we deal with in the General V experts that there is not the clarity that is required in A airs and External Relations Council. It is order for decisions to be made? something I need to follow up with colleagues. Mr Straw: By definition, any law from a local Whether decisions are brokered in COREPER or byelaw to something very substantive will finally brokered in the room, the truth is that since depend for its interpretation on the decision of the everybody is always seeking a consensus in the EU court. Words generally mean what they say. The and not a bust-up, sometimes the consensus require European Court of Justice, contrary to the parody unanimity; in every other case it requires a qualified of it, is alive to the fact that it has to operate with majority. There has to be a lot of very detailed negotiation and you cannot get the ebb and flow of care in a situation in which they are one part of a detailed negotiation if it is done under television supra-national organisation , where Member States cameras. People simply are not willing to take part have diVerent legal traditions and very great pride in in that. Everybody understands that. It is diVerent their own national sovereignty. I have read out from legislating on the floor of the House of details from two cases already. The evidence of the Commons. It is more like operating in a Cabinet way in which the ECHR operates is that they are committee. much more alive to the need to cut what the Strasbourg court calls a margin of appreciation for individual Member States than some people think. Q254 Mr Cash: Those get leaked all the time. 9945773002 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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8 February 2005 Rt Hon Jack Straw MP and Mr David Frost

Mr Straw: Fortunately, less than you think. It is a specific procedure by which, subject to the decision important that, at the point where there is legislation of the House of Commons and the House of Lords, with a capital ‘L’, the public should be able to see I am proposing that there should be parliamentary this. It arises outside this and it is something we need approval for treaty changes. Unless there is positive to do more of in any event. I will follow it up. approval, the message has to be sent back by Parliament to the EU that we are against it. People Q255 Mr Bacon: Are you saying, in the light of what cannot just hide away an issue and, by the eZuxion you said earlier, that ultimate legal authority in this of time, hope that we have agreed it. There is very country if this goes through would continue to rest strong protection here. in the Queen and Parliament and not in this Constitution as interpreted by the European Court Q258 Mr Connarty: When we took evidence of Justice? from the European Parliament’s Constitution Mr Straw: Yes. What this Treaty does is to establish Committee, they did refer to evidence they had given the limits of the European Union and make it clear in writing to say that they intended using an ability in an early Article that the powers of the Union are they had to bring forward some minor amendments conferred by Member States on the Union. This is to the Treaty whenever they thought it necessary. I Article I-11 in the new numbering. The limits of the presume you are aware of this. This would Union competences are governed by the principles presumably have to be through a process of of conferral but the use of Union competences is approval similar to the one you have just mentioned governed by the principles of subsidiarity and in Article IV-444? proportionality. Under the principle of conferral, Mr Straw: There is no provision in here by which the the initial act within the limits of the competence is Treaty can be amended without the approval of the conferred upon it by the Member States. This is an British Parliament. In some cases it requires a full inter-governmental Treaty. This is another reason, for those who are worried about the creeping inter-governmental conference and full ratification. competence of the EU, why we voted for this In other cases, it is to do with amendments of Part 3 document rather than being against it. When we sign articles as specified by Article IV-444. There is a up to this, we accept certain obligations. One of the more streamlined procedure but the British Parliament still has to make the decision and it has things we accept, as with any other treaty, is the Y obligations under international law which derive to be an a rmative decision. fundamentally not from this or the European Court of Justice but from the international law of treaties. Q259 Chairman: Can I ask if a transcript of the It will be for Parliament to decide. If Parliament public meetings of the Council will be published to decides, because Parliament is sovereign and rightly ensure that the proceedings are genuinely on the so, you may say, that it wants to leave the European record? Union, it can do so. If it wants to decide to bust up Mr Straw: It is an oxymoron, I think. There is with an organisation of which it is a member, it can always a very public press conference. also decide to do that but there will then be Chairman: No; it is the meetings of the Council. consequences because actions have consequences.

Q256 Mr Bacon: You said to this Committee that Q260 Mr Connarty: It did come up in discussion you were against the passerelle clause. Can you say with the European parliamentary representatives. what is the diVerence between the passerelle clause Mr Straw: I am advised by one of my oYcials that and Article IV-444, page 226? there is no transcript. Mr Straw: The diVerence is that originally, as I recall, it was not possible under the original Q261 Mr Steen: Why not? passerelle for one Member State to veto a change. Mr Straw: It goes back to— There is an absolutely fundamental diVerence. I am completely against that because it meant that Treaty articles could have been changed against our say so. Q262 Chairman: We are talking about post the When we started these negotiations in the autumn of Treaty. 2003, we made it clear there was no way we would Mr Straw: In the European Council, if we are talking sign up to this unless that was changed. Anyway, it about the Council itself which is the quarterly has been changed. summits that take place, what we are dealing with are the diYcult issues which require resolution, Q257 Mr Bacon: In other words, if the European which cannot be resolved by the functional Councils Council may adopt a European decision authorised of Ministers. They do require a lot of negotiation. It or cancelled out by qualiﬁed majority in that area or would simply, in my judgment, not be possible to that case, that European Council adoption can only reach agreement if you were doing that under the full occur unanimously? glare of publicity. Why? Because people across the Mr Straw: Yes, that is right. In the Bill, my concern room would be saying, “Can we agree that? No, we was to ensure that provisions which gave the British cannot. Can we agree that? Maybe we can. Can we Parliament powers would be pinned down in this have an adjournment?” In the real world, we would Act, on the face of the Act, and were not just left to not be able to deliver for Britain if that was under the Standing Orders. By clause two of this Bill, there is glare of publicity. I agree generally there ought to be 9945773002 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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8 February 2005 Rt Hon Jack Straw MP and Mr David Frost greater openness about what we can do, for sure. Chairman: Thank you very much. It has been an What you do get immediately out of the Council is interesting 45 minutes and, as usual, you have very extensive conclusions. whetted our appetite. Thank you for coming.

APPENDIX 1

Memorandum from George Bermann, Jean Monnet Professor of European Union Law and Walter Gellhorn Professor of Law, Columbia University School of Law I would prefer to write to you on my Columbia University letterhead, but I am abroad, in Europe, for the moment and prefer not to delay answering you until after my return home which is still weeks away. I will try to answer only those of your questions on which I feel I have the knowledge and insight to opine at this time and, even then, only briefly: 1. I do not believe the statement of objectives in Articles 2 and 3 has any concrete significance. The existing treaties have always contained comparable provisions, and I do not see that much practical significance has attached to them. 2. The Treaty does not introduce any major changes into the enhanced co-operation regime. As you may know, the Nice Treaty relaxed the requirements significantly as compared to the Amsterdam Treaty which had introduced enhanced co-operation, but that regime now would remain largely intact. 3. On this point, I have some personal questions and doubts. Council meetings have traditionally been closed. My guess is that the deliberations will remain largely closed even if the voting session becomes open. 4. I anticipate that the Foreign Minister will work very closely with the Council Presidency, but also with the European Council Presidency. Remember that the foreign Minister, rather than the then-Council President, will himself or herself preside over meetings of the Foreign AVairs Council. I expect the ties with the European Council and its President to be preponderant. The Foreign Minister, being also ex oYcio a vice-president of the Commission will be influenced by that body as well. 5. The UK government held its line rather well in excluding QMV voting on the matters stated. 6. It is simply too diYcult to answer this question, as it is a new device. My own view is that States will only be able to apply the emergency brake a very limited number of times and the device, like the original Luxembourg Accord, may fall out of use. But this is entirely speculative. 7. These are provisions of the text that I have not yet studied—criminal justice co-operation not being among my main interests. 8. If the Treaty is not ratified, presumably because one or more referenda are unsuccessful, I do not think the constitutional-treaty-making process will come to a halt. If past experience is any guide, unsuccessful referenda get turned around when a government can re-negotiate an issue or two, win a concession, and then present the package to its constituency as a more favourable on and the change as a victory. This has worked in the past. Arguably, this time is diVerent, because a “constitutional treaty” is being made, and that is symbolically laden. But my own view is that, if you compare this text with the existing treaties, I think you will find that States are not giving up additional sovereignty and have not moved the EU any closer to being a federal state. If this becomes clear, I do not think that a referendum defeat in one or even two countries will be fatal. All bets are oV if referenda fail in the majority of countries in which they are held, but I do not expect that to happen. I hope these responses will have been of some assistance. I would be happy to assist further down the line. 6 August 2004

APPENDIX 2

Memorandum from Paul Arthur I am writing to you because I should like to make a formal submission as a private citizen regarding the European Scrutiny Committee’s inquiry into the EU’s Constitutional Treaty. I note that the Committee has, in the ﬁrst instance, restricted its terms of reference regarding the Common Foreign and Security Policy to an examination of whether or not the U.K. Government has held its red line over Qualiﬁed Majority Voting. As far as I am aware, the Government has ensured that QMV remains in this area, but I would urge the Committee to expand its terms of reference to include the issue of whether 9945771011 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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or not the Constitutional Treaty allows the European Court of Justice (ECJ) to extend its competence in this area. I submit that for the Government to claim that it has retained control of Foreign Policy and Defence policy it is not suYcient simply to demonstrate that there has been no extension of QMV in this area, and that Article I-15, in particular, gives cause for concern and deserves full examination by the Committee. I should note, at this stage, that I have been unable to obtain a copy of the Constitutional Treaty as signed by the heads of government at the IGC earlier this year and must refer to the articles contained in the draft version submitted to the President of the European Council in Rome in July of last year. That said, I believe, although I cannot be certain, that the relevant articles have retained the same numbering. Article III-282 of Chapter I, Section 1, Subsection 5 of Title VI of Part III of the draft Constitutional Treaty specified that the ECJ “shall not have jurisdiction with respect to Articles I-39 and I-40 and the provisions of Chapter II of Title V of Part III concerning the common foreign and security policy”. However, there is no specific exclusion from jurisdiction for the ECJ of Article 15 of Title III of Part I. This article reads as follows: “1. The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy, which might lead to a common defence. Member States shall actively and unreservedly support the Union’s common foreign and security policy in a spirit of loyalty and mutual solidarity and shall comply with the acts adopted by the Union in this area. They shall refrain from action contrary to the Union’s interests or likely to impair its eVectiveness.” The most obvious cause of diYculty would be if a common defence or foreign policy were agreed and subsequent events resulted in a Member State wishing to alter its foreign policy accordingly in a way that did not command the support of all the other Member States. There might also be diYculties of interpretation which could constrain a Member State in its conduct of foreign or defence policy. A worst case scenario would see Britain agree a common foreign or defence policy at European level, and then, following changes in the international situation or discussions with the US in the Security Council, seek to amend that policy, but feel constrained by the knowledge that such a course of action would cause a crisis in the EU and result in a referral to the ECJ on the grounds that Britain had failed to “actively and unreservedly support the Union’s common foreign and security policy in a spirit of loyal and mutual solidarity”. This could lead to serious damage in relations with either the EU or the US or simply help to generate a degree of semi-paraylisis in the conduct of British foreign policy at moments of international crisis. This might be avoided by simply failing to agree a common European foreign policy of any substance, as happened over Iraq, but that will not always be possible. Also, if Britain and France were in agreement, it is possible that the UN Security Council would pass a mandatory resolution which the EU would be obliged to respect, but, again, there is no guarantee that Britain and France would take the same position. My current understanding is that the Government is claiming that although Article I-15 is not listed in the exclusions of the first paragraph of Article III-282 it can only be implemented through Articles I-39 and I-40 and Chapter II of Title V, which sets out the provisions for the CFSP and ESDP, and are specifically excluded from the ECJ’s jurisdiction. I see no reason at all to support such an interpretation, however convenient it might be for the government. Article I-15 stands alone and accordingly oVers the ECJ considerable jurisdiction in this area. The Government’s claims in this respect need to be examined fully by the European Scrutiny Committee and the reasons for the Government’s interpretation made clear. It would also be instructive for the Committee to seek an explanation from the Government as to why it did not attempt to remove all ambiguity from this interpretation of the text by extending the list of exclusions to specifically include Article I-15 from the jurisdiction of the ECJ. 19 August 2004

APPENDIX 3

Memorandum from JUSTICE

JUSTICE RESPONSE TO THE EUROPEAN SCRUTINY COMMITTEE’S INQUIRY INTO THE EU’s CONSTITUTIONAL TREATY14 1. JUSTICE is an independent all party law reform and human rights organisation whose purpose is to advance justice, human rights and the rule of law through law reform and policy work, publications and training. It is the British section of the International Commission of Jurists.

14 The numbering used to refer to articles of the EU constitutional treaty are those in the ﬁnal version of the treaty which may be found at http://ue.eu.int/igcpdf/en/04/cg00/cg00087.en04.pdf. 9945771012 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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2. JUSTICE has monitored the development of the EU constitutional treaty and made submissions, notably on the JHA provisions, to the forum for the Convention on the Future of Europe (2002), the European Scrutiny Committee (March 2003) and the IGC (October 2003). It has also responded to the Government’s White Paper on the Draft EU Constitution (October 2003). This present submission continues to reflect the focus of JUSTICE’s EU work on criminal justice, in particular judicial co-operation in criminal matters, as well as its work on the EU Charter. 3. JUSTICE welcomes the European Scrutiny Committee’s inquiry into the EU’s Constitutional Treaty as an important initiative that will contribute to public debate in the run up to a referendum on the new treaty. Many of the aspects examined by the Committee in this inquiry are indeed open-ended and warrant further examination. The compromises reached at the IGC do not achieve legal certainty in respect of many important provisions. JUSTICE’s responses are necessarily speculative in some parts. 4. In summary: — The practical eVects that the values and objectives in articles I-2 and I-3 of the new treaty may have, beyond those set out in articles I-57 and I-58, is diYcult to predict. There may be concerns with regard to their ability to expand EU competences. There is also a risk of their being used to mask illiberal EU practices. — JUSTICE approves further integration of JHA policies subject to the development of adequate EU-wide safeguards, notably in respect of the rights of the defence. — It welcomes the treaty bases for EU approximation of criminal procedure and stresses that these minimum rules should build upon the protections in the ECHR and be enforceable in the national courts and ultimately through the ECJ. — The general extension of QMV and co-decision with the European Parliament to criminal procedural law is a pragmatic move that will facilitate the development of urgently needed minimum rules of criminal procedure across the EU. Concerns remain about democratic accountability where member states are outvoted in the Council. These are only partially answered by the full involvement of national parliaments at the implementing stages. — The emergency brake will allow any member state to refrain from participating in framework laws that approximate criminal procedure, the definition of criminal oVences or sanctions where it considers they would aVect fundamental aspects of its criminal justice system. The degree of transparency of European Council decisions will be vital in preventing governments taking politically expedient decisions that nonetheless aVect fundamental aspects of its criminal justice system without parliamentary accountability. — Enhanced co-operation represents a practical compromise that will allow groups of member states to pursue greater co-operation where the agreement of all 25 member states is not possible. JUSTICE would prefer to see such enhanced co-operation take place within the framework of the treaty than through unaccountable “pioneer groups”. There are, however, concerns about the degree of involvement by national parliaments in the decision to proceed with enhanced co- operation, including by QMV. — JUSTICE welcomes the general extension of ECJ jurisdiction to many parts of JHA but remains concerned that the exception may be used to restrict ECJ jurisdiction in relation to future EU legislation on criminal procedural law. — JUSTICE welcomes the treaty provisions that strengthen the role of national parliaments in the EU, notably on access to documents, openness and transparency. The opportunities to side-step ordinary legislative process should be precisely and narrowly defined to avoid abuse of “urgent procedures”. It regrets that the provisions on evaluation and monitoring of Europol and Eurojust stop short of ensuring full engagement of national parliaments. Further, JUSTICE is concerned that monitoring continues to focus on eYciency at the expense of compliance with individual rights.

What are the practical consequences of the new references (in Articles 2 and 3) to the Union’s values and Objectives?

The Union’s Values 5. Article I-2 sets out the Union’s “values”. The terminology is new but the concept and wording are based substantially upon the founding “principles” of the EU in article 6(1) TEU. Article I-2 declares the EU to be founded on respect for human dignity (new), liberty, democracy, equality (new), the rule of law and respect for human rights, including the rights of persons belonging to minorities (new). These values are stated to be common to member states “in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women prevail”. 6. In terms of practical eVect, article I-2 has two explicit consequences. First, under article I-1 and I-57, any European state wishing to accede to the European Union must respect these values and be committed to promoting them jointly in order to be eligible for EU membership. Secondly, in accordance with the 9945771012 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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procedure laid down under article I-58, any existing member state found to be in “serious and persistent breach” of the values in article I-2 may see the rights it derives from membership of the Union, including its voting rights, suspended. 7. It is not clear what the implications of the second sentence of article I-2 are, and whether the qualities it lists fall into the same category as the explicitly labelled “values”. If so, why are they distinguished at all and separated from the values grouped together in the first sentence? The draft version of article I-2 distinguished between values in the first sentence and the aim of the EU in the second, stated to be “a society at peace, through the practice of tolerance, justice and solidarity”. The final version of the article adds to these latter three values, “pluralism”, “non-discrimination” and “equality between men and women” but removes the statement that these are “aims”. The promotion of “peace” is relegated to article I-3 on the Union’s objectives and is clearly identified as an “aim” of the Union. In terms of practical eVect, articles I- 57 and I-58 do not distinguish between the first and second sentences of article I-2. A strong argument could therefore be made that “pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women” are also fundamental values of the Union, common to the societies of all member states. Furthermore, they are suYciently legally watertight to ensure that member states can deduce the legal obligations to which they give rise, notably under article I-58. 8. The values of the Union also have links with other provisions in the new treaty, notably the objectives in article I-3, article II-7 on fundamental rights, the Charter of Fundamental Rights in Part II, and Title VI on “the democratic life of the Union”. This may introduce confusion in the practical application of the Union’s values—is, for example, a Charter right such as human dignity more fundamental if inserted into article I-2? Moreover, by placing these values in article I-2, they will be justiciable as interpretive aids to the rest of the constitutional treaty and all legislative acts of the Union. As such, the UK government’s eVorts to restrict the scope of the EU Charter may have been in vain, particularly since respect for human dignity could be said to underpin all national15 and international16 texts on the protection of fundamental rights. An activist ECJ could make use of such a provision to undermine the distinction in the EU Charter between rights and principles, notably where such principles resemble social and economic rights. 9. Finally, JUSTICE is concerned that the inclusion of these values in the new treaty may allow member states to adopt legislation that breaches international human rights law whilst claiming it is in conformity because article I-2 of the treaty states that the Union is founded on these values that are common to all member states. This would create a self-reaYrming system that permits the member states to justify their illiberal practices on the basis of the liberal values of the constitution. This is precisely what has happened in the asylum part of JHA—the member states have adopted legislation that the UNHCR himself considers publicly to be in contravention of the Geneva Convention while the EU claims its legislation is in compliance because that is what it says in the treaty. There is a subsequent risk that the EU will drag down international standards applicable to these values by their illiberal practices.

The Union’s Objectives 10. Article I-3 sets out the general objectives of the Union. It combines the objectives of article 2 TEU with those of article 2 TEC and introduces new objectives to better reflect the balance between the economic and social values of the Union. New additions include: “to promote peace, its values and the well-being of its peoples”, “to oVer its citizens an area of freedom, security and justice without internal frontiers. . .”, full employment, the promotion of scientific and technological advance, solidarity between generations and the protection of children’s rights, cultural and linguistic diversity and the safeguarding and enhancing of Europe’s cultural heritage. 11. As stated above, article 1-3 sets out the Union’s general objectives only. The specific objectives of each policy area are defined in greater detail in Part III of the treaty. Article 1-3 will nonetheless assist in the definition and implementation of Union policies as well as in any eventual review by the ECJ of the legality of European legislation or acts of Union institutions, bodies, oYces or agencies under article III-270 and in the ECJ’s preliminary rulings jurisdiction under article III-274. As general objectives, they will apply to all areas of Union competence but are not intended to expand the Union’s competences, as underscored by article I-3(5). Whether they will remain confined in this way in practice remains to be seen.

