Written answers by the Rt Hon Jack Straw
MP, Secretary of State for Foreign and Commonwealth Affairs, 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 different 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 effectiveness, 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 affect 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 different. 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 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 effective are the "emergency
brakes" in criminal justice and social policy likely to be?
In particular, do they protect vital national interests as effectively
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 effective 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 affects fundamental aspects of its system.
9. In both cases pulling the emergency brake
effectively 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 "affect
fundamental aspects of its social security system, including its
scope, cost or financial structure, or would affect 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 difference between
the new provisions and unanimity. Functionally the same is true
for criminal law. The practical difference 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 sufficiently 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 different
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.
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."
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 effectively 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 difficult 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 Affairs and External
Affairs Commissioner, rather than merging them for greater efficiency
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 trafficking, illegal immigration and terrorism. There
would be a far less effective 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 differ 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 effect 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
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