Conclusions and recommendations
Values and objectives
1. Given
the variety of views expressed by our witnesses, we find it difficult
positively to conclude that the provisions on values and objectives
in the Constitutional Treaty mark a substantive change from the
similar provisions in the EU and EC Treaties, or that they will
be treated differently by the ECJ. Nevertheless, we draw attention
to the new concepts expressed in the Constitutional Treaty, such
as 'social justice' and the rights of the child, which mark an
emphasis on social rights, and to the views of some of our witnesses
that the values and objectives in the Constitutional Treaty might
affect the direction of legislative activity and the way subsidiarity
is defined. (Paragraph 16)
Primacy
2. We
accept that, in strictly legal terms, the primacy provision in
Article I-6 of the Constitutional Treaty does not alter the existing
relationship between EU law and national law, or the means by
which any conflict between them is resolved, or the extent of
parliamentary sovereignty. International obligations, including
EU law in general and the primacy principle in particular, can
take effect in domestic law in the UK only through an Act of Parliament,
which can in turn be amended or repealed by a later Act. The
principle that Parliament cannot bind its successors ultimately
depends on acceptance by the UK's courts, and we note the theoretical
possibility that explicit agreement by the UK Parliament to the
primacy principle in the Constitutional Treaty could result, over
time, in the UK's courts giving greater weight to that principle
as against any UK legislation inconsistent with it. However,
if Parliament were to pass legislation which was clearly expressed
to be inconsistent with EU laws, it would amount to a constitutional
and legal revolution for any court in the UK to assert that the
principle that Parliament cannot bind its successors no longer
applied, and we consider it inconceivable that any court in the
UK would, in any foreseeable circumstances, behave in this way.
Our conclusion is therefore that the codification of the principle
of primacy in Article I-6 of the Constitutional Treaty would maintain
the existing situation. (Paragraph 32)
3. The omission of
Article I-16 from the application of Article III-376 (which excludes
the other CFSP provisions from ECJ jurisdiction) appears to us
illogical, but we consider it unlikely that this omission will
result in the extension of ECJ jurisdiction to the CFSP. (Paragraph
37)
Legislative meetings of the Council in public
4. We
accept that some of the discussion of legislation will inevitably
be in private, just as in national legislative systems, but we
look to the UK Government to ensure that public discussion is
not artificially restricted by shifting most of the discussion
to informal meetings. (Paragraph 45)
5. It will be important
that legislation is not referred from the Council to the European
Council simply so that it can be dealt with in private, and we
believe that, at the very least, the requirement for full reports
on European Council meetings by the Prime Minister and the opportunity
for sustained questioning of him will be increased. (Paragraph
47)
6. We ask the Foreign
Secretary to keep us informed of the Council's discussions on
implementation of the requirement to meet in public when legislating,
and suggest that he make a statement to the House on the subject
when more is known. (Paragraph 48)
7. We recommend that
the Government press for public meetings of the Council to be
broadcast and webcast and for there to be an official transcript.
(Paragraph 50)
8. We recommend that
the Government press for the Council to start meeting in public
when legislating in advance of the Treaty being ratified, and
that it use the UK Presidency as an opportunity to achieve this
in 2005. (Paragraph 52)
Reform of the Council
9. We
continue to believe that a longer-term European Council Presidency
will be a better system than the existing one, but we accept that
is hard to predict at this stage how it will work in practice,
and that careful management and a willingness to cooperate will
be essential in some areas, especially as regards the new system
of team presidencies. We reserve judgment on the question of
the accountability of the European Council President until it
is clearer whether he or she has more than a co-ordinating role.