Does the treaty make “enhanced co-operation” more likely? 12. The mechanisms enabling diVerent degrees of integration and co-operation between groups of states were “constitutionalized” and “legitimated” by the Treaty of Amsterdam and the amendments to it by the Nice Treaty.17 The aim of these changes was to minimise the need for states wishing to advance co-operation to negotiate outside the framework of the treaties when faced with political deadlock, as occurred in relation

15 Article 20 of the Angolan Constitution, http://www.angola.org/referenc/constitution/con3.htm; Article 23 of the Belgian Constitution, http://www.oefre.unibe.ch/law/icl/be00000—.html; Articles 1, 170 and 230 of the Brazilian Constitution, http:// www.senado.gov.br/bdtextual/const88/const88i.pdf, Article 6 of the Bulgarian Constitution, http://www.online.bg/law/const/ const1.htm, Section 1 of the Finnish Constitution, http://jurist.law.pitt.edu/world/ﬁncor1.htm. 16 UN Charter, http://www.un.org/aboutun/charter/. 17 Paul Craig and Grainne de Burca, EU Law, Texts, Cases and Materials, Third Edition, Oxford University Press, 2003. 9945771012 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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to the Schengen Agreement, the Social Protocol and the EMU opt-outs. The enhanced co-operation provisions in the new treaty have barely changed since Nice. The only material change is that a minimum of nine rather than eight member states will be necessary in order to proceed with enhanced co-operation under the new constitution. It will therefore be primarily due to changes introduced by the Nice Treaty if the EU begins to experience more examples of enhanced co-operation. 13. JUSTICE is not, in principle, opposed to enhanced co-operation. It oVers a pragmatic solution to groups of member states that are willing and able to proceed when others are not. JUSTICE does, however, have some specific concerns that relate to democratic accountability where the passarelle clause is used to take decisions by QMV rather than unanimity in highly sensitive areas of criminal justice policy, and when member states act outside the treaty provisions on enhanced co-operation and establish so-called “pioneer groups”. 14. Where all 25 member states are unable to reach agreement on a draft European law or framework law, two provisions of the EU constitution facilitate enhanced co-operation between smaller groups of member states: the emergency brake and the passarelle. In JHA, the emergency brake procedure allows a member state that considers a draft framework law (a) on criminal procedure; or (b) on the definition of criminal oVences and sanctions would “aVect fundamental aspects of its criminal justice system” to prevent its adoption by QMV by referring it to the European Council (article III-171(3) and (4) and article III-172(3) and (4)). This referral triggers a suspension of the usual legislative procedure. The European Council must decide within four months to either resume the usual legislative procedure or request a new draft law. Where no action is taken in that four-month period or no framework law has been adopted within 12 months of the submission of the new draft, “enhanced co-operation” may be established if at least one third (nine) of all member states so wish. The general treaty provisions on enhanced co-operation then apply (article I-43 and III-322–III-329). The UK would therefore retain an emergency veto over the application of EU legislation on criminal procedure in the UK. 15. The most important factors that argue in favour of an increase in diVerential co-operation are political and pragmatic. For instance, as a result of the recent enlargement to 25 member states, the sheer size of the new European Union may make enhanced co-operation between groups of states that have established greater trust between themselves more likely. There may also be examples where the existence of common technical capabilities or the compatibility of computer systems between member states is crucial for greater integration, and/or the existence of common legal rules such as data privacy legislation. 16. The requirement that at least 9 member states wish to go ahead before enhanced co-operation can proceed remains relatively high and JHA policy is notoriously sensitive. It should not be forgotten that, initially, only five out of 15 member states agreed to co-operate (outside the Community structure) in the 1985 Schengen Agreement and the 1990 Schengen Implementing Convention. Moreover, the Amsterdam provisions on closer co-operation were never in fact used. The enhanced co-operation provisions are explicitly stated to be a recourse of last resort and, particularly in JHA where eYciency will often depend on co-operation between all member states, co-operation at 25 is very much the main goal. 17. Where member states do decide to proceed with enhanced co-operation, the passarelle clause (article III-328) enables those member states to take decisions by QMV, even where the unanimity rule would usually apply to the policy area in question. These include the creation of a European public prosecutor, an extension of the areas in which minimum rules of criminal procedure can be established, and the drafting of the conditions in which the competent authorities (including police, customs and other specialised law enforcement services) may operate in the territory of another member state. The decision to pass from unanimity to QMV is taken by a unanimous vote in the Council of Ministers of those states participating in enhanced co-operation only. Legislation agreed in this manner could therefore only apply to the UK where it had agreed to participate in enhanced co-operation and then subsequently to proceed by QMV. 18. JUSTICE is also concerned that groups of member states may continue to establish “pioneer groups”, such as the G3 (France, Germany and Spain) that has agreed to exchange criminal records in the absence of a proposal from the European Commission. It considers that such pioneer groups present greater cause for concern than the enhanced co-operation under the Part III provisions of the new treaty. These groups make agreements outside the scope of the treaty structures and so beyond the reach of the built-in accountability mechanisms and potential human rights safeguards that may be established under the new article III-171. It should be noted that many JHA policies originated in this fashion (via Dublin, Schengen etc) and were ultimately adopted by the EU as virtually acquis, without adequate opportunity to debate them. The implicit danger in the development of closer co-operation by this method is the reduction in democratic accountability it entails. 19. Furthermore, this type of co-operation may not make use of EU institutions, procedures and mechanisms, resulting in systems that are even more complicated, cumbersome and time-consuming. This, in turn, is likely to hinder eVective police and judicial co-operation against serious crime. 20. Finally, such groups may diminish the political will of the larger member states to compromise with their newer or smaller counterparts rather than pioneering eVorts to achieve greater integration and so result in less rather than more co-operation in the long term. 9945771013 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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To what extent has the UK Government held its red lines over QMV relating to criminal procedural law? 21. JUSTICE welcomes the general extension of QMV and co-decision with the European Parliament to this area of JHA, subject to the emergency brake procedure. The default position of QMV and co-decision means that the government’s “red line” has not entirely been secured but a satisfactory compromise position has been achieved by the inclusion of the “emergency brake” where a draft framework law would aVect fundamental aspects of a member state’s criminal justice system. 22. Recent developments that implement the principle of mutual recognition, such as the European arrest warrant, will allow prosecutors in one member state to request coercive actions to be taken in another member state with relative ease. Such developments mean that it is no longer satisfactory merely to defer to national criminal procedural law where crime and prosecutions cross geographic borders. The approximation of certain aspects of criminal procedural law is key to the legitimacy of the EU’s mutual recognition programme, as well as to its success. The extension of QMV to this area of law will ease decision- making in the newly enlarged Union of 25 members and facilitate the adoption of minimum rules on the admissibility of evidence between member states; the rights of individuals in criminal procedure; the rights of victims of crime; and any other speciﬁc aspects of criminal procedure agreed unanimously by the European Council with the consent of the European Parliament.18 23. However, where coercive actions by a state are envisaged QMV must be tempered to ensure legitimacy through full democratic accountability. The emergency brake procedure ensures a member state that considers a draft framework law would “aVect fundamental aspects of its criminal justice system” can suspend the legislative procedure by referring the matter to the European Council. Within four months of this referral, the European Council must either refer the draft back to the Council and resume the ordinary legislative procedure, or request the Commission or the group of member states that proposed the draft framework law to submit a new draft. If the European Council has not taken any action at all within the four-month deadline, or if within 12 months of the submission of the new draft framework law no European framework law has been adopted, “enhanced co-operation” may be established between those member states that still wish to go ahead, provided at least a third of all member states agree to participate. The member state(s) that objected to the draft law would not be bound by the enhanced co-operation. 24. Where the emergency brake is not used and minimum rules of criminal procedure are adopted on the basis of QMV and co-decision, concerns about democratic accountability persist. These concerns are only partially answered by the fact that these procedures will only apply to “European framework laws”—which require implementation by national parliaments, and not “European laws”—which do not require implementation and take direct eVect in the member states. This is an important distinction that will ensure the involvement of all national parliaments even where their governments have been outvoted in the Council. However, parliaments in such a position may be reduced to “rubber stamping” implementing legislation where the framework law leaves little room for manoeuvre. Both Houses of the UK parliament have demonstrated their willingness to insert international and domestic human rights protections into implementing legislation, even where such safeguards were not on the face of the European framework law. A recent example is the inclusion at clause 21 of the Extradition Act 2003, which implemented the European arrest warrant, of an explicit human rights clause.

How eVective are the emergency brakes in criminal justice? 25. The emergency brake mechanism represents a compromise aimed at allowing member states to preserve national sovereignty in an area of law that can diVer substantially between member states, without hampering progress between member states that share the same problems, capacities and/or trust to proceed. 26. The increased role foreseen by the treaty protocol on national parliaments—notably with regard to timely access to Council agendas, minutes of Council meetings, Commission consultation documents and draft legislative acts—will facilitate eVective scrutiny and alert governments to draft framework laws that may aVect fundamental aspects of their criminal justice systems early on in the legislative process. 27. The mechanics of the emergency brake procedure are outlined in paragraph 14. Referral of a draft framework decision that would aVect the fundamental aspects of a member state’s criminal justice system to the European Council is appropriate given the highly sensitive and necessarily political nature of the decision on how to proceed. 28. An important factor in the operation of the emergency brake will be the degree of transparency of European Council discussions. In accordance with articles I-49 and III-305 of the constitutional treaty on openness and transparency, the European Council should meet in public under articles III-171(3) and III- 172(3), and its documents should be made publicly available—without concealing member states’ policy positions. Given that a government may take a politically expedient decision that will nonetheless aVect the “fundamental aspects of its criminal justice system”, civil society and national parliaments must be kept

18 Article III-171(2). 9945771013 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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informed of the progress and content of discussions. This will assist parliamentary scrutiny and inform public debate whether a decision to resume the usual legislative procedure is taken, or a new draft framework law is submitted.

29. However, if the emergency brake provisions are to be justiciable in cases brought before the ECJ, this may, in the hands of an activist court, diminish the value of the emergency brake mechanism in the interests of legal certainty. The Committee may wish to consider this eventuality further.

What is the eVect of the horizontal clauses that govern the application of the Charter of Fundamental Rights?

30. JUSTICE welcomes the inclusion of the Charter in the constitutional treaty. The Charter of Fundamental Rights is addressed to the EU institutions, agencies and bodies and to the member states only when implementing EU law and is intended to ensure compliance with the rights and principles enshrined in the Charter in all the activities of the Union. The increasing capacity of EU institutions to aVect individual rights makes a binding catalogue of fundamental rights an indispensable part of the constitutional structure of the Union.

31. The eVect of the horizontal clauses which govern the application of the Charter is diYcult to predict, due on large part to the uncertainty as to the weight that will be given to the Legal Explanations to the Charter by the courts.

32. The Legal Explanations refer to the European treaties, international human rights instruments and judgments and restrict the courts’ room for manoeuvre in their interpretation of the Charter.

33. Paragraph 7 of Article 52 during the ﬁnal stages of negotiations stresses the importance that should be given to the Legal Explanations in the interpretation of the Charter.

34. However, the wording of “due regard” used in Article 52(7) and the 5th paragraph of the preamble might nonetheless allow a proactive court some latitude in interpreting and applying the Charter. JUSTICE would encourage the courts to interpret the Charter in a progressive and meaningful way without excessively conﬁning themselves to the Legal Explanations. This would facilitate the development of fundamental rights in the EU and increase the Charter’s longevity in the same way as the ECtHR has done for the ECHR in its treatment of the ECHR as a “living instrument”.

35. The Charter has become an important reference document since its proclamation in December 2000 and will continue to be once it has full legal eVect. It has been extensively referred to by the Advocates General of the European Court of Justice (ECJ), by the Court of First Instance (CFI) and by the European Court of Human Rights (ECtHR) National courts, including those in the UK, have also cited or relied on the provisions in the Charter.

36. The Charter is not in itself a source of competences or a legal basis that will enable the Union to pass legislative measures. It bears closer resemblance to a source of reference for the values that must be present in all EU policies and legislation.

37. During the IGC negotiations changes were made to the horizontal clauses to ensure that no new rights were created and that no new powers were given to the EU Institutions, agencies and bodies. Article II-51, on the scope of the Charter, clearly specifies in paragraph 2 that the Charter does not extend beyond the powers of the Union or establish any new powers or task for the Union, nor does it modify powers and tasks defined by the other parts of the constitution. Article II-52, which addresses the scope and interpretation of rights and principles, establishes in paragraphs 3 and 4 that any rights which correspond to the ECHR or result from the constitutional traditions common to the member states should be interpreted in line with the ECHR and in harmony with the constitutional traditions. Article II-52 paragraph 5 makes a distinction between rights and principles. This distinction specifies that such principles become significant for the Courts only when acts implementing the principles are interpreted or reviewed. JUSTICE welcomes such inclusion but feels that that the distinction between rights and principles is too vague and would support an annexe to the Constitution specifying those provisions of the Charter that require subsequent implementation in order to confer legal rights. Finally, paragraph 6 of Article 52 directs that full account should also be taken of national laws and practices. These provisions underline that courts will always need to consider the ECHR, constitutional or national traditions when applying and interpreting the articles of the Charter.

38. These additions to the horizontal clauses and the legal status and contents of the Explanations to the Charter help clarify the legal meaning and scope of the Charter provisions. It nonetheless remains to be seen if the courts will stick to the Legal Explanations or will go beyond and interpret the provisions of the Charter with greater autonomy. 9945771013 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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The Treaty’s Criminal Justice Provisions (Following up the Committee’s Report of July 2003 on the Convention’s Proposals on Criminal Justice HC 63-xxvi 2002–03)

Role of national parliaments

Legislative Process 39. JUSTICE welcomes a fortified role in the EU for national parliaments as a way to improve democratic legitimacy and bring the EU closer to its citizens. The treaty provisions on openness and transparency in article I-41 and III-305, in particular the requirement that Council meetings and European Council meetings be held in public, with transparency of member states’ policy positions, when legislating will significantly assist legislative scrutiny by national parliaments. 40. The protocol on the role of national parliaments in the EU is a welcome appendage to the new treaty. It sets out their entitlement to receive Commission consultation documents and draft legislative acts, as well as agendas and outcomes of Council meetings, and (apart from in exceptional cases) requires a period of six weeks to elapse before the adoption of the draft act. JUSTICE regrets that national parliaments do not, however, have the right to request other information that could further assist their scrutiny responsibilities. 41. JUSTICE also has concerns in relation to article 4 of the protocol that would reduce the time allocated to the national parliaments for scrutiny of draft legislation in “cases of urgency”. Cases of urgency may be defined by political interests and often in precisely the type of cases that require more rather than less democratic scrutiny. In the aftermath of 11 September, for example, highly sensitive and politically controversial legislative measures such as the EAW were adopted under an exceptional “urgent procedure”. In its Minority Opinion on the Commission proposal for a EAW, the European Parliament emphasised that the accelerated negotiations requested by the Extraordinary Council did not “allow scope for anything approaching serious consideration of the proposal and a measured assessment of its particularly wide ranging implications for the rules of criminal procedure”. The requirement in article 4 for the Council to supply reasons in such cases will not provide ample protection against abuse of the exceptional procedure. The reason given for use of the urgent procedure in relation to the EAW was the 11 September attack on the United States. However, the EAW has a much broader scope than counter-terrorism and extends to all extradition oVences.

QMV and criminal procedural law 42. See JUSTICE response at paragraphs 17, 24 and 28.

Subsidiarity 43. JUSTICE welcomes the inclusion in the treaty of a formal scrutiny procedure by national parliaments of draft legislation for compliance with the subsidiarity principle. National parliaments are entitled to submit reasoned opinions to the Presidents of the European Parliament, the Council and the Commission on whether a draft legislative act complies with the principle of subsidiarity. These opinions must be taken into account by the institution or group of member states that drafted the legislative act and, where at least one third of all national parliament votes ﬁnd the draft act infringes the principle of subsidiarity, it must be reviewed (each national parliament has two votes). Following such review, the institution or group of member states that drafted the act may decide to maintain, amend or withdraw the draft, giving reasons for the decision. The requirement on the institution or group of member states that drafted the act to give reasons for their decision will assist transparency and facilitate any eventual review by the ECJ. 44. This provision gives a third of national parliaments acting together a “yellow card” rather than the “red card” sought by the UK that would have given national parliaments a veto over draft legislation that does not comply with the subsidiarity principle. JUSTICE regrets that human rights concerns were not also included as an explicit ground for national parliaments to lodge reasoned objections.

Evaluation and monitoring 45. Provision has been made for the national and European parliaments to be “involved” in the political monitoring of Europol and the evaluation of Eurojust’s activities. JUSTICE is disappointed at the vague wording of these provisions that will not necessarily ensure the full and active engagement of the parliaments. 46. The ﬁnal treaty also lacks a direct authorisation for the parliaments to monitor the activities of Europol and Eurojust for human rights compliance rather than simply eYciency. 47. Finally, national parliaments can participate in the evaluation of member states’ implementation of EU policies, “in particular in order to facilitate full application of the principle of mutual recognition”. JUSTICE regrets that this monitoring continues to focus on eYciency and does not also reﬂect the importance of monitoring human rights compliance. 9945771013 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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48. The evaluations themselves are to be conducted in an “objective and impartial” manner by member states and the Commission. In its submissions to the drafting Conventions and the UK Government, JUSTICE argued that member states should not be responsible for evaluating their own legislation and practice and that such evaluations would be better undertaken by independent groups of experts from the member states, with active input from national and European parliamentarians. The new treaty and its protocol will nonetheless contribute towards greater accountability of EU legislative action.

Approximation of Criminal Procedure (See also Paragraph 21) 49. JUSTICE welcomes the insertion into article III-171 of the treaty of legal bases for the approximation of certain aspects of criminal procedural law (mutual admissibility of evidence between member states; the rights of individuals in criminal procedure; the rights of victims of crime; and any other specific aspects of criminal procedure agreed unanimously by the European Council with the consent of the European Parliament). The rapid pace at which the EU’s mutual recognition programme for police and judicial co- operation in criminal matters is developing requires minimum EU-wide safeguards beyond those of the ECHR to be developed urgently. This programme has been expounded on the basis that the criminal justice systems of all 25 member states contain comparable protections for those who find themselves subject to coercive measures under EU mutual recognition instruments, such as the European arrest warrant. The Commission has frequently acknowledged that this is not the case at present—most recently through the publication of a proposal on minimum safeguards for suspects and defendants in criminal proceedings across the EU—and that specific action will need to be taken by member states, both to guarantee defence rights and facilitate the mutual recognition programme. 50. The areas of criminal procedure in which minimum rules are envisaged by the treaty are crucial at this stage of EU co-operation. Their scope is explicitly tied to developments in police and judicial co-operation in criminal matters: they can only be established “to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial co-operation in criminal matters having a cross- border dimension”. The areas in which minimum rules can be established are clearly enumerated and can only be extended and bind all member states by a unanimous vote in the European Council, with the consent of the European Parliament 51. Minimum European standards in this field will reduce the likelihood of double standards being applied between member states in this area of law where rules vary widely. Increased cross-border co- operation on the basis of mutual recognition will reinforce these anomalies. Common standards should also diminish the chances of “forum shopping” by prosecuting authorities in cross-border cases. 52. In order therefore to facilitate the development of such minimum rules on rights for the individual, JUSTICE supports the adoption of European framework laws in the areas of criminal procedure listed in article III-171 by QMV, subject to the emergency brake procedure (outlined in our response to question 5). Such framework laws presently need to be implemented in the member states by national parliaments and will not have direct eVect.19 53. JUSTICE is however concerned that the wording of Article III-171(2)20 would allow common European standards to take a “lowest common denominator” approach that would not extend defence rights beyond the scope of the ECHR. This is certainly the case in relation to the Commission proposal of safeguards for suspects and defendants in criminal proceedings across the EU. JUSTICE regrets the omission of a non-regression clause.

Harmonisation of Substantive Criminal Law 54. Article III-172(1) establishes a legal base for the creation of minimum rules by QMV and co-decision on the deﬁnition of criminal oVences and sanctions for certain “areas of particularly serious crime with cross-border dimensions resulting from the nature or impact of such oVences or from a special need to combat them on a common basis”. These areas of crime are listed in that article. The list may be extended— subject to the same criteria—by unanimity in the Council and with the consent of the European Parliament. 55. Approximation is also permitted where it “proves essential to ensure the eVective implementation of a Union policy in an area which has been subject to harmonisation measures”. In this case, adoption will be subject to the same legislative procedure as was followed for the adoption of the harmonisation measure in question. An emergency brake is incorporated into article III-172 that would prevent the application of framework laws to member states that consider such laws would aVect fundamental aspects of their criminal justice systems. Enhanced co-operation may proceed under the same conditions outlined above.

19 It should however be noted that any European Union Act which comes into being to implement the new treaty could permit framework decisions on criminal law and policing measures to be adopted by delegated legislation. This would be a thoroughly unacceptable limitation of parliamentary accountability in such a fundamental and sensitive area of policy. 20 Article III-171(2) states that the adoption of minimum rules “shall not prevent member states from maintaining or introducing a higher level of protection for individuals”. 9945771013 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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56. The approximation of criminal oVences and sanctions in the circumstances foreseen by Article III- 172 will help to ensure that serious cross-border crime is addressed in all member states and attracts suYcient penalties. It will also consolidate the mutual recognition basis of EU judicial co-operation in criminal matters by ensuring greater consistency between those oVences across the EU in respect of which judicial authorities can co-operate, and by increasing legal certainty. This is particularly important where the double criminality requirement is abolished and application of the mutual recognition principle gives eVect to the criminal laws of one member state in all others. As a minimum definition, however, it will not prevent member states adopting more extensive definitions or sanctions which will then be given eVect in all other member states where measures such as the EAW are used. This is the case, for instance, with the European framework decision on terrorism that establishes a common EU definition of terrorism when compared to the far more extensive UK definition in the Terrorism Act 2000. Where the UK makes a judicial request to another member state in relation to terrorist oVences under the EAW it is the UK definition of terrorism that will be applied and not the EU definition.

ECJ Jurisdiction 57. The new treaty not only extends QMV and co-decision with the European Parliament to much of justice and home aVairs, it also expands the jurisdiction of the ECJ into this realm. It abolishes the complex system of “opt outs” from the ECJ’s preliminary rulings jurisdiction so that any national court will now be able to request such a ruling concerning the interpretation of the treaty or the validity and interpretation of acts of the EU institutions, its bodies, oYces and agencies. The only distinct provision on ECJ jurisdiction in JHA that remains is an exception for operations carried out by member states’ police or other law enforcement services or where member states take action to maintain law and order and safeguard national security. 58. JUSTICE welcomes this general extension of ECJ jurisdiction that will, in particular, subject the activities of Europol and Eurojust to judicial scrutiny. It does however remain concerned that the exception may be used to restrict ECJ jurisdiction in relation to future EU legislation on criminal procedural law, including minimum standards in procedural safeguards for suspects and defendants.

European Public Prosecutor (EPP) 59. Article III-175 introduces a legal base for the creation of an EPP within Eurojust by the Council acting unanimously with the consent of the European Parliament. The proposed model would entitle the EPP to exercise “the functions of prosecutor in the competent courts of the Member States” in relation to oVences against the ﬁnancial interests of the Union. Paragraph 4 would allow the European Council acting unanimously, with the consent of the European Parliament and after consulting the Commission, to extend the powers of the EPP to include serious crime having a cross-border dimension. The draft text initially proposed that the EPP be granted such extensive powers from the start so this is an important revision. 60. In its previous submission to the House of Commons European Scrutiny Committee on the European Convention for the Future of Europe, JUSTICE expressed its concerns about the possibility of “forum shopping” between member states in order to take advantage of varying standards in burden of proof, mode of trial, sentencing and admissibility of evidence across the EU. Furthermore, speciﬁc rules of procedure and judicial review applicable only to the EPP would result in an unnecessarily complex system of European and national criminal law and procedures. Such a system would not only be unworkable but could also entail a reduction in existing procedural safeguards. 61. At present, JUSTICE maintains that the need for a EPP has not yet been suYciently demonstrated. If one is ever established, it must be subject to judicial review by a European court and accompanied by the simultaneous development of a robust set of EU criminal procedural rules that safeguard the rights of the defence and that the EPP. 26 August 2004

APPENDIX 4

Memorandum from the Federal Union

FEDERAL UNION Federal Union was founded in 1938 and campaigns for federalism for the UK, Europe and the world. Federalism divides political power between levels of government to achieve the best combination of democracy and eVectiveness. It is not the bureaucratic centralisation of popular myth. 9945771014 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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1. The Practical Consequences of the New References (in Articles 2 and 3) to the Union’s Values and Objectives We think there are none. It may look a little unusual to British eyes to start with the values and principles of public policy in a constitutional document. That is not because British public policy is valueless and unprincipled but rather because the British tend to ﬁght shy of spelling out those values and principles. For example, for all the historic achievement of re-establishing an elected parliament in Scotland, the Scotland Act 1998 notes only that “There shall be a Scottish Parliament.” Other European countries have a diVerent tradition. For them, a political document such as a constitution would be incomplete without reference to such basic values and objectives. The nature of European integration is the incorporation of elements of the diVerent national traditions, so to object to these references on the grounds that they are not the British tradition would be to miss a rather important point. It may well be the case that future judgments by the European Court of Justice might refer to the values and objectives set out in the constitution. But this would not amount to a change given that the ECJ refers to these values in its judgments already. In this sense, therefore, the inclusion of the values and objectives in the constitution is, as with other aspects of the constitutionalisation of the EU, the codiﬁcation of existing practice.

