House of Commons - European Scrutiny

Select Committee on European Scrutiny Written Evidence

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 effect 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 affecting 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 affect 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 affect only EU institutions, not national jurisdictions?" Skouris replied: "It's difficult 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 affect 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 affect 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."

Why the safeguards are inadequate

The Government has two arguments why the Charter will not affect 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 affecting 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 affecting 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 affecting national law"

The Government's main argument now is that changes made to the so-called "horizontal articles" of the Charter will stop it affecting national law. However, the wording of the supposed new legal safeguards has several obvious flaws, and lawyers believe they will not stop the Charter affecting 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 affected 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:

lowest common denominator

appreciates them more freely

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 effect 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 effect 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 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 sufficient 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 effectively 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 affect 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 different 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 effect 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 effects, including direct effect 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" effect); (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 difficult to see how the incorporation of the Charter can be anything other than a step in the wrong direction.

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

— Home affairs 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 affairs 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 offences 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 different 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 affairs. 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 affairs issues would no longer be considered a separate "pillar" with distinct rules as in previous treaties. This means that justice and home affairs 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 effective veto over member states.

Home affairs 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 affairs and enforcement of mutual recognition of legal judgments

III-164 Administrative co-operation in justice and home affairs

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 *

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 affairs policies for the first time. This means that the European Court of Justice will be able to rule on all home affairs 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 different 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 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 effect 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 differences 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 offences 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 trafficking, 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 offences. The list of offences 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.

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 sufficient 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 staff of over 350, projected to rise to 480.

But Europol has major problems which have not yet been addressed. In 2001, its offices 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 officers only. There have been complaints that bodies appointed in order to supervise it formally have been denied information. Officers 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 Office is proposed in Article III-175 under the auspices of Eurojust. The office would have responsibility for pursuing perpetrators of crimes which affect 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 Office 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.

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 difference between continental and common law systems to be taken into account does not offset 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 difficult 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 affirmed 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 Affairs 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 offer 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 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 affecting 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 affect decisions having military of defence implications, but will affect 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 Affairs 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 effort 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 effectively 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 Affairs 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 affairs, 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 sufficiently 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 affairs. Asked whether "your responsibilities will include foreign affairs, for example?" He replied, "It's not excluded". Asked whether "in the foreign affairs 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.

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 effectiveness". 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



© Parliamentary copyright 2005	Prepared 6 April 2005