Letter to the Chairman of the Committee
from the Minister of State for Europe, dated 11 November 2004
Thank you for the opportunity to discuss the
IGC with your Committee on 28 October. I hope that you found the
occasion as useful as I did. I undertook to follow up in writing
three questions that were raised during the session.
First of all, John Maples and Gisela Stuart
asked about the Charter. I enclose a note giving more detail of
the Government view of the improvements made to Title VII of the
Charter. The Charter Articles are written in broad terms, but
we achieved a number of significant improvements in the Convention:
we negotiated important new provisions governing interpretation,
and we secured wide ranging changes for the better in the technical
Explanations which help give legal chapter and verse. These have
put the Charter in much better legal shape, but, as John rightly
pointed out, we have agreed to nothing, except to consider what
is on the table. We made this commitment at the Nice European
Council when we agreed that the Charter's status would be reviewed
at the next IGC. We will make a final decision on incorporation
only in light of the overall picture of those discussions.
Specifically on Gisela's point on the difference
between rights and principles, we are satisfied that this is adequately
covered in the bullet point concerning Article 52(5) and its Explanation.
Andrew Mackinlay asked about the use of the
Gibraltar base facilities in future ESDP operations. Under ESDP
arrangements national forces and facilities are made available
for ESDP operations by decision of national governments at the
time of an operation. We would take a decision on which forces
and facilities to offer in the light of the requirement for a
specific operation and the circumstances at that time.
Andrew also asked about entitlement to vote
in "municipal" elections (Article I 8 (2) of the draft
Treaty). The provisions of the draft Treaty will not change the
position on voting rights in the UK, which has pertained in the
UK since we implemented Directive 94/80 in 1995. Citizens of Member
States of the EU resident in the UK can vote and stand for election
in all local elections—that is, parish (community in Wales),
district, and county council elections (county borough elections
in Wales, local government elections in Scotland), and elections
to the Common Council of the City of London. It is up to Parliament
to decide what the franchise will be for other bodies, such as
the National Assembly of Wales, the Scottish Parliament, the GLA
and any forthcoming regional assemblies, since elections to these
bodies are not municipal elections for the purposes of the Directive.
As it happens, they all use (or intend to use) the local government
franchise.
The exact interpretation of the word "municipal"
differs between Member States according to the provisions of an
annexe to Directive 94/80. It is true that Andrew's proposed rewording,
a text declaring that EU citizens can vote in all but the national
elections of all Member States, would give a more comprehensive
guideline for Member States. But it might not be acceptable to
Member States where, for example, the regional and national assemblies
are not as clearly differentiated as they are in the UK. It would
of course also tie Parliament's hands on the franchise for certain
elections, as set out above, and for referendums on issues of
specific national interest, where it might feel that a national
franchise was more appropriate. But I am grateful to Andrew for
the suggestion, and I am sorry that we have not responded to it
before.
Finally, on the subject of ESDP, Richard Ottaway
asked about the EU's planning capacity for military operations.
I thought it might be useful to set out what the EU has at present,
and the proposal we have made for a permanent EU Cell at Supreme
Headquarters Allied Powers Europe (SHAPE) (covered in the Government's
Food for Thought prepared paper for the Italian Presidency's 29
August ESDP meeting, a copy of which I sent you in early September).
There are two main phases to the planning of
EU-led military operations. The first, "strategic" phase
involves making broad order choices about the type of mission
to be carried out. The Nice permanent arrangements for ESDP provides
for this work to be led by the EU Military Staff, housed in the
Council Secretariat in Brussels. Nice also provides for SHAPE
to make an input into this process.
The second, more detailed, phase is operational
planning. This begins once the EU has taken a decision in principle
to conduct an operation, and selected an Operation HQ and Operation
Commander. For a Berlin Plus operation (ie an operation with recourse
to NATO assets and capabilities) experts from Member States would
be based at SHAPE, working under Deputu Supreme Allied Commander
Europe. This is the case, for the EU's military operation in Macedonia.
For an operation without recourse to NATO assets, the existing
approach is to use national HQs capable of mounting multinational
operations. For the EU's operation in the Democratic Republic
of Congo this summer, experts from a number of Member States worked
together at the French national HQ working with a French General
as commander.
There is a range of options on the table for
strengthening the EU's capacity to prepare for and plan EU autonomous
operations. One is the Tervuren idea for a common Operation HQ
for the EU, with which we disagree. Another is the UK proposal
for a permanent EU planning cell at SHAPE. This would be part
of the EU Military Staff, but based at SHAPE, reinforcing the
EU/NATO link. The cell would strengthen the EU's capacity to do
strategic planning, drawing also on expertise at NATO. In the
event of an operation some of these experts could also deploy
to the designated operation headquarters to reinforce the planning
capacity.
I hope the Committee finds these supplementary
remarks helpful.
I am copying this letter to Lord Grenfell, Chairman
of the Lords European Scrutiny Committee, Jimmy Hood MP, Chairman
of the Commons European Scrutiny Committee, the Clerks of both
Committees and the Cabinet Office Secretariat.
Denis MacShane MP
Minister of State for Europe
Foreign and Commonwealth Office
11 November 2003
Annex 1
The amendments we obtained in the Convention
perform several important functions:
— Article 51(2) of the Charter (as
amended by the Convention) now makes clear beyond doubt that the
Charter will not extend the powers of the Union despite the fact
that the Charter is included in the new Constitutional Treaty.
So, for example, although the Charter now includes the right to
liberty (Article 6 Charter, derived from Article 5 ECHR) this
does not mean that the Union will now be able to legislate in
relation to this right: such legislation will remain purely a
matter for Member States. Article 6 Charter will simply require
the Union Institutions and Member States when they are implementing
Union law, to ensure that Union legislation on other subjects
respects the right to liberty.
— Article 52(5) is also very important.
It confirms that the Charter contains principles as well as rights
and it clarifies that there is no legal obligation on the Union
or Member States to implement such principles. This provision
is especially relevant to the social and economic provisions in
the Charter, many of which are not based on existing provisions
in Community law. For example, Article 25 Charter deals with the
right of the elderly to "lead a life of dignity". But
the Charter Explanations make clear that Article 25 is a principle.
And Article 52(5) makes clear that there is no legal obligation
on the Union or on Member States to legislate to ensure that this
aspiration for the elderly people is achieved. Such principles
are merely included in the Charter to ensure that when the Union
does act in other areas within its powers it does so in a way
which does not adversely affect Charter principles.
— Article 52 has also been amended
to require rights resulting from the constitutional traditions
common to the Member States to be interpreted in harmony with
those traditions. EU law already allows the Courts to infer that
fundamental rights, which are common to the constitutional traditions
of the Member States, should be treated as general principles
of Community law. Clearly, it is desirable that the Courts should
interpret such rights in a way that shows proper respect for individual
national traditions. "In harmony" seems to me to be
rather a helpful way of describing how this interpretation work
should be done. We do not want the Court to strike discordant
notes in this sensitive area of national constitutional traditions.
— Article 5 2(6) is a new provision
which picks up on the various references in the Charter to national
law and practices. Article 52(6) requires the Court to have proper
regard to such references.
— Finally, the he draft Constitution
now includes a very useful provision requiring the Courts to pay
"due regard" to the Charter Explanations (they were
formerly presented as having no legal value).
The Charter is in much better legal shape, but,
as you rightly pointed out, we have agreed to nothing, except
to consider what is on the table. We agreed at Nice that the Charter's
status would be reviewed at the next IGC and we will make a final
decision on incorporation only in the light of the overall picture
in those discussions.
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