2. Whether the Treaty makes “Enhanced Cooperation” more Likely The change in the constitution over the previous Nice treaty is that enhanced co-operation groups will be permitted to use QMV rather than unanimity. It is not clear that the restriction to unanimity is the reason why such groups have not been established so far. Cooperation using supranational institutions to deal with cross-border problems lies behind the original rationale for European integration. It is also the motivation for enhanced co-operation as well. This is a political motivation, not an institutional one. Provisions in the constitution for enhanced co-operation recognise a political need. It is likely that in the future, a grouping will emerge based on the eurozone countries and seeking to establish more co-operation on economic matters such as corporate taxation and the employment rights of migrant workers. The proximate cause of this will not be the constitutional provisions but rather Britain’s failure to join the euro. It might even make it harder for Britain to join the euro in the future.

3. How Public Meetings of the Council when Legislating would Work in Practice—In Particular,How Much would be Public It is a matter of fundamental principle that the Council of Ministers should legislate in public and not in private. Legislative proposals should be published and suYcient time allowed for analysis and scrutiny— importantly, in national parliaments—before formal readings in the European Parliament and the Council. Amendments to these proposals must also be published and open to analysis and scrutiny in the same way. This might sound obvious, but it is not. At present, the closed meetings of the Council see amendments and proposal arise for agreement during the meetings themselves and there have been occasions of genuine uncertainty about what is being proposed and discussed. It acts like a committee, where the chair takes the sense of the meeting, rather than an assembly which takes decisions by casting votes. The results of a meeting might not be known for several days until the relevant civil servants have deciphered their notes and written the minutes of the meeting. An increase in the number of member states present will tend to reinforce this switch to a more orderly legislative process, but the interests of democratic accountability should make this change in habits unstoppable. Member state parliaments can make an important contribution to the workings of this process. They are the ones with the duty to hold their respective government ministers to account for their actions. Their ability to do this will be greatly strengthened by the opening up of the Council as a legislature. It is therefore important that they recognise this in insisting on the correct procedures to be followed in doing so.

4. How the New Council Presidency and New Foreign Minister would Work, and the Relationship between the European Council Presidency and the Presidency of Individual Council Formations The new Foreign Minister will be a Vice-President of the European Commission, at the head of the EU’s external representative services and a member of the Commission that co-ordinates trade, aid and the other external policies of the EU. The Chair of the European Council will have none of these resources or responsibilities, but rather a symbolic role in external representation. The two posts can work well together, but foreign policy will have to be developed through the EU’s institutions—thereby respecting the role of the member states—rather than on the hoof. 9945771014 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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There is no reason to suppose that the Council president will have any inﬂuence over the chairs of the individual Council formations. But one should not overstate the inﬂuence of rotating Council chairs over the business of the Council in any case. The success of EU policy depends on more continuity than is available from the Council alone. Providing such continuity is one of the roles that the European Commission plays in the institutional system, representing the common European interest. The Council plays an important role in representing the interests of the member states but is not the primary locus of leadership within the EU.

5. The Extent to which the UK Government held its Red Lines over QMV Relating to Treaty Changes,Taxation,Social Security,Defence,Criminal Procedural Law, the System of Own Resources and the Common Foreign and Security Policy The nature of European integration is that it depends, to a certain extent, on negotiation and compromise. It is the case that no member state may be forced to agree to things which are contrary to its political desires, but each member state must equally recognise that all other member states have their own political desires which also seek fulﬁlment. Negotiation and compromise are therefore inevitable. In this context, talk of “red lines” is unhelpful and provocative. What to one member state is a “red line” may to another appear to be an “unreasonable veto”.

9. What the Consequences Would be if the Treaty is not Ratified There are two scenarios to be considered here: the possibility that the treaty fails ratiﬁcation in several member states; and the possibility that it fails only in the United Kingdom. The failure of ratiﬁcation in several member states would provoke a crisis, but such a failure would not mean the end of the need to develop a more democratic and eVective European Union. It would be a setback for Europe, but not a disaster. Those who think that the way forward in that situation should be to start unpicking those negotiated aspects of the European Union with which they disagree should be wary of where this might lead. Britain might propose to withdraw from the Common Fisheries Policy, for example, but would Britain wish to see Italy drop out of the single market in aviation? Would that be in the interest of British airlines and air passengers? The European constitution may not be perfect but it is probably the best deal that could have been negotiated in the circumstances. Rejection of the constitution by the United Kingdom alone is likely to be a diVerent matter. Some have suggested that such a rejection would force Europe “to confront its failings”. More likely, it would confront the fact that it had a member state that did not share the outlook and objectives of the others. Britain would therefore be forced out at least of the European mainstream and possibly out of the European Union altogether. 2 September 2004

APPENDIX 5

Memorandum from Fair Trials Abroad

TREATY ESTABLISHING A CONSTITUTION FOR EUROPE

Overview Fair Trials Abroad welcomes the opportunity to submit written evidence in connection with the House of Commons’ inquiry on the EU’s constitutional treaty. FTA is a non-governmental organisation working on behalf of EU citizens to ensure access to justice by means of a fair trial. In particular, FTA works on behalf of the individual’s rights to justice when he or she is in a foreign country. The basis of these rights are set out in the European Convention of Human Rights and the International Covenant on Civil and Political Rights. As an organisation utilising international treaty law on the administration of criminal justice our observations are applicable to our sphere of competence. We have long been concerned with a lack of democratic accountability in the EU and the paucity of work on safeguards to fundamental rights in the ongoing construction of the European legal space of freedom, security and justice. This has resulted in ongoing bad practice in terms of the citizen’s access to justice and due process, particularly in cross-border disputes. We therefore regard the preparatory work for the Intergovernmental Conference’s Constitution to be signed in Rome in October 2004 as vital to the general success or failure of our mission within the conﬁnes of the European Legal Space. 9945771015 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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The Constitution’s greatest strength is that it provides the European Parliament with co-legislative powers with the European Council transforming the decisionmaking powers in the EU. The number of areas where this pertains has grown to 80 domains, including Justice and Home AVairs (with the exception of Family Law); it is also worth noting that the European Parliament will have the power to elect the President of the European Commission. These innovations make all procedures more transparent and inclusive of the citizen. The Constitution further introduces a right of popular initiative whereby European citizens may, subject to a petition having a minimum of one million signatures, demand the Commission to raise a legislative proposal in order to improve implementation of the Constitution21. Regarding the protection of fundamental rights, the adoption of the Charter of Fundamental Rights of the European Union and its incorporation in the Constitution make sanctions a reality which is a vital step forward in the protection of citizens’ rights.

ESC: Inquiry into the EU’s Constitutional Treaty Item 1. The practical consequences of the new references (Arts. 2 & 3) to the Union’s values and objectives

Article 2—The Union’s Values The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, tolerance, justice, solidarity and nondiscrimination and equality between women and men prevail.

Article 3(2) The Union’s Objectives The Union shall oVer its citizens an area of freedom, security and justice without internal frontiers, and a single marker where competition is free and undistorted. It is the view of FTA that in order for the values of the European Union to have any practical meaning existing rights of the individual must be safeguarded vigorously, particularly in the current climate of fear arising from the threat, real or imagined, of terrorism and war. A pluralist and tolerant society with a strong desire for justice must ensure that the innocent go free. Current procedural safeguards which are now the subject of a Green Paper do little more than reconfirm what is already established in the European Convention on Human Rights and the Charter. It is our concern that the Convention, over 50 years old, nor the Charter, go far enough. There are insuYcient international safeguards for people who are arrested under dubious circumstances, suVer police brutality and are denied the services of an eVective lawyer. There is little protection in terms of double jeopardy22 and a worrying lacuna in terms of evidence, how it is identified, employed by the courts and collected across borders. If the innocent British citizen is to be protected as he travels abroad for business or pleasure it is essential that these challenges are addressed. The Constitution will make the process easier via the democratic process, greater access to the European Court of Justice and the application of sanctions. However, it is up to national governments, already bound by the Principle of Mutual Recognition, to ensure that all signatories to the Constitution uphold the values inscribed therein; each time a national of a signatory Member State is the victim of a miscarriage of justice in another Member State signatory to the Constitution, the matter, with details of the procedural flaws leading to the miscarriage of justice, must be raised at the highest levels. Monitoring of implementation of the Constitution as it applies, for example, to the new surrender arrangements under the European Arrest Warrant, is central to the eVectiveness of the Constitution. Item 8. The Treaty’s criminal justice provisions (following up the Committee’s report of July 2003 on the Convention’s proposals on criminal justice)

Subsidiarity and proportionality National legal systems will, according to the Constitution, continue to work independantly whilst uniformity of law and procedure will not be required. Instead, the principle of mutual recognition of judicial decisions will, it is hoped, ensure that the guilty are sentenced wherever they are tried and under whichever circumstance, and the innocent go free. The harmonisation of rules of criminal procedures has never been supported by the British government, but there are areas where a degree of harmonisation is essential in order to understand, and work with, criminal procedures in other jurisdictions23.

21 Part 1,Title VI,Art.46(4). 22 It is worrying that the Constitution merely states “No-one shall be liable to be tried or punished again in criminal proceedings for an oVence for which he or she has already been ﬁnally acquitted or convicted within the Union in accordance with the law”. We have an ongoing case where a Kuwaiti organisation sued ﬁrst under civil procedure in the UK and subsequently under criminal law in Spain, despite the fact that it had failed in the English court to prove its case on the civil standard of proof. 23 ESC 28th Report 2003–04, Para 30. 9945771015 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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For example, it is no good if the British police pass on to foreign jurisdictions 10 year-old records of minor convictions in the belief that the court will not regard them as materially important, where in fact the jurisdiction concerned regards all character evidence presented, whether evidence of reputation, previous convictions or of past conduct, as material. According to the guidelines from the Association of Chief Police OYcers, records of “recordable” oVences (ie oVences which can be tried in the Crown Court, whether or not they are) should be deleted after 10 years, unless they show that the oVender has three or more convictions for recordable oVences (in which case the record will be kept for 20 years); has been given custodial sentences (in which case the record will be kept for life) and so on. Individual Chief Constables are not bound by the ACPO guidelines so policy and practice will even vary between police forces. Most continental jurisdictions have a much shorter time for keeping oVences on record, thus spent oVences would not appear in court. In our experience, many British citizens have suVered because the rules of evidence in other jurisdictions have not been understood or even considered prior to sending information from the UK. The handling of evidence is such a vast area that it does require a specific study to look at the safeguards on fairness in the gathering and handling of evidence as a start. The interpretation of the presumption of innocence and the circumstances where the burden of proof may be reversed are also crucial and the Commission is to be commended for undertaking these tasks. This Scrutiny Committee should consider that if British police are to arrest British citizens under the European Arrest Warrant and British courts are to send these citizens to foreign jurisdictions, there must be an understanding of, and agreement with, the way evidence is handled in both the requesting and the surrendering jurisdiction. The cross-border dimension to any criminal justice procedures cannot be limited to matters such as translation, interpretation and consular access24. Mutual recognition of judicial decisions depends on a knowledge of, and confidence in, the criminal procedures of the other country(ies) involved. A greater degree of harmonisation in access to, and availability of, Legal Aid would contribute to the raising of standards of access to justice in Member States where the poor receive an absolute minimum of usually ineVective legal assistance25; a degree of harmonisation in the delivery of bail would be to the advantage of every foreign citizen held on remand and would help to resolve the social problems created by the long detention of citizens far from community and family ties. For the Constitution to be eVective, mutual recognition must depend on trust, and trust can only arise where there is an understanding of, and good communication with, other EU jurisdictions. We therefore support the Constitution’s section on Judicial Cooperation in Criminal Matters where it states: “To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial co-operation in criminal matters having a cross-border dimension, European framework laws may establish minimum rules. Such rules shall take into account the diVerences between the legal traditions and systems of the Member States. They shall concern: (a) mutual admissibility of evidence between MS; (b) the rights of individuals in criminal procedure; (c)...;and (d) any other specific aspects of criminal procedure which the Council of Ministers has identified in advance by a European decision. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament. Crucially, it goes on to state: Adoption of the minimum rules referred to in this paragraph shall not prevent MS from maintaining or introducing a higher level of protection for individuals.

Conclusion The Constitution will enable the citizen to safeguard his interests, his democratic rights and bring the institutions of the EU closer to the individual. Whilst it is hoped that Thucydides words may be long remembered “Our Constitution . . . is called a democracy because power is in the hands not of a minority but of the greatest number” we might also wish to recall Emperor Justinian’s words “Justitia est constans et perpetua voluntas jus suum cuique tribuens” Justice is the constant and perpetual wish to render to every one his due.26 August 2004

24 ESC 3 July 2003 “Harmonisation of criminal procedure” Para 45. 25 Constitution Treaty: “Legal Aid shall be made available to those who lack suYcient resources insofar as such aid is necessary to ensure eVective access to justice” Title VI JUSTICE, Art.II-47(107). 26 Institutiones, I, I, 1. 9945771016 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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APPENDIX 6

Memorandum from Damian Chalmers, Reader in European Union Law, London School of Economics

Thank you for your letter of 22 July 2004. I have submitted observations on the following points that are to be discussed by the Committee: — How public meetings of the Council would work in practice. —TheeVectiveness of the emergency brakes in criminal justice and other matters. —TheEVect of the “horizontal clauses” which govern the application of the Charter of Fundamental Rights. — The Consequences of Non Ratiﬁcation.

How Public Meetings of the Council Would Work in Practice There are a number of technical concerns but I will focus on a generic one that has received less attention, namely its impact upon the relationship between the Council and COREPER. Historically, the vast majority more matters have been in practice decided by COREPER, with only about 10–15% being “B” items for discussion by national ministers. This both a function of the nature of much of the work the EU does; the scale of the work and the fact that the Council of Ministers is not a permanent Ministry. It is already a problem for national parliaments, and undoubtedly the recent enlargement will exacerbate the problem for the simple reason that 25 can discuss fewer agenda items than 15. It is very important that careful judgment is exercised in determining which items are “B” items, as only over these do national parliaments have even indirect input. Allowing meetings of the Council to be public brings in extraneous matters. It might lead to “crowding out” of important matters on which there should be discussion because some Member States wish to “grandstand” to particular constituencies. It could lead to others not wishing important items to “B” items precisely because they are wary of items being hijacked or they want certain things to go below the radar. The position is further complicated, as it is COREPER who has to anticipate intentions here. I think careful consideration will have to be given to developing stronger central criteria for what matters should be placed as “B” items.

The Effectiveness of the Emergency Brakes Procedure The emergency brakes procedure is only likely to apply where there are six or less Member States opposed to a proposal. In other circumstances, it is likely that, in the field of freedom, security and justice, the subsidiarity provisions and Protocol will be invoked as these give greater protection to Member States where a quarter or more are opposed to a measure. Under the emergency brakes procedure, if a matter is referred to the European Council, it will, therefore, be in the context of a very small number of Member States pleading a case against a backdrop where they know other Member States can go forward without them in any case via enhanced co-operation. I would raise three concerns. The procedure assumes that the European Council is a more eVective decision-taker than the Council of Ministers. It is not clear that is the case. Historically, the European Council has been strong at agenda- setting and less so at breaking of logjams. It would be operating in a position where negotiating positions are already strongly defined, and is limited by a couple of features. Member States may be wary about undermining their bargaining position on other matters important to them by being too adamant on something likely to be particular to that Member State and not easily understood by other Member States. Local publics are also likely to be suspicious of grand deals with criminal procedure negotiated away for some other unrelated matter, and this perception may complicate matters. The emergency brakes procedure can be seen as a complicated “opt-out”. I think there should be a realisation that it could be abused. Certain legislation is impossible without all Member States participating. A good example was that on money laundering that was adopted after 11 September. There is a danger that some Member States might wish to opt-out of legislation that is politically inconvenient for particular personalities. In that regard, I do think it a pity more substantive safeguards were not addressed beyond the “fundamental aspects of its criminal justice” procedure. It is possible for any criminal justice provision to be deemed fundamental simply on the grounds it takes away the liberty of the subject. The emergency brakes procedure also fail to take account of the new powers of the Court of Justice in this field. Previously, national governments cautious about the eVects of a third pillar matter could implement it narrowly. This is no longer possible. The ECJ will be referred matters and rule on provisions applied in national courts. There is every danger that threats to a national criminal legal tradition will come not from a provision but the Court of Justice interpretation of it, particularly as it will asked to rule in areas where expectations are diVerent. At the moment, there are no procedures to accommodate the eventuality that it makes a ruling that compromises a long-standing cherished criminal legal tradition. 9945771016 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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The Horizontal Clauses on the Charter of Fundamental Rights

The Constitutional Treaty confines the Charter confines—rightly in my view—to binding the Union Institutions and national measures implementing Union law. This is a narrower test than the one currently deployed by the Court of Justice, whereby the EC law on fundamental rights binds Member States insofar as they act within the field of EC law. The danger is of a dual test emerging, whereby the Court of Justice applies the Charter to national measures implementing Union law and its own principles to measures falling within the field of Union law. Given the strength of opposition in the writing on this provision, this is not an unreal danger. It is obviously deleterious to the development of a coherent body of law in the field, and will side-step national objections to the development of Union law in the field. I do think it would be helpful if there is some clarification here. There is also a significant risk of competence creep. The reason for this is that the Union has now developed legislation, most in the last few years, that moves into the centre stage of areas dominated by fundamental rights. These include biotechnology, broadcasting, immigration and asylum, criminal justice, labour law, family reunification. Interpretation of this legislation will inevitably involve both the central Union courts and national courts be asked to address questions of fundamental rights in both the review and interpretation of the legislation. If they fail to do so, they will be rightly criticised. A good example was the Dutch challenge to the Biotechnology Patents Directive in 2001. This argued that the measure was the illegal because it violated the free and informed consent of patients and the human right to dignity—both rights contained in the Charter. Although, it did not explicitly mention the Charter, the Court was, of course, bound to address these rights. It will of course be required to do so in the interpretation of these provisions. In that regard, I think the distinction between rights and principles that is made in the Constitutional Treaty under which the latter are only judicially cognisable in the interpretation of Union legislation is much more blurred and has less safeguards than might be immediately apparent. A point unaddressed in any of the literature is how the acquisition of competencies by the Court of First Instance (CFI) has changed responsibilities within this field. The CFI is now the central court of judicial review within the Union. The consequence is that insofar as many these principles will be invoked most frequently in the review of Union Institution measures, this court will be the central body determining the content of these rights. This is worrying for a number of reasons. If the Court of Justice is made up of public lawyers familiar with many of the arguments, the CFI is made up of competition and trade lawyers. There is thus a real problem with expertise. Secondly, increasingly important questions—and this problem is not unique to the CFI—are being decided by Chambers of 3 judges. Individual judges have considerable sway in such a scenario.27 Finally, the CFI has already shown itself to be more aggressive in this field than the Court of Justice. It was quicker to recognise the legal force of the Charter, and looks to it rather than the European Court of Human Rights in its jurisprudence, whereas the opposite is the case with the Court of Justice.

The Consequences of Non-Ratification

It is too speculative and beyond my remit to speculate on the wider political dynamics that might occur if 22 or 23 Member States ratified the Constitutional Treaty and 2–3 did not. The more germane question is could the Union cope with the present institutional arrangements if there was non-ratification. My view, and the views of many other academics I have discussed this question with, is “yes”. The perceived diYculties of the Union—and I would emphasise the word “perceived”—are not addressed in a significant way by the Constitutional Treaty. I would add one caveat, however. One of the less transparent parts of the Convention process is the manner in which it extended the Qualified Majority Voting procedure without really opening this up to debate or to a Working Group. Indubitably, there is a greater extension of the Qualified Majority Vote than, for example, at Maastricht. My view is that those concerned with the impact this has on national sovereignty have to refocus their concerns. The Union has about 70,000 pages of legislation on its books. I think the central task for it is to manage those 70,000 pages of legislation, and few are proposing that it pass another 70,000 legislation. I can understand the concerns about national sovereignty with regard to use of QMV where EU legislation is being introduced for the first time. There is the possibility of a loss of national law-making capacity. A diVerent scenario applies where legislation is being amended. In such circumstances, unanimity weakens “national sovereignty” as it increases the size of the ransom that must be paid in other Member State votes to bring about change. Put crudely, Malta could stop Union legislation being amended where, in its current form, it was having an extremely adverse eVect on British interests. I do think it important that some reform be introduced to address this basic structural distinction between fields in which Union legislation already exists, and those where it does not. 6 September 2004

27 EG Case C-245/01 RTL v Niedersa¨chsische Landesmedienanstalt fr privaten Rundfunk, Judgment of 23 October 2003. 9945771017 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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APPENDIX 7

Memorandum from Professor Jacqueline Dutheil de la Roche`re and Anastasia Iliopoulou, University of Paris

Question No.1 Special attention will be paid to article I-3 paragraph 3, which strikes a new (and more appropriate, it would seem) balance between economic goals and social values within the EU framework. This provision constitutes a “shift in ethic”, whereby the social values are recognised on an equal footing with economic goals within the legal and political sphere. Especially characteristic is the definition of the EU economic system as a “highly competitive social market economy”, compared to the reference to an “open market economy with free competition” (article 4 of the EC treaty). Reference also has to be made to the ambitious objective of full employment, which figures for the first time in a primary law text (article 2 of the EC treaty mentions the objective of a high level of employment). However, article I-3 does not determine the priority between economic competitiveness and growth on the one hand, and social protection and solidarity on the other. It leaves this question to be resolved within the political process. Despite this fact, one change has to be noted. So far, social goals in the EU context have been conceived as complementary to economic integration, with a limited autonomous existence. Thus, the justification for the social action of the EU has often been based on market integration arguments. This justification can now be provided by reference to the social values that the EU has a constitutional mandate to promote. This would enable social values to be increasingly incorporated in the discourse and practice of the EU institutions. The latter can choose the technique of mainstreaming, in order to infuse these values into all the fields of EU action.28 The use of the open method of co-ordination might also be encouraged, as a means of strengthening the European social model. The new definition of the EU objectives is likely to exercise a certain influence on the Court’s “ethos” and “praxis”. So far, even if social considerations were present in its reasoning, the Court has placed emphasis on entrenching individual economic rights (namely the four market freedoms). The new definition of objectives is likely to aVect the balancing process which takes place when the Court judges the compatibility of a trade-restrictive national measure with free movement and competition rules. More precisely, Article I-3 “reminds” the Court to entertain consideration for a wider set of values and interests underpinning public regulation, that need to be preserved and promoted. Consequently, it can assist the case of Member States when they invoke exceptions to free movement rules and their deregulatory impact on national social policies. So, article I-3 can provide an additional guarantee against any risk of future judicial backsliding concerning the importance of social values. Moreover, if linked to the social provisions of the Charter of fundamental rights, article I-3 can progressively lead to a shift in conceptualisation : In the future, maybe we will no longer speak of an (economic) right, construed largely, and a derogation (based on social considerations), interpreted narrowly, but more of a conflict between two fundamental rights, a conflict between “equally valued values”. This will underline the role of the Court as arbitrator (weighing up the strengths of competing interests) and the importance of the principle of proportionality as a procedural means to attain a fair result in each particular case. Concerning article I-2, special mention needs to be made of the inclusion of “the rights of persons belonging to minorities” in the human rights that the Union respects. This new formula is inspired by the Framework Convention of the Council of Europe on national minorities. It was deemed necessary after the entry in the EU of Eastern countries with acute problems concerning minorities. It is interesting to note that no provision of the Charter refers to minorities as such. The Charter only guarantees the respect of cultural, religious and linguistic diversity (article II-82); it can thus be invoked to protect individual rights of persons belonging to minorities but not collective rights of minorities. A similar conclusion is drawn as regards the statement in article I-2 of the Constitution: it concerns individual rights of minority members, not collective rights of minorities. The question that remains open is the following: will the former be justiciable? Finally, even though “non-discrimination” was already mentioned as a foundational value of European society in article I-2, the final version of this provision adds along this general principle the more specific one of “equality between men and women”. It is possible to see in this amendment a sort of priority setting for the Union’s action in the field of combating discrimination. Assuring equality between the sexes is now deemed to be “on top of the list”.