(Paragraph 58)
10. We would have
preferred a less grandiose title than Minister for Foreign Affairs,
but we recognise the need for better co-ordination of the EU's
foreign policy, and we hope that creation of the new post will
have that result. Matters of responsibility and accountability
are particularly difficult in foreign affairs because of the differing
roles of the EU institutions and of Member States. It remains
to be seen whether 'double-hatting' will work well, but, on balance,
it would appear that the indications are positive. (Paragraph
65)
Enhanced cooperation
11. The
provisions on enhanced cooperation have, to some extent, been
simplified, but we agree with our witnesses that such simplification
will not, in itself, make enhanced cooperation more likely. Of
greater significance are political factors and the fact of enlargement
of the Union to 25 Member States. We believe it is right to maintain
strict conditions for the commencement of enhanced cooperation,
in order to protect the interests of non-participants, but we
accept that a procedure limited as in the Constitutional Treaty
might provide a useful safety valve. On the other hand, we would
regard as unacceptable any tendency to use the procedure as a
means of coercing individual Member States into agreeing EU measures
and policies. (Paragraph 75)
The Charter of Fundamental Rights
12. It
could be argued that the Explanation for Article II-111 appears
to reduce rather than increase legal certainty. But Article II-111
should be sufficient to ensure that the ECJ will not advance its
human rights jurisdiction beyond the scope of Union law as defined
in its present case-law. (Paragraph 87)
13. We do not share
the Government's optimism that the horizontal clauses in the Charter
effectively resolve any potential for conflict between the Charter
and the ECHR, but we note the general expectation that the ECJ
will continue its established policy of closely following the
case-law of the European Court of Human Rights and of avoiding
conflict between the two courts as far as possible. (Paragraph
91)
14. We agree that
the distinction between rights and principles in the Charter is
somewhat unclear, and we are concerned that it could be left to
the ECJ to determine which rights in the Charter will be directly
justiciable and which will not be. (Paragraph 93)
15. While it could
be argued that the Charter's horizontal clauses lack clarity and
that the safeguards against unilateral extensions of the Union's
powers could be stronger, we do not regard the incorporation of
the Charter into the Treaty as likely to increase either the current
degree of legal uncertainty or the current risk of the judicial
extension of the Union's competences. (Paragraph 95)
The Government's 'red lines'
16. We
strongly oppose the passerelle clause, but accept that the national
veto provided is an adequate safeguard. (Paragraph 103)
17. It is clear that
the Government's 'red line' has been held in relation to taxation,
Own Resources and Treaty revision. With regard to social security
and criminal law the 'red line' has been maintained through the
'emergency brake' mechanism. (Paragraph 104)
The 'emergency brakes'
18. We
accept that the 'emergency brake' mechanism will provide clear
protection to a Member State which believes a measure affects
fundamental aspects of its criminal justice or social security
systems. But it should be noted that it is, of course, a quite
different procedure from straightforward unanimity and will mean
that political considerations will come into play at the level
of the European Council. (Paragraph 119)
19. We believe that
special care will be needed by Ministers to ensure that the special
features of the different legal systems in the United Kingdom
are fully taken into account when considering use of the emergency
brake procedure. If the Treaty comes into force, we will expect
Ministers to explain fully in their Explanatory Memoranda and
other evidence to us the impact of EU proposals on such features
and the consideration the Government has given to using the emergency
brake to protect them. (Paragraph 120)
Criminal justice
20. We
welcome the requirement for there to be a cross-border dimension
before EU action is possible, and the limits on the scope for
action in relation to substantive criminal law. In these respects
the Treaty's provisions would be better than the existing situation.
We also accept that a number of safeguards have been included
in the Treaty. We have reservations about the voting arrangements
for the adoption of criminal justice measures under the Treaty.
Nevertheless, we accept that the emergency brake procedure can
provide an effective mechanism to protect Member States which
are initially outvoted. (Paragraph 139)
21. We
continue to have concerns about the establishment of a European
Public Prosecutor, but we note that it can be established only
by a unanimous decision. (Paragraph 140)
Consequences if the Treaty is not ratified
22. We
believe that the Constitutional Treaty contains a number of helpful
changes to improve the way the EU operates. There is some evidence
to suggest that the EU might continue to operate reasonably well
without them but, on balance, we believe that the Treaty merits
positive consideration. (Paragraph 143)
23. We do not accept
that if the UK was alone or nearly alone in rejecting the Constitutional
Treaty this would necessarily lead to its exclusion from full
membership of the EU, but we do accept that such a decision would
result in a crisis in the UK's relationship with the EU, with
unpredictable consequences, which could well undermine Britain's
national interest. (Paragraph 154)
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