Question No.2 Do the us yet unused enhanced co-operation provisions stand a better chance after the amendments introduced by the Constitution? Certainly the provisions have been clariﬁed and simpliﬁed. Moreover, the conditions required for enhanced co-operation are somewhat eased compared to Nice.

28 See, articles III-115 to III-120, which remind the need to take into consideration a number of social values when defining Union policies. Article III-117, for example, stipulates that “in defining and implementing the policies referred to in this Part, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health”. 9945771017 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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The constitutional treaty clarifies the scope of application of the enhanced co-operation provisions, by determining which are the exclusive competences of the EU. The latter are excluded from the field of closer co-operation (article I-44 paragraph 1). The simplification is a direct consequence of the disappearing of the pillar structure. A common definition and framework now exists (I-44, III-416 to III-423). The only exception concerns CFSP, where specific objectives are announced. The participation requirement is fixed to one third of the States, a number which seems reasonable. Authorisation to proceed with enhanced co-operation is granted by the Council acting at qualified majority (article III-419 paragraph 1, except for CFSP: article III-419 paragraph 2). The possibility of “appeal” before the European Council by an objecting Member State, disappears; this makes the procedure simpler and faster. The role of the Parliament is enhanced: its consent is required for the enhanced co-operation to proceed (article III-419 paragraph 1, except for CFSP: article III-419 paragraph 2) The need for closer co-operation becomes evident in the field of CFSP. In this area, one of the prior restrictive conditions (article 27 b TEU) disappears: enhanced co-operation no longer has to relate to the implementation of a common position or a joint action of the Council, already adopted in the framework of CFSP. Nevertheless, authorisation to proceed with closer co-operation is granted by the Council, acting unanimously (article III-419 paragraph 2). Most importantly, defence is now included in the scope of enhanced co-operation: execution of a task by a group of Member States (article I-41 paragraph 5 linked to article III-310), permanent structured co-operation between Member States with higher capabilities (article I-41 paragraph 6 linked to article III-312). Of particular interest is article III-422, constitutes a specific application of the Council’s general power to extend qualified majority vote and the ordinary legislative procedure in fields governed by unanimity or a special legislative procedure (article IV-444). This can also happen when a closer co-operation takes place. Article III-422 may prove useful if one considers the number of areas where the unanimity requirement remains (red lines of the British government) to the discontent of many Member States. A barrier still remains: States not willing to participate can invoke a series of reasons to block the procedure (these reasons are mentioned in articles III-416 et 417). Despite the reorganising and relaxing of the Nice conditions, it is diYcult to foresee whether the enhanced co-operation provisions will actually be applied in practice. This will depend, among other factors, on the prevailing conception within the EU institutions and the Member States concerning this mechanism. The need of co-operation among certain Member States will be evident in a number of fields (as has been the case with the Schengen group). The prevailing conception might be that since the EU is equipped with a reasonably operational mechanism for closer co-operation, seeking solutions outside this framework (via the medium of international agreements) should be excluded. On the other hand, the prevailing attitude might be the use of international law. At the end of the day, the question is one of policy option and legal reflexes : when a number of Member States need to promote closer integration (in fields falling within the scope of EU law), do they first turn to an EU mechanism or to an international law one? Which is the laboratory they prefer to use in order to experiment? In any case, an alternative use of the enhanced co-operation provisions remains open: a closer co- operation can be threatened against a reluctant Member State as part of a wider process of bargaining. This has been the case with Italy over the arrest warrant measure and Spain over the European society. In both cases, the argument based on the scenario of an enhanced co-operation if the State did not consent, has been eVective.

Question No.5 Taxation: Article III-171 of the Constitutional treaty maintains the unanimity requirement for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation. Moreover, articles III-62 paragraph 2 et III-63 of the Convention’s draft have been suppressed. According to these provisions, if measures related to administrative co-operation or to combating tax fraud or tax evasion, the Council would act by a qualiﬁed majority. By the suppression of these provisions, the unanimity requirement is upheld. Nevertheless, qualiﬁed majority voting could be applied for the adoption of measures (more precisely European framework laws) related to taxation, provided that these measures aVect the freedom of establishment. This possibility seems to be left open by article III-138 paragraph 1 and paragraph 2(c).29

29 “By abolishing those administrative procedures and practices, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to freedom of establishment”. 9945771017 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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Own resources: The provision relative to the Union’s own resources (article I-53 of the Convention’s draft) has been modified (current article I-54). According to the Convention’s draft, two laws would govern the system of own resources. The first one, laying down the limit of the Union’s resources and establishing or abolishing certain categories, would obey the same procedure of adoption as the current decision of the Council (unanimity, approval by the Member States in accordance with their respective constitutional requirements). The second one, entirely new, would lay down the modalities relating to the Union’s resources; it would thus tackle the essential question of the calculation mode of own resources. This law would be adopted by the Council acting by qualified majority, after obtaining the consent of the Parliament. This would modify in a significant manner the decision-making concerning own resources, the “keystone” of the European financial system. However, article I-54 basically preserves the status quo. According to paragraph 3, the European law of the Council laying down the provisions relating to the system of own resources, follows the same procedure of adoption as the current decision of the Council. Paragraph 4 opens a new possibility, which nevertheless remains quite limited (and is far less ambitious than the one of the Convention’s draft). A European law adopted by the Council acting at qualified majority, after obtaining the consent of the European Parliament, can simply lay down implementing measures of the system of own resources. Moreover, this law has to be provided for by the first law, governed by unanimity. Social security: Article III-210 paragraph 3 maintains the unanimity requirement for European laws and framework laws encouraging co-operation between Member States or establishing minimum harmonisation requirements, adopted in the area of social security. The unanimity requirement is also maintained for the adoption of social security measures for migrant citizens other than workers: article III-125 paragraph 2. The unanimity requirement is abandoned concerning the adoption of European laws or framework laws destined to co-ordinate national social security provisions for migrant workers: article III-136 paragraph 1. However, Article III-136 paragraph 2 introduces a safeguard clause: if a Member State considers that a draft measure would aVect fundamental aspects or the financial balance of its social security system, the matter can be referred to the European Council for further decision. The unanimity requirement is also abandoned concerning social security measures for third country nationals, legal residents in a Member State, on the basis of article III-267 paragraph 2 (b). Concerning this provision, declaration No 14 annexed to the treaty, introduces another safeguard clause: If a draft measure aVects fundamental aspects of a Member State’s social security system, the interests of that State will be duly taken into account. Finally, if the flexibility clause (article I-108) is used as one of the legal bases for the adoption of a social security measure (as is currently the case with article 308 CE, being one of the legal bases of Regulation 883/ 2004 destined to replace Regulation 1408/71), unanimity will be the rule. Questions will certainly arise when Regulation 883/2004, presently founded on articles 42 and 308 EC, will need to be modified or replaced. Articles 42 and 308 EC correspond to articles III-136 paragraph 1 and I-108 (respectively) of the Constitution, the first one requiring qualified majority while the second one unanimity. Moreover, since Regulation 883/2004 has a wide personal scope of application (migrants other than workers, as well as third country nationals are concerned), articles III-125 paragraph 2 and III-267 paragraph 2 (b) can also have a role to play in the future. Again, the former provision requires unanimity while the latter one qualified majority. In its case law relative to measures with a double legal basis, the Court of Justice has generally marked a preference for the provision implying the qualified majority vote.30 It remains to be seen if the Court will have the same attitude in the future, if a similar problem arises. Treaty changes: Concerning treaty changes, articles IV-443 et IV-445 of the Constitution maintain the requirements of unanimous adoption by the Member States and of ratification in accordance with their respective constitutional requirements. Fulfilling the latter condition is not necessary only in the case of article IV-444: this is the general “passerelle” clause (article I-24, paragraph 4 of the Convention’s draft) or simplified revision procedure. According to this provision the Council can, acting by unanimity, authorise the passage to qualified majority vote in an area governed by unanimity. A safeguard clause is however introduced: if a national Parliament makes known its opposition to such an initiative within six months, the authorisation is blocked.

Question No.7 A preliminary general remark: The horizontal provisions of the Charter contain special interpretation and application rules, quite diVerent from those applying for the three other parts of the Constitution. They form an “interpretative guide” of a “treaty within a treaty”. Some of the drafting adjustments of the Charter’s horizontal provisions are merely technical and superﬂuous; others prove to be substantial. The latter constitute the “price to pay” for the incorporation of the Charter in the Constitution (part II). Even if they are supposed to enhance legal security and clarity, certain questions remain.

30 In this case-law, the Court has considered that the Commission’s choice of legal basis has to be based on objective considerations, subject to judicial control. 9945771017 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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The adding of EU agencies and oYces to the Charter’s addressees in article II-111 paragraph 1 is to be welcomed. The rewording of the same provision, as well the one of article II-111 paragraph 2, are meant to insist on the fact that the Charter will not create new competences or modify existing ones. The adjustments are clearly superfluous. The implementation concept used in article II-111 paragraph 1 is open to varying interpretations. It clearly covers cases where Member States implement a framework law (ex directive) or act as executive agents of the Union. According to the case-law of the ECJ,31 compliance with EU fundamental rights also concerns Member States when they derogate from their treaty obligations (under free movement provisions, for example). Several other questions remain: are Member States implementing EU law when they are applying guiding lines, in the context of the Open Method of Coordination? And when EU measures do not actually regulate but merely define certain basic concepts (as is now often the case in the context of the third pillar)? Article II-112 simply underlies the interpretative significance of the Member States common constitutional traditions. Moreover, it seems to reflect the attitude of the ECJ, which refuses to take into account the lowest common denominator in order to accept the existence of a common constitutional tradition. Consequently, article II-112 paragraph 4 seems quite harmless. The same can be said of article II- 112 paragraph 6. This provision simply reminds that full account shall be taken of national laws and practices where the substantial provisions of the Charter (already) stipulate that. Article II-112 paragraph 5 introduces a distinction between “principles” and “rights” and underlies that these are diVerent legal realities, with diVerent legal eVects. Leaving aside the question of the “indivisibility of rights”, the distinction drawn by this provision is artificial, highly unclear and oversimplified. In fact, no precise division can be drawn from the substantial provisions of the Charter ; many of them contain subjective rights and guiding principles at the same time (for example, article II-83, equality between women and men). The oYcial explanations provided for article III-112 paragraph 5 do not solve the problem. At the end of the day, it is the ECJ that will have to work out (and can certainly decide for itself) what constitutes a “principle”. The ECJ has already done this in the past with provisions like article 174 EC (relative to the need of a high level of environmental protection), which inspired the drafting of article III- 97.32 A possible eVect of Article II-112 paragraph 5 might be to encourage the ECJ to apply a stricter standard of review concerning EU acts. So far, the Court has rarely struck down EU legislation, especially where this has been adopted by unanimity in the Council. Article II-112 paragraph 5 seems to reinforce the Court’s legitimacy in reviewing the acts of the Council in the light of fundamental rights. This becomes particularly important if one moreover considers the extension of qualified majority vote in a number of areas. One problem however remains: article II-112 paragraph 5 seems to imply that only Union or Member States acts implementing principles can be reviewed in the light of principles. However, legality control also concerns other types of Union or Member State acts (ie other than those whose specific object is to implement a principle). It is submitted that, despite the wording of article II-112 paragraph 5, principles could be invoked in these cases, as general principles of Community law. An argument in this direction can clearly be drawn from article I-9 paragraphs 1 (“The Union shall recognise the rights, freedoms and principles set out in the Charter”) and 3 (“Fundamental rights (. . .) shall constitute general principles of the Union’s law”).

Question No.9

The history of EC and EU counts many unsuccessful plans of “Constitutions”. The latter were promoted mainly by the European Parliament (see in particular the “Spinelli project”) and academic circles. However, this time it was the Heads of States or Governments of the Member States who initiated the making out of the draft. There has been an important mobilisation of all the (oYcial) actors of the European stage as well as the civil society. The constitutional treaty is presented as a sort of “re-foundation” and not as a simple “revision” of the existing treaties. Nevertheless, the unanimity requirement for adoption and ratification remains. Therefore, in a Union of 25 Member States, an “accident” similar to what happened with the treaty of Maastricht in Denmark and with the treaty of Nice in Ireland, is likely to occur. According to declaration No 30 annexed to the treaty establishing a Constitution, if two years after the signature of the treaty, four fifths of the Member States have ratified it but one or more Member States still encounter diYculties in proceeding with ratification, the matter shall be referred to the European Council. This does not provide any concrete solution but seems to be more of a means of exercising political pressure to Member States having problems. Negotiations will have to be opened again with these States in order to agree upon the terms under which the Constitution will enter into force. At that stage, the reluctant Member States will either have to approve the Constitution or accept the status of associated member (defined by a common agreement) and leave the Member States that have ratified go ahead with the Constitution.

31 Case C-260/98, ERT, (1991) ECR I-2925. 32 Case C-341/95, Bettati, (1998) ECR I-4355. 9945771017 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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However, it has to be reminded that according to international law, the Member States which do not ratify the new treaty, not only prevent its entry into force but are also entitled to have the present system maintained in its present form. Any theory based on a fundamental change of circumstances seems to be extremely fragile in legal terms. 8 September 2004

APPENDIX 8

Memorandum from Vote No Vote No is a campaign set up by some of Britain’s most successful entrepreneurs and business leaders. We are independent of any political party, and supported by thousands of individuals from across the country. Vote No believes the European Constitution would be bad for jobs and prosperity, and would weaken Britain’s democracy. We support membership of the EU but we believe that Europe is not working at the moment, and that it needs reform. The Committee has raised several points for debate. This submission focuses on: 1. The eVect of the “horizontal” clauses which govern the application of the Charter of Fundamental Rights. 2. The Constitution’s criminal justice provisions (following up the Committee’s report of July 2003) 3. The extent to which the UK Government held its red line over the Common Foreign and Security Policy. *NB this document uses the numbering system found in documents up to CIG-86. While a document has now been produced with the new system of continuous numbering, this may still change again.

1. The Effect of the “Horizontal”Clauses which Govern the Application of the Charter of Fundamental Rights

Key points — When the Charter was originally drawn up in 2000 the UK Government promised it would not be legally binding and would not be incorporated into the EU treaties. Incorporation of the Charter into the Constitution would make it legally binding for the ﬁrst time. — The Government’s position has changed, and it now argues that changes to the Charter would prevent it from aVecting national law, even though it will be binding on the EU institutions and will be incorporated into the Constitution. — However, there are good reasons to think that the Charter will come to aVect national laws, and that the supposed “safeguards” in the Constitution which are supposed to stop this occurring are not satisfactory.

Legal opinion Despite the Government’s claims, EU judges who will ultimately interpret the horizontal articles, have already said the Charter may change national laws. Vassilios Skouris, President of the European Court of Justice, recently stated that the Constitution, “will bring new areas and new subjects under the Court’s jurisdiction”, and has refused to conﬁrm that the Charter would not change national laws. In an interview with the FT Skouris was asked, “Is the “horizontality” of the Charter stable? The idea that the Charter would aVect only EU institutions, not national jurisdictions?” Skouris replied: “It’s diYcult to say what is going to happen.” Fidelma Macken, another member of the European Court of Justice, has said that it is “foolish” to argue that the Charter will not aVect national laws. One of the Government’s own legal advisors, Professor Alan Dashwood, has admitted that, “you don’t know what will happen” with cases referring to the Charter and that there is “no hard and fast answer” to whether the Charter will aVect national laws. Roger Errera, the head of the French Administrative Supreme Court has said that, “If the Charter is left where it is, that is fully incorporated in the Treaty, it will have full legal value as any clause of the Treaty.” 9945771018 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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Why the safeguards are inadequate The Government has two arguments why the Charter will not aVect national law: (A) The reference inserted into the Constitution to the “text of explanations” will tie the interpretation of the Charter to the existing rights it is supposedly based on. (B) New “horizontal clauses” were inserted into the Charter when it was added into the Constitution to stop it aVecting national law. These call on the Charter to be interpreted “in harmony” with member states’ traditions, and to be applied to member states only when they are implementing EU law.

(A) The text of explanations—tying the charter to existing rights While the rights in the Charter are supposedly “derived” from existing rights, the wording of the rights in the Charter often extends them beyond their previous deﬁnition. If the Charter implied no changes, the Government would not have argued that it must be non-binding and would not be so concerned about trying to stop it from aVecting national law. The text of explanations shows that 13 articles of the Charter were derived at least in part from interpretations of the ECJ’s case law. Because the ECJ will be able to decide for itself how to interpret case law, this makes the text of explanations a weak defence against gradual ECJ expansion of the rights in the Charter.

(B) “The horizontal articles will stop it aVecting national law” The Government’s main argument now is that changes made to the so-called “horizontal articles” of the Charter will stop it aVecting national law. However, the wording of the supposed new legal safeguards has several obvious flaws, and lawyers believe they will not stop the Charter aVecting national laws. The amendments to the Charter add the following to Article 51: “This Charter does not extend the scope of application of Union law beyond the powers of the Union”. It also adds two new paragraphs to Article 52 of the Charter: “52(4) Insofar as this Charter recognises fundamental rights as they result from the Constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.” “52 (5) The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions and bodies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.” There are three problems with this. Firstly, the European Court of Justice will be able to decide for itself what counts as being “in harmony” with member states’ traditions. Moreover, the article does not talk about the tradition of the individual member states aVected by any given ruling—instead the ECJ simply has to take into account the traditions of the member states as a whole. These are often very divergent. As The President of the ECJ, Judge Vassilios Skouris, explained to the European Convention working group on the Charter on 17 September 2002: “It should be borne in mind that common constitutional traditions do not form a direct source of community law and the Court of Justice is not bound by them as such; they constitute a source of inspiration for discerning and defining the scope of the general principles of law that apply in the Community legal order. It follows that it is not the Court’s duty to discern and, as it were, mechanically transpose into the Community legal order the lowest common denominator of constitutional traditions common to the Member States. The Court draws from those traditions in order to determine the level of protection appropriate within the Community legal order and for that very reason appreciates them more freely.” [italics added] Secondly, it will be possible for the ECJ to argue that almost all cases involving social and economic regulations involve “implementing Union law” in some respect. Vranes (2003) points out that in general, ECJ case law uses a very broad interpretation of the concept of “implementing Union law”. He argues, “Article 51 para 1 seemingly restricts the binding eVect of the Charter’s provisions for Member States to cases where the latter implement Community law. This is not in line with the constant jurisprudence of the ECJ according to which Member States are bound not only when they implement Community law— among others directives—but also when they derogate from Community law, in particular the internal market freedoms. Hence, the notion of the scope of application of EC law—as well as the corresponding binding eVect of EU fundamental rights for Member States—is broader than the notion of the scope of implementation of EC law”. Thirdly, several of the Charter’s rights can only possibly be understood as directly applicable. For example, its Article 19 specifies that, “No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty”. This right is supposedly based on 9945771018 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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ECJ case law according to the European Convention’s “text of explanations”. There is no corresponding primary national law, or EU law. But the ECJ would almost certainly use this power even though it does not involve the EU institutions, EU law or member states “implementing” EU law.

Problems with the safeguards: A recent House of Lords report has expressed “concern whether these safeguards will be suYcient formally to bind the Commission”. The fundamental problem with both the text of explanations and the “horizontal” articles is that the ECJ will be able to decide for itself how to interpret both. This means that the ECJ is eVectively being asked to guard itself. Historically, the ECJ has tended to advance integration and gradually increase its own powers.

Trade union views Although the Government tells business that the Charter would not aVect our laws, it has said the opposite to trade unions. Denis MacShane, the Minister for Europe, told trade unions in July 2004 that if they “read the small print” of the Constitution they would see it was good for them. In an article in Le Monde he argued that “the first rule of union negotiations is to read the text from start to finish”. Trades Union Congress leader Brendan Barber has said that “the Constitution gives a special and guaranteed role to the social partners. Unions are given permanent access to decision making—rather diVerent than our experience of the long nightmare of Thatcherism.” He added that “much of the macho talk of red lines has been bogus.” An expert opinion drawn up for the TUC by Brian Bercusson, Professor of EU law at King’s College concludes that, “The attempt by the New Labour government to “protect” the UK’s restrictive labour laws from the fundamental rights proclaimed in the European Constitution failed. The fallback of reliance on the “explanations” to mitigate the consequences of the Charter is similarly unlikely to have the eVect desired. There will be no “protecting” UK labour laws, frequently condemned by the supervisory bodies of the ILO and the Council of Europe for violations of international labour standards, from the impact of the fundamental trade union rights guaranteed by the EU Charter.” The report for the TUC also states, “The Charter would be part of a European constitution with potentially powerful legal eVects, including direct eVect and supremacy. The incorporation of the EU Charter into the primary constitutional law of the EU will have an impact on the Member States, bound by the Charter through the doctrine of supremacy of EU law. Two specific methods of using the EU Charter to deliver rights at work may be indicated: (i) as an independent legal source of rights at work (eg through the doctrines of “direct” and “indirect” eVect); (ii) as a basis for challenging national law which incorrectly or inadequately transposes EU law providing rights at work”.

The failure of the Government in the Constitution negotiations The safeguards on the Charter of Fundamental Rights are even less satisfactory in the light of the Government’s own previous attempts to gain stronger safeguards. During the Convention the Government called several times for the Charter not to be included in the body of the Constitution. UK Government negotiator Peter Hain wrote that, “The Charter should be included only as a Protocol”. In the weeks before the ﬁnal agreement of the Constitution the Government unsuccessfully sought a much stronger safeguard on the Charter. A Government spokesman conﬁrmed to the FT that the UK was seeking a “further technical amendment” to the Charter (18 May 2004). According to reports of the meeting, the UK proposed that the ECJ’s jurisdiction over the Charter be limited to basic rights which are part of the EU acquis already, and that only national courts should be able to make reference to case law and derived rights in their use of the Charter. However, the Government abandoned this proposal in the face of strong opposition from other member states.

Conclusions: — The fact that the Charter would be incorporated into EU law under the Constitution is in itself a retreat from the Government’s earlier promises. — There are problems with the horizontal articles, and the EU judges who will interpret them believe that the Charter will change national law. — From a business point of view, it is diYcult to see how the incorporation of the Charter can be anything other than a step in the wrong direction. 9945771019 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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2. The Treaty’s Criminal Justice Provisions (Following up the Committee’s Report of July 2003 on the Convention’s Proposals on Criminal Justice)

Key points —HomeaVairs is the area of the draft Constitution which proposes some of the most signiﬁcant changes. The Constitution makes several changes to the EU’s home aVairs policies, including: — Institutional changes and the end of the national veto. — Giving the EU powers to enforce “mutual recognition” of legal judgments. — New EU powers to harmonise civil and criminal laws and legal procedures. — EU powers to deﬁne criminal oVences and set minimum sentences. — Increased powers for Europol. — Enabling Eurojust to initiate investigations of EU citizens. — Establishing a European Public Prosecutor. — In many of these areas the Government registered very strongly-worded objections in the form of amendments to the European Convention. — The underlying argument for EU minimum sentences is weak. The idea that criminals “shop around” and would choose to commit crimes in a diVerent country if the sentence is lower is not credible. — The Constitution would mean an immediate shift of power to the EU in justice and home aVairs. The previous report of the European Scrutiny Committee described the moves as constituting a “substantial transfer of power from national parliaments to the European Parliament”. In a report the Committee worried that the role of member states’ parliaments would be reduced to a “rubber- stamping” mechanism, and argued that “this is hardly an appropriate way for an enlarged European Union to increase its democratic legitimacy” (Twenty sixth report, 25 June 2003). — The Constitution would create pressure for more integration in the future. Several of the proposals are expressly designed to be added to, and new powers to enforce mutual recognition will create pressure to harmonise standards (see below). Harmonisation measures for cross border crimes are likely to lead to changes in domestic laws. The Dutch Government’s delegate to the European Convention warned that if the Constitution’s proposals were adopted, “the vast majority of national criminal law will have to be harmonised in the very near future” (Telegraph, 31 May 2003). — The EU is using the powers which it currently has over crime and justice badly. Several cases including the investigation into corruption at Europol, and the recent “Tillack” case have shown that there are problems with the EU’s existing policies. An expansion of the EU’s powers could make things worse. The EU should show that it can use its existing powers in a transparent and accountable way before any expansion is considered.

1. Institutional changes and the end of the national veto Under the Constitution, justice and home aVairs issues would no longer be considered a separate “pillar” with distinct rules as in previous treaties. This means that justice and home aVairs issues will be subject to Qualiﬁed Majority Voting (QMV). The European Court of Justice would have jurisdiction unless it is speciﬁcally stated otherwise. Individual member states will no longer be able to propose legislation, and the European Parliament will have an eVective veto over member states. Home aVairs is the area of the Constitution which sees the largest expansion of majority voting. The national veto would be abolished in almost all of its aspects.

Article Area in which the veto is abolished III-161 Evaluation of home aVairs and enforcement of mutual recognition of legal judgments III-164 Administrative co-operation in justice and home aVairs III-166 Visas/borders III-167 Asylum III-168 (2) Migration III-168 (3) Repatriation treaties III-168 (4) Integration of migrants III-171 Criminal co-operation/procedure * III-172 Substantive criminal law * 9945771019 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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Article Area in which the veto is abolished III-173 Crime Prevention III-174 Eurojust III-176 (2) Police co-operation—common procedures III-177 Europol

Areas in italics are covered by the UK opt-in arrangements * Areas which include emergency brake mechanisms The European Court of Justice will have near-complete jurisdiction over home aVairs policies for the ﬁrst time. This means that the European Court of Justice will be able to rule on all home aVairs laws and decisions, apart from those relating to “jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.” (III-283) Individual member states will also lose their right to propose legislation is the areas of justice crime and policing. Member governments would only be able to propose legislation if seven or more countries agreed, rather than each member state being able to propose legislation. Only the European Commission would be able to propose legislation on its own.

2. Giving the EU powers to enforce “mutual recognition” of legal judgments Articles III-170 and III-171 set out a legal basis for the mutual recognition of legal judgments in civil and criminal cases respectively. Mutual recognition of judgments is intended to end existing barriers to successful prosecution of cross-border crimes. The article covers the mutual recognition not just of ﬁnal judgments on cases but also other judicial decisions such as the power to search homes and seize evidence.

Problems with mutual recognition However, some civil rights activists have voiced concerns about standards of trials, legal aid, access to counsel, rules on admissibility of evidence etc, which will vary considerably across an enlarged EU. Stephen Jakobi, Director of Fair Trials Abroad, said that, “Few would have concerns about the Netherlands or Denmark, say, where the legal systems are very diVerent but the protection of citizens’ fundamental rights mirrors our own. The problem really arises with recognising decisions made in countries where the provision of legal aid and advice is totally inadequate, and/or professional interpretation services virtually non-existent” (Guardian 18 October 2002). Mutual recognition in civil cases raises concerns that there could be what Steve Peers, Lecturer in Law at Essex University, calls a “race to the bottom”, where “the risk is that defendants will fall subject to the member state with the lowest standards of rights for the accused.” As well as the high proﬁle Greek “plane spotters” case there have been recent examples of problems with procedure in other member states: — David Wilson, a truck driver accused of people smuggling in Greece, was arrested, tried and jailed for 11 years—all in the space of less than 24 hours. Richard Corbett MEP accused Greece of being in breach of the European Convention on Human Rights (PA 25 March 2003). — Kevan Sloan was arrested in Spain for a series of robberies while on a visit to Tenerife and sentenced to three years in prison. Mr Sloan was at work in Kirby, Liverpool, during some of the robberies and most of the charges were later dropped. But he was convicted—on the changed evidence of a witness—of one robbery. Five other witnesses said he had been in a bar 270 miles away during the robbery. Local MP George Howarth said, “The witness gave evidence that the robber spoke in colloquial Spanish. Kevan does not speak Spanish at all.” A plea that he be deported has been rejected (Guardian, 10 March 2003).

Creating pressure for harmonisation Mutual recognition is often seen as an alternative to harmonisation. However, in other areas of EU policy, such as the single market, mutual recognition has led to pressure for harmonisation. Article II-171 on mutual recognition of criminal judgments explicitly states that mutual recognition, “shall include the approximation of the laws and regulations of the member states”. In a proposed amendment to the article on mutual recognition of civil law, Peter Hain wrote that, “the principle of mutual recognition is welcome. However there is no need for... approximation of the civil law. It is neither necessary nor appropriate. The purpose of civil judicial co-operation should be to ensure that borders do not represent an obstacle to litigation or the recognition and enforcement of judgments. Whilst 9945771020 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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that might require a degree of harmonisation of civil law and procedure we should respect and recognise each others’ legal systems and work on the interface between them, promoting compatibility between them. Unfortunately the current draft suggests that approximation of law should be an end in itself.” The European Commission has been explicit in its view that mutual recognition must lead to harmonisation. In a recent report the Commission argued, “it will be necessary to avoid a situation where in each Member State there are two separate legal regimes, one relating to the disputes with a cross-border implication and the other to purely internal disputes.” (European Commission 2004, assessment of the Tampere Programme, SEC(04) 693). The European Scrutiny Committee said, “We believe that these remarks indicate an intention to circumvent the current restrictions on EC and EU involvement in national legal systems, and those in the draft Constitutional Treaty, which do not envisage action in relation to matters which are purely internal to a Member State. We draw attention to the danger that measures which are ostensibly concerned with mutual recognition will have the eVect of creating uniform rules which will then apply to all cases, whether they have any cross-border implications or not. As we have commented before, Commission proposals on the “area of freedom security and justice” have appeared to treat this “area” as synonymous with a unitary State, with only one legal system.” (European Scrutiny Committee, 28th report July 2004, bold text as original).

3. New EU Powers to Harmonise Civil and Criminal Laws and Legal Procedures Articles III-171 and 172 allow the EU to set common rules concerning legal procedures in criminal cases. EU rules, decided by majority vote, could determine the rights of criminal suspects and control the admissibility of evidence in court. There is also a provision for EU rules to cover “any other speciﬁc aspects” of legal procedure if EU leaders so decide. One problem with this proposal is that it would no longer be possible for voters in individual member states to alter the balance of the legal system between victims’ and suspects’ rights. For example, if EU rules were to set the balance in such a way as to favour protection for suspects, voters in any one member state would not be able to vote for a policy which would make it easier to secure convictions. The rules could only be subsequently changed if the majority of other members agreed. The UK Government was initially unhappy with this proposal, and called for major changes. However, it gave way on this issue as part of the overall agreement on the Constitution. Peter Hain told the European Scrutiny Committee that the current Article was “unacceptable” and that his principle was, “co-operation yes, harmonisation no” (25 March 2003). In a series of proposed amendments to these articles Peter Hain wrote that, “Criminal procedures and evidence go to the heart of Member States’ legal systems. It is essential that the legal base for procedural standards is not so broad that it would provide a basis for harmonisation of legal systems. We must recognise and respect the diversity of our legal systems, rather than seek to create a common system.” But his call for the proposed EU powers to be watered down was ignored. He described the article as “unacceptable” because it “would cover almost any aspect of criminal procedure during an investigation, prosecution and conviction.” However, the UK Government did in the end accept the article. The only concession to the UK objections was the addition of an extra line calling for EU leaders to “take into account” the diVerences between continental legal systems and the common law systems of Ireland and Britain.

4. EU Powers to Define Criminal Offences and Set Minimum Sentences Article III-172 allows the EU to set “rules concerning the deﬁnition of criminal oVences and sanctions.” This is intended to prevent criminals “shopping around” for countries where their activities will carry the lightest penalties. Article 172 lists the types of crimes over which the EU can harmonise sentences. These include drug traYcking, people smuggling and money laundering. The list was supposed to limit the EU to dealing with cross border crimes. But the list of crimes over which the EU can rule includes vaguely-deﬁned categories such as “organised crime” and “corruption”, which is likely to enable the EU to rule over a wide variety of oVences. The list of oVences is also designed to be expanded over time, and a clause allows EU leaders to add to the list of crimes on which the EU can legislate. The Government opposed giving the EU this power to set minimum sentences. Peter Hain wrote, “Framework laws on substantive criminal law must not require the imposition of mandatory minimum penalties. We hope that the Treaty would exclude the possibility of measures requiring all Member States to impose a minimum penalty of at least x years on anyone convicted of a crime... irrespective of the circumstances or any mitigating factors”. However, the UK Government again abandoned its objections. 9945771020 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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5. Increased Powers for Europol Articles III-176, 177, and 178 strengthen the role and powers of Europol. Previous treaties have gradually expanded the role of Europol but its scope has remained limited to co-ordination. The draft Constitution’s Article III-177 proposes to widen its role to include “organisation and implementation of investigative and operational action, carried out jointly with the member states competent authorities.” The new power to directly implement operational action could mean that Europol would be able to take part in police raids alongside national police, giving it the same sort of role as America’s FBI. During the hearings of the justice working group of the European Convention, the then head of Europol, Jurgen Storbeck, made a distinction between investigations, in which he could imagine a greater role for Europol (for example allowing Europol to interrogate for the first time witnesses) and executive powers (such as confiscation or arrest warrants), which he agreed should remain with national authorities. The UK Government has raised various objections to this proposal. In an amendment Peter Hain wrote, “the word ‘operational’ should be deleted. ‘Investigative’ is suYcient and avoids the suggestion of Europol having operational powers on the territory of Member States.” Hain added that “[the words] ‘carried out jointly’ should be replaced by ‘in support of’. It is essential that Europol is not able to carry out independent operational activities or to direct Member States’ operational activities.” However, the changes Hain called for have not been made. The European Scrutiny Committee has argued, “We see objections of principle to giving Europol its own investigative powers . . . This would fundamentally change Europol from an agency for the exchange and analysis of criminal intelligence into a European police force” (European Scrutiny Committee, 28th report, July 2004). Europol has already acquired major new powers and a much enlarged budget since the Amsterdam Treaty. It now has a staV of over 350, projected to rise to 480. But Europol has major problems which have not yet been addressed. In 2001, its oYces were themselves raided by Dutch police over fraud allegations. Europol has a very poor record in transparency, refusing to share information with the European Parliament and classifying a great deal of its material as confidential for the use of Europol oYcers only. There have been complaints that bodies appointed in order to supervise it formally have been denied information. OYcers of Europol are not compelled to testify in court, unlike members of national police forces, and are immune from prosecution for acts performed in the prosecution of duties under the Europol convention.

6. Enabling Eurojust to Initiate Investigations of EU Citizens Article II-174 gives Eurojust sweeping new powers. The article says that the tasks of Eurojust “may include the initiation of criminal investigations”. Eurojust also gains the power to “co-ordinate” the subsequent investigation. Laws deﬁning what powers and responsibilities Eurojust has would be made by majority vote. The UK Government was initially opposed to giving Eurojust these new powers. Peter Hain called for the article to be amended so that Eurojust would only be able to propose to member states that they initiate investigations. Hain argued that the article needed to “set boundaries on Eurojust’s tasks.” He threatened that, “this is an essential precondition for majority voting . . . Eurojust should have the power only to ask that an investigation or prosecution is initiated”. However, the Government gave way on this issue.

7. A European Public Prosecutor A Public Prosecutor’s OYce is proposed in Article III-175 under the auspices of Eurojust. The oYce would have responsibility for pursuing perpetrators of crimes which aVect the Union’s ﬁnancial interests. The post could be created only by a unanimous vote from the Council of Ministers, with the consent of the European Parliament. By unanimity, the remit can be extended to include other serious cross-border crimes. The UK Government was very strongly opposed to this proposal, and cited it as a red line issue. In an amendment to the draft Constitution, Peter Hain wrote, “We are ﬁrmly opposed to establishing a European Public Prosecutor. Unanimity does not mean that this article can be accepted . . . There is clearly no need for a separate prosecution body at EU level”. In a separate amendment Hain spelled out the problems an EU Public Prosecutor would create. He wrote, “We are opposed to establishing a European Public Prosecutor . . . Proposals for a European Public Prosecutor have never satisfactorily addressed a series of objections. First, any body which would have the power to bring prosecutions in a Member State must in some way be accountable within that Member State. Secondly, the powers which would be vested in a European Public Prosecutor’s OYce are not compatible with respect for the diversity of legal systems”. Surprisingly, the Government allowed the Public Prosecutor to go ahead as part of the overall deal on the Constitution. 9945771021 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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Conclusions — There are several areas of concern ﬂagged up by the European Scrutiny Committee’s earlier reports which were not properly addressed in the negotiations. — The Government has itself expressed concern about several of these areas. But many of the Government’s amendments and proposals have been ignored. — Red line issues such as the European Public Prosecutor and legal process harmonisation have been abandoned. The provision calling for the diVerence between continental and common law systems to be taken into account does not oVset the creation of a wide ranging legal base for the harmonisation of judicial processes. — Several of the important changes such as the increased powers of Europol and Eurojust are covered neither by opt in arrangements or any and kind of “emergency brake”.

3. The Extent to which the UK Government Held its Red Line over the Common Foreign and Security Policy

Key points — It is questionable whether the Government has held several of its red lines, including the Charter, and the European Public Prosecutor. This paper focuses on foreign policy. — The Government’s red lines are deliberately very loosely deﬁned. To decide whether or not the Government got what it wanted from the negotiations, it is necessary to go into greater detail. — Even seen mainly in terms of “keeping the national veto” the Government has not been successful. The Constitution extends the scope of QMV in foreign policy and criminal law (see above). — Looked at more broadly, as well as the extension of QMV, the Government has failed to secure many important safeguards and failed to stop many proposals which it initially opposed. For this reason it is very diYcult to say that the Government’s red lines in this area have been “secured”.

Extension of QMV in foreign policy The Government has long been opposed to majority voting in foreign policy, but has nevertheless allowed it to appear in the Constitution. In March Peter Hain aYrmed that “QMV is a no-go area in CFSP” (Hansard, 25 March). However, the Constitution allows for several new openings for qualified majority voting in foreign policy. The most important relates to the new Foreign Minister. Article III-201 (2) stipulates that the Council shall act by qualified majority, “when adopting a European decision defining a Union action or position, on a proposal which the Union Minister for Foreign AVairs has presented following a specific request to him or her from the European Council, made on its own initiative or that of the Minister”. Under Article III-213 the decision to set up the “Permanent Structured Cooperation” group would also be taken by QMV. Subsequent decisions to admit new members to the group or expel members would also be taken by QMV. Under III-197 the organization and functioning of the new EU external action services is to be decided by QMV. Under III-321 the detail and meaning of the “terrorism solidarity clause” is decided by QMV. This is important because the Government clearly has reservations about this article. An amendment by Peter Hain called for the key provision of the article—that “Should a Member State fall victim to a terrorist attack, the other Member States shall assist it”—to be deleted. And in a separate amendment the Government asked for the new EU power to “prevent” terrorist threats to be deleted. At a plenary session of the European Convention Hain objected that, “if it carries real military obligations to oVer military assistance it is duplicating the NATO guarantee. If it does not . . . it is empty rhetoric.” His objection has been ignored. Under Article III-49 decisions on measures to control the financing of international terrorism are taken by QMV. The UK Government unsuccessfully asked for this article to be changed. Peter Hain wrote, “At present, the scope of [the] article . . . is certainly too wide and open-ended. Member States should retain competence to take further action consistent with the European law, for example to take immediate action to freeze assets of terrorists identified in accordance with national procedures and laws. This reflects the existing situation. Any proposed article should also specify exactly what type of action can be taken. It should therefore be limited only to the activities listed in the Praesidium’s proposal”. Under Article III-11 consular issues are dealt with under QMV. Article III-201 (3) (as well as Article I-39 (8)) carries an enabling clause allowing the Council to vote to move to QMV in more areas of foreign policy later, without redrafting the Constitution. It says, “the European Council may unanimously adopt a European decision stipulating that the Council shall act by a 9945771021 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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qualified majority in cases other than those referred to in paragraph 2” (paragraph two comprising the three areas already allowing for QMV, as in Article 23 TEU, plus the one detailed above aVecting a proposal from the Foreign Minister). More specifically, Article III-328 (1) allows for the Council to act by qualified majority voting in the context of enhanced co-operation, if the Council, acting unanimously, so decides. This does not aVect decisions having military of defence implications, but will aVect the common foreign and security policy in general, on which the Council must currently decide by unanimity, by virtue of Article III-325 (2). In addition, Article III-215 (3) allows the Council to adopt by qualified majority on a proposal from the Union Minister for Foreign AVairs European decisions establishing the EU foreign policy fund and financial arrangements in this area. The Government issued a proposal for amendment to this in an eVort to bring back unanimity here. Peter Hain said the UK wanted to “bring the procedures into line with the arrangements for launching operations reflected in existing Council Decisions”.

Other aspects of CFSP where the Government did not get what it wanted Foreign Minister. The Government objected to the creating of a position called a “Foreign Minister”. In an amendment submitted to the European Convention Hain wrote, “We do not accept the title ‘Foreign Minister’ as it is misleading (he/she will have no Ministry; this term was carefully avoided for current Commissioners). We suggest EU External Representative. This is unacceptable as it stands.” Commitment to a common defence. The Constitution specifies that the European Security and Defence Policy “will lead to a common defence”. In an amendment submitted to the European Convention Peter Hain wrote, “We believe there is no prospect of the Council taking a decision to agree common defence in the near future. It is therefore inappropriate for the text to pre-judge the decision of the Council.” The Constitution eVectively takes this decision. Lord Robertson, former Secretary-General of NATO, has warned, “It is dangerous to introduce a mutual defence clause into the Constitution if you do not have the means to carry it through”. UN Security Council. The Government objected to Article II-206, which states that, “When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the Union Minister for Foreign AVairs be asked to present the Union’s position.” In an amendment Peter Hain asked for this paragraph to be deleted, saying “The UK cannot accept any language which implies that it would not retain the right to speak in a national capacity on the UN Security Council”. But this change was not made. Separate provisions for CFSP. The Government initially said that its agreement with the abolishing of the pillar structure would be dependent on creating separate arrangements for CFSP. Jack Straw said, “Provided that we maintain the separate arrangements for CFSP, and some aspects of justice and home aVairs, I would be content to see all of these provisions merged into a single treaty structure.” (Economist, 12 November 2002). The Government’s white paper (’A constitutional treaty for the European Union’, September 2003) warned, “any move to confer a single legal personality on the Union must be on the basis that there are distinct arrangements for Common Foreign and Security Policy”. The Government also put down seven amendments during the European Convention specifically to create a category of “CFSP decisions”. But this was not accepted. Enhanced Cooperation in CFSP. The existing treaties stipulate that enhanced co-operation “shall not relate to matters having military or defence implications.” (Article 27b TEU). This is not replicated in the Constitution, thus extending the possibility for enhanced co-operation to all aspects of CFSP for the first time. Peter Hain opposed this change: “We cannot accept the extension of enhanced co-operation to all aspects of CFSP. We wish to retain the limit to the use of enhanced co-operation in CFSP that is in Nice”. ECJ jurisdiction. Denis MacShane said, “I cannot see how foreign policy issues can be linked with the European Court of Justice, and I think that foreign policy will remain principally intergovernmental.” (25 March 2003, Column 152). However, the Government has not suYciently excluded the ECJ from having jurisdiction over CFSP. Under the existing treaties the European Court of justice is excluded from ruling over foreign policy decisions. Under the Constitution the Court would be able to rule over any aspect of foreign or defence policy unless it is explicitly excluded from doing so. The President of the European Court of Justice, Vassilios Skouris, said in an interview with the Financial Times that the Constitution would enable the ECJ to rule on foreign aVairs. Asked whether “your responsibilities will include foreign aVairs, for example?” He replied, “It’s not excluded”. Asked whether “in the foreign aVairs field you might rule on issues of procedure if the draft constitution takes force?” Skouris said, “I would not exclude that there could be questions of substance as well”. Even though the current treaties have a blanket ban on ECJ rulings over foreign policy, the Court has already made rulings over EU economic sanctions. The Court has used rulings over other areas of EU law to push the boundaries of the current limits on its jurisdiction. The ECJ is likely to use the Constitution to expand its remit further. 9945771021 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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The ECJ is not properly excluded from foreign and defence policy under the Constitution. Article III-282 is supposed to limit the ECJ’s jurisdiction over foreign policy. However it contains three major loopholes which will allow the ECJ to expand its role: Firstly, the ECJ may rule on any “proceedings... reviewing the legality of European decisions providing for restrictive measures against natural or legal persons” adopted under the CFSP. This suggests that if there is a CFSP policy agreed on a given subject, citizens could seek a judicial review of the Government action. Secondly, the ECJ is tasked with enforcing article III-209, which is supposed to stop measures undertaken by member states under the CFSP from interfering with Union action. This gives the Court an explicit mandate to make the kind of argument it has used before to expand its role—that its rulings are necessary to stop foreign policy decisions from interfering with other EU policies. Thirdly, article III-282 only excludes the Court from ruling on Articles I-39, I-40, III-194 and Title V of part three of the Constitution. But much of the rest of the Constitution deals with foreign or defence policy, for example, Article I-15 contains the requirement that “member States shall actively and unreservedly support the Union’s common foreign and security policy in a spirit of loyalty and mutual solidarity and shall comply with the Union’s action in this area.” It also requires that the member states “shall refrain from action contrary to the Union’s interests or likely to impair its eVectiveness”. Whether or not the member states are in violation of these requirements can be ruled on by the ECJ. Other examples of articles not excluded from ECJ jurisdiction include: Article I-11 on the EU’s power to frame a common defence policy, Article I-25 on the Commission’s role in representing the EU abroad and Article I-27, the main article setting out the role and powers of the EU Foreign Minister.

Conclusions: — There have been several moves towards increases of QMV in foreign policy, despite the Government’s promise that QMV was a “no-go area” for CFSP. — Other important changes requested by the Government have not been made. 7 September 2004

APPENDIX 9

Memorandum from Professor Larry Cata´ Backer, Professor of Law, Dickinson School of Law, Pennsylvania State University I am very grateful for the opportunity the European Scrutiny Committee has provided me to submit written evidence on certain matters to be taken up by the Committee in relation to the proposed EU Constitution. I very brieﬂy address several of those items.

What are the practical consequences of the new references (in Articles 2 and 3) to the Union’s values and objectives? Article 2 of the Constitution is written in lofty aspirational terms: “The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination.” The objectives of the Union in Article 3 are equally lofty, aspirational, and broad. On the one hand, language such as that in Articles 2 and 3 has traditionally had little practical eVect. They either state the great aspirational goals of the political society or are so broad as to shield all good faith eVorts by democratically elected governments to apply them. However, constitutional trends suggest that courts, and especially institutions functioning as constitutional tribunals, have increasingly wrung substantive meaning from what had traditionally been regarded as the aspirational provisions of constitutional text. The German constitutional court has since the 1950s extracted from the Basic Law, read as a whole, a hierarchy of constitutional values superior in value to and applied to interpret the substantive provisions of the constitution itself. (Southwest Case, I BverfGE 14 (1951) (Federal Constitutional Court of Germany).) The French have invested the preamble of their constitution with constitutional value from which principles have been derived to determine the constitutionality of legislative acts. The European Court of Justice has also derived great general principles from the entirety of the treaties and applied these to broaden and deepen the scope of institutional power at the European level. In this context, it is diYcult to maintain that Articles 2 and 3 will not have practical eVect. Indeed each will. The real question, then, is to gauge the nature and thrust of that eVect. Given the historical pattern of European Court of Justice jurisprudence, I would suggest that these provisions would be used to broaden the competencies of the institutions of the European Union and to narrow the ambit of limiting provisions, for example, subsidiarity. 9945771022 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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How, exactly, would this be possible? Let us start with the proposition that European Constitutional values will have to be faithfully applied by both the institutions of the E.U. and the Member States consistent with the Constitution’s overall objectives (Art I-5(2)). That application of Constitutional values (Art I-2) to Constitutional objectives (Art I-3) must be made in the context of a constitutionally mandated division of competences within the EU and between the EU and its Member States (Arts. I-11 through I-16). This division of competences is in turn bounded by other Constitutional principles (Arts I-9 through I-10), which necessarily also include the principles and objectives in Articles I-2 and I-3 (Art I-17). The circularity inherent in this complex system has important consequences. First, it creates substantial ambiguity. Second, it eVectively shifts a significant amount of power to the European institutions, and principally the European Court of Justice, to apply this layered complexity to the actions of EU institutions and the Member States. The European Court of Justice is notable for its expansive and path-breaking decisions in a host of cases establishing the autonomy, supremacy and direct eVect of the institutions of the European Communities/ Union. This court might adhere to a historical pattern of its jurisprudence to create a hierarchy of values in which European centered values are given pride of place. In that process, subsidiarity may well find itself subordinate to the values of democracy, freedom, equality, the rule of law and non-discrimination. Moreover, the relationship between the need to protect fundamental individual rights at the European level, and respect for the Member States, and their prerogatives, has yet to be fully developed. That development will occur at the European rather than at the Member State level. But the application of Articles I-2 and I-3 suggest a related, though less well appreciated issue: the importance of the change in the title of the document—from treaty to constitution. Although the new entity created by the E.U. Constitution purports to remain grounded in principles of international law, the governing document is now identified as a Constitution and not a Treaty. The change in terminology is supposed to have no eVect on the actual nature of the entity created thereby. That entity purports to remain a “union of states.” And so it may—for the moment. But the change in terminology is perhaps meant to have more subtle long term eVects on the project of Europeanising the Member States. The symbolic and rhetorical power of the word “Constitution” is well understood, especially by those involved in the Constitutional Convention. Influential members of the Constitutional Convention have freely spoken of the symbolic power of the change in terminology and of their hopes that substance may eventually follow from the change in terminology. Anna Palacio, the former foreign minister of Spain has spoken recently about the symbolic power of the change in terminology for the construction of “Europe.” A shift in terminology, at a minimum, advances the rhetorical and symbolic project of creating a single entity, whether styled a union of nations bound by an “international law” instrument or a federation of states bound by a domestic legal order. But it also provides a basis for the European Court of Justice to continue its now half century old project of federalising the nature of the relations among the Member States and between the Member States and the institutions of “Europe.” The ECJ is well aware of the power of constitutional rhetoric to authenticate substantial advances in national or, in the case of the EU, supra-national consolidation. The basis of institutional consolidation at the European level was buttressed by a rhetoric of treaty constitutionalism coming from the European Court of Justice. The ECJ may well give substantive eVect to the symbolic and rhetorical changes in the proposed Constitution by drawing and applying from them principles of construction and interpretation. No longer a treaty in fact and name, the new basis for union will be a self- styled constitution, whose “nature” the Americans have long understood to embrace a broad construction in favor of the political institutions of government of greatest generality. (Cooper v Aaron, 358 US 1 (1958); McColloch v Maryland, 17 US (4 Wheat) 316 (1819). The American experience, admittedly unique in many respects, thus, may still usefully serve in the European context as a warning about the habits of institutional actors confronted with a constitution. (See Larry Cata´ Backer, Restraining Power From Below, The Federal Trust for Education & Research, 2004 Papers No. 15/4, available at http://www.fedtrust.co.uk/ constitutionalpapers). The grounding in international rather than domestic law may well, as a result, come to mean far less than it does today. (See Larry Cata´ Backer, The Extra-National State: American Confederate Federalism and the European Union, 7 COLUMBIA JOURNAL OF EUROPEAN LAW, Vol 7, p 173 at 174-176 (2001). A copy can be accessed at http://www.personal.psu.edu/lcb11).

What are the consequences if the Constitution is not ratiﬁed? The precise answer, in a word, is nothing. A slightly longer answer would start by noting that several key proponents of the proposed Constitution, especially within the United Kingdom, have suggested that the proposed instrument is largely technical in nature, eVecting no substantial fundamental changes. To the extent that changes have not been made, a new form of instrument, especially an instrument the form of which might be used to eVect changed not bargained for, would seem unnecessary at best and anti-democratic at worst. To the extent that technical changes are oVered, dealing with enlargement and the like, then it might seem that appropriate amendments to the present Treaties might be in order. To pour technical changes into a new instrument would suggest that changes are meant to be eVected that are not necessarily technical—whatever the black-letter of the instrument purports to convey. Certainly the European Court might well see to that. 9945771022 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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A much longer answer would have to involve confronting an issue with respect to which the Member States remain divided and around which much policy has been directed. That issue centers on the ultimate character of the European Union as a political, social, cultural and economic entity. Is it to remain an association of states, or evolve into something else—a classical federation, a federation in which control is vested in the Member States, a unitary state, or a confederation? (See Larry Cata´ Backer, Forging Federal Systems Within a Matrix of Contained Conﬂict: The Example of the European Union, Harvard Jean Monnet Working Paper, No. 4/98 (1998); Emory International Law Review Vol 12, p 1331 (1998). A copy may be accessed at http://www.personal.psu.edu/lcb11)

It seems clear enough that the proponents of this new instrument seek something more than the sum of the changes therein contained. But what is this “extra” bit of value they meant to squeeze from the instrument? It might well be that those who have constructed it might be seeking a further evolution of the entity created thereby to something approaching a more concrete state.

Thus, for example, a representative of French institutional thinking, Valery Giscard D’Estaing, the Chairman of the European Constitutional Convention, tells whoever is willing to listen that European Union is at a major crossroads in history. He speaks of the need for Europe to deﬁne the role it wishes to play on the international scene. He says that Europe is strong economically, but weak politically. D’Estaing’s main argument is that a stronger, more united, Europe would be a much more valuable and trustworthy partner for the USA with which it would be possible to have a better organised and more productive dialogue on global strategic issues. A divided Europe would have little impact politically, which he says will hurt the United States as the USA is in need of a strong ally and partner in Europe in global political aVairs. Others have also spoken of the E.U. in evolutionary terms; in those cases, the evolutionary end point seems to resemble more a traditional federation than anything else. (Speech by Valery Giscard D’Estaing: “The Henry Kissinger Lecture,” 11 February 2003).

It is with respect to this evolutionary project that proponents of the proposed constitution refer when they speak about a crisis resulting from a failure to embrace a constitution for Europe. That appears to be the thrust of remarks from the United Kingdom’s Peter Mandelson. Mr Mandelson was right to suggest an August 2004 interview with the BBC that the failure to adopt the proposed Constitution would spark a “major crisis.” The crisis aVects not the current status but the scope, nature and timing of the evolution of the Union. Thus the crisis, in Mr Mandelson’ s view, would not result in the abandonment of the Constitutional project. “we will have to go back, look at the reasons for the rejection, understand why the treaty has not been embraced by the public and address those concerns.” (quoted in Honor Mahoney, “No” vote would not scupper EU constitution, EUobserver.com, 20 August 2004 available at http:// www.euobserver.com).

Into what should the European Union evolve? Ought it to evolve at all? There is little point in hiding from those questions. There is, however, a great danger in supposing that ﬁnessing an instrument of governance around this issue without resolving it will either make the issue go away or provide a certain method for imposing one solution without the bother of negotiation or instrumental reform. The United States, of course, ought to serve as the great cautionary tale for those who believe they can use the institutions of the European Union to control or direct solutions to foundational issues that remain unresolved.

I do not mean to suggest that one or another vision is more worthy of adoption. That sort of decision is singularly appropriate for decision by the democratically elected representatives of each Member State. However, I am not sure any Member State has done so yet. Yet, for those who are contemplating committing their nations to the embedded vision of progress toward some state of political being, as well as to the technical terms contained in an instrument purporting to be one thing and suggesting any number of other things, it might be prudent to be clear about the exact nature of the commitment and realistic about the feasibility of controlling participation in a political system in which control by any one Member State is limited at best. To defer discussion by embedding the argument within the text itself is to invite decision by others. And within the European Union, the European Court of Justice has assumed that task, to a signiﬁcant extent.

Consequently, the failure to adopt the Constitution would result in a crisis for the long-term project of “ever closer union.” On the other hand, such a crisis may be healthy for the long-term stability and growth of the Union. To the extent that the “crisis” unearths the tensions long masked by the treaties, and redirects the conversation about their resolution from the judicial department of the European Union to the political departments of the Member States, that “crisis”, however resolved, may be long overdue. Such a conversation, to a greater extent than any sort of technical amendments to the treaties, will in the long term resolve the problem of the democratic deﬁcit that seems to plague the process of integration, as and to the extent that further integration is embraced by the Member States. 9945771022 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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ALittle Perspective I do not mean to suggest a belief that the United Kingdom ought to walk away from Europe. Rejection of the proposed Constitution will not have that eVect. Nor do I necessarily counsel rejection of the proposed Constitution. Adoption, however, seems to involve acceptance of a number of fundamental propositions that are not necessarily evident from the face of the document. These propositions might be unpalatable were they to be more clearly evident. In any case, the Constitution seems to suggest transfers of power in excess of that set forth in its black letter. It seems to me that association of some kind is inevitable for the United Kingdom. It is possible to argue that the United Kingdom made its choice when it joined—for good or ill—the European Communities, and now must embrace the consequences, including the evolution of the Union into something it had not been before. I believe that argument begs the question. It assumes a necessary passivity on the part of Member States with respect to fundamental questions and a transfer of authority over those matters to the collective that is the Union itself. But I see no reason to adopt passivity except in the service of an evolutionary model of Union. While that course may be wise, it deserves at least some sort of active consideration by the government before the state binds itself to a system over which it has less control. Consideration of the proposed Constitution thus provides the government of the United Kingdom with an important opportunity to rigorously examine its associational relationships and to more actively chart a course for its future. The real question for the government of the United Kingdom thus centers on the form and nature of its association with other states. With respect to those issues, the United Kingdom might well wish to retain a significant amount of control, even as it might choose to integrate itself more fully with its European partners. At a minimum, analytical clarity and rigor will be essential to understand the terms of the constitutional “contract” which the United Kingdom has been asked to adopt. It is clear to me from its letter of 22 July 2004 that the European Scrutiny Committee has focused on the most important and diYcult issues presented by this proposed Constitution. Each of the nine aspects identified by the Committee present diYcult issues with respect to which the meaning of the text and the intent of its authors might provide clues, but no definitive answers, however cleverly supposition and theory are brought to bear. Only the actions of the Member States, and the institutions of the European Union, particularly the European Court of Justice, will reveal the precise meaning and application of the proposed Constitution, and the eVectiveness of its terms for protecting the interests of the United Kingdom. Should you have further questions, I would be delighted to be of help. Again I oVer my thanks for this opportunity to contribute in some small way to the Committee’s consideration of the proposed E.U. Constitution. 7 September 2004

APPENDIX 10

Memorandum from Statewatch

Introduction 1. Statewatch welcomes the opportunity to comment regarding the EU’s Constitutional Treaty. The following comments concern the particular issues of concern to Statewatch (Justice and Home AVairs and openness of the EU institutions) which can be related to the speciﬁc aspects which the Committee is examining.

Question 3Public Meetings of the Council 2. It is not clear from the Constitutional Treaty how the “public” Council meetings would work in practice. In our view, a public meeting should mean just that: a meeting which the public can observe live on television, radio or the Internet or even attend (subject to the limited seating which can be made available). The public nature of the meetings should logically entail the creation of a translated complete record of public debates in the Council, equivalent to Hansard, which would ensure wider public access to those debates in practice. It should also entail wider and quicker access to documents held by the Council when acting in its capacity as a legislator (without prejudice to the need to ensure wider access to Council documents held when it is acting in other capacities). The Committee should press the UK government to clarify that this is the correct interpretation of the Constitutional Treaty. 3. It should be emphasized that there is no need to ratify the Constitutional Treaty in order to hold such public meetings (although ratiﬁcation of the Treaty would be useful in that it would entrench a legal obligation to hold such meetings in public). An amendment to the Council Rules of Procedure could establish the arrangements for public meetings at any time; the Rules already provide for limited public 9945771023 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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meetings. Improvements in this area could in particular be agreed under the current Dutch Council Presidency or the future British Council Presidency. The Committee should press the UK government to raise the issue of amendment of the Council Rules in this area as soon as possible.

Question 4Council Presidencies 4. Statewatch is interested in this issue due to our interest in the functioning of the JHA Council. It will clearly be necessary to clarify the role of the European Council President in relation to the individual Council groupings, which will still be chaired by Member States in rotation (except for the External Relations Council). It appears from the Treaty that the European Council President will not have any form of legislative, judicial, executive or administrative power, but will rather have exhortatory powers only. In our view, it would be desirable to limit the role of the European Council President as regards individual Council groupings, given the limited accountability and powers of the President, compared to national parliaments and ministers and MEPs. For example, it should not be the role of the President to establish his or her own agenda for Justice and Home AVairs matters and promote it.

Questions 5/6/8 Red Lines and Emergency Brakes;Criminal Justice 5. As regards the issue of criminal justice, it appears from Article III-270 of the Constitution that the UK (or any other Member State) will retain the power to block any EU measure which “would aVect fundamental aspects of its criminal justice system”. The appraisal of this criterion is clearly left to the Member State in question, and could not be overruled by the Council, Commission, EP or Court of Justice. The consequence of the use of this “emergency brake” in this area is that the issue must then be settled by the European Council (which will vote by consensus, in the absence of reference to any other voting rule), or in the absence of agreement in the European Council, by means of a “flexibility procedure” in which only some Member States participate. 6. This provision appears to meet the objective of ensuring that the domestic law of criminal procedure in any part of the UK cannot be fundamentally altered by any EU measure without the UK’s consent. Similarly, Article III-271 applies the same rule to the definition of criminal oVences, providing equivalent protection for the UK in this area if it is felt necessary. The concern underlying the government’s desire to maintain a “red line” therefore appears to have been met. However, in our view, it would also have been desirable if the government had sought to apply such a provision also to cross-border procedural measures, such as the European arrest warrant, which have important implications for civil liberties and human rights. 7. As for the functioning of the emergency brake in this area, it is clear that once the brake is “pulled” by a Member State, there is no way that the legislative machinery can begin moving again until that Member State can be assured within the European Council that its objections can be met. Failing that, the procedure can later be relaunched to apply to a group of Member States interested in participating; it is obviously presumed that any Member State (including, but not limited to, the Member State that “pulled” the emergency brake) can then rule itself out of the process. In this area, it therefore appears that the emergency brake arrangements would be eVective both at achieving the goal of permitting a Member State to prevent fundamental changes to its criminal justice system, and at achieving the goal of allowing a “coalition of the willing” Member States to go ahead within the framework of EU law, without compelling any Member State to participate. There should be particular rules on national parliamentary control of the UK’s use of the emergency brake in the successor to the European Communities Act. 8. As for the substance of the criminal justice provisions, in addition to the comments above, the provisions on substantive criminal law harmonisation and domestic procedural law harmonisation should be welcomed, given that they are subject to the “emergency brake” safeguards for Member States, and subject to certain caveats. In our view, there will be only a limited need for harmonisation of substantive criminal law, except for areas where the cross-border impact of criminal law activities is substantial, which are linked to the abolition of dual criminality (see below), or which call for harmonization as part of another EU law policy or in connection with the eVective protection of human rights. 9. It would also be useful for EU law to set harmonized minimum standards for procedural protection of suspects, in particular as regards issues which particularly aVect foreigners caught up in criminal proceedings in other Member States. Any rules on evidence must take into account the importance of ensuring a fair trial and the protection of private life. 10. There seems less need to add to existing mechanisms for mutual recognition of criminal measures, at least without a rethink of such measures in order to clarify that persons are guaranteed eVective human rights protection and to limit their application to cases where substantive national law has been harmonized or is suYciently similar already to justify abolition of the “dual criminality” principle. 11. The provisions on crime prevention do not appear objectionable, as they do not extend to harmonization of national law. 12. There is no remotely convincing case for the establishment of a European Public Prosecutor, given the other EU measures already adopted or under consideration that aVect the substantive criminal law or the procedural rules applicable where the EU’s financial interests are aVected or where other crimes of a 9945771023 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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cross-border nature are committed, and the absence of any evidence that there is a fundamental problem in this area with impunity of the perpetrators from national criminal proceedings. Ideally Article III-274 should therefore not have appeared in the Constitution at all. The Committee should press the UK government to clarify that it will seek either to veto the establishment of the Prosecutor or not to participate in the legislation establishing it, leaving those Member States who believe that there is a need for the Prosecutor to go ahead by themselves. There should be particular rules on national parliamentary control of the UK’s participation in any legislation establishing the Prosecutor or expanding his or her powers in the successor to the European Communities Act. 13. In our view, there was little need to amend the current provisions relating to Eurojust, as it is still a very new body and more time is needed to see whether it can contribute eVectively to criminal justice within the EU. The Committee should press the government to clarify the understanding of what “formal acts of judicial procedure” are and the extent to which national oYcials will still have the discretion to carry out such measures to the extent this is provided for in national law, rather than acting as agents of Eurojust. In light of the uncertainty as to the exact outer limits of Eurojust’s powers, it would have been preferable either to clarify and limit those powers more precisely, or to ensure that a veto or emergency brake still applies to decision-making on some or all aspects of Eurojust’s functioning. 14. Finally, two general issues about the criminal justice provisions. First, we welcome the increased participation of the European Parliament in adoption of the relevant measures (including external treaties in this area, over which it will have assent), in order to ensure eVective parliamentary control. This should not prejudice eVective parliamentary control by national parliaments; in the case of the UK, parliamentary control can be augmented in particular cases, as suggested above, and furthermore we believe it is time to consider again whether fundamental changes need to be made in the European scrutiny arrangements in place in this country, particularly in the area of justice and home aVairs. Secondly, we welcome the guarantee of eVective judicial control provided by the extension of the Court of Justice’s full jurisdiction into this area; in our view, the Committee’s previously misgivings on this point were wholly misplaced.

Question 7Charter of Rights 15. The amendments to Article 51 of the Charter (Article II-111 of the Constitution) do not change the fundamental position that the Charter does not extend EU competences and does not apply to Member States unless they are implementing EU law (and, arguably, derogating from EU law rules, in accordance with the current general principles of EU law). These important limitations on the scope of the Charter, which are overlooked in much political discussion of the Charter, are essential; but the amendments call for no further comments since Article 51 was suYciently clear on these points already. 16. As for the amendments to Article 52 of the Charter (Article II-112 of the Constitution), the new paragraphs 4–6 do not add any clarity to the application of the Charter, but on the contrary create the scope for further confusion about the interpretation and application of the Charter. There is no indication of which provisions are based on national constitutional traditions; in any case, several of the provisions likely covered by para 4 are also based on the ECHR and so also covered by para 3. What does it mean to say that such provisions will be interpreted “in harmony with” national traditions? Which provisions are covered by para 5? Para 6 presumably only applies where the Charter refers to national law and practices; but the reference to taking “full account” of those national laws and practices seems to suggest that national law then has carte blanche to limit exercise of the rights. But that is not the usual impact of references to national law in human rights measures or EC legislation. What about cases where the reference to “national law” (and the application of para 6) concerns a right protected in the ECHR (so covered by para 3)—for example, Article II-69 on the right to marry and found a family—which has been subject to Strasbourg rulings (like Goodwin v UK) limiting the extent to which national law can be taken into account? 17. The new para 7 is more likely on balance to add to the clarity of interpretation of the Charter, because the explanatory notes to the Charter clarify a number of issues. However, they are by no means clear on all points and they do not address some issues at all. 10 September 2004

APPENDIX 11

Memorandum from Prof Dr Ingolf Pernice, Managing Director, Walter Hallstein-Institute for European Constitutional Law, Humboldt-Universita¨t zu Berlin My answers to your questions can be summarised as follows: 1. The new references in the Constitution to the Union’s values and objectives make more explicit what was always the basis of European Integration. Rights for minorities are now mentioned, but also the principles of pluralism, non-discrimination, justice, solidarity, tolerance and equality between men and women. Among the objectives more precise reference is made to sustainable development at the European and global level, cultural and linguistic diversity, and to the development of international law including the 9945771024 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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respect for the principles of the UN Charter. Practical consequences of these references cannot be expected directly. But such clear statements are important as an expression of what, in substance, may hold the Union together, and they are made to give European policies a guideline and direction. The legislative acts will have to conform with and to refer to these values and objectives, and they will have to be taken as a reference in the interpretation of any legislation at the European level. The objectives will be used to justify limitations of fundamental rights according to Article II-52H 1 of the Constitution. On the other hand, taken together with the principles of subsidiarity and proportionality and with the Charter of fundamental rights, the values and objectives referred to in Articles I-2 and I-3 of the Constitution will also limit the European institutions in the exercise of their competencies conferred to them by the Constitution.

2. Enhanced co-operation was always meant to be an incentive for Member States to find compromises at the Council allowing all Member States to participate in the EU policies. As the minimum participation will be one third of the Member States (Article I-43 H 2) instead of eight of 15 (Article 43 lit g EU), the Constitution allows clearly an easier access to this instrument and makes its use more likely. With regard to the vote of the Council on the authorisation to proceed with enhanced co-operation, on the other hand, the requirement of qualified majority under the Treaty of Nice (Article 40a H 2 EU, Article 11 H 2 EC) has not been changed (European decision, see Article III-325 H 1 subpara. 2, Article I-33 H 1, Article III-302 and Articles I-22 Hˇ 3 and 24), but the new conditions of double majority in the enlarged Union do not seem to make decisions easier. Regarding ESFP the rule of unanimity in Article III-325 H 2 subpara 2 seems to be stricter than Article 27c read together with Article 23 H 2 subpara. 2 and 3 EU, but this is not restricted to the implementation of a joint action or a common position only (as provided in Article 27b EU). Nevertheless, Article III-328 H 2 now allows to switch to qualified majority even for CSFP if the Council so decides unanimously. In sum, also given the number of 25 Member States in the EU and a greater need, therefore, the use of enhanced co-operation seems to be more likely, but it will not be easy to put it into practice and it would not be desirable regarding the cohesion and unity of the Union.

3. Under Articles I-23 H 5 and I-49 H 2 of the Constitutional Treaty the Council shall meet in public when considering and voting on a draft legislative act. These terms are open to interpretation regarding the question at what level and which meetings precisely are to be public. As only the Council, not the meetings of the Permanent Representatives mentioned in Articles I-23 H 4a and III-247 H 1 of the Constitutional Treaty, is addressed by this clause, the meetings of the ministers only will have to be public. But, with regard to the context of the provision on “transparency” there is little doubt that all meetings where legislative proposals are on the agenda shall be held in public, not only those where decisions or votes are taken. It is to be noted that opening the meetings of the legislative Council for the public will change the character of this body profoundly. Ministers will have to express themselves and argue under the direct control of the media, the national parliaments and constituencies, but also of the people and press of other Member States. This will give strong incentives to more intensive public discourse on European matters Europe-wide and underline the ministers respective responsibility. Ministers may try and ﬁnd other ways and places for forging package deals and negotiating compromises or be more reluctant to accept solutions which might be diYcult to defend at home. This may, again, make more likely that the instrument of enhanced co-operation will be used to compel ministers to accept a solution or to circumvent their veto in a given case. Still, an extensive application of the clause on public meetings of the Council will increase the interest for the citizens for the legislation to be decided and facilitate, therefore, democratic control and enhance the legitimacy of the European legislation.

4. The power of the new Foreign Minister to preside the External AVairs Council (EAC) is a new feature in contrast to the division of work and the constructive interaction which traditionally exists between the Presidency and the Commission. It is questionable whether or not this accumulation of tasks favours eYciency of the EAC. Coordination of European policies will become more diYcult with the split of the function of presidency between the President of the European Council, the Foreign Minister and the Presidency of the general Council and the specialised Council formations. According to Article I-23 2 of the Constitution consistency between the diVerent Council conﬁgurations will be ensured by the General AVairs Council (GAC), as it will be its task to ensure—in co-operation with the President of the European Council—the preparation and the follow-up of the European Council’s meetings (Article I-23 2, second phrase). There will be a strong need for regular meetings of the President of the European Council, the President of the GAC and the Foreign Minister, including as the case may be, the Presidents of the specialised Councils, aiming at ensuring the consistency of European policies. And it may be helpful, to this eVect, even to include the President of the Commission and, as the case may be, his colleagues.

5. This question is diYcult for me to answer.

6. The emergency break procedure under Articles III-171 3 and 4, and III-172 3 and 4, of the Constitution allows for the European Council to find compromises and, in case of a failure, for an easier application of enhanced co-operation. It will lead to delays in the legislative process, but, given the time limits at each stage of the procedure, also accelerates the decision-making on the matter in question. The system seems to be justified due to the sensitiveness of the matters, it seems to be necessary. The application of enhanced co- operation in the fields concerned is most likely. 9945771024 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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7. The horizontal clauses governing the application of the Charter of Fundamental Rights fix the framework in which the specific rights are to be understood and applied. They are of greatest importance not only regarding the field of application of each of these rights, but also regarding legitimate limitations and their relationship with the European Convention on Human Rights (ECHR). It is clear that a maximum of harmony in the interpretation of the rights referred to in the Charter will ensure that acts of the European Union would not be challenged before the European Court of Human Rights once the Union has become a Party to the ECHR on the same footing as its Member States. The horizontal clauses clarify that the Charter would not create new powers or tasks for the Union in addition to those conferred to it explicitly, but also make clear that the level of protection of any other instrument providing for fundamental rights, international or national, would not be reduced. Many points made explicit in the horizontal clauses can be taken as given even if such clauses would not exist; but more clarity is granted by them, and this will help to ensure an harmonious application of the Charter in the context of other instruments for the protection of human rights to the benefit of the individuals. 8. This question is left for the reply by others. 9. If the Treaty on a Constitution for Europe is not ratified by all Member States, it will simply not come into eVect. This follows from Article IV-8 of the Constitution. Article IV-8 of the Constitution provides for a special procedure in case of, after two years from the conclusion of a treaty amending “this Treaty”, which than will be that on the Constitution of Europe, four fifths of the Member States have ratified but others encounter diYculties in proceeding with ratification. In such case the matter shall be referred to the European Council. It is worth noting, that this new provision—which in itself does not contain any solution at all—would only come into eVect with the entry into force of the present Treaty on a Constitution for Europe. The new procedure, therefore, cannot apply, therefore, to the case of diYculties in the ratification of the present Treaty itself. Yet, since Article IV-8 does not express more than the banality of the European Council having the power to discuss a problem, nobody will seriously prevent it to do so also in the case that the present ratification process for the Constitution faces diYculties. The solution would and could, legally speaking, certainly not be to expel or exclude from the Union any such Member State which failes to ratify. This would be a clear breach of Article 48 EU and be in contrast to the principles of international law (pacta sunt servanda), to the principle of solidarity within the EU and—in the case of a failed referendum—to the idea of democracy. Politically, however, the question would be raised whether or not the Member State in question continues to be willing to engage in the process of European integration. But the limits of such an argument, which is dangerous in any event, become plain for the case of Member States like France and Germany: DiYcult to imagine a European Union without Germany (as it would hardly be accepted by anybody to have Germany outside the bounds of the EU). Is it serious, given the degree of integration, to consider that the case of Britain or Spain, or Poland, would be diVerent? The only solution in case ratification by one or more Member States are not achieved is to reopen negotiations, accommodate with the apparent problems and, eventually, try again on a new basis. 10 September 2004

APPENDIX 12

Memorandum from the Brethren in Britain

Thank you for the invitation to submit evidence to the European Scrutiny Committee regarding the EU Constitutional Treaty which is now awaiting ratiﬁcation by national parliaments. We are known as Brethren to many Members of the Committee, having had personal contact with them about the Treaty over a period of time. We do not pretend to approach this subject as understanding it, (although we believe that the implemention of the provisions of the Constitution will be a giant leap into uncharted territory), but rather from a moral angle, and from practical experience gained in our contact with the EU Institutions and the UK Government at every level.

Q1. The practical consequences of the new references (in Articles 1–2 and 3), to the Union’s values and objectives

Article I-2. The Union’s values “Values” are not judiciable: therefore the consequences must be negligible.

Article I-3. The Union’s objectives Objectives can only be achieved by implementing measures. These will be judiciable. Objectives are not. Consequences—negligible. 9945771025 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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Q2. Whether the Treaty makes “enhanced co-operation” more likely We consider this question is very closely linked to Question 9. The answer must be “yes”, whether the treaty is ratified or not. It already exists in well defined areas, and it is a well known fact that certain Member States wish to integrate further and faster than others, which no doubt they will, whatever happens. This observation is based on Article I-43. Member States will be able to make use of the Commission, the European Parliament to “further the objectives of the Union, protect its interests and reinforce its integration process” (Our bold lettering). No doubt at some stage, the European Court of Justice will become involved when a Member State or an Institution does not get its own way. The Government, thankfully, has made it clear that it does not accept an integrationist approach, and will therefore stand apart when it is in the national interest to do so. Is it possible, that enhanced co-operation in a shared competence could become an exclusive competence in a future Treaty revision? In the event of a major crisis, we consider that the UK should be capable of standing alone within all the areas of Shared Competences as defined in Article I-13 without being ensnared in enhanced co-operation to our disadvantage. We would not presume to question why the Committee has omitted the question of Structured Cooperation (Articles I-40 (6) and III-209), but we see a very similar issue to enhanced co-operation. Any arrangement whereby Member States are enabled to go further and faster than others must involve a substantial risk. National security and defence is very topical since 9/11. The Government cannot aVord to relax its defence capabilities by implementing defence spending as is at present proposed. We recognise that the UK armed forces and their armed capability in the field are the best in Europe, and should be provided with all the resources they need to carry out the tasks allotted to them, particularly when operating within NATO, and with our American allies. The Government must resist the temptation to rely on concepts enunciated in the founding Treaties, such as “world peace can be safeguarded only by creative eVorts” (ECSC) and “Resolved by thus pooling their resources to preserve and strengthen peace and liberty . . .” (EEC) “. . . the day of the Lord so cometh as a thief in the night. For when they shall say Peace and safety; then sudden destruction cometh upon them . . .” (1 Thessalionians 2:2&3) The UK, therefore should also be able to stand alone in defence capabilities. See also comments on Question 9.

Q7. The eVect of the “horizontal” clauses which govern the application of the Charter of Fundamental Rights

We are thankful that the provisions of the Charter are addressed “to the Institutions, bodies, oYces and agencies of the Union . . . and to Member States only when implementing Union law”, however, we are alarmed by the provision of Article II-52 (3) . . .” This provision shall not prevent Union law providing more extensive protection. The recognition of Christian conscience. and the upholding of Scriptural principles governing human relationships is totally ignored and denigrated in the Charter, as follows. Every plea at national and EU level for the provision of Christian conscience in EU social policy implementation nationally has been met with polite refusal. EU anti-discrimination policy totally ignores the moral dimension of a Christians manner of life .We insist that Article II-10 provides no protection for us from the overarching power of the Institutions when initiating social policy legislation. Moral discrimination has already been outlawed and sacriﬁced to an EU ideology which leaves God out of its reckoning. NB The refusal by certain Member States to allow the Name of God to be included in the Preamble. Article II-9 includes two rights, “the right to marry” and “the right to found a family”. The Explanations to the Charter, annexed to the Final Act explains: “The wording of the Article has been modernised to cover cases in which national legislation recognises arrangements other than marriage for founding a family. This Article neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex”. So long as EU policy and Member States promote alternative life styles which are anti-Christian, and apostate in character, it is to be expected that the sanctity of marriage will be invalidated and the family, the core principle of society, will be broken down as divorce increases. The eVect of “horizontal” clauses governing the application of the Charter from a Christian perspective will not aVord any protection for our consciences. It is a great disappointment that this Charter should have been granted the status it has been given. 9945771025 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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Q9. What the consequences would be if the Treaty is not ratified Failure by Member States to ratify the Treaty will be the catalyst for enhanced co-operation to flourish. We predict that certain prominent, federalist minded States will wish to extend their existing unoYcial “enhanced co-operation” to the detriment of their more intergovernmentally minded neighbours who do not wish to go so far. Failure for the Treaty to be ratified would of course, result in the Pillar Structure remaining in place for the foreseeable future. However, the proliferation of enhanced co-operation between diVerent groupings of Member States will lead to instability and economic stagnation. The present unilateral agreements between Member State, outside any Treaty obligations are to be preferred to even the Pillar Structure introduced by Maastricht.

Summary We maintain that the UK should retain the capability to be able to stand alone in every area of the Union’s competences in the event of any major EU or global crisis in the future. We are not qualified to define how this could be done but we are thankful for Christian leadership in our Prime Minister, Mr Blair, who has retained the initiative against terrorism, and whose Government has maintained prosperity in our nation relative to the stagnation found elsewhere in Europe. He should continue to resist imposition of burdensome regulation which is proving counter-productivity to European prosperity, through unnecessary harmonisation and interference in national traditions. We do not believe our nation either needs nor wants this Treaty to be ratified.

Conclusion We wish to record our appreciation for the work the European Scrutiny Committee undertakes, which must often be onerous due to the sheer volume of the work undertaken. We also appreciate the openness of the Committee’s proceedings and the friendly atmosphere whenever we attend. 7 September 2004

APPENDIX 13

Memorandum from by Professor Trevor C Hartley, Professor of Law Emeritus, London School of Economics

What the Consequences would be if the Treaty is not Ratified The question addressed here is what would happen if the Treaty Establishing a Constitution for Europe— the treaty containing the draft Constitution—were not ratiﬁed by one or more Member States. The ﬁrst point to make is that the draft Constitution, like the earlier Community treaties, is a treaty under international law. Its legal validity depends on a treaty; and the legal validity of that treaty depends on international law. The legal validity of the draft Constitution (and of the treaty establishing it) in the legal system of the Member States depends on the law—the constitutional law—of the State in question. There is no other source from which it can obtain legal validity. In the case of the existing (and earlier) Community treaties, this has been acknowledged by the courts of a number of Member States, including the United Kingdom.33 There can be no doubt that the same is true with regard to the draft Constitution.34 The fact

33 For the United Kingdom, see Thoburn v Sunderland City Council (“Metric Martyrs” case) [2002] 3 WLR 247; [2002] 1 CMLR 50; [2002] EWHC 195 ADMIN. (Div. Ct); for Germany, see Brunner v European Union Treaty (German Maastricht case) 89 BVerfGE 155; 20 EuGRZ 429; [1993] NJW 3047; English translations in: [1994] 1 CMLR 57; (1994) 33 ILM 388; Andrew Oppenheimer, The Relationship between European Community Law and National Law—The Cases (Cambridge University Press, Cambridge, 1994), p 526 (German Federal Constitutional Court (Bundesverfassungsgericht)); for Denmark, see Carlsen v Rasmussen (Danish Maastricht case), Judgment of 6 April 1998, [1999] 3 CMLR 854 (English translation) (Supreme Court of Denmark (Højesteret)); for other EU States, see the decisions of the French Conseil Constitutionnel in Maastricht I, Decision 92–308 DC, 9 April 1992, Recueil, p 55; [1993] 3 CMLR 345 (English translation) and Amsterdam, Decision 97–394 DC, 31 December 1997, JORF No 2 of 3 January 1998; the decisions of the Italian Constitutional Court (Corte Costituzionale)in Frontini, Decision No 183 of 27 December 1973, [1974] RDI 154; [1974] 2 CMLR 372 (English translation) and Fragd, Corte Costituzionale, Decision No 168 of 21 April 1989, [1990] I Foro Italiano 1855 (English translation in Andrew Oppenheimer, above, p 653); and the decisions of the Greek Council of State in Vagias v DI KATSA, Decision No 2808/1997 of 8 July 1997, discussed in Maganaris, “The Principle of Supremacy of Community Law—The Greek Challenge” (1998) 23 ELRev. 179 and “The Principle of Supremacy of Community Law in Greece —From Direct Challenge to Non-Application” (1999) 24 ELRev. 426. 34 For a recent decision of the French Conseil Constitutionnel on this very point, see Decision No 2004–505 DC of 19 November 2004 on the Treaty Establishing a Constitution for Europe, paragraph 9 (available on http://www.conseil-constitutionnel.fr/). 9945771026 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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that it is called a “Constitution” does not change things. In international law, the term “constitution” is often used for a treaty establishing an international organisation.35 We must, therefore, consider the matter, first and foremost, in terms of international law, specifically the international law relating to treaties. In determining the consequences of non-ratification, two treaty provisions are relevant. The first is the provision at present in force on amendments to the Community treaties. This is relevant because the draft Constitution would clearly amend the present treaties—in fact, it would repeal two of them, the Treaty on European Union and the Treaty Establishing the European Community.36 The relevant provision is Article 48 of the Treaty on European Union. This provides that amendments to it must be ratified by all the Member States in accordance with their respective constitutional requirements.37 The second relevant provision is Article IV-447 of the Treaty Establishing a Constitution for Europe. It provides, in similar terms, that it must be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. It goes on to say that it will enter into force on 1 November 2006, “provided that all the instruments of ratification have been deposited”.38 If this does not happen, it would go into force after the last signatory did so. These provisions make absolutely clear that the draft Constitution can enter into force only if all the present Member States agree. Consequently, it follows that if one Member State fails to ratify the treaty, the draft Constitution will not go into force. In this event, the existing treaties would continue to apply, since their repeal depends on provisions of the draft Constitution. This is the legal position. Some Member States would not like this. What could they do? First of all, they could exert political pressure on the recalcitrant Member State to make it change its mind. In the case of Britain, at least, this could be withstood if there was the political will. If the other Member States felt strongly enough, they could, in theory, take a very drastic step: they could all withdraw from the Community and Union. The United Kingdom would then be the only one left. So the present Community and Union would cease to exist. The remaining 24 Member States could then establish a new Community based on the draft Constitution. The United Kingdom would then be faced with the option of joining on their terms or remaining outside. This, however, is mere fantasy. It would work only if the other 24 Member States were united, which they would not be. One could hardly believe that many, let alone all, would want, in eVect, to expel Britain. We are a major importer of agricultural products, almost certainly the biggest in the EU. Where would the Common Agricultural Policy be if we were to leave and buy our food on the world market? Where would the embryonic European defence policy be without the United Kingdom? What would happen to economic growth in the Community if the Member State with the most dynamic major economy were to leave? The draft Constitution is not so important to any of the other Member States for them to want to expel us. There is nothing in it that touches their vital interests. What in fact would happen if the United Kingdom were not to ratify is that the others might ask us to negotiate with them on a mutually acceptable solution. They might ask us to accept certain elements in the draft Constitution in exchange for opt-outs from others. We could even demand opt-outs from parts of the existing treaties. Everything would be open to negotiation. The outcome would depend on the bargaining positions of the participants and on how determined they were. This is what the consequences would be if the treaty was not ratified. 6 December 2004

APPENDIX 14

Memorandum from Professor Trevor C Hartley, Professor of Law Emeritus, London School of Economics Thank you for your letter of 21 December inviting me to answer some questions on the draft Constitution for Europe. It is not possible for me to deal with all of them; so I will conﬁne myself to the one question that concerns my written evidence. This is Question 14. (Questions 12 and 13 are framed as if they referred to my written evidence, but in fact I did not discuss the matters raised. They must have been intended for another witness.)

35 For example, in one of the best known definitions, that originally proposed by Sir Gerald Fitzmaurice in his report on the Law of Treaties presented to the International Law Commission in March 1956, an international organisation is defined as “a collectivity of States established by treaty, with a constitution and common organs, having a personality distinct from that of its member-States, and being a subject of international law with treaty-making capacity” (italics added): see [1956] II Yearbook of the International Law Commission 104 at p.108. Another example is the oYcial title of the treaty establishing the International Labour Organisation, which is the “Constitution of the International Labour Organisation”. This was adopted in April 1919 by the Paris/Versailles Peace Conference convened after the First World War. The same usage applies in French: the French text of the definition quoted above of an international organisation uses the word “constitution” (Annuaire de la Commission du droit international (1956-II) at p 106) and the oYcial French name for the treaty establishing the ILO is “Constitution de l’Organisation Internationale du Travail”. 36 See Art IV-437(1) of the Treaty Establishing a Constitution for Europe (Article numbering in this memorandum is always according to CIG 87/1/04 Rev. 1). 37 Italics added. 38 Italics added. 9945771027 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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In Question 14 you ask to what extent I think re-negotiation would be necessary and to what extent it might be “business as usual”. As I explained, from a strictly legal point of view, the draft Constitution would fail if rejected by a single Member State: the existing treaties would then continue to operate as before. However, from a political point of view, things might be diVerent. If only one Member State rejected it, there might be pressure on that State to fall into line. If that pressure were resisted, that State might be asked to agree to some special deal. It would not be obliged to enter into negotiations, but it might be under pressure to do so. It might also want to do so, since it might want to redeﬁne its relationship to Europe. However, these are all political matters. The legal position is as I have explained it. I hope this is helpful. 17 January 2005

APPENDIX 15

Memorandum from Anthony Arnull, Professor of European Law, University of Birmingham The Committee will ﬁnd set out below brief responses to the questions contained in the letter sent to me by its Clerk on 21 December 2004.

The Union’s Values and Objectives (Articles 2 and 3) Articles I-2 and I-3 of the Constitutional Treaty (CT) are intended to oVer, not just to specialists but also to the ordinary citizen, a clear and concise statement of the Union’s values and objectives. Their potential legal significance is in my view twofold. — First, in cases of ambiguity, the Union Courts would be likely to prefer an interpretation of other provisions which is consistent with the Union’s values and objectives as set out in Articles I-2 and I-3. This may be significant when the Courts interpret the legal bases for Union action contained in Part III of the CT or acts of the institutions adopted under those legal bases. — Secondly, Articles I-2 and I-3 may be relevant if the Courts are called upon to find a solution to a problem for which the CT does not expressly provide. All courts are sometimes confronted with problems of this type. The Union Courts are likely to be reluctant to endorse a solution which would have the eVect of undermining the Union’s values and objectives as set out in a Treaty agreed unanimously by the Member States and ratified by each of them in accordance with their own constitutional requirements. There is one case where the CT expressly prohibits the Court from taking into account the values set out in Article I-2. Breach by a Member State of those values may in extreme cases lead to the suspension of certain of its rights under Article I-59 CT. By virtue of Article III-371 CT, the Court of Justice will have jurisdiction, at the request of the Member State concerned, to rule on the legality of acts adopted under Article I-59, but “in respect solely of the procedural stipulations contained in that Article.” This may draw the Court into potentially sensitive disputes over the Union’s values, even though strictly speaking it will not be entitled to take them into account.

Primacy and Kompetenz-Kompetenz I am not a German lawyer and am not therefore best placed to comment on whether the German Federal Constitutional Court would regard the CT as justifying a departure from the Maastricht decision on the issue of Komptenz-Kompetenz. German writers suggest that that decision was a product, not just of Germany’s particular constitutional arrangements, but also of the political context in which the debate over the Treaty on European Union was conducted there. That context might now be diVerent. There is no doubt that, as a matter of Union law, the power the Federal Constitutional Court arrogated to itself in the Maastricht decision to review whether the Community institutions had acted within the limits of their powers would, if exercised, involve an infringement of Germany’s Treaty obligations and that the remedies laid down in the Treaty for dealing with such infringements would be applicable. There is also no doubt that it is not feasible to envisage a situation in which the validity of Union acts might be reviewed by the superior courts of all 25 Member States for compatibility with values regarded as important in their respective legal orders. The CT will therefore preserve the exclusive jurisdiction of the Union Courts to rule on the validity of Union acts. Moreover, it contains various provisions which might lead at least some national courts to feel more comfortable with that situation than perhaps they do at present. First, the provisions on competences in Title III of Part I of the CT, particularly the emphasis on the principles of conferral and subsidiarity, ought to reassure national courts that the Court of Justice will build on its recent case law on competence issues by examining closely the scope of the legal bases contained in Part III of the CT. 9945771028 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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More generally, the CT contains a number of provisions which serve to underline that the roots of the Union lie in the common values and constitutional traditions of the Member States and that those traditions, and the rights they recognise, will be respected (see eg Articles I-2, I-5, II-112(4) and II-113 CT). These features of the Constitutional Treaty were emphasised by the Spanish Constitutional Court in its declaration of 13 December 2004 that the Treaty was compatible with the Spanish Constitution. The Treaty provisions referred by the Spanish Government to the Constitutional Court included the primacy provision, Article I-6. The Constitutional Court pointed out that, in the last resort, the supremacy of its national constitution could be preserved by Spain’s withdrawal from the Union under the procedure laid down in Article I-60 CT. It has also been argued that restraint on the part of the national courts might be reinforced in States where ratification of the Constitutional Treaty involves an amendment to the national constitution which itself accords primacy to Union law or where the mere act of ratification is seen as an act of the national constituent power, a real possibility where ratification has been approved by referendum. The situation will vary from State to State. A rather diVerent line from that of the Spanish Constitutional Court was taken by the French Conseil Constitutionnel in its decision of 19 November 2004. The Conseil ruled that France could not ratify the Constitutional Treaty without amending its Constitution. However, it expressly excluded Article I-6, the primacy provision, from the category of provisions it considered inconsistent with the French Constitution. It came to that conclusion on the basis of an understanding of Article I-6 that is unlikely to be shared by the Court of Justice when, as seems inevitable, it is eventually asked to rule on that provision. The eVect of the Conseil’s ruling is diYcult to predict. One possibility is that the ordinary French courts, bound by the decisions of the Conseil by virtue of Article 62 of the French Constitution, will find it very hard to follow inconsistent case law of the Court of Justice. Another is that, once the French Constitution has been amended and the Treaty ratified, the French courts will regard themselves as authorised to give eVect to it in accordance with the case law of the Court of Justice. The draft amendment to Title XV of the French Constitution recently presented to the Assembleé Nationale provides that, “[d]ans les conditions fixeés” by the CT, “la France participe a` l’Union europeénne . . .” The “conditions fixeés” by the CT will be determined in cases of doubt by the Union Courts. Language such as that currently proposed might therefore be regarded by the French courts as authorising them to follow the Luxembourg case law.

The Charter and its Horizontal Clauses

Field of application The quotation from the “explanation” of Article II-111 (ex 51) contained in the letter of 21 December 2004 is incomplete: the explanation goes on to cite a decision of the Court of Justice which only refers to Member States when they implement Community rules. Taken as a whole, the explanation seems to conﬁrm that the Charter is not intended to aVect the Member States when they act within the scope of Union law in a broader sense, for example, when they rely on an exception or a derogation. However, the general principle of respect for fundamental rights enshrined in the case law of the Court of Justice, and preserved by Article I-9(3), applies to the Member States when they act within the scope of Union law. There is a certain incoherence in according the general principle a broader scope than the Charter. It is not inconceivable that the Court of Justice would regard the explanation of Article II-111 as authorising it to align the scope of the Charter with that of the general principle, even though that would undoubtedly involve some stretching of the language of that provision.

Citizenship The Court of Justice has already made it clear that citizenship of the Union is destined to be the fundamental status of nationals of the Member States. That status enables such nationals who ﬁnd themselves in the same situation to enjoy, within the material scope of the Treaty, the same treatment in law regardless of their nationality, but subject to exceptions which have been expressly laid down (see eg Case C-148/02 Garcia Avello v Etat Belge [2004] 1 CMLR 1). Citizenship does not in itself aVect the material scope of the Treaty; it requires Member States not to discriminate against the nationals of other Member States in situations which fall within the material scope of the Treaty. When a Member State seeks to rely on one of the exceptions for which Community law expressly provides, it must comply with the general principle of respect for fundamental rights. The rights upheld by the Court under that rubric include those enshrined in the European Convention on Human Rights (see eg Case C-60/00 Carpenter v Secretary of State [2002] 2 CMLR 64). Article II-111 suggests that the Charter would not apply where a Member State relied on an exception laid down by Union law (see above), but this seems unlikely to make any practical diVerence. In a case decided in the early 1990s, Advocate General Jacobs argued that, when a Community national went to another Member State as a worker or a self-employed person, he was entitled to “be treated in accordance with a common code of fundamental values, in particular those laid down in the European Convention on Human Rights. In other words, he is entitled to say “civis europeus sum” and to invoke that 9945771028 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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status in order to oppose any violation of his fundamental rights.” (See Case C-168/91 Konstantinidis [1993] ECR I-1191, 1212.) The Court decided the case on narrower grounds, but the possibility cannot be excluded that it will one day endorse a view similar to that put forward by Advocate General Jacobs, whether or not the CT enters into force. Either way, the crucial question is what the material scope of the Treaty is. The answer to that question is not aVected by the Charter, as Article II-111(2) makes clear.

Legitimacy I agree with Professor de Brca that the Charter, as incorporated in the CT, may strengthen the legitimacy of the Union. Article I-1 CT makes it quite clear that the new Treaty will not convert the Union into a State: on the contrary, the Union will continue to depend for its existence on the Member States and will only have the competences they have chosen to confer on it in order to attain certain common objectives. None the less, the Union exercises and will continue to exercise powers which would otherwise be exercised by the Member States and ought to oVer equivalent protection for the fundamental rights of its citizens. The need for such protection has been emphasised by the German Federal Constitutional Court and by the European Commission and Court of Human Rights. The incorporated Charter would oVer citizens of the Member States enhanced protection against infringements of their fundamental rights by the institutions of the Union. Even though the Charter contains provisions which the Union institutions are unlikely to infringe or which concern fields in which the Union will have no, or only limited, competence to legislate, the Union needs to be able to demonstrate that it recognises the fundamental rights it expects third countries to observe, notably in the context of the enlargement process and its development co-operation activities. The Union would lack credibility if it criticised a country for not respecting the prohibition on torture, for example, if no such prohibition featured in the Union’s own bill of rights. Provisions concerning fields in which the Union lacks legislative competence may none the less be relevant to the interpretation of Union acts. The Charter cannot have the eVect of extending the Union’s powers: see Article II-111(2). As for the Court of Justice, I do not think it is relevant to compare it with the US Supreme Court (which is much older) or the German Federal Constitutional Court (which is the product of particular historical and political circumstances). If one accepts the view of the Convention on the Future of Europe and the Member States that the Charter should be part of the CT, as I do, then the Court of Justice has to be given jurisdiction to rule on its meaning and eVect. It will share that responsibility with the courts of the Member States. Over the half century or so of its existence, the Court of Justice has established a good reputation among the national judiciary and the legal professions in the Member States. I believe we can have confidence in its ability to interpret and apply the Charter in an appropriate and measured way, although, as with all courts, there will inevitably be some decisions which attract criticism. If the Union were to accede to the European Convention on Human Rights, as envisaged by Article I-9(2) CT, the decisions of the Court of Justice would of course be subject to the scrutiny of the European Court of Human Rights in Strasbourg.

Article II-112(3) As the “explanations” make clear, Article II-112(3) means that provisions of the Charter which correspond to provisions of the ECHR must be interpreted as conferring at least an equivalent degree of protection, but do not prevent a greater degree of protection from being provided. This is consistent with the ECHR: see Article 53.

Article II-112(5) The last sentence of Article II-112(5) means that Charter provisions containing principles may be taken into account by a court only when they are considering the interpretation or validity of acts giving eVect to such principles. The principle has to be implemented by a Union institution, or by a Member State when giving eVect to Union law, before it can be considered by a court.

Jurisdiction of the ECJ Under the Constitutional Treaty Article 10 of the EC Treaty imposes on the Member States a duty to take all appropriate measures to ensure fulﬁlment of their Treaty obligations and to facilitate the achievement of the Community’s tasks. The Court calls this the principle of sincere co-operation. The Court has held that the same principle applies to the institutions both in their relations with the Member States and among themselves: see eg Case C-65/93 Parliament v Council [1995] ECR I-643, para 23; Case 2/88 Imm Zwartveld and Others [1990] ECR I-3365, paras 17 and 18. Article I-19(2) seems to be intended to reﬂect that case law in so far as relations between the institutions are concerned. Like the case law of the Court, it is concerned mainly with the political institutions. Although in principle it also applies to the Court of Justice, it will be for the Court to decide what that means in practice if called upon to do so. The Court can be relied on to ensure that respect for the rule of law, one of the values of the Union mentioned in Article I-2, is not undermined. 9945771028 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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It is impossible to do justice to the richness of the Court’s case law in a single sentence. There is no doubt that it has made a signiﬁcant contribution to the development of the Union. However, while some of its decisions have been adventurous, others have been characterised by restraint. There are even some which display at the same time both adventurousness on some points and restraint on others. The CT demonstrates that there is no general sense of dissatisfaction with the Court among the Governments of the Member States. The Court’s position would if anything be even more central if the CT were to enter into force than it is at present. Indeed, the CT gives the existing case law a striking vote of approval, Article IV-438(4) providing that it “shall remain, mutatis mutandis, the source of interpretation of Union law . . .” The Court’s main concern is, and will continue to be, ensuring that the law is observed in the interpretation and application of the Treaty. The Court will take account of the Union’s values and objectives set out in Articles I-2 and I-3. The values contained in Article I-2 are the most fundamental ones: the Union is said to be “founded” on them and, if a Member State commits a serious and persistent breach of them, its Treaty rights may be suspended. One of the values mentioned is respect for human rights. Moreover, Article II-113 provides that the Charter is not to be interpreted as restricting fundamental rights recognised, in their respective ﬁelds of application, by (among other things) the ECHR and the Member States’ constitutions. When the Union accedes to the ECHR, the case law of the Court of Justice would be subject to the scrutiny of the Strasbourg Court. I therefore think that the Court of Justice is likely to prove a doughty defender of the rights enshrined in the Charter.

Consequences of Collapse of Pillars—Direct Effect The conversion of what are now framework decisions within the meaning of Article 34(2)(b) TEU into European framework laws within the meaning of Article I-33(1) CT is in my view desirable. Direct eVect is essentially a mechanism for dealing with the situation, still all too common, where Member States fail to give eVect to measures of this type properly, thereby creating discrepancies in the way in which they apply across the Union and potentially depriving their beneﬁciaries of the rights they were intended to enjoy. Direct eVect to some extent enables those consequences of non-implementation or defective implementation to be avoided. In order for a provision to have direct eVect, it needs to display a certain degree of precision. Qualiﬁed majority voting should help to ensure that agreement is not impossibly diYcult to reach. Acts which lack precision but which the Member States are expected to implement are in any event undesirable. Infringement proceedings by the Commission will oVer another means of ensuring that Member States comply with their obligations to implement European framework laws. Such proceedings are not at present available when Member States fail to give eVect to framework decisions adopted under Title VI TEU. It is simply not tenable to argue that Member States should not be exposed to infringement proceedings when they fail to meet their commitments. However, infringement proceedings are not a substitute for direct eVect: they oVer no remedy for individuals adversely aVected by the infringement and take some time to conclude.

Foreign and Security Policy Article I-16 CT is one of the provisions on the CFSP which will be within the jurisdiction of the Court of Justice. That provision describes the Union’s competence in relation to the CFSP and, in its second paragraph, imposes certain obligations on the Member States. The Court of Justice might well consider at least some of those obligations justiciable. It is not entirely clear whether the Court is really intended to have jurisdiction over that paragraph, since it overlaps to a considerable extent with Article III-294(2). The latter provision, which is excluded from the jurisdiction of the Court of Justice by Article III-376, gives to the Council of Ministers and the Union Minister for Foreign AVairs the task of ensuring that the principles it lays down are respected. Unlike Article I-16(2), however, Article III-294(2) does not require Member States to comply with “the Union’s action in this area.” This raises the question whether the Court is intended to have the power to review compliance by Member States with that requirement. Presumably the answer to that question is “yes”, for otherwise the apparently deliberate exclusion of Article I-16 from Article III-376 would be undermined. The limited jurisdiction of the Court of Justice over the CFSP becomes particularly problematic in the context of Article I-6, the primacy provision. The existing doctrine of primacy does not extend to the second or third pillars. The abolition of the pillar structure would make the doctrine of primacy potentially applicable across the entire range of the Union’s activities. Because most of the provisions on the CFSP would fall outside the jurisdiction of the Court, it is unclear to what extent a national court would in that context be able to ask the Court of Justice for guidance on the eVect of Article I-6 (which would itself be within the jurisdiction of the Court). If national courts are left to their own devices, there will inevitably be divergence between Member States. The Union’s growing ambitions in the ﬁeld of foreign policy, particularly the increasing scale of its military operations, make it almost inevitable that its actions will be subjected to legal challenge. The recent Baha Mousa case in the Court of Appeal and the unsuccessful applications ﬁled by Serbia and Montenegro 9945771028 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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at the International Court of Justice against a number of States, including the United Kingdom, provide examples of the types of legal dispute to which military action may give rise. The court best placed to deal with such disputes arising out of action taken by the Union in the framework of the CFSP is the Court of Justice. 24 January 2005

APPENDIX 16

Memorandum from the Trades Union Congress (TUC) The TUC welcomes the invitation from the European Scrutiny Committee to provide written evidence on the implications of the incorporation of the Charter of Fundamental Rights in to the EU Constitutional Treaty for UK and EU law. The TUC welcomes the underpinning provided by the Constitutional Treaty for the EU social model and the role for the social partners and social institutions. We also fully support the incorporation of the Charter of Fundamental Rights in the Treaty. The Charter is a landmark document, enshrining fundamental rights recognised across the European Union, including both civil and political rights and social and economic rights. The incorporation of the Charter within the Constitutional Treaty is of central importance as it embodies the common values, principles and fundamental rights, to which all EU Member States subscribe, aYrms the importance of these rights and requires the EU institutions to respect and to comply with them. The Charter embodies rights and freedoms central to the trade union movement and working people, including rights to information and consultation, collective bargaining, industrial action, protection from unjustified dismissal and fair and just working conditions (Articles II-87 to 92). There has been wide-ranging debate on the implications for national law and EU law of the incorporation of the Charter of Fundamental Rights into the Constitutional Treaty and whether it could provide an independent source of rights at work (for example through the doctrines of “direct” or “indirect” eVect) or will form a basis for challenging national laws which incorrectly or inadequately transpose EU law providing rights at work. The remainder of this letter sets out some of the TUC’s views on this debate, although ultimately it will be for the European Court of Justice and national courts to determine these issues. It is clear that the Charter will have an important role in the interpretation and application of EU law and could be used as a basis for challenging national laws which incorrectly or inadequately transpose EU Directives. Indeed the Charter, in its current form, has already been cited in over 50 cases before the European courts. An example of the influence of the Charter in interpreting EU laws is found in the Opinion of the Advocate General Tizzano in Case C-173/99 (BECTU), which concerned a complaint against the UK’s implementation of the Working Time Directive as regards the provisions for paid annual leave. Upholding the complaint, he stated that in interpreting the Directive “the relevant statements of the Charter cannot be ignored; in particular, we cannot ignore its clear purpose of serving, where its provisions so allow, as a substantive point of reference for all those involved—Member States, institutions, natural and legal persons—in the Community context. Accordingly, I consider that the Charter provides us with the definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right.” (Case C-173/ 99, BECTU v Secretary of State for trade and Industry, Opinion of the Advocate-General, 8 February 2001; ECJ decision, 26 June 2001, [1991] ECR I-4881). In addition, as a result of incorporation of the Charter, the Community are unlikely to be able to introduce laws which conflict with or limit the rights enshrined within the Charter, including for example, rights to information and consultation, collective bargaining or the right to strike. Whether the incorporation of the Charter within the Constitutional Treaty will provide an independent source of rights for workers, which could be used to challenge national legislation, is a matter which ultimately will be determined by the courts. The text of the Charter and accompanying explanations suggests that the rights in Articles II-87 to 92 will be applied in accordance with EU law and national laws and practice. However, the text of the Charter reflects the European Convention on Human Rights and the European Social Charter, to which all EU Member States are signatories. Since the introduction of the Human Rights Act, the UK courts have been increasingly willing to scrutinise the extent to which UK laws comply not only 9945771029 Page Type [O] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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with the European Convention on Human Rights but also with other international treaties. The incorporation of the Charter within the Constitutional Treaty will underline the extent to which EU Member States are under a duty to comply with and promote minimum international standards. 24 January 2005

APPENDIX 17

Memorandum from the Confederation of British Industry (CBI)

CBI RESPONSE TO THE EUROPEAN SCRUTINY COMMITTEE ON THE INCORPORATION OF THE CHARTER OF FUNDAMENTAL RIGHTS INTO THE TREATY ESTABLISHING A CONSTITUTION FOR EUROPE The CBI is the national body which represents the views of the UK-based business community to the UK government and to other authorities in the UK, Europe and elsewhere. It is an independent, non-party political organisation funded entirely by its members in industry and commerce. The CBI is the UK’s leading business organisation, speaking for some 240,000 businesses that together employ around a third of the private sector workforce. We welcome the opportunity to input into the discussions on the proposed New European Treaty—the CBI has followed the progress of the Convention and the subsequent Intergovernmental Conference (IGC) with great interest, particularly the issue of the Charter of Fundamental Rights and its status within the framework of the proposed Treaty. The CBI consulted its members in the autumn of 2003 after the Convention had completed its work, and one of the main points of concern that they shared was the potential threat from the Charter of Fundamental Rights to the UK’s employment laws and practices. Following this consultation Sir Digby Jones, the CBI’s Director General, sent a letter to the Prime Minister before the European Council meeting at the end of 2003, which cited the potential eVects of the Charter as one of the main concerns of business in the context of the negotiations. It is imperative for UK business that employment law remains the preserve of national lawmakers. The IGC ﬁnally decided, after resistance from some Member States, to incorporate the Charter into the main body of the Treaty, with some amendments to the preamble and horizontal articles of the Charter text.

Changes to Charter Preamble,Horizontal Articles The Praesidium of the Convention amended the Charter’s preamble to add the following text: “In this context the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared under the authority of the Praesidium of the Convention which drafted the Charter and updated under the responsibility of the Praesidium of the European Convention.” The ensuing IGC also amended the horizontal articles which speak of the scope of the Charter, adding a new paragraph to article 52 which details the scope and interpretation of the rights and principles contained in the Charter: “7. The explanations drawn up as a way of providing guidance in the interpretation of the Charter of Fundamental Rights shall be given due regard by the courts of the Union and of the Member States.” The CBI recognises that the changes to the text signal an intention on the part of some governments to clarify the extent to which the Charter is justiciable. They attempt to place each of the rights elaborated within the proper legal context of EU and national laws by reference to the explanations which were attached to the Charter when it was drafted. The Charter had already been referenced several times by the European Court of Justice (ECJ), and it was necessary from that point to deﬁne the true nature of the Charter when courts were considering cases of fundamental rights. There are, nevertheless, certain questions surrounding the Charter which have yet to be fully answered. Little has been released in the way of proper legal or academic research into the practical implications of the revised Charter wording. In part this is down to the fact that it is impossible to foresee how the ECJ will use the Charter in future judgements, given that any attempt to limit what the court can do would clash with normal legal practice. The explanations are intended to be used as a guide to interpreting each of the articles in the Charter— so, for example, the right to strike is qualiﬁed by the fact that “Collective action, including strike action, comes under national laws and practices, including the question of whether it may be carried out in parallel in several Member States.” However, it is stated in other areas that the explanations have “no legal value”, so the situation is not clear. Again, it is going to be dependent on the decisions of the ECJ in the future. 9945771030 Page Type [E] 31-03-05 03:49:35 Pag Table: COENEW PPSysB Unit: PAG3

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Views have been requested on a particular part of the new Treaty, but comments must take into account the rest of the text, and treat it as a whole. Article III-210, paragraph 6 (on the speciﬁc areas of policy that are fenced oV from EU action), as well as the more general articles on EU competences and the principle of conferral all play a part in any evaluation of the potential impact of the Charter on UK employment practice. As part of the CBI’s consultation of its members in 2003, the question was also posed as to future work and evaluation of the Treaty. It was decided to continue the valuable work of informing members of changes proposed, and to hold oV on a full consultation until after any referendum is called by the government. It is then that a clear picture can be gleaned from business as to their judgement of the Charter, and once this has happened we will be able to develop a more detailed position that we will be more than happy to share with the Committee. 27 January 2005